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Is the Tide Turning? Sanction for Counsel Refused Again - Kate Donachie, Brodies

30/11/17. The Sheriff Personal Injury Court has recently issued two decisions refusing sanction; Sheriff Mackie’s in McKenziev McCormack and now an unpublished decision issued by Sheriff McGowan last week in McCracken v Kazanowski. McKenzie is the only published refusal of sanction since the new court was created two years ago and there were very few, if any, applications refused before that. These recent decisions are a sign that sanction is not always a given; and it may be that the direction of travel has changed.

McCracken v Kazanowski arose from a road traffic collision. The claimant was a passenger in a stationary vehicle that was involved in a rear end collision. Liability was admitted pre-litigation. The claimant suffered minor injuries and each party obtained reports by orthopaedic and engineering experts. The crux of the dispute was whether or not the collision had been significant enough to cause the claimant’s injury. In support of the argument that the pursuer had not been injured, the defender produced photographs of the claimant weight training in the gym shortly after the accident.

The case settled for £1,200 which had been offered by way of a defender’s tender (part 36 offer) made three days before the pre-trial meeting. The claimant had instructed counsel to represent him at that meeting. The claimant asked the Court to grant sanction for counsel. It was argued on his behalf that counsel was required because it was necessary to give advice in relation to conflicting expert evidence and to criticisms of the claimant’s credibility.

Sheriff McGowan refused the application. He was not persuaded that the case was of sufficient complexity to satisfy the statutory test found at Section 108(3)(a)(i) and (ii) of the Courts Reform (Scotland) Act 2014. Indeed, he concluded that the case, “would not have presented any difficulty whatsoever for a reasonably competent solicitor versed in basic Sheriff Court Practice.”

He also commented that, in arriving at his decision, it was useful to consider the decisions in Cumming, Brown and McKenzie where sanction for Counsel had been refused.

It is hoped that these recent decisions indicate a stricter approach from the bench of the use of counsel in straight forward ASPIC cases. Each case has to be decided on its merits and this issue is likely to be contested in future cases.

Brodies represented the defender in McCrackenvs Kazanowskiand appeared at the opposed motion hearing.

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