Sanction for senior counsel acting alone or with junior counsel in children’s court proceedings

Sanction for senior counsel acting alone

Many of the factors already shown would apply to employing senior counsel as well as junior counsel in the sheriff court, Sheriff Appeal Court and Court of Session.  In situations where you are requesting senior counsel, acting alone, we will consider whether:

  • There are exceptional factors which show that it is appropriate to employ the experience of senior counsel.
  • The law applicable to the case is particularly complex, novel or that issues are likely to be raised which have not previously been raised before the court.
  • A conflict of complex authorities is to be resolved at a high level and/or cases in which case law may be distinguished.
  • A decision has previously been taken in a case with similar circumstances which does not support the case or there is difficult expert evidence to be led which requires the particular skills of senior counsel.

In general, we consider senior counsel is not appropriate for the conduct of children’s proceedings outwith the Court of Session. Reporters normally conduct the proceedings themselves and rarely instruct junior or senior counsel.

If the Reporter does instruct senior counsel to act on their behalf, then this will not be a sufficient basis for the employment of senior counsel in itself.  However, this does highlight the importance placed on the matter by the Reporter and we will consider this action, alongside the application for sanction for senior counsel.

Senior and junior counsel

Where senior counsel is instructed and requests the assistance of junior counsel, in your request you should:

  • Give us sufficient information to justify why assisting junior counsel is considered appropriate.
  • Identify what their involvement would bring to the case and the particular areas of work they are required to undertake.
  • Address how the preparation of the case is to be apportioned to avoid any unnecessary or unreasonable claims against the Fund.
  • Always address why the instructed solicitor cannot provide suitable support.

In general, where a request for junior appears to be for noting evidence, we will refuse this on the basis that it is considered a function of the instructing solicitor to take an accurate note of the proceedings.

Two junior counsel

Where the volume of evidence in a particular case renders it factually complex, sanction for leading junior counsel assisted by junior counsel might be considered to be more appropriate than senior and junior counsel.

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