This is the question that faced judges in the Inner House of the Court of Session recently in the case of Kirkwood v Thelem Assurance [2023] CSIH 30.

Dr Kirkwood had been injured by a motorist while she was on Holiday in France in 2015. She raised an action for compensation in the Court of Session in Edinburgh against the motorist’s insurer. She instructed an English firm of solicitors to represent her, who in turn instructed a Scottish firm to assist as local agents.

The case was settled with an agreed level of compensation and expenses in favour of Dr Kirkwood. However, an issue arose when the account of those expense was submitted to the court containing Scottish solicitor’s fees of £8,671.57 + VAT plus an outlay of £250,177.35 for the English solicitor’s fees.

The insurer objected to the account that was lodged, meaning the issue of determining what fees should be recovered was decided by the Auditor of the Court of Session. The Auditor, following the principle of allowing charges on accounts that are reasonable for the conduct of the case only, abated the account significantly by removing the English solicitor’s account charges and determining that it was not reasonable for the Pursuer to have instructed the solicitors in England.

The decision of the Auditor was appealed. The English solicitor’s view being that their instruction was reasonable due to their expertise in foreign jurisdictions.  The appeal was refused. The Lord President delivered the opinion of the judges in the Inner House. His Lordship stating that it is important that litigation in Scotland is conducted by those whom the court has authorised to do so and are subject to the expenses regime that the court has devised. He determined that litigation in Scotland being undertaken by Scottish solicitors ensures that those conducting it are subject to the disciplinary rules, either exercised by the court itself, or delegated by the court to the Law Society of Scotland and the Faculty of Advocates. His Lordship stating that the English agents fees would have been bound to be removed by the Auditor on the ground that they were not solicitors authorised by the Courts in Scotland in so far as those fees relating to the general conduct of the litigation.

This does not mean that English solicitor fees may not be recoverable in Scottish litigation. The Lord President highlights that it may be reasonable to instruct English solicitors and the costs could potentially be recovered if it was required for the general conduct of the cause but confirms that it is the task of the Auditor to decide first whether the particular item of work carried out by the English solicitors were reasonably incurred by Scottish agents for conducting the case in a proper manner.

TC Young have experience working with English Solicitor firms in relation to Scottish litigation at both Sheriff Court and Court of Session. If any advice in this area is required please contact one of our team here