SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

A8111/07

JUDGMENT

of

SHERIFF PRINCIPAL C A L SCOTT, QC

in the cause

Norna Forsyth Crabbe

Pursuer

against

Alexander Charles Reid & Others

Defenders

Glasgow, 13 March 2014.

The sheriff principal, having resumed consideration of the defenders' motion, No 7/7 of process, Grants sanction for the employment of junior counsel in respect of (a) the appearance before the sheriff principal for the hearing of the diet of appeal on 2 March 2012 and the framing of all documents lodged in relation to the said diet; (b) the appearance before the sheriff principal for the hearing assigned to determine the motion for leave to appeal to the Court of Session on 20 July 2012 and the framing of all documents lodged in relation to the said diet; and (c) the appearance before the sheriff for the purposes of the debate held on 31 October 2011 and the framing of all documents lodged in relation to the said diet; Finds the pursuer liable to the defenders in the expenses occasioned by said motion; Allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon.

NOTE:-

[1] Rule 2(3) of the Act of Sederunt (Sanction for the Employment of Counsel in the Sheriff Court) 2011 provides as follows:

"The sheriff, or as the case may be, the sheriff principal, may, on the motion or incidental application of a party or of his or her own accord, grant sanction for the purpose of general regulation 12 (employment of counsel) of Schedule 1 to the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 in relation to -

(a) appearance at any hearing in the proceedings; or

(b) preparation of any document to be lodged in relation to the proceedings."

[2] Rule 2(4) provides that:

"Sanction may be granted under paragraph (3) -

(a) before, at, or after the hearing or, before or after the preparation of the document concerned; and

(b) at the time of, or at any time prior to, the disposal of the proceedings."

[3] For present purposes, the history of this matter begins with the debate which took place before the sheriff on 31 October 2011. That was followed by an appeal to the sheriff principal which took place before Sheriff Principal Bowen on 2 March 2012. Sheriff Principal Bowen's judgment was issued on 26 April 2012 and on 20 July 2012 he granted leave to the defenders to appeal to the Court of Session.

[4] When the defenders' motion No 7/7 called before me, counsel explained that to a material extent, the appeal to the Court of Session had been successful from the defenders' perspective and that on 14 November 2013 the court had pronounced an order finding the pursuer and respondent liable to the defenders and appellants in the expenses of (i) the procedure in the Inner House; (ii) the procedure in the appeal to the sheriff principal; and (iii) the debate before the sheriff.

[5] In effect, the Inner House of the Court of Session had, it was submitted, reversed the effect of the decisions taken by the sheriff and the sheriff principal. Consequently, the defenders' required to enrol the aforementioned motion to ensure that counsel's fees and the fees for instruction of counsel were allowed by the auditor in terms of general regulation 12. It was also pointed out that the pursuer herself had employed counsel from an early stage in the proceedings. Indeed, specifically, she had arranged for senior counsel to be instructed for the purposes of the debate before the sheriff and for the appeal before the sheriff principal.

[6] The pursuer, who appeared in her own right, opposed the motion. She argued that it was incompetent and, as I noted her, "ultra vires". She submitted that the motion came too late and that those representing the defenders had obviously overlooked to make the motion at the time when the question of expenses was being dealt with by the Inner House in November of last year.

[7] Separately, the pursuer maintained that it was not open to the court "to grant sanction for the employment of Counsel in respect of the whole cause..." That, she pointed out, was exactly what the defenders were seeking in terms of the motion. Therefore, the motion as framed was incompetent. Moreover, the pursuer highlighted the precise wording of rule 2(3)(a) and (b). By providing that the court might grant sanction in relation to appearance at any hearing or preparation of any document to be lodged in relation to the proceedings, it was, submitted the pursuer, clearly intended that these two instances were to be mutually exclusive. Accordingly, the pursuer invited me to refuse the motion outright.

[8] In a brief reply, counsel for the defenders maintained that even if it were correct that the court was not specifically empowered to sanction the whole cause, it might nevertheless grant the motion to a lesser extent by sanctioning the appearances listed. Counsel also proposed that he might be allowed to amend into the motion the additional words, "...in respect of adjustment of pleadings." He submitted that the existing attempt to have the whole cause sanctioned was designed to cover counsel's involvement in the adjustment of the written pleadings.

[9] In my opinion, the pursuer's "root and branch" opposition to the granting of the motion is ill-founded. Rule 2 of the 2011 Act of Sederunt places no time restriction upon the granting of such a motion provided it takes place before the disposal of the proceedings. (See rule 2(4)(b)).

[10] Whilst I accept that rule 2 makes no specific reference to the court sanctioning the cause, that feature or the lack of it does not, in my view, inhibit the court's ability to grant the remainder of the defenders' motion in relation to the appearances mentioned therein and to the framing of documents lodged in relation to each of the diets. Additionally, my interpretation of the wording of rule 2(3) differs from that put forward by the pursuer. It seems to me that rule 2(3)(a) and (b) are not meant to be mutually exclusive. On the contrary, in my opinion, the clear intention is to make provision for the granting of sanction in relation to appearance at any hearing, the preparation of any document or both of these eventualities. To construe the wording of rule 2(3) as being mutually exclusive would produce an absurd and unjust outcome. It would mean that where counsel were justifiably instructed to prepare documentation relating to proceedings and to appear at hearings in the proceedings, only part of the fees accrued as a consequence would be allowed for the purpose of general regulation 12.

[11] Accordingly, whilst I have declined to grant sanction for the employment of counsel in respect of the whole cause, I have given effect to the remainder of the defenders' motion. I can see no bar to me adopting that approach notwithstanding the pursuer's protestations to the contrary. I have, however, also declined to incorporate any reference within the court's interlocutor to the adjustment of pleadings. As to whether that aspect of matters should be the subject of sanction, it is impossible for me to determine without being provided with detailed information as to why adjustment should be included. Therefore, I have, in effect, refused in hoc statu the proposed amendment to the defender's motion involving the inclusion of reference to adjustment of pleadings.

[12] The defenders' motion for sanction has been substantially successful. It follows that the pursuer should be found liable to the defenders in the expenses occasioned by the motion.