| AYR SHERIFF COURT |
| Sheriff Principal B A Lockhart | CASE NO:A353/10 JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART John Smith & Elizabeth Smith Pursuers and Appellants Against Frazer Coogans and Others Defenders and Respondents |
Act: Mr M Thompson, Solicitor, Glasgow
Alt: Mr G Ranretty Q.C.
_____________________________________________________________________________
AYR: 9 April 2014
The Sheriff Principal, having resumed consideration of the cause; allows the Motion for the pursuers and appellants for the appeal to be received although late to be withdrawn; finds the pursuers and appellants liable to the defenders and respondents in the expenses incurred by said Motion, including consideration of the terms of the Note of Appeal and the Motion to allow the Note of Appeal to be received late, the preparation of written submissions for the hearing of the Motion and attendance at Ayr Sheriff Court on 7 April 2014 before the sheriff principal; certifies said procedure as suitable for the employment of senior counsel; allows an account of said expenses to be given in and remits same when lodged to the auditor of courts to tax and to report.
Note:
[1] On 21 February 2014 the sheriff pronounced an interlocutor which was in the following terms:-
"The sheriff having resumed consideration of the cause
(1) Finds the pursuers liable to the defenders in the sum of £1,500 (one thousand five hundred pounds) in respect of the expenses referred to in the interlocutor of 5 March 2013.
(2) Refuses the pursuers' motion to allow the Record to be opened up and amended in terms of pursuers' minute of amendment as adjusted (No 30 of process) and the defenders' answers (No 27 of process).
(3) Sustains the defenders' second plea in law; quoad ultra repels the pleas in law for the pursuers and defenders and in terms thereof dismisses the action.
(4) Finds the pursuers' as assisted persons liable to the defenders in the expenses of the cause insofar as not already ruled upon and reduces the pursuers' contribution in respect of those expenses to nil."
[2] A Note of Appeal was lodged on behalf of the pursuers at Ayr Sheriff Court on 13 March 2014. The Note of Appeal contains six numbered paragraphs and extends to three full-scap pages. At the same time a motion was lodged on behalf of the pursuers to allow the Note of Appeal to be received although late. The Note of Appeal, in terms of Rule 31.1 ought to have been lodged by 7 March 2014. The reason for the motion was stated on the motion to be;
"The judgement (by interlocutor dated 21 February 2014) was received by the pursuers' agents on 4 March 2104 (some 11 days into the 14 day appeal window). Mr Thompson, the principal agent was off ill for the week 3/7 March 2014. On return to work, Mr Thompson had court commitments on 10 March 2014 in Haddington and on 11 March 2014 in Selkirk. The first opportunity to consider matters was the evening of 11 March 2014 where upon the date of the interlocutor was realised and instructions taken to appeal. Dispensation is sought in terms of OCR 2.1 there is no prejudice to the defenders in allowing the appeal to be received although 3 business days late."
[3] A note of opposition was lodged on behalf of the defenders and a hearing on the motion was fixed before me in Ayr Sheriff Court on 7 April 2014.
[4] On 4 April 2014 at 11:54, solicitor for the pursuers and appellants wrote to all parties with a copy to my secretary in the following terms;-
"On behalf of the appellants, we hereby withdraw the motion for the appeal to be received although late. Please ensure counsel are stood down before 12 noon in order to avoid costs."
At 12:26 solicitor for the pursuers and appellants e mailed further to all parties and my secretary:-
"Dear All
We agree to concede the expenses occasioned by the motion as taxed but do not agree to certification of counsel for such a motion.
The sheriff principal requires to know whether expenses can be agreed or not, please advise.
If expenses are agreed, the case need not call. Please confirm the position."
At 12:39 on 4 April my secretary on my instructions wrote to solicitor for the pursuers and appellants and copied to all parties, an e mail in the following terms:-
"Dear Mr Thompson
I have referred your e mails of today's date timed at 11:55 and 12:26 to the Sheriff Principal. He has noted the position.
He has asked me to state to you that, unless I receive intimation that expenses are agreed by 3pm today, he will deal with the question of expenses in respect of the Motion in Ayr Sheriff Court at 10.30 am on Monday 7 April 2014."
At 14:35 on 4 April 2014 my secretary received an e mail from the solicitor for the defenders and respondents in the following terms:-
"Dear Mrs Roberts
It appears there is no agreement in relation to expenses, and accordingly I would be grateful if the case could call before the sheriff principal as previously intimated at 10.30 am on Monday 7 April 2014.
The defenders will be represented by G Hanretty Q.C."
[5] Accordingly a hearing on expenses in respect of the Motion for the pursuers and appellants to allow their Note of Appeal to be received late was heard by me at Ayr Sheriff Court on 7 April 2014. The pursuers and appellants were represented by Mr Thompson and the defenders and respondents by Mr G Hanretty Q.C.
History of the Case
[6] In dealing with the question of expenses of the Motion which was abandoned by the pursuers, it is necessary to understand the chronology of the case. This was provided by solicitor for the defenders in their written submissions regarding the Motion and is as follows:-
Chronology
| Late 2008/early 2009 | Claim intimated on behalf of Abbie Associates Ltd against Frazer Coogans. |
| July 2009 | Action raised in Ayr Sheriff Court by Abbie Associates Ltd against Fraser Coogans. |
| February 2010 | Interim liquidator appointed for Abbie Associates Ltd. |
| 7th May 2010 | Motion for caution of £75,000 enrolled against Abbie Associates Ltd. Motion granted on 7th May 2010. Abbie Associates Ltd were given a 60 day period for finding caution. This expired without payment. |
| 5th July 2010 | Assignation was registered in the Books of Council and Session. The assignation was completed on 30th June 2010 by the liquidator appointed by Abbie Associates Ltd. |
| 6th July 2010 | The pursuers sought to sist themselves into the action in place of Abbie Associates Ltd. This formed the basis for an opposed motion hearing on 6th July 2010. This motion was dropped at the hearing and decree of dismissal taken against the company. |
| 12th, 13th, 14th 15th and 19th July 2010 | Aborted proof before answer in the action of Abbie Associates v Frazer Coogans. |
| 15th July 2010 | Agents on behalf of the pursuers sent the initial writ to court for warranting. |
| 27th July 2010 | The initial writ in the present action was served on the defenders' agents. It was in identical terms to the company's action. |
| 12th August 2010 | Having raised this fresh action, the pursuers' agents then sought to sist the action in order to allow them to apply for legal aid. This was the subject of an opposed motion hearing on 12th August 2010. The defenders' opposition to this motion was successful |
| End of September 2010 | The defenders' agents received legal aid applications for Mr & Mrs Smith. Notes of Objection were lodged. |
| 7th October 2010 | Options Hearing - The Sheriff fixed a diet of debate. Criticisms were directed against the pleadings in respect of liability and quantum. The debate was fixed for 21st and 22nd March 2011. |
| 8th November 2010 | Notice was received that Mr Smith's legal aid application had been refused. It is understood that Mrs Smith's application was also refused but no intimation thereof was ever received. |
| 27th January 2011 | Mrs Smith made an application for a review of the decision to refuse her legal aid application. This was around 3 months after the initial decision and so out with the 15 days allowed by regulation 20(2) of the Civil Legal Aid Regulations. However, this late application was allowed and a review was carried out. |
| 3rd March 2011 | The review of the legal aid application for Mrs Smith was refused. |
| 8th March 2011 | A telephone call from a representative of the Legal Aid Board was received by defenders' agents to advise that Mrs Smith had been in touch to demand a further review of her application. The Legal Aid Board agreed to do so. |
| 17th to 21st March 2011 | The pursuers' solicitors sought to discharge the diet of debate which was due to proceed on 21st March 2011. An opposed motion hearing was fixed for 17th March 2011. However, prior to this hearing, intimation was received from the pursuers' solicitor to the effect that he was withdrawing from acting. The pursuers therefore no longer had any representation. The debate hearing was inevitably discharged. A fresh diet of debate was fixed for 5th and 6th September 2011. |
| 3rd May 2011 | Confirmation was received from the Legal Aid Board that the subsequent review of Mr Smith's application had been completed. The application had again been refused. |
| 8th June 2011 | Letters received from the Legal Aid Board advising that Mr & Mrs Smith had submitted further legal aid applications. Their solicitor was now Mr Thompson of Livingston Brown. The defenders' agents again lodged notes of objections. |
| 28th June 2011 and 19th July 2011 | Confirmation received that Mr & Mrs Smith's applications for legal aid had been refused. Mrs Smith again sought review of this decision. |
| 1st September 2011 | Shortly prior to the debate fixed for 5th and 6th September 2011, a motion was enrolled on behalf of the pursuers for discharge of the hearing in order to allow their minute of amendment to be received and the outcome of the legal aid review to be obtained. A minute of amendment was produced at this time. The case called for an opposed motion hearing on 1st September 2011. The defenders were successful in opposing both the pursuers' motion to have the debate discharged and also receipt of their minute of amendment. The matter was continued to the debate hearing on 5th September 2011. |
| 2nd September 2011 | The pursuers' agents intimated their intention to withdraw from acting. |
| 5th September 2011 | The pursuers appeared personally at the debate. Sheriff MacFadyen continued the matter to the miscellaneous procedure roll on the basis that a further diet of debate would be fixed at this time. |
| 13th September 2011 | Defenders' agents received confirmation from the Legal Aid Board that Mrs Smith's application had been approved. |
| 29th November 2011 | The case called for a further debate. Shortly prior to this hearing, the pursuers intimated a further minute of amendment and also a motion to modify the earlier award of expenses to nil on the basis that the second pursuer was legally aided. The minute of amendment was opposed on the basis that it came too late and was inadequate. The motion in relation to expenses was also opposed on the basis that the second pursuer had become legally aided after the date upon which the award had been made. However, at the hearing, agents from both Livingston Brown and Thompson & Brown appeared at the hearing. There was clearly some uncertainty as to who was acting for the pursuers. Junior Counsel declined to appear without a clear indication as to who was instructing him. The case was therefore continued for one week in order to allow the pursuers to sort out this position. |
| 7th December 2011 | The case called again for debate. Junior counsel for the pursuers made his motion to have the minute of amendment received. He conceded that the record as it stood was irrelevant. The motion was opposed on the basis that the minute did not cure the defects in their pleadings. In his submissions to Sheriff O'Carroll, junior counsel for the pursuers made a number of statements of fact which were not included in the minute. Sheriff O'Carroll noted that he had not responded to any of the criticisms against him. Junior counsel therefore moved for further time to make changes to the minute. With expressed reluctance, Sheriff O'Carroll allowed the pursuers 21 days to lodge a fresh minute. We moved for expenses of process to date. This was reserved. However, Sheriff O'Carroll did award the expenses of that debate hearing to the defenders. The expenses relating to the earlier discharged hearing on 29th November 2011 were also reserved. Sanction was granted for senior counsel's conduct of the case. The defenders' motion for payment of the expenses as taxed to be a condition precedent to proceeding with the action was refused. Sheriff O'Carroll reserved the question of reducing the award of expenses to nil given that the second pursuer was legally aided. |
| 22nd December 2011 | A minute of amendment and motion was received from the pursuers' solicitors. They sought to increase the sum sued for to £600,000. They then deleted the articles of condescendence 2 - 48 and replaced these with only eight articles of condescendence. There was no opposition to receipt of the minute of amendment and this was allowed on or around 11th January 2012. The defenders were allowed 21 days for answers with a further 21 days for adjustment. A rule 18.3 hearing was assigned for 1st March 2012. |
| 1st February 2012 | The defenders agents intimated answers to the minute of amendment for the pursuers. |
| 27th February 2012 | The pursuers intimated adjustments to the minute along with an expert report from Ian Doran of Dundas & Wilson. The defenders agents required to obtain the defenders' comments and instructions in light of these documents. Therefore, a continuation of the rule 18.3 hearing for a period of six weeks was agreed between the parties. |
| 1st March 2012 | Local agents appeared at the rule 18.3 hearing to continue the matter for six weeks. The rule 18.3 hearing was continued until 12th April 2012. |
| 5th April 2012 | The defender's agents intimated their rule 18.3 note in advance of the rule 18.3 hearing. |
| 12th April 2012 | This case called for a continued rule 18.3 hearing. The pursuers moved for the record to be opened up and amended in terms of the pursuers' minute of amendment and answers thereto and closed of new. The defenders did not oppose this motion. The pursuers were found liable to the defenders in the expenses of the amendment procedure. The defenders thereafter moved for a debate to be fixed albeit the court noted that the pursuers were offering a proof before answer. The matter was continued on the diet roll to 26th April 2012 for a diet of debate to be fixed. |
| 26th April 2012 | Local agents were instructed to appear at the hearing on the diet roll. The only consecutive two days available for the debate were on 15th and 16th August 2012. Neither agent had details of counsel's availability in August. Therefore, they moved the court allow the dates to be pencilled into the court diary and thereafter to continue the cause on the diet roll to ascertain if these dates were suitable. The matter was continued until 17th May 2012. |
| 17th May 2012 | Local agents, on behalf of the defenders' agents, advised the court that the debate fixed for 15th and 16th August 2012 was not suitable for senior counsel. The pursuers' agents had not provided any alternatives dates. Therefore, the case was continued to 31st May 2012 for suitable dates to be assigned. |
| 31st May 2012 | The case called on the diet roll on 31st May 2012 in order to identify dates for the diet of debate. This was fixed for 17th September 2012 reserving 18th September 2012, if necessary. However, senior counsel for the defenders was no longer available on these dates. Therefore, the hearing was discharged and new dates were fixed for 9th and 10th October 2012. |
| 1st October 2012 | The pursuers intimated a further minute of amendment along with a motion to have this received and the debate discharged. The defender's agents opposed this motion. |
| 9th October 2012 | The case called for a debate hearing before Sheriff Brown. The minute of amendment was received. The defenders were given 28 days to answer with a further 28 days for adjustment. A hearing was fixed for 6th December 2012. This hearing was for the purpose of fixing the rule 18.3 hearing. The debate did not proceed. It was ostensibly an opposed motion hearing regarding receipt of the pursuers' minute of amendment. Sheriff Brown recognised the deficiencies in the minute of amendment presented by the pursuers. However, he was willing to provide the pursuers with a further opportunity to fix the defects in their pleadings. The defenders were awarded the expenses of the discharged debate along with sanction for senior counsel. The defenders also moved for payment of those expenses to be a condition precedent. That motion was continued to the rule 18.3 hearing. The pursuers also moved for the expenses to be modified to nil. This was also continued to the rule 18.3 hearing. |
| 5th November 2012 | Answers to the minute of amendment were lodged. |
| 27th November 2012 | The minute of amendment with a minor adjustment removing reference to the expert report was intimated by the pursuers. |
| 6th December 2012 | This hearing had been set in order to ascertain Sheriff Brown's availability for a rule 18.3 hearing. However, the sheriff clerk did not have this information to hand. The case was continued until 13th December 2012 at 10am. |
| 13th December 2012 | The date identified for the Rule 18.3 hearing was 7th January 2013. On the defenders' motion, there being no opposition, a further 14 days for adjustment was allowed. |
| 31st December 2012 | The defenders' agents intimated adjusted answers to the minute of amendment to the pursuer's solicitors. |
| 7th January 2013 | The pursuers sought further time to adjust the minute of amendment. They accepted that their pleadings insofar as they related to quantum were irrelevant. However, they awaited a further report from their forensic accountant and therefore were not in a position to update the pleadings. Sheriff Brown refused their motion. The record was opened up and amended in terms of the minute of amendment and answers. A further procedure roll hearing was fixed in order to identify dates for a further debate. The defenders were awarded the expenses of the amendment procedure including the rule 18.3 hearing. Sheriff Brown did not deal with the earlier motions for expenses. |
| 11th January 2013 | The case called on the procedure roll at which time local agents moved for the debate to be fixed. This was fixed for 5th March 2013. |
| 24th January 2013 | Sheriff Alistair N Brown issued a note setting out his reasons for refusing the motion on behalf of the pursuers on 7 January 2013. |
| 21st February 2013 | The pursuers' solicitors intimated a motion seeking to have a minute of amendment received, to allow four days for answers, to assign a rule 18.3 hearing for 5 March 2013 and to discharge the diet of debate previously assigned for 5 March 2013. This was the first correspondence from them following the hearing on 7 January 2013. The defenders opposed this motion. In this minute of amendment, the pursuers sought to reduce the sum sued for to £250,000. They relied upon a retrospective valuation report from Kevin Bell of Shepherds (which was not produced). |
| 1st March 2013 | Michael Thompson of Thompson & Brown provided the defenders' solicitors with a copy of the report of David Adamson of Adamson Forensic Accounting Limited dated 20 February 2013 and the valuation report from Shepherds, Chartered Surveyors dated 20 February 2013. |
| 4th March 2013 | The defenders' solicitors lodged an additional rule 18.3 note on behalf of the defenders. This was in respect of the pursuer's minute of amendment. |
| 5th March 2013 | The case called for an opposed motion hearing in relation to the pursuer's motion to have the minute of amendment received and the debate discharged. It called before Sheriff Dickson. The pursuers made it clear that they did not want the debate to proceed. They moved their minute of amendment. They produced the two expert reports. Sheriff Dickson allowed them a further opportunity to amend. However, he awarded expenses in favour of the defenders from 9 October 2012 onwards. He indicated that payment of these expenses would be a condition precedent to the pursuers proceeding with their claim. However, Ian Mitchell QC responded by seeking modification of the expenses to nil on the grounds that the pursuers were legally aided. Sheriff Dickson did not consider that he was in a position to deal with this motion in the absence of a taxed account. He therefore ordered that the defenders prepare an account and have it taxed before the auditor. The defenders were then to request a further hearing before him at which time he would reconsider the defenders' motion that payment of these expenses be made a condition precedent to the pursuers proceeding and the pursuers' motion for modification. He sisted the action. |
| 1st May 2013 | The taxation took place at Ayr Sheriff Court before the auditor. The defenders' account was taxed at £21,766.46. |
| 19th June 2013 | Procedural hearing at Ayr Sheriff Court. There were substantive submissions on the defenders' motion to have payment of expenses made a condition precedent to the pursuers proceeding with their action and the pursuers' counter motion for modification of these expenses to nil. In advance of the hearing (17 June 2013) the pursuers' solicitor produced financial documentation confirming that they were impecunious with their outgoings exceeding their incoming funds. Senior counsel focused on the fact that they would be unable to pay any expenses if modification to nil was not granted. Sheriff Dickson indicated that he required further time to consider matters. He took the case to avizandum. |
| 28th July 2013 | Sheriff Dickson issued his decision in which he allowed the defenders until 17th September 2013 to lodge answers to the minute of amendment; allowed parties to adjust the minute and answers until 16th December 2013 and continued the cause to a rule 18.3 hearing on 20 December 2013. He concluded that it would not be appropriate to modify the pursuers' potential liability at this stage nor would it be appropriate to make a formal award of the taxed sum. |
| 17th September 2013 | Answers to the minute of amendment lodged. The defenders placed calls on the pursuers to produce vouching for the sums claimed. |
| 15th November 2013 | The pursuers intimated a motion for commission and diligence. They were seeking production of documents held by the liquidator of Abbie Associates Limited which included details of the redundancy payments to staff, rates paid to Ayr Council and bank charges payable to Bank of Scotland. They also sought details of all payments made by or on behalf of the pursuers or Abbie Associates Limited to Burness and Simpson & Marwick. The motion was opposed. |
| 5th December 2013 | The case called for an opposed motion hearing in respect of the pursuers' motion for commission and diligence. This hearing was simply continued to the rule 18.3 hearing on 20 December 2013. |
| 16th December 2013 | The pursuers produced the minute of amendment as adjusted. This was produced at around 10.47 pm. |
| 20th December 2013 | Rule 18.3 hearing at Ayr Sheriff Court. The defenders opposed receipt of the minute of amendment on the basis that it did not cure the defects in the pursuers' pleadings. They still failed to establish a relevant case on loss. The response from counsel for the pursuers was that there was sufficient fair notice and specification in the pleadings. Sheriff Dickson took the case to avizandum. |
| 21st February 2-14 | The judgment of Sheriff RH Dickson was issued. He found the pursuers liable to the defenders in the sum of £1,500 in respect of the expenses referred to in the interlocutor of 5 March 2013. He refused the pursuers' motion to allow the record to be opened up and amended in terms of the minute of amendment as adjusted and the defenders' answers. He sustained the defenders' second plea in law and dismissed the action. He found the pursuers as assisted persons liable to the defenders in the expenses of the cause insofar as not already ruled upon but reduced the pursuers' contribution in respect of those expenses to nil. |
| 12th March 2014 | The pursuers' solicitors intimated a motion to allow the note of appeal to be received although late |
[7] It is clear that the pursuers are impecunious. It is noted from the terms of the sheriff's interlocutor of 5 March 2014, that he was persuaded, having been addressed on the means of the pursuers to reduce their contribution to the defenders expenses not already dealt with to nil. The defenders have been put to very substantial expense defending their professional integrity. As at March 2014, the litigation having been ongoing for more than 4 years, the sheriff has found the pursuers have still not averred a relevant case. It is against that background that the submissions of parties require to be considered.
Submissions for Pursuers and Appellants
[8] Solicitor for the pursuers, as he had done in his e mail of 4 April 2014 times 11:54, intimated that the Motion for the appeal to be received although late was withdrawn. As he had indicated in e mail correspondence to which my secretary was privy, the pursuers conceded the expenses occasioned by the motion as taxed but did not agree to certification of counsel for such a Motion. I was informed that certain e mail correspondence took place between solicitors for the pursuers and defenders but this had not resulted in any agreement regarding the expenses in respect of the Motion. The issue of certification of counsel was not agreed.
[9] Solicitor for the pursuers before me accepted that all questions of expenses in respect of the action before the sheriff had been determined. Both parties had instructed senior and junior counsel in respect of the substantive hearings before the sheriff. However, it was argued that a Motion to receive a note of appeal although late, which involved a discretionary decision on my part was not suitable for the employment of senior counsel.
[10] It was submitted that, with reference to the written submissions lodged on behalf of the defenders, a solicitor of any experience or, indeed a trainee, could have written the narrative which was submitted on behalf of the defenders. The issue as to whether the Motion should be allowed should not require the assistance of senior counsel.
[11] I was advised by solicitor for the pursuers that he had not instructed senior or junior counsel to deal with this Motion. At no stage had any letter of instruction been issued. Solicitor for the pursuers had made it clear to counsel that he would deal personally with the Motion. He considered that had he sought sanction from the Scottish Legal Aid Board for the employment of senior counsel for the Motion, it would have been refused. He again submitted that this was not a Motion which required the assistance of senior counsel. It was a straight forward matter involving the exercise of my discretion.
[12] I was asked to allow the Motion to allow the Note of Appeal to be received late to be withdrawn and to award the expenses occasioned by the Motion as taxed to the defenders until 11:54 on 4 April 2014. I was asked to refuse certification of the employment of senior counsel in respect of the Motion. I was asked to award the expenses of the hearing before me to the pursuers.
Submissions for the Defenders and Respondents
[13] Senior counsel for the defenders asked me to certify the Motion as suitable for the employment of senior counsel. I was asked to reject the submissions which had been made on behalf of the pursuers. The only issue for me to determine was whether the Motion was suitable for the employment of senior counsel. The chronology of this case, which I have set out in para 6 hereof made it clear that the defenders, through no fault of their own, had been required to finance a very large amount of procedure which proved to be futile. At this stage a relevant case was not before the court. The fact that the Note of Appeal was lodged late was an opportunity for defenders to bring a long running sore to an end. In considering this Motion, the court would require to have regard to the previous conduct on behalf of the pursuers. Senior counsel had been involved throughout and was well acquainted with all aspects of the case. In these circumstances the defenders were entitled to be represented by senior Counsel at this important hearing. The history of the case as outlined was such that the defenders were entitled to have the advice and assistance of senior counsel in bringing this case to an end.
[14] It was submitted that a consideration of the Motion required consideration of the Note of Appeal. The written submissions, which had been ordered by me, required to be prepared by senior counsel who had full knowledge of all aspects of the case.
[15] It was submitted that the defenders reasonably refused the pursuers offer of expenses occasioned by the Motion as taxed until 11:55 on 4 April 2014 on the basis that there would be no certification of senior counsel for the Motion.
Decision
[16] I have no hesitation in taking the view that it was appropriate for the defenders to instruct senior counsel in connection with the Motion lodged on behalf of the pursuers to allow the Note of Appeal to be received late. The pursuer is without significant funds and in receipt of a legal aid certificate on a nil contribution. A perusal of the chronology indicates that the defenders have been put to very substantial expense as a result of the conduct on behalf of the pursuers in this case. Since early 2009 it has been public knowledge that the defenders are involved in an action against them in their local sheriff court. The hearing of the Motion before me was of great importance to the defenders in that it was a chance to bring what senior counsel described as "a long running sore" to an end. In view of the importance of this litigation to the defenders and their reputation, in my opinion it was reasonable for them to instruct senior counsel in respect of all material hearings in the case. This hearing on expenses was a material hearing. Both parties had been represented by senior and junior counsel throughout this litigation.
[17] The expenses in respect of the motion in my opinion reasonably include, in the circumstances of this case, consideration of the Note of Appeal, consideration of the terms of the Motion, preparation of written submissions for the hearing of the Motion and, in the absence of agreement to the certification of counsel on behalf of the pursuers, attendance before me to move for certification. This has been a lengthy and complex litigation, not assisted by many failures on behalf of the pursuers to make their pleadings relevant.
[18] In these circumstances I certify the Motion as suitable for the employment of senior counsel with the acknowledgement that this certification would cover consideration of the Note of Appeal and the Motion, the preparation of written submissions and the attendance at Ayr Sheriff Court before me on 7 April 2014.
[19] I was advised that the pursuers were not in receipt of legal aid in respect of this Motion. Solicitor for the pursuers indicated that if I was against the pursuers, there would be no Motion for modification in terms of Section 18 of the Legal Aid (Scotland) Act 1986.