There is no automatic right of recovery for a successful party in relation to the costs of employing counsel in sheriff court or Sheriff Appeal Court proceedings. Sanction for counsel is not required for Court of Session proceedings.

The starting point for all applications to sanction counsel’s involvement is s. 108 of the Courts Reform (Scotland) Act 2014 (the 2014 Act), whether made before or after 29 April 2019. The Act provides:

• (1) This section applies in civil proceedings in the Sheriff Court or the Sheriff Appeal Court where the court is deciding, for the purposes of any relevant expenses rule, whether to sanction the employment of counsel by a party for the purposes of the proceedings.

• (2) The court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.

• (3) In considering that matter, the court must have regard to—

  • (a) whether the proceedings are such as to merit the employment of counsel, having particular regard to—

    • (i) the difficulty or complexity, or likely difficulty or complexity, of the proceedings,

    • (ii) the importance or value of any claim in the proceedings, and

  • (b) the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.

• (4) The court may have regard to such other matters as it considers appropriate.

• (5) References in this section to proceedings include references to any part or aspect of the proceedings.

• (6) In this section—

  • • “counsel” means—

    • a. an advocate,

    • b. a solicitor having a right of audience in the Court of Session under section 25A of the Solicitors (Scotland) Act 1980,

  • • “court”, in relation to proceedings in the sheriff court, means the sheriff,

  • • “relevant expenses rule” means, in relation to any proceedings mentioned in subsection (1), any provision of an act of sederunt requiring, or having the effect of requiring, that the employment of counsel by a party for the purposes of the proceedings be sanctioned by the court before the fees of counsel are allowable as expenses that may be awarded to the party.

• (7) This section is subject to an act of sederunt under section 104(1) or 106(1).