Sunday, May 8th, 2016

V (As Parent and Guardian of J [A Child]) v M&D (Leisure) Limited - Sanction for Counsel in the Sheriff Court

Following the introduction of the new limit for the privative jurisdiction of the Court of Session, it has taken some time for decisions to filter through from the Sheriff Court regarding sanction for the employment of Counsel. On 17th March 2016, Sheriff Peter Braid (sitting in the All Scotland Personal Injury Court) issued his Judgment on one such motion in V v M & D (Leisure) Ltd [2016] SC EDIN 22. A copy can be found here.

In short, the Pursuer was an 11-year old boy who sustained nasty facial injuries while playing “crazy golf” at Strathclyde Country Park. The circumstances of the accident were unusual, in that he slipped on a set of wet, wooden steps while carrying a putter that had been supplied to him by the Defenders. The top of the rubber putter grip was missing, exposing the top of the sharp, metal shaft, which then came into contact with the boy’s face, causing large and unsightly lacerations. Junior Counsel was instructed at the adjustment stage, consulted with the boy and prepared adjustments and a formal valuation. By that stage, the grounds of fault were based on the Defenders’ combined failure to inspect and maintain both their premises and the putter. Liability was denied throughout, but a Tender was then lodged, consulted on and rejected. The case then settled shortly thereafter, in the increased sum of £12,500, plus expenses.

A motion was made in terms of Section 108 of the Courts Reform (Scotland) Act 2014. It was agreed that the test was one of “reasonableness” and, to that end, submissions were made on behalf of the Pursuer regarding “difficulty”, “complexity”, “importance” and “value” (in terms of Subsections (3) and (4)) and on other “appropriate” matters. These were that liability was denied; there was a complex interplay between the grounds of fault; the child’s conduct had been called into question; the issue of parental supervision was likely to be an issue; the child’s age and need effectively to take his evidence at Proof; the immediate and ongoing effects of the injury on one so young; settlement at or about full value; and, while not a particularly valuable claim in the grand scheme of personal injuries’ litigation, the agreed damages were important and valuable to a boy of his age.

The Defenders’ Agent submitted that the case was not of the difficult or complex character required to meet the test of “reasonableness” and that it could have been conducted by a competent solicitor. He conceded, however, that it might have been reasonable to employ Counsel for the Proof, but that stage had not been reached. In response, it was further argued for the Pursuer that, if it would have been reasonable to employ Counsel for the Proof then, given the child’s age, it was important that Counsel be involved at an earlier stage.

In the event, the Sheriff granted the Pursuer’s motion – not wholly on the basis of the primary submissions regarding complexity, etc – but, on the point of the need for “special skill” at Proof, coupled with a need to introduce the child to Counsel at an earlier stage.

It is probably fair to say that the case was fairly unique on its facts, but the learned Sheriff does provide practitioners with some useful observations on the Section 108 test going forward.

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