The recent opinion of Appeal Sheriff Andrew Cubie in David Brown v Aviva Insurance Limited  SAC (Civ) 34 will be of interest to all practitioners who instruct counsel in the sheriff court.
This was a summary cause personal injury action in which the pursuer, a serving police officer, claimed damages for whiplash injuries sustained in a rear end collision. Liability was admitted for negligence in driving, but it was not admitted that the pursuer had in fact sustained any injury in the accident. Causation of injury was therefore at large. Both parties instructed junior counsel.
The pursuer was successful at proof, but sanction for junior counsel was refused. Whilst acknowledging the importance of the action to the pursuer, the sheriff refused to grant sanction on the basis that this was not the reason the pursuer chose to instruct counsel. The decision to refuse sanction was appealed.
Notwithstanding the test to overturn a discretionary decision of a sheriff is a high one, Appeal Sheriff Cubie considered that the sheriff at first instance had erred in failing to give sufficient weight to the importance of the matter to the pursuer. Taking account of the terms of the statute and on an objective consideration of the case he granted sanction. The considerations he took into account in arriving at that decision were: the acknowledged importance of the matter to the pursuer; the sheriff’s view that, despite the defenders’ denial of an attack on the pursuer’s credibility, that is what in fact happened; and, finally, the employment of counsel by the defenders, which, although not giving rise to an unfair advantage is a factor to which the court may have regard in terms of s108(4).
The opinion also contains helpful comment on the circumstances in which an appeal court may consider the merits of a first instance decision where there is concession or agreement from the respondent.
The action was conducted at first instance by the Themis Advocates’s Andy Crawford. The appeal was conducted by Andy and Andrew Smith QC.
Full text of the opinion can be downloaded at the following link: