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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12085
Experience:  30 years as a practising solicitor.
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Can an action be raised in a Scottish Court for a money claim

Customer Question

Can an action be raised in a Scottish Court for a money claim if the loss hasn't yet occurred i,e. the pursuer hasn't actually paid out the sum he is claiming
Submitted: 4 years ago.
Category: Scots Law
Expert:  JGM replied 4 years ago.
Thank you for your question.

That depends whether the Defender has a liability to pay, such as in the case of a property factor, for example, he is entitled to sue non paying residents for the cost of work even if the work has not yet been instructed.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 4 years ago.

I have a disagreement with my solicitor. He instructed Counsel on my behalf and has raised an action inter alia for counsel's fee plus interest but I am informed by Counsel's clerk that months after raising the action my solicitor hasn't paid Counsel's fee which he is claiming in the action

Expert:  JGM replied 4 years ago.
The solicitor is entitled to sue you. The reason is that in terms of the rules a solicitor incurs personal liability for Counsel's fees at the time the work was instructed so he is entitled to claim the fees from you.

In practice nowadays a solicitor would not instruct Counsel without a client paying the fees upfront.

Unless you either didn't give authority for Counsel to be instructed or Counsel has given the wrong advice, it's unlikely that you have a defence to this action. I am happy to discuss further, however.
Customer: replied 4 years ago.

The fee that is claimed for Senior Counsel was for a second opinion on a matter that Junior Counsel had given an opinion on. Senior Counsel advised that he hadn't read the case papers, attended a 10 minute meeting and advised that he regarded Junior Counsel highly and would not in any circumstance contradict him. Unfortunately he only advised us of his position at the meeting so we didn't get a second opinion but our solicitor still advises us that he wants his £1500 fee paid to him. What would be our best way of defending this.

Expert:  JGM replied 4 years ago.
The best way to defend it would be to say that Senior Counsel did not do the work to justify the fee. I'm surprised that your solicitor did not query the fee if the work was not done. I take it there was no written Opinion of Senior Counsel.
Customer: replied 4 years ago.

There was no written opinion from Counsel and no verbal opinion ( it was simply stated that he would not contradict Junior Counsel ) My solicitor will not help or not question the position although I know that circa 12 months after the meeting he still hasn't paid Counsel. His rate actually equates to £9000 per hour which is circa £360,000 for a 40 hour week. I have complained directly to Counsel's stable in Edinburgh but they are very blase and will not defend or address the matter stating that my contract was with my solicitor.

Expert:  JGM replied 4 years ago.
I think your solicitor did not act in your best interests. I would submit a complaint to the Scottish Legal Complaints Commission on the basis that Senior Counsels fee for which he is pursuing you is not justified. They at least should be able to get a response from him.

The alternative is just to defend the court action and let him try to prove his case, which he has to do. If you defend on the basis of the information you have given me then the solicitor will have to justify why he is suing you for an outlay that appears not to be justified. You should carefully outline in your defences what Senior a counsel said about not having read the papers and only spending 10 minutes with you.
Customer: replied 4 years ago.

I have sent the matter to the SLCC but from what I hear wouldn't expect much success from that. ( they have a very poor reputation and are not really taken seriously ) The problem I have with your second suggestion is that I have been advised that Senior Counsel has certain privileges which includes not having to attend court to justify/defend his position. Is this correct?

Expert:  JGM replied 4 years ago.
The Senior Counsel's contract is with the solicitor so he will not attend court. The SLCC are the only option to you as well as defending the action.
Customer: replied 4 years ago.

How can the action be defended if senior counsel will not attend court to give evidence? Are the court not just likely to accept that my solicitor has incurred the cost of counsel's fee?

Expert:  JGM replied 4 years ago.
No, they have to prove their case against you, not the other way round. If they don't produce evidence they fail to prove their case.
Customer: replied 4 years ago.

I do see what you are saying but does the solicitor not simply need to produce Counsel's fee note to the court as evidence or will he have to defend Counsel in court and produce an answer as to why we didn't receive what we contracted for i,e. a second opinion either verbally or in writing. We did email the solicitor the day after the meeting was held detailing our concerns I presume we can produce this email in court and question why our solicitor didn't put the matter directly to counsel at that time?

Expert:  JGM replied 4 years ago.
No, an outlay sued for by a solicitor still has to be justified.