Pleural plaques expenses update

In this recent Sheriff Court decision, sanction for the instruction of Senior Counsel was granted in a pleural plaques case.

Robert Burns v Hamilton & Forbes Limited & Ors [2017] SC EDIN 72

Executive summary

In this recent Sheriff Court decision, sanction for the instruction of Senior Counsel was granted in a pleural plaques case.

Facts

The Pursuer alleged that he had developed pleural plaques due to exposure to asbestos when he was employed as a joiner in the 1960s and 1970s with the three defenders, and that he was therefore at an increased risk of developing asbestos-related lung cancer, mesothelioma, asbestosis and pleural thickening.

The Pursuer also pled that he was employed by a company by the name of McGhee Murray Limited in the 1970s, a subcontractor of the Third Defenders and, as such, the Third Defenders were therefore liable for any negligent exposure during this period of employment.

A Proof was fixed to proceed on 20 June 2017 and until the stage of the pre-trial meeting on 6 June, the Pursuer had instructed Junior Counsel alone. The pre-trial meeting ended without settlement. By this time, the First and Second Defenders had admitted liability to the Pursuer but the Third Defenders had not.

Following the pre-trial meeting, the Pursuer instructed Senior Counsel to represent him at the Proof. On 15 June, the Third Defenders admitted the Pursuer had developed both the causation of pleural plaques and also a proportion of the period of employment alleged by the Pursuer. A Tender was then lodged on 16 June by all three Defenders and the case settled on 19 June.

A motion was thereafter lodged by the Pursuer seeking sanction for both Junior and Senior Counsel. The motion was opposed by the Defenders who argued it was unreasonable to instruct Senior Counsel and that any experienced Junior Counsel could have dealt with the issues in the case. The Pursuer contended that it was reasonable to have instructed Senior Counsel given the various complexities of the case, such as whether, as a matter of fact and law, the Third Defenders were vicariously liable for any negligent exposure to asbestos by their sub-contractors.

Decision

Sheriff Braid held that whilst it may well be true that many competent Junior Counsel could have conducted the Proof, that did not necessarily mean that it was unreasonable to grant sanction for the instruction of Senior Counsel. The real question for the Court to determine was whether the issues in dispute merited the employment of Senior Counsel. The Sheriff determined that the issues between the Pursuer and Defenders as a totality were sufficiently complex to merit the use of Senior Counsel and accordingly, in all the circumstances of the case, sanction was granted. The Sheriff did however comment that whilst sanction was granted, this did not mean that it would always be reasonable to grant sanction for Senior Counsel in pleural plaques cases as each case will turn on its own facts and circumstances.

Interestingly, the Sheriff acknowledged that some of the factors which led to the granting of sanction for Senior Counsel were solely attributable to the conduct of the Third Defenders and he therefore fixed a further hearing so that he could be addressed on this point.

Commentary

This decision does not necessarily mean that there will be an increase in Pursuers seeking to instruct Senior Counsel in every case involving pleural plaques. The Sheriff was very clear that each case will turn on its own facts and circumstances to determine whether the employment of Senior Counsel is reasonable and this case involved an unusual set of circumstances. However, where there are pleural plaques cases which involve issues of sufficient complexity it is clear the Court will be prepared to grant the sanction of employment of Senior Counsel.

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