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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tait v. Campbell [2003] ScotCS 285 (14 November 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/285.html Cite as: [2003] ScotCS 285 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LADY PATON in the cause MRS MARGARET ALLAN TAIT Pursuer; against FIONA CAMPBELL Defender: ________________ |
Pursuer: Bell, Q.C., Arthurson, Advocate; Digby Brown
Defender: Brailsford, Q.C., Duncan, Advocate; Simpson & Marwick, W.S.
14 November 2003
Civil jury trial: three tenders lodged
[1] On 27 November 1996, the pursuer was injured when a bus in which she was travelling braked violently. The driver had been forced to brake when the defender's car emerged from a side road. [2] In 1998, the pursuer raised an action for damages in the Court of Session. A civil jury trial was allowed. The issue for the jury was in the following terms:WHETHER the accident suffered by the pursuer on or about 27 November 1996 near Dobbies Garden Centre, Dalgety Bay, Fife, was caused by the fault and negligence of the defender, to the pursuer's loss, injury and damage?
DAMAGES CLAIMED: £50,000
Past solatium:
Future solatium:
Travelling expenses:
Past loss of earnings:
Future loss of earnings:
Damage to coat:
Damage to spectacles:
Damage to gold bracelet:
TOTAL DAMAGES
First tender: Minute of Tender number 17 of process, lodged on 8 October 1999, offering the pursuer £5,500 net of social security benefits, with taxed expenses to date.
Second tender: Minute of Tender number 24 of process, lodged on 6 September 2000, offering the pursuer £7,500 net of social security benefits, with taxed expenses to date.
Third tender: Minute of Tender number 27 of process, lodged on 29 May 2001 (about a week before the commencement of the jury trial on 5 June 2001), offering the pursuer £10,000 net of social security benefits, with taxed expenses to date.
The pursuer did not accept any of the tenders.
The jury trial
[5] Mr Arthurson, junior counsel for the pursuer, explained to the jury in his opening speech that liability was admitted and that their task was to assess damages, assisted to some extent by the Joint Minute. [6] The pursuer gave evidence. Witnesses were led on her behalf. Mr Brailsford, Q.C., for the defender, led no evidence. [7] On 7 June 2001, following speeches and a charge, the jury retired to consider their verdict. On their return, they answered the question posed in the issue in the affirmative as directed, and then made the following awards:|
Past solatium |
£3,000 |
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Future solatium |
£2,000 |
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Travelling expenses |
£ 35 |
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Past loss of earnings |
£ 500 |
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Future loss of earnings |
Nil |
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Damage to coat |
£ 120 |
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Damage to spectacles |
£ 265 |
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Damage to gold bracelet |
£ 330 |
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TOTAL DAMAGES |
£6,250 |
[8] As at 7 June 2001, interest accrued on the damages awarded by the jury amounted to £948, bringing out a total of £7,198. Accordingly the pursuer had succeeded in beating the first tender of £5,500, but had failed to beat either the second tender of £7,500, or the third tender of £10,000.
Pursuer's motion for a new trial
[9] The pursuer enrolled a motion for a new trial. The motion was unsuccessful. All matters relating to the motion, including the expenses of the hearing before the Inner House, were dealt with by the Inner House.Pursuer's motion to apply the verdict: expenses and interest
[10] On 14 March 2003, senior counsel for the pursuer moved that the jury's verdict be applied. Counsel accepted that the pursuer was liable for any expenses following upon the third tender (29 May 2001), but sought an award of expenses up to the date of the third tender. Alternatively, he sought expenses up to the date of the second tender lodged on 6 September 2000, with no expenses due to or by either party for the period from the second tender until the lodging of the third tender. Counsel also sought interest on the total of £7,198, at the rate of 8 per cent per annum from 7 June 2001 (the date of the jury's verdict) until payment. [11] Junior counsel for the defender opposed the pursuer's motion so far as relating to expenses and interest.Submissions for the pursuer
[12] Mr. Bell, Q.C., argued that by lodging the third and higher tender, the defender had brought about a material change of circumstances. The previous tender had in effect been withdrawn, and was no longer open for acceptance. [13] There was support in authority for the proposition that a change of circumstances could give rise to an inference that a tender had been withdrawn. Reference was made to Maclaren, Court of Session Practice, page 426; Macrae v Edinburgh Street Tramways Co., (1885) 23 S.L.R. 185, (1885) 13 R. 265; Sommerville v National Coal Board, 1963 S.C. 666; Stoddart v R.J. Macleod Limited, 1963 S.L.T. (Notes) 23; Tenbey v Stolt Comex Seaway Limited, 2001 S.C. 638; and McEwan & Paton, Damages for Personal Injuries in Scotland (2nd ed.), paragraph 18-04. Counsel submitted that the defender's decision to lodge a third tender amounted to a change of circumstances such as was referred to in the authorities. As at the date of the lodging of the third tender, the question for the pursuer changed to whether or not she should accept that third tender. It would be absurd to suggest that it was open to her to accept the second (lower) tender. The second tender must therefore by implication and by the change of circumstances be deemed to have been withdrawn. If the defender chose to abandon the protection offered by the second tender by lodging a third tender, then it was not open to her to seek to rely upon it. [14] Counsel accordingly invited the court to find the pursuer entitled to expenses until the date of the lodging of the third tender, namely 29 May 2001. It would be for the auditor to determine whether and to what extent the pursuer could recover the expense incurred in considering the second tender.Submissions for the defender
[15] The defender's primary position was that the defender should be found entitled to expenses from the date of the second tender, 6 September 2000. The precise extent of expenses recoverable would be a matter for the auditor. The pursuer should be found entitled to expenses only up to 6 September 2000. [16] No legal basis for refusing to award the defender expenses from 6 September 2000: While there was no authority directly in point, it was the defender's contention that a tender became inoperative in two situations only, namely (i) withdrawal of the tender (in respect of which there was a well-recognised practice: cf. Maxwell, Court of Session Practice, page 246; and styles in textbooks); and (ii) on a change of circumstances. The rules relating to tenders were not identical to the ordinary rules of contract. As Lord Osborne pointed out in Tenbey v Stolt Comex Seaway Limited, 2001 S.C. 638, there were two fundamental differences:- First, an offer made in everyday life remained open for acceptance only for a reasonable time; by contrast, a tender remained open for acceptance throughout the litigation (subject of course to withdrawal of the tender, or to a change of circumstances). Secondly, under ordinary contract rules, the refusal of an offer rendered that offer inoperative. By contrast, a previously-rejected tender could be accepted at any stage of a proof or trial. [17] In the present case, there had been no formal withdrawal of the second tender. The lodging of another tender did not in itself constitute a change of circumstances: cf. Macrae v Edinburgh Street Tramways Co., cit. sup., at page 268. The death of a pursuer might amount to a change of circumstances: Sommerville v National Coal Board, 1963 S.C. 666 (where the death changed the calculation of future wage loss and rendered the tender inoperative). The issuing of the court's judgement also amounted to a material change of circumstances such that any tender made before the judgement was no longer operative: cf. Bright v Low, 1940 S.C. 280. But there was no precedent suggesting that the lodging of a new tender in addition to a previous tender or tenders could amount to a change of circumstances. On the contrary, the case of Aitchison v Steven (1864) 3 M. 81 went some way to support the proposition that, in practice, the earlier tender continued to have effect. [18] There was therefore no legal basis for the approach suggested by the pursuer's counsel. [19] Unfair not to award the defender expenses from 6 September 2000: It was accepted that the court had a discretion in the matter of expenses. But in the exercise of that discretion, it was important to bear in mind the purpose of a tender, as described in Ferguson v Maclennan Salmon Co. Ltd., 1990 S.C. 45, at page 51. In the present case, the jury's decision demonstrated that much of the litigation had been unnecessary. Esto the pursuer's argument was accepted, the second tender had remained open for acceptance until the eve of the jury trial. The pursuer therefore had about nine months within which to accept the second tender. The pursuer now sought to rely upon a further tender lodged just before the trial, using that tender in a kind of back-dating exercise in an attempt to cure her failure to accept the earlier tender. Such an approach was illogical and unfair to the defender. It would be unfair if a defender were unable to protect herself, particularly where circumstances changed from the defender's point of view. For example, if issues were allowed, then the defender, appreciating that the assessment of damages would be carried out by a jury and not by a judge, might wish to put in place some greater protection, without prejudice to any earlier tenders which had been calculated and lodged in good faith. The practice of lodging subsequent, higher, tenders was well recognised. Most defenders would be surprised if it were to be suggested that, in such circumstances, an earlier tender no longer provided protection. [20] Accordingly, the pursuer should be found entitled to expenses up to 6 September 2000, the date of the lodging of the second tender. Thereafter the expenses of process, insofar as not already dealt with, should be awarded to the defender, against the pursuer. [21] So far as interest was concerned, until the court had applied the jury's verdict and pronounced decree, any interest accruing was pre-decree interest, and should be calculated in the normal way. For example, past solatium would attract interest at 4 per cent per annum, representing one half of the judicial rate. Travelling expenses incurred at a particular date would attract interest at the full judicial rate, currently 8 per cent per annum, from that date. Reference was made to Hajducki, Civil Jury Trials, paragraph 5-30; and McEwan & Paton, Damages for Personal Injuries in Scotland (2nd edition), Chapter 3. While again accepting that the court had a discretion in the question of interest, it was submitted that Mr. Bell's approach in seeking interest at 8 per cent on the total of £7,198 would in effect penalise the defender, particularly bearing in mind the lower rates of interest being offered by banks and other institutions.Reply for the pursuer
[22] Responding to the defender's submission relating to interest, Mr. Bell drew attention to Hajducki, op. cit., paragraphs 5-30 and 6-60; McEwan & Paton, op. cit., paragraph 3-02; and Smith v Middleton, 1972 S.C. 30. As at 7 June 2001, the defender became aware that she had to pay the pursuer the sum awarded by the jury, with interest on the various heads of past loss. Assuming that no motion for a new trial had been made, the total award inclusive of interest was £7,198 as at 7 June 2001. That sum had been due to the pursuer at that date. Accordingly, applying paragraph 6-60 of Hajducki, op. cit., the pursuer was from that date (or 7 days later, say 14 June 2001) entitled to full judicial interest at the rate of 8 per cent per annum on £7,198 until payment. Had damages been assessed by a Lord Ordinary rather than a jury, interest would run ex lege at the full judicial rate of 8 per cent. It was irrelevant that the current judicial rate might seem high, having regard to prevailing bank rates. The judicial rate was fixed by the rules of court. The defender could have consigned the relevant amount in an interest-bearing account in joint names of the solicitors pending the motion for a new trial. It could not be right that the pursuer should be penalised simply because a jury assessed damages, rather than a Lord Ordinary. [23] Reverting to the question of expenses, if the court agreed with the pursuer's argument that the second tender no longer provided protection for the defender, then the court should not exercise any discretion in favour of the defender. The whole matter had been dealt with by tenders, and the tenders should rule. If, however, any discretion were to be exercised, it should be limited to a finding of no expenses due to or by either party in respect of the period between the second and third tenders.Opinion
[24] In my view, all three tenders remained open for acceptance until the moment when the jury returned their verdict and gave their assessment of damages: cf. dicta of Lord Osborne in Tenbey v Stolt Comex Seaway Ltd, 2001 S.C. 638. At that point, the tenders were rendered inoperative by the very fact that a verdict had been returned and a quantification of damages made: cf. Bright v Low, 1940 S.C. 280; Macrae v Edinburgh Street Tramways Co. (1885) 13 R. 265. [25] I am unable to accept the contention that the lodging of a second or subsequent tender renders an earlier tender inoperative - whether the subsequent tender be higher or lower than the earlier tender. Many factors may influence a pursuer's choice of tender. While a tender offering a larger sum might seem prima facie more attractive to a pursuer, there may be important considerations relating to state benefits or to expenses (depending upon the date of the tender) such that it might, depending on the circumstances, be beneficial to a pursuer to accept a lower tender. Accordingly the lodging of a second tender does not in my view amount to a change of circumstances such that the earlier tender is rendered inoperative. [26] A party who does not accept a tender, and who is subsequently awarded a sum lower than that tendered, is normally liable for the post-tender expenses. As Lord McCluskey observed in Ferguson v Maclennan Salmon, 1990 S.C. 45 at page 51:"The principle must be that if one party makes a judicial offer in clear and unambiguous terms which it is open to the other party to accept, thereby ending the litigation (in whole or in part), and the other party does not accept it, then if, after further litigation, the court makes an award which benefits the non-accepting party to no greater extent than he would have been benefited by accepting the offer, then, in the absence of other decisive considerations, it is he, not the offerer, who should pay for the unnecessary litigation subsequent to its date."
Conclusion
[30] I shall apply the verdict which the jury returned on 7 June 2001, including interest accrued at that date, agreed by the parties to amount to a total of £7,198. For the reasons given above, allowing a notional seven days for the enrolling and granting of a motion to apply the verdict, I find the pursuer entitled to interest on the sum of £7,198 at the full judicial rate currently applicable, namely 8 per cent per annum, from 14 June 2001 until payment. [31] I find the pursuer entitled to her expenses, insofar as not already dealt with, to the date of the second tender number 24 of process lodged on 6 September 2000, including such time as the auditor may allow for the proper consideration of that tender. I find the pursuer liable to the defender for expenses incurred thereafter, insofar as not already dealt with.
