Scottish Sheriff Court Decisions

Act: Lloyd, Advocate Alt: Gibson.

The sheriff having resumed consideration of the pursuer's motion (No. 7/3 of Process) Grants Part 1 thereof; Grants Part 2 by awarding an uplift in the pursuer's solicitors' fees to the extent of 25%; Grants Part 3, and in terms thereof, Receives and Interpones the authority of the Court to the Joint Minute (No. 21 of Process), and in terms thereof (a) certifies the cause as suitable for the employment of junior counsel; (b) certifies the following as expert witnesses, viz:- Alastair Hull, Consultant Psychiatrist, Royal Cornhill Hospital, Westburn Road, Aberdeen, Dr J.W. Moore, Consultant Neuropsychologist, Ewarston House, Moniaive, DG3 4JA, Mr Quentin G. Cox, Consultant Orthopaedic and Hand Surgeon, Neurosurgery Unit, Drumdelnies, Nairn IV12 5NT, Mr E.K. Labram, Consultant Neurosurgeon, Neurosurgery Unit, Ward 40, Aberdeen Royal Infirmary, Foresterhill, Aberdeen AB25 2ZN; Mr Keith Carter, Employment Consultant, Belsis, Ormiston Hall, Ormiston, East Lothian, EH35 5NJ, and Professor Kirkwood, Professor of Engineering, Strathclyde University, James Watt Building, 75 Montrose Street, Glasgow, G1 1XJ; (c) Finds the defenders liable to the pursuer in the expenses of the action as taxed and allows the pursuer to give in an account thereof and remits the same, when lodged, to the Auditor of Court to tax and to report; Quoad ultra Assoilzied the defenders from the craves of the Initial Writ.

In respect of the Part 2 of the Motion, Mr Lloyd, counsel for the pursuer, sought an uplift of 75% in the solicitors' fees in terms of Regulation 5 of Schedule 1 of the Act of Sederunt, in particular paragraphs b(i), (ii), (iii), (v) and (vii). That motion was opposed by Mrs Gibson for the defenders but she submitted that if I were persuaded to grant an uplift, it should not exceed 15%.

Mr Lloyd prefaced his submission by referring to the Record (No. 18 of process) and the Minute of Amendment (No. 20 of process).

While ultimately liability had been admitted, the issue in the case was what was the precise effect of the accident on the pursuer and, in particular, whether he could work at all in the future and if he could, whether he could work in the oil industry offshore or onshore, and if he could not do either, what type of work would be suitable for him.

There had been co-operation between the parties and at a meeting in Edinburgh, the pursuer had agreed to settle the action for the sum of £215,000 plus £20,000 by way of benefits.

It is stated in the Record that the pursuer had been working offshore and in the course of his employment there, he was struck on the head and neck by a rope shackle, or the metal eye pad at the end of a rope. He suffered not only back pain but had had psychological problems resulting in a change of personality. As a consequence of these, his marriage had broken up. It is stated in the Minute of Amendment that he was admitted to Raigmore Hospital, Inverness, in or about November 2002 following upon an attempted suicide. That was triggered off by reading the terms of Professor Rowley's report dated 2^nd August 2002.

Although liability had been admitted, the pursuer's case both at common law and under statute had originally been denied and the defenders had a case on record of contributory negligence. The pursuer's solicitors had instructed a report from Professor Kirkwood who had indicated that he would require to inspect the equipment which had caused the accident in order to write his report. The issues were whether it was obvious that there was a defect and secondly why the equipment failed. When it was discovered that the original equipment could not be found, Professor Kirkwood requested an opportunity to inspect similar equipment. The defenders' admission of liability followed shortly thereafter.

Mr Lloyd drew my attention to the existence of a number of reports, for example, those from Dr. J W Moore, a consultant neuro-psychologist and Dr. David A Johnston, a clinical psychologist. In providing his report for the defenders, Dr. Johnston had been provided with a copy of Dr. Moore's report, but in Dr. Johnston's opinion, the effects which the pursuer claimed were the result of his injuries were exaggerated. These conflicting reports necessitated the involvement of psychiatrists namely Dr. Smith, for the defenders, and Dr. A M Hall, for the pursuer. Ultimately, a report was obtained from Keith Carter Associates, specialists in employment. In Mr Lloyd's submission, these were complex matters for the solicitors, as the issues raised centred on the pursuer's ability to work in the future assuming that he could work. The issue was at what.

It was obvious, in Mr Lloyd's submission, that the complexity of the issues required more than average skill and knowledge on the part of the solicitors They had to have a greater degree of skill and specialist knowledge in order to assess the reports, and also to instruct counsel properly. The fact that the client had attempted to commit suicide made matters more complex and required further skill on the part of the solicitors.

Mr Lloyd conceded that the number of reports was not large. He submitted, however, that the documents, and in particular the reports from the specialists, were of particular importance and had to be considered with great care by the solicitors.

In Mr Lloyd's submission, the case was important for the pursuer because of the opinion of the specialists he is no longer fit for work offshore. Of particular significance, was the report from Dr. Moore who concluded amongst other things that the pursuer will continue to suffer from mood disturbances, impaired memory and concentration and that as a result, he will not be capable of "open employment" and should be discouraged from trying to compete in the open market. Dr. Moore also attributed the breakdown of the pursuer's marriage to the accident and his attempted suicide to Professor Rowley's report.

Mr Lloyd said that there had been a productive meeting in Edinburgh which he had conducted with the defenders' solicitor. However, the pursuer's own solicitor had also been present in the building and Mr Lloyd was required to leave the negotiations in order to discuss these with the pursuer's solicitor. The pursuer's solicitor's input into these discussions had been of great significance and assistance.

Mrs Gibson, for the defenders, submitted that as the Initial Writ and the Rule 22 Note had been drafted by counsel, there was no evidence of the involvement of the pursuer's solicitor beyond the norm. In her submission, some of the reports of the expert witnesses would have been agreed prior to any proof.

Her responses under the various heads were as follows:-

1. Complexity

In the present case, there was only one defender, a position which could be contrasted with other cases involving accidents offshore. Furthermore, liability had been admitted leaving only the issues of contributory negligence and quantum. While there were a number of reports, there was not an unusual number, and so the issue became whether the case was more complex than the norm. There was nothing special about cases involving either psychological or psychiatric evidence. In all of the reports, the conclusions were that the pursuer was not fit to return to work offshore but could return to work, and so the only issues were therefore for how long would he be off work and for what type of work would he be suitable. That was neither exceptional nor was it complex. In that connection, Mrs Gibson cited Walker v Gillespie 1983 SLT (Sh. Ct.) 101, the decision of Sheriff Principal Bennett and Gray v Babcock 1990 SLT 693. In Walker v Gillespie, the Sheriff Principal said, "The Court of Session cases show in my opinion, that a case must be out of the ordinary and in some way or ways exceptional before an additional fee will be allowed. ... What is necessary is that the case should be exceptional in some way. (p. 102). In Gray v. Babcock, the First Division used the term "particularly unusual." (. 695)

There was no drafting done by the pursuer's solicitors and no information about the time spent on the case by them, as opposed to counsel. Accordingly, an uplift could not be justified under this head.

There are four inventories for each of the pursuer and the defenders and, excluding the pursuer's medical records, no report is particular lengthy. The documents were important, but the case was not very different from other similar cases.

In Mrs Gibson's submission, every case is important to the client and this one was not so important as to take it out of the norm and hence make it exceptional.

Mrs Gibson accepted that the settlement discussions had been constructive, but it had been agreed that the defenders would meet the expense of these, and accordingly, because the pursuer's solicitors were already being re-imbursed for that, they should not be rewarded by an uplift in fees. At the settlement discussions, the pursuer's own solicitor had not said anything of note and should not be rewarded for work done by counsel.

She submitted that, in the event that I was against the defender on the issue of uplift, I should award no more than 15%.

Mr Lloyd submitted that in any case which a client tries to commit suicide, the case becomes more complex and hence requires greater skill on the part of the solicitors.

I am satisfied in this case that an uplift can be justified under the following headings of Schedule 1 of the Act of Sederunt, viz. (i) complexity; (ii) skill; (iii) number of reports and (v) importance to the client. To some extent these categories inevitably overlap.

The case involved issues not restricted to orthopaedic matters and what became of particular importance at an early stage were the psychological and psychiatric effects on the pursuer of his injuries. That, in turn, reflected upon his suitability for future employment and raised the question of what type of work the pursuer could do in future. The fact that the pursuer's injuries were likely to have caused the breakdown in his marriage and that an adverse report from one of the defenders' specialists may have prompted his suicide attempt made the issue of future employment more complex than the norm and hence they came, in my opinion, exceptional (Walker v Gillespie, supra) or particularly unusual. (Gray v. Babcock, supra)

The various matters raised in the previous paragraph and, in particular, the pursuer's mental state were such as to place more than the normal demands on the skills of any solicitor involved. Considerable tact and patience may have been required in raising potentially-sensitive issues with the pursuer and not least those issues in relation to his future employment.

While there were not an unusual number of reports and productions in this case, their content required a careful consideration, particularly when aired with the pursuer, given his reaction to the report from Professor Rowley.

While the outcome of any case is undoubtedly important to the client, the outcome of this case would be of particular importance to this pursuer, given the marital breakdown and his suicide attempt. The latter could have raised serious issues for any potential employer and hence was likely to make the calculation and agreement of any settlement figure more difficult, and more significant for the pursuer.

While I accept that the settlement was achieved after a fruitful meeting between the parties, at which, no doubt, both counsel and the solicitors involved knew the particular importance of achieving a settlement for this pursuer. I do not, however, regard the efforts put in by the pursuer's solicitors as being particularly unusual in the circumstances.

Given that the pursuer's solicitors instructed counsel in this case, I am of the opinion that an uplift in the solicitors' fees of 75% cannot be justified. However, taking into consideration the headings under which I am of the opinion that an uplift is justified, I have come to the conclusion in the circumstances an uplift of 25% is appropriate.