The All-Scotland Personal Injury Court recently considered these issues in the case of Neil Robertson v Esure Insurance Limited.
Robertson, a trainee solicitor made a claim for personal injury and losses including repairs and credit hire arising out of a road traffic accident. The case ultimately settled for £5000 plus expenses at a pre proof meeting. The case came before the court as a result of the Pursuer's motion for sanction for Counsel.
Section 108 of the Courts Reform (Scotland) Act 2014 outlines the circumstances in which the court may sanction the employment of Counsel. Sanction will be granted if the court considers it reasonable having regard to all the circumstances of the case. The court must consider the difficulty and complexity of the matter and the importance or value of the claim. Consideration is also given to the “desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel”. In this case Robertson sought sanction for Counsel due to the importance of the claim.
Trainee Solicitor's credibility questioned?
It was said that the Defender was relying on the fact that the Pursuer had not consulted his doctor following the accident and the impact occurred at low speed to challenge the Pursuer's clam. It was said that the import of the defence was that the Pursuer was lying and the alleged attack on the Pursuer's credibility was of the utmost importance having regard to his intention to be deemed a fit and proper person when seeking admission as a solicitor.
The Defender stated that all pursuers potentially face challenges to their credibility and that Robertson's future career prospects would be more likely to depend on his performance during his traineeship that anything arising from the result of this case.
Conflict in acting for injured party and Credit Hire Company?
The Pursuer's agents were instructed by the Pursuer, but also the credit hire company. It was said that there were evidential difficulties arising in advising on settlement when a global settlement figure was put forward since it would require to be divided between the Pursuer's compensation and that due to the credit hire company. It was claimed that Counsel would be seen as independent when it came to considering any settlement offer.
The Defender referred to case law that credit hire did not make the case complex. Reference was also made to the standard practice of global settlements and that allowing sanction for Counsel for such a reason would affect every case.
Sheriff McGowan accepted that the case being of particular importance to the Pursuer, could be sufficient to merit sanction for Counsel. However, consideration was required of the nature of the decision that might be made by the court in relation to credibility and its potential impact on the Pursuer; and the weight to be attached to that factor having regard to all the other circumstances of the case.
Sheriff McGowan was unable to detect any suggestion that the Defender's position was that the Pursuer was lying or exaggerating. The focus appeared to be on causation having regard to the Pursuer's pre-accident medical problems. It was not likely that the court would have been in the position of adjudicating on the binary question – honest or liar.
In relation to the potential conflict of interest Sheriff McGowan said that the introduction of Counsel did not resolve that issue. Any issue arose from the Pursuer's agents electing to act for the Pursuer and the credit hire company. That choice and any difficulties it may create were external to the proceedings and not part of them.
Sanction for Counsel was refused.
To read the full judgement click here.