Kirkwood v Thelem Assurances

The pursuer was knocked down by a motorist whilst on holiday in France in 2015. She was injured and raised a claim for compensation against the motorist's insurers in the Court of Session. The pursuer, who lived in Scotland, instructed English solicitors to conduct the litigation and those agents engaged the services of an Edinburgh firm to assist them as local agents. The litigation settled with the defenders paying an agreed level of compensation and with an order made that they must meet the pursuer's judicial expenses.

A judicial account was prepared and lodged with the Auditor of Court. Of the sums charged for, less than 5% was for the work of the Scottish agents calculated on a block fee basis. A substantial proportion of the sums sought represented the fees of the pursuer's English solicitors charged for at an hourly rate and based on time spent. An objection was taken to the account on behalf of the defenders. The Auditor was asked to disallow all solicitor's fees of the English agents and when reaching his opinion did strike them out. They held no specialism not readily available from Scottish agents and their work had resulted in higher expense.

The pursuer appealed the Auditor's decision. At first instance and on appeal, the court held that the Auditor's decision was correct. The court was clear that English solicitors can be instructed, and their charges recovered as an outlay, where they are asked 'to carry out discrete pieces of work for particular purposes'. But, that work has to be instructed by the Scottish solicitors who are responsible for the general conduct of the litigation.

A 'particular purpose' which might be reasonable would be, for example, where an English agent is asked to advise on matters in English law and procedure, or where an English solicitor is better equipped to recover witness evidence or documents due to their location.

If that type of work is instructed, the charges of the foreign agents will be recoverable if the Auditor is persuaded that a) their instruction was reasonable for conducting the case in a proper manner and b) the charge itself is reasonable, having regard to charging rates within that jurisdiction. Here, the appeal court agreed with the Auditor that ground a) was not satisfied.

This decision secured a significant cost saving for our client and provides helpful clarity as to when foreign solicitors should be used and, if they are, what charges should be allowed. In short, they should be used to help prepare the litigation for trial but should not be progressing the day to day conduct of it within the Scottish courts. If they do, the charges applied for doing so should be disputed.


Laura McMillan

Partner & Director of Advocacy

Kate Donachie

Legal Director

Lynn Livesey

Legal Director

Gemma Nicholson

Senior Associate