Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 42
PD1824/13	OPINION OF LORD BOYD OF DUNCANSBY in the cause RAYMOND McATEER Pursuer; against GLASGOW CITY COUNCIL Defenders: ________________

Pursuer: MacColl; Allan McDougall

Defender: Lugton; Glasgow City Council

27 February 2014

[1] This is a personal injury action under chapter 43 of the rules of court. The action was settled following a minute of tender by the defenders in the sum of £6,500. A motion for decree in terms of the minute of tender and acceptance was enrolled by the pursuer together with certification of Mr I W R Anderson as a skilled witness and for the expenses of the action. The motion was opposed in respect of expenses only. The defenders moved the court to modify the award of expenses under Rule of Court 42.5. The motion came before me on 19 November 2013 when I granted the motion in respect of decree and certification. I awarded the pursuer the expenses of the action but modified the expenses to the sheriff court ordinary cause scale without sanction for counsel.

[2] In support of the motion for modification, Mr Lugton submitted first, that the action should not have been raised; it was premature having regard to the fact that the parties were in discussion regarding settlement. Accordingly, expenses should be awarded on the pre-action voluntary protocol scale. Secondly, the action ought to have been raised in the sheriff court and expenses should be modified to the sheriff court scale with no sanction for counsel.

[3] Mr Lugton submitted that the action was premature because the defenders were given insufficient time to respond to proposals for settlement pre-litigation. On 27 August 2013 the defenders' representatives emailed the pursuer's agents offering £3,750 in full and final settlement. On 29 August 2013 that proposal was countered by the pursuer's agents who said that they would accept the sum of £6,000. The defenders' representatives responded on 30 August asking for case law in support of that claim. On 3 September the pursuer's agents replied citing a number of cases in support but now suggesting that they were prepared to accept the sum of £7,000. Eight days later the summons was signetted and on 19 September 2013, that is 16 days after the email of 3 September, it was served on the defenders. The tender was lodged with the defences on 22 October 2013. Mr Lugton's complaint was in essence the pursuer had raised proceedings too quickly and not given the defenders' representatives sufficient time to consider the email of 3 September. According to Mr Lugton they should have waited at least for a few days longer to allow for a response. In essence the action was raised giving the defenders no notice that they intended to move from pre litigation discussion to litigation.

[4] The second leg of the defenders' motion for modification was based on the value and nature of the claim. It settled for £6,500 and although that was above the privative jurisdiction of the sheriff court it was on any view a low value claim. Mr Lugton reminded me that I had a wide discretion to modify expenses and in his submission there was no justification for expenses on the Court of Session scale. The action was straightforward. The pursuer is employed by the defenders as a refuse collector. In the course of his employment he was struck by a bin as it descended from the lifting mechanism of the refuse lorry. The bin struck the pursuer on the right leg as a result of which he sustained injury. It was averred that the accident was caused by the defenders' breach of both statutory and common law duties. As Mr Lugton put it, it was a run of the mill personal injury case. The averments of loss were straightforward.

[5] Mr Lugton referred me to a number of cases. In McDonald v Zurich Insurance Company (UK) Ltd, a decision of Lord Bannatyne, 2012 CSOH 65, his Lordship had modified expenses to the sheriff court ordinary scale in a case which settled just above the privative jurisdiction at £5,200. In Lasseter v Highway Insurance Company Ltd 2011 CSOH 161 Temporary Judge Beckett modified expenses in a case which settled for £2,500. His Lordship said that he was not in a position to determine that the pursuer could never have been awarded more than £5,000 in this action (paragraph 25). In Hylends v Glasgow City Council 2008 SLT 988, a case which Mr Lugton accepted was against his interest Lord Drummond Young refused to modify expenses in a case which settled on a tender to £2,500. As it was below the privative jurisdiction of the Sheriff Court he would have modified expenses had it not been for the fact that the privative jurisdiction had recently been increased. This constituted a special circumstance. Mr Lugton submitted however that this case was decided before changes in sheriff court practice which had brought in procedures which were now equivalent to chapter 43 in the Court of Session. The case of Hylends was followed by Lord Matthews in Emerson v The Edrington Group Ltd 2009 CSOH 40.

[6] Finally, Mr Lugton referred me to Coyle v William Fairey Installations Ltd 1991 SC 16. The case had settled for the sum of £1,000. The Lord Ordinary awarded expenses on the summary cause level because the sum finally awarded was within the privative jurisdiction of the sheriff court. The Extra Division held however that that this was the wrong approach. The proper approach is for the court to determine whether the initial choice of that forum was justified in all the circumstances of the case known to the pursuer's advisors when the action was raised having regard to the high level of costs likely to be incurred by bringing an action there (page 19).

[7] In summary, Mr Lugton submitted that the appropriate test was based partly on value of the claim but also on whether or not there were any issues of novelty or complexity which might make it more appropriate for the Court of Session.

[8] In reply to a submission by Ms MacColl, Mr Lugton submitted that the question of liability not being admitted did not mean any greater complexity in the case. Any concern that the pursuers may have had as to whether or not the fault lay with the bin or with the refuse lorry was not resolved. He pointed to regulation 5 of the Provision and Use of Work Equipment Regulations 1998 and submitted that since there was an absolute obligation on the defenders it did not matter whether the fault lay with the lorry or with the bin.

[9] For the pursuer Ms MacColl submitted that liability had never been admitted by the defenders. When the claim was intimated the pursuer's agents enquired about the use of the pre-action protocol. It was voluntary and can be used if both parties want to use it. The defenders said that they did not wish to use the protocol and it was now surprising that they now sought to use it as a measure of the expenses. Notwithstanding that the agents used the deadlines in the guidance. Once the medical evidence was available five weeks passed before proceedings were raised. The question was whether it was unreasonable to raise proceedings in the circumstances of this case. There was no authority for the proposition that an ultimatum was required. The medical report had been sent to the defenders' representatives on 27 August and it was explained to the defenders' agents that the offer of £3,750 was not acceptable; the pursuer's agents were considering figures of around £7,000. There was a course of correspondence and initially a rapid exchange of emails. However after the last email two weeks had passed putting an end to what the pursuer's agents had considered to be a kind of discussion between them and the defenders' representatives. Due enquiry was made as to whether or not the action was going to settle.

[10] So far as modification in general was concerned it was appropriate where awards were trivial in relation to the expenses. The award in this case was not trivial but substantially in excess of the privative jurisdiction. Despite the new Sheriff Court Rules there were substantial advantages to the pursuers in using the Court of Session. In particular there was access to counsel and that was an advantage to clients and there was also an advantage in using the court which had easy access to it. It was accepted that the action was straightforward on the assumption of strict liability but it was defended on the merits and there was a plea of contributory negligence. There were concerns about how it could be shown that it was the bin or the operation of the refuse lorry which was at fault and that required investigation. These matters were often complex and in the circumstances it was appropriate to use the Court of Session.

Discussion

[11] So far as the first part of the defenders' motion is concerned I had some sympathy with the view that the action had been raised prematurely. There clearly had been an exchange between the parties. An offer of settlement had been made and while it fell substantially below what the pursuer's agents were expecting, and indeed below what was ultimately accepted, it did at least show a willingness to engage in discussions with a view to settlement. That impression is reinforced by the request to the pursuer's agents that case law should be made available in support of the pursuer's claim. It is true that there was a delay of about two weeks with no response from the defenders before the action was served. However given the defenders previous willingness to consider settlement I think it would have been more appropriate had the pursuer's agents intimated their intention to raise an action if a meaningful response was not received within a reasonable time before moving on to serve a summons. The issue then was whether or not this precipitate decision justified a modification to the sort of level that would be indicated by the protocol. On balance I considered that the issue was not so clear cut as to justify that step. There was no evidence that had the pursuers agents notified their intention to raise proceedings that would have resulted in early settlement. I note that the action was defended on liability albeit that minute of tender was served with the defences. Accordingly I moved on to consider whether or not there should be a modification to the Sheriff Court scale.

[12] The decision on whether or not to modify an award of expenses is not governed simply by having regard to the sum which is ultimately awarded. The correct approach it appears to me is to consider whether in all the circumstances it was reasonable to raise the action in the Court of Session having regard to the value of the claim, any issues of novelty or complexity that might arise, any special circumstances that might pertain to the action and the cost of litigation in the Court of Session. The point at which the reasonableness of the decision to raise the action in the Court of Session is assessed is at the date of raising the action; Coyle p.19.

[13] In Hylands Lord Drummond Young discussed the guidance from the First Division in McIntosh v British Railways Board 1990 SC 339 and the Extra Division in Coyle. He noted that given the advantages of the Court of Session procedure, namely the option of a jury trial and the special procedures available under the rules of court for the expeditious disposal of reparation actions, "it will usually only be in cases where the pursuer falls short of the privative jurisdiction of the sheriff court by a substantial margin that expenses will be modified."; para 5. Since McIntosh and Coyle had been decided Chapter 43 of the Rules of Court had come into operation. Judges were now more reluctant than formerly to modify expenses because the pursuer had recovered a small amount; para. 6. His Lordship noted the significance of the increase in the privative jurisdiction of the sheriff court from £1,500 to £5,000. This meant that any claim for less than £5,000 can be raised as a summary action. He noted the advantages of this procedure and that at that time there was no equivalent in the ordinary cause procedure. The advantages of the summary cause procedure were precisely the advantages of the Chapter 43 procedure in the Court of Session; para 9. He concluded that since the increase in the privative jurisdiction of the sheriff court the expenses awarded to a pursuer who recovers a sum significantly below the limit of the privative jurisdiction should normally be modified to the summary cause scale without certification of counsel; para 12.

[14] Two things appear clear from Lord Drummond Young's careful analysis. First the issue before him was modification of expenses to the sheriff court summary cause level. That is not surprising given the level of settlement. It does not appear that his Lordship considered the option of a modification to the Sheriff Court ordinary scale. Second it was a significant factor that the summary cause rules gave precisely the same advantages as the Chapter 43 procedure in the Court of Session and that, at that time, there was no equivalent in the ordinary cause procedure.

[15] It seems to me that things have moved on since then. Most importantly has been the introduction of the new procedures in chapter 36 of the Sheriff Court Ordinary Cause Rules which provide much the same advantages as Chapter 43 procedures in the Court of Session. Accordingly one of the two reasons cited for not modifying expenses in cases where the settlement exceeded the privative jurisdiction has now been removed. The one remaining advantage is the availability of jury trial. However, in my opinion, that has to be balanced with the need to ensure an appropriate and efficient use of resources. In recent years there has been a growing awareness of the need to control the costs of litigation. It is a small minority of cases that go to jury trial and there was no suggestion in this case that the pursuer chose the Court of Session because he wanted the option of a jury trial.

[16] I note that the conclusion of the summons was for £20,000. However in pre- litigation negotiations the pursuers had indicated that they were prepared to accept the sum of £7,000. I accept that such an indication would not bind them in subsequent litigation but it is clear that on any view that any sum awarded was likely to be modest and in all probability in the region of £7,000 at most. I do not accept that there was any novelty or complexity in the action; the circumstances are quite straightforward. Setting the value of the claim against the cost of litigation in the Court of Session there is no good reason why this case should not have been raised in the sheriff court. Bearing all of these matters in mind, and including the precipitate way in which the action was raised, I concluded that justice would be best served between the parties if the award of expenses were modified to the Sheriff Court scale without certification of counsel.