SCOTTISH CASES – CASE UPDATE

CASE UPDATE: APRIL 2014

Norma Crabbe v. Alexander Charles Reid & Others

Judgement of Sheriff Principal Scott – 13th March 2014.

Case dealing with certification of Counsel in the Sheriff Court and in particular Rule 2(3) of the Act of Sederunt (Sanction for the Employment of Counsel in the Sheriff Court) 2011.

Judgement on the defenders’ Motion which appears to be “to grant sanction for the employment of Counsel in respect of the cause” following a successful Inner House Appeal.

The pursuer who appeared as a party litigant opposed the Motion firstly on the basis that it came too late in the day, which was easily disposed of and secondly on the basis that in terms of the Act of Sederunt it was not open to the Court to grant sanction for the employment of Counsel in respect of the whole cause.

Sheriff Principal Scott, in determining the Motion following submissions, declined to sanction the whole cause as suitable for the instruction of Counsel instead preferring to sanction various stages of process as suitable for the instruction of Counsel and narrating those in the interlocutor.

Although Sheriff Principal Scott does not go as far as stating in express terms that a Motion for sanction of the cause is now incompetent the Judgement would tend to suggest that when seeking sanction agents should now set out in the Motion each stage of the process where sanction is sought.

This seems, from a practical point of view, to do away with years of practice in the Sheriff Court where Motions for sanction of the cause as being suitable for the instruction of Counsel were routinely granted with the Auditor at taxation subsequently dealing with any objections to Counsels’ fees in accounts. It may well therefore lead to further detailed opposed Motions on expenses calling before Sheriffs.

Niall Stirton v. Ladybank Tyres Limited 2014 [CSOH 71]

Decision of Lord Stewart in the Outer House in a personal injury action.

The pursuer, aged 18 at the time, was working as a Tyre Fitter with the defenders. His hand became caught in a spoke of a spinning alloy wheel of a car that had been raised on a scissors jack and which was being checked for a suspected buckle. The clear evidence was that the defenders had no proper system in place nor had they undertaken a proper risk assessment, nor had they trained their employees appropriately. Despite this Lord Stewart granted absolvitor largely on the basis that on the facts none of those breaches were causative of the accident.

On looking at the case Lord Stewart has found it difficult from the evidence to ascertain what really happened in the accident and, on balance, preferred the defenders’ witness evidence over the pursuer’s evidence which, on certain points, appear incredible and unreliable.

The case is interesting reminder to pursuers’ agents of the importance of having a believable client and also in respect of problems which may be caused where an eye witness to an accident is not called.