Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 81
PD1020/06	OPINION OF LADY CLARK OF CALTON in the cause RAYMOND ALLAN SINCLAIR McGREGOR Pursuer; against ALPHA AIRPORTS GROUP PLC Defenders; _________

Pursuer: Party

Defenders: Hamilton; Simpson & Marwick

13 May 2011

Introduction
[1] The pursuer was for a number of years employed by the defenders, Alpha Airports Group plc. As a result of back injury, other physical problems and depression which the pursuer claimed resulted from the negligence of the defenders as his employers, the pursuer applied for civil legal aid in February 2006 to bring an action of damages against the defenders. Civil legal aid was made available to him in April 2006. He instructed solicitors who instructed counsel. A summons in a personal injuries action was raised against the defenders and the case called on 6 July 2006. A diet of proof was fixed on 15 May 2007 but discharged by Lord McEwan on motion by the pursuer's agents that four days would not be sufficient.

[2] On 4 April 2008, Lord Drummond Young on the defenders' motion, of consent, discharged a second proof date assigned for 20 May 2008.

[3] On 27 January 2009, Lord Menzies discharged the third diet of proof fixed for that date in order to enable the pursuer to obtain alternative legal representation. On said date, Lord Menzies was advised that the solicitors and counsel for the pursuer had withdrawn from acting. I was informed that the pursuer was not prepared to accept advice from his legal advisers in relation to settlement of the action. The proposed settlement did not offer any sum as damages but proposed absolvitor with no expenses due to or by either party.

[4] Thereafter the pursuer appears to have conducted the case as a party litigant. The pursuer presented as a person who was suffering from health difficulties which he regarded as serious and to some extent these difficulties affected his ability to conduct the case. The pursuer blamed the defenders for these problems. It is plain in this case that the pursuer was quite unable to cope with the technical procedural requirements and appeared to have little understanding of problems in relation to the merits of the action. He stated to the court from time to time that he had attempted to obtain assistance from other solicitors but that he had been unsuccessful. He did not appear to understand that he still had a legal aid certificate in force and the advantages of that. He did not understand the implications and protection that a grant of legal aid might provide in relation to expenses. Further investigation about his legal aid status at the instance of the court produced a letter dated 18 September 2009. This letter stated that the legal services department (of the legal aid board) had written to the pursuer on 25 June 2009 asking him for details of his new solicitor. In the absence of any response his grant for civil legal aid was terminated in August 2009. This was notified to the pursuer on 12 August 2009. It appears therefore that the pursuer was still in receipt of a civil legal aid certificate until August 2009.

[5] Thereafter there were a number of important procedural hearings about a variety of matters. There were at least nine different Lords Ordinary who dealt with this case on one or more occasions from April 2007.

[6] My first involvement in the case appears to have been 4 June 2009. One of the difficulties that the pursuer then experienced (as represented) was stated to be his inability to travel long distances from Nairn to Edinburgh as a result of his medical condition. In order to assist the pursuer I made an order under and in terms of rule of court 93.1 and granted authority for the proceedings to be heard by video link. I granted similar orders on a number of occasions allowing the pursuer to make submissions to the court in Edinburgh from the sheriff court in Inverness by video link. On 11 June and 11 November 2009, I refused to grant the defenders' motions for caution.

[7] The fourth proof date was due to commence on 1 December 2009. On that date Lord Bannatyne ex proprio motu discharged the diet of proof assigned for that date. In his opinion of 8 April 2010, he sets out in detail the reasons for this and his reasons for granting caution in the sum of £1,000. He allowed the pursuer three months in which to raise said sum and lodge it in court. In granting said sum, he recognised that the pursuer was impecunious and that to the pursuer the sum of £1,000 was "a very substantial sum of money". The defenders had sought the sum of £25,000 which was refused by Lord Bannatyne.

[8] On 16 July 2010, I heard an important motion in which the pursuer sought leave to allow a minute of amendment. I dealt with that in my opinion dated 10 August 2010. For the reasons explained in that opinion, I refused the pursuer's motion.

[9] On 24 September 2010, Lady Dorrian considered a motion by the defenders who sought caution in the sum of £25,000. She made an order for caution in the sum of £20,000 and allowed 28 days for that to be found. Her reasons are contained in her opinion dated 6 October 2010.

[10] Unsurprisingly, the pursuer was unable to find caution in the sum of £20,000. On 11 November 2010, the defenders sought decree of absolvitor in that the pursuer had failed to obtemper the interlocutor of Lady Dorrian dated 6 October 2010. I heard this motion. Because the interlocutor had not been obtempered, I granted decree of absolvitor to the defenders.

[11] At the hearing on 11 November 2010, I was also invited "to find the pursuer liable to the defenders in the expenses of process as taxed". The pursuer opposed the motion. In written and oral submissions, the pursuer made plain his unhappiness and sense of injustice that he had been denied a hearing in court on the merits of the case. He invited the court "not to allow expenses as it is the defenders' fault that I am in this sad position and simply cannot afford this living off state benefit". He made it plain that his sense of injustice at being denied the opportunity to give evidence to the court and to lead witnesses about his work injury made him determined to take his case to the European Court and "thus be able in a court of law to be allowed to tell the truth about the illegal working practices which occurred on a daily basis and justice to be served".

[12] On 11 November 2010, there seemed some prospect that the defenders might be prepared to take into account the distressing situation of the pursuer and his impecuniosity. At that stage the defenders did not insist on the motion for expenses. As a result I made no decision about the expenses.

[13] On 2 March 2011 the motion for expenses on behalf of the defenders was renewed before me. The pursuer continued to oppose the motion on the same grounds as I set out in paragraph 11. Counsel for the defenders submitted that the law was not in dispute. He accepted that the court had wide powers of discretion but submitted that the defenders had been successful and that there were no good grounds for departing from the usual practice that expenses should follow success.

[14] I accept that the defenders were successful in a sense. But their success was in part the result of the impecuniosity of the pursuer. Had the pursuer been rich or supported by an insurance company or other funder, the defenders' motion for caution could not have been successful. Similarly, if the pursuer had been able to raise £20,000, he would have been able to pursue the case to a proof in court even if a Lord Ordinary had taken the view that the case was without merit. It may be thought that there is some imbalance in our system which allows this result to occur.

[15] This is not a case in which the defenders do not accept the impecuniosity of the pursuer. The impecuniosity of the pursuer was a major plank in the defenders' submissions about caution. It was not suggested by counsel for the defenders that there was any improvement in the pursuer's financial circumstances. I am not clear whether it is in dispute by the defenders that the pursuer, for whatever reason, is a man who appears to be suffering from considerable pain and psychological difficulties which have seriously adversely affected his life. That is certainly my impression. The pursuer is no longer employed and is totally dependent on state benefits. If the pursuer had been better informed or had been able to obtain some legal advice, he might have been able to utilise the benefit of a legal aid certificate at least until it was terminated on 12 August 2009. That might have given him some protection as an assisted person.

[16] I accept that the defenders have inevitably been put to time, trouble and expense in relation to this matter. I do not know to what extent that expense may be offset by any insurance arrangements and that is not a matter about which I should speculate. I accept also that the defenders may have felt some frustration at the way this action has unfolded.

[17] Against the background which I have narrated, I require to come to some decision about the defenders' motion for expenses. In respect of certain matters, there has been some determination about questions of expenses. I obviously do not intend to interfere with previous interlocutors.

[18] I am conscious of the fact that Lord Bannatyne in granting the defenders' motion for caution of £1,000 on 8 April 2010 did so in order to protect the defenders in relation to expenses "to cover a short procedural hearing before the court at which a decision as to whether the minute of amendment proposed by the pursuer would be allowed". I dealt with the hearing about said minute of amendment. I consider that in all the circumstances the defenders as a minimum should be awarded the expenses as taxed occasioned by the hearing in relation to said minute of amendment up to a maximum sum of £1,000. I take into account that the defenders were successful in their motion for caution, the pursuer lodged caution and the defenders were successful in opposing the minute of amendment of the pursuer.

[19] There was no restriction in the defenders' motion for expenses. In considering the motion, I noted the approach adopted by Lord Bannatyne in relation to expenses. He dealt with the defenders' motion for the expenses of the discharge of the proof diet on 1 December 2009 in paragraphs 29 to 34 of his Opinion of 8 April 2010. I consider that there is much to recommend his approach in the unusual circumstances of this case. I accept that there are distinctions to be made but nevertheless having considered the whole circumstances of this case and recognising that I have a discretion, I consider that justice in this case is best served by not granting the motion by the defenders except to the extent which I have set out in the previous paragraph.