Wednesday, November 22nd, 2017

Sheriff Appeal Court Decision on Sanction for Counsel

In a recent decision of Appeal Sheriff Andrew Cubie, the decision of a sheriff (Kinloch) to refuse sanction for counsel was reversed. The case had a curious history, but involved serious allegations against the pursuer of what amounted to fabrication of the evidence. Despite being a police officer, with all that a finding of false testimony would carry with it, sanction was refused. And the defenders had considered it suitably important for them to instruct counsel.

The defenders did not oppose the appeal - and had in fact, despite protests from the pursuer’s agents - paid the pursuer’s counsel’s fee in full. But as will be seen, the appeal had to proceed with the empty chair for the respondents.

Recently a decision in McCracken vs Kazanowski a decision of Sheriff Mackie refused sanction for counsel. There have been the occasional cases of similar effect, but the majority of occasions seem to have sanction granted.

Practitioners are reminded that sanction can be sought at any time - and it is recommended that it should be sought at the earliest opportunity if the case justifies it. In those circumstances if sanction is refused, then a decision can be taken by the solicitor and client as to whether economically the case should still be advanced with the benefit of counsel appearing.

Andrew Smith QC of Compass Chambers appeared for the successful appellant, assisted by Andy Crawford, Advocate, of Hastie Stable. Andy Crawford conducted the original proof. A copy of the decision can be found here.

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