Child's Play? The Question Of Sanction For Counsel In The All-Scotland Sheriff Court

When a case settles for a low amount in the new All-Scotland Personal Injury Court, how will the court apply the new test for sanction for counsel?

The case

V (as parent and guardian of J (a Child)) v M&D Leisure Limited [2016] SC EDIN 22

The issue

The All Scotland Personal Injury Court is still in its infancy, and there has been some speculation as to how the court will deal with sanction for counsel now that there is no automatic right in cases below £100,000.

This recent decision involving a claim brought on behalf of a child which settled within the adjustment period gives some indication as to the approach the court may take.

The facts

J, a 10 year old boy was playing crazy golf at M&D's theme park at Strathclyde Country Park. As he was moving from one hole to another, he had to use some wooden steps. When he did so, he slipped, and his chin came into contact with the end of the putter he had been given. The rubber had been worn away, and as a result, he sustained a nasty laceration to his chin.

He said that the slip was due to the steps being wet, and the laceration was due to the poor state of the rubber grip on the club.

Liability was denied by M&D, but before the end of the adjustment period, a tender for £12,500 was lodged, and accepted. In accepting the tender, V moved for sanction for counsel, who had consulted with J, prepared adjustments and a valuation. This was opposed by M&D, who argued that sanction for counsel should not be granted.

V argued that the case was more complicated than normal as it proceeded under both common law and the Occupier's Liability (Scotland) Act 1960, and involved complex issues of both breach of duty and causation. There was not just one causative breach of duty but an interaction between two such breaches.

It was also argued that it the case was very important to J, having been left with a permanent scar, and that while £12,500 wasn't a large amount in the grand scheme of personal injury claims, it was to a boy of J's age.

Finally, consulting with and taking the evidence of a boy of J's age merited the employment of counsel.

V also pointed out that the wording of section 108 of the Courts Reform (Scotland) Act 2014 was such that the sheriff's discretion was limited to whether employment of counsel was reasonable in all the circumstances; if it was, then sanction must be granted.

Against this, M&D argued that this was no more than a standard personal injuries action. The legal points were not...