Sheriff Braid provided guidance in relation to motions for sanction for the employment of counsel in Graham v Enviro-Clean (Scotland) Ltd [2019] SC EDIN 12 (ASPIC, 12 February 2019). The pursuer’s motion to interpone authority to a joint minute settling the action and for various other orders relating to expenses was initially opposed by the defenders in relation to sanction for the employment of junior counsel. At the subsequent hearing, the defenders maintained that, although sanction was agreed, the extent of the input sought from counsel was excessive in light of the value and complexity of the case and the fact that it was being dealt with by an experienced personal injury firm. A specialist PI solicitor should be able to carry out the initial consultation with the pursuer and draft the initial writ, adjustments and SVC. On that basis, the extent of the fees that could be recovered should be restricted.

Sheriff Braid took the opportunity to address what he described as “confusion” as to the court’s role in deciding whether sanction should be granted, and as to the effect of granting sanction. He also clarified what the court expects in a motion for sanction, setting out guidance for agents in future cases.

He indicated that a “misconceived” practice had developed which involved sanction being sought for particular pieces of work and not others, and stated that this practice must stop. He pointed out that the criteria for obtaining sanction for the employment of counsel in s 108 of the Courts Reform (Scotland) Act 2014 did not refer to the experience or expertise of the agent seeking sanction. The significance of sanction being considered by the court was not to allow the court to determine whether the fees of counsel were allowable for any particular piece of work. That was a matter for the auditor.