COST BITES 101: RECOVERING THE COSTS OF ENGLISH SOLICITORS IN SCOTTISH COURTS (THIS DOESN’T END WELL – FOR SOMEONE)
It is rare for this blog to cover (or pursue) a decision from Scotland. However the judgment in RECLAIMING MOTION IN THE CAUSE OF MARGARET JANIS KIRKWOOD AGAINST THELEM ASSURANCES [2023] ScotCS CSIH_3 has major implications for English & Welsh solicitors acting for Scottish clients. The court did not allow the costs of English solicitors acting for a Scottish client in the Scottish courts (who had been injured in France). This involved £250,223.35 (the English element of the fees) not being recovered.
“It is important that litigation in Scotland is: (a) conducted by those whom the court has authorised to do so; and (b) subject to the expenses regime which the court has devised. The former is concerned with not only the efficiency of the system; that is that causes are conducted by those fully conversant with Scots law and procedure.”
THE CASE
The pursuer (claimant) was Scottish, she was involved in a road traffic accident in France. She instructed solicitors in Birmingham. Proceedings were issued in Scotland and this became Court of Session litigation. The English solicitors employed local solicitors in Edinburgh to act as their agents.
The matter settled and the defendants were liable to pay the pursuer’s costs.
THE BILL
The Scottish solicitors lodged a bill for £260,629.11. Some £8,671.47 represented the Scottish solicitor’s costs, the balance were the English solicitors’ fees and outlays.
THE ASSESSMENT OF COSTS
The Auditor (Costs Judge) did not allow the fees of the English solicitors, this decision was upheld on appeal to the Lord Ordinary.
THE APPEAL TO THE COURT OF SESSION
The pursuer’s appeal to the Court of Session was equally unsucceful.
Decision
[29]
It is important that litigation in Scotland is: (a) conducted by those whom the court
has authorised to do so; and (b) subject to the expenses regime which the court has devised.
The former is concerned with not only the efficiency of the system; that is that causes are
conducted by those fully conversant with Scots law and procedure. It is also to ensure that
those conducting it are subject to the disciplinary rules either exercised by the court itself of
delegated by the court to the Faculty of Advocates or the Law Society of Scotland. It is
manifest that this litigation was not being conducted by solicitors authorised by the court.
On that ground alone, the Auditor would have been bound to tax off Irwin Mitchell’s fees in
so far as they related to the general conduct of the litigation.
ENGLISH SOLICITOR’ COSTS MAY BE RECOVERABLE – BUT THIS IS THE EXCEPTION RATHER THAN THE RULE
[31] All of this is not to say that in a Scottish litigation the fees of English solicitors for
particular pieces of work are not recoverable. Of course they are. Normally, however, the
work has to have been instructed by the Scottish solicitors who are responsible for the
general conduct of the litigation, in this case Blacklocks. There is no indication in this case
that Blacklocks gave any thought to, or were even aware of, the work carried out by Irwin
Mitchell. There is no suggestion that they considered that it was reasonable to instruct them
for conducting the cause in a proper manner. Any such thought would have to have
proceeded on the basis that the Scottish agents would be carrying out the bulk of the work
but that it was reasonable for them to instruct English solicitors to carry out discrete pieces
of work for particular purposes. These could include the ingathering of evidence which
could only be achieved by a prolonged journey to a part of England not readily accessible to
the Scottish solicitors. It might include advice on matters in English law and procedure.
There are many other examples
