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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jacobs v. The Provincial Motorcab Co., Ltd [1910] ScotLR 634 (24 May 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0634.html Cite as: [1910] SLR 634, [1910] ScotLR 634 |
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Page: 634↓
(Single Bills.)
Where a tender is made by a defender to a pursuer, and after a lapse of time the pursuer accepts it, the defender is entitled to the expenses incurred by him in the period between the making of the tender and its acceptance so far as these have been incurred in the natural progress of the cause.
In an action of damages for personal injury the defenders lodged a tender. Thereafter they amended the record so as to present an entirely different account of how the accident happened. The pursuer subsequently accepted the tender.
Held that the defenders were not entitled to the expenses occasioned by the amendment, these not being expenses incurred in the natural progress of the cause.
Nathan Jacobs, clothier, Trongate, Glasgow, brought an action against the Provincial Motor Cab Company, Limited, in which he sued for £2500 as damages for personal injury which he averred he had sustained through being knocked down by one of the defenders' cabs while crossing the Trongate.
On record the defenders stated—“The pursuer, when first observed by the driver of the cab, was coming from south to north. The driver, in order to make sure of avoiding the pursuer, then directed his course towards the south side of the street, which the pursuer had left. The pursuer, however, after crossing over to beyond the centre of the road, observed the motor cab approaching, and suddenly turned and ran back towards the south side of the street. The driver at once turned his cab towards the northern side of the street, but the pursuer lost his head and, becoming confused, again turned and ran towards the north side, and across the course of the cab.”
The record was closed on 22nd January 1910 and an issue approved on January 29th. On 9th February 1910 the defenders lodged a tender.
On 8th March 1910 the defenders in the Inner House craved leave to amend the record by deleting, inter alia, the passage quoted and substituting therefor the following:—“The pursuer, when first observed by the driver of the cab, was crossing from north to south. The pursuer, however, after leaving the north pavement observed the motor cab approaching, and halted with a view to allowing the motor cab to pass him on the south, but immediately thereafter he changed his mind and ran forwards towards the south side of the street. The driver thereupon turned his cab towards the northern side of the street, when the pursuer lost his head and, becoming confused, turned and ran into the cab.”
The Court allowed the amendment, the pursuer being found entitled to the expenses occasioned thereby as these might be subsequently fixed on taxation.
The case was tried before the Lord President and a jury on 22nd March 1910. In the course of the trial the pursuer accepted the tender, the jury returning a formal verdict in the pursuer's favour for the sum contained therein.
On 24th May the pursuer moved the Court to apply the verdict; to decern in favour of the pursuer for the sum of £201; to find the pursuer entitled to expenses down to 9th February 1910, being the date of the tender; and quoad ultra to find the defenders entitled to expenses, except in so far as these had been disposed of in favour of the pursuer by the interlocutor allowing the amendment.
Counsel for the defenders submitted that they were entitled to the expenses since the date of the tender.
The peculiarity here is that after the defender had made his tender he came forward with a proposal to amend the record in such fashion as to present an entirely different account of how the
Page: 635↓
Now, clearly, the expenses incurred by the pursuer by reason of the amendment—as, for example, the expense of going to his witnesses and asking them what they had to say to the new story presented on record — were not only not expenses incurred in the natural progress of the cause, but also were in this case thrown away. Had the defenders' case been properly written in the beginning they would not have been incurred at all. Accordingly it seems to me that in allowing the pursuer the expenses caused him by the defenders' amendment after the date of tender, we are not traversing the general rule regarding the offer and acceptance of a tender. These expenses became necessary owing to the defenders' change of attitude after his tender was in; they were not expenses incurred in the natural progress of the cause; and accordingly I think they should be allowed and an interlocutor pronounced in terms of the notice of motion.
The Court pronounced this interlocutor—“Apply the verdict …: Decern against the defenders for payment to the pursuer of £201: Find the pursuer entitled to expenses down to 9th February 1910, the date of the defenders' tender.… Quoad ultra, find the defenders entitled to expenses except in so far as these have been disposed of in favour of the pursuer by interlocutor of 8th March 1910.…”
Counsel for Pursuer— Watt, K.C.— Hon. W. Watson. Agents — Macpherson & Mackay, S.S.C.
Counsel for Defenders— Morison, K.C. — Aitchison. Agents— Balfour & Manson, S.S.C.
