Court of Session: No rule against recovering English solicitors’ costs
A Scottish woman injured in a car accident in France who sued the motorist’s insurer in Scotland acted unreasonably in instructing English solicitors, the Scottish High Court has ruled.
Lord Menzies in the Outer House of the Court of Session ruled that Dr Margaret Kirkwood could not recover around £125,000 of Irwin Mitchell’s costs as a result.
But he said this did not create a general rule that a Scottish litigant could not recover the fees of using an English solicitor.
Dr Kirkwood instructed Irwin Mitchell in Birmingham to conduct her litigation, using Edinburgh firm Blacklocks to handle procedural matters. The action settled, with the defendant paying damages and ordered to pay costs.
Blacklocks sought just over £260,000, of which all but £10,000 were Irwin Mitchell’s costs. The auditor of the Court of Session – essentially a costs judge – determined that it was not reasonable for Dr Kirkwood to use English solicitors and allowed costs of £137,000, made up of Blacklocks’ fees, VAT and disbursements billed by Irwin Mitchell, such as counsel’s fees.
Challenged before the court, Lord Menzies found no error in law in the auditor’s approach.
“As the auditor noted… the pursuer had permanent residence in Scotland, the accident was in France, and a Scottish firm of solicitors was initially instructed. The action was raised, and remained, in the Court of Session.
“It is not immediately apparent that it was reasonable for conducting the cause in a proper manner that the pursuer should instruct English solicitors. Of course she was entitled to do so, but it does not follow that the expense of doing so should fall on the defenders.”
Lord Menzies stressed there was no general principle against the recovery of non-Scottish lawyers’ fees and the auditor had not sought to establish one.
He cited examples given by the defendant where it would be reasonable, such as using an English agent to conduct a preliminary examination of a witness living in England, or where an English claimant was injured in Scotland and English solicitors were better placed to recover their medical or earnings records.
“Another example might be where the proper law of a contract is English law, and advice is required as to the terms of English law on the point.
“It is possible to conceive of numerous situations in which the auditor might, in the particular circumstances of a case, reach the view that it was reasonable to instruct English agents for conducting the cause in a proper manner.”
But the auditor had a wide discretion “and it cannot be said that he exercised this irrationally or unreasonably” in this instance, Lord Menzies concluded.
Photo: By Kim Traynor – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22544850