Benson v City of Edinburgh District Council

JurisdictionScotland
Judgment Date14 September 2004
Docket NumberNo 4
Date14 September 2004
CourtCourt of Session (Outer House)

Court of Session Outer House

Temporary Judge J Gordon Reid QC, FCIArb

No 4
Benson
and
City of Edinburgh District Council

Process - Expenses - Reparation - Personal injuries action settling for £3,400 - Whether expenses should be modified to sheriff court scale without sanction for counsel

A pursuer raised an action for personal injury in the Court of Session seeking damages of £25,000. The pursuer settled for £3,400. The pursuer sought decree in terms of a minute of tender and acceptance thereof. The defender moved for modification of the expenses to the sheriff court scale without the sanction of counsel, and argued that the action was straightforward and the pursuer must have known that the value of the claim would never exceed £5,000. The pursuer argued that there had been a complication in relation to expert evidence and that when deciding where to raise the action, the pursuer's solicitors were entitled to take into account that cases settle at an earlier stage under the new rules for personal injury actions in the Court of Session in chap 43 of the Act of Sederunt (Rules of the Court of Session) 1994 (SI 1994/1443).

Held that: (1) the case was not straightforward and the sheriff court ordinary procedure did not appear to have any advantages which would enable it to be speedily and economically resolved (para 8); (2) in choosing the Court of Session the pursuer selected a procedure which was designed to encourage speedy and economic resolution of her claim (para 16); (3) it was not necessarily inappropriate for a straightforward claim known at the time of raising the action to have a maximum value of £5,000 to be raised in the Court of Session; and defender's motion refused.

Maureen Benson brought an action for damages for personal injuries against City of Edinburgh District Council. On 2 July 2004 the pursuer accepted the defender's tender. The cause called before the Lord Ordinary on the pursuer's motion for decree in terms of the tender and acceptance, and the defender's motion that expenses be modified to the sheriff court scale.

Cases referred to:

Coyle v William Fairey Installations LtdSCUNK 1991 SC 16; 1991 SLT 638; 1991 SCLR 248

DTZ Debenham Thorpe v I Henderson Transport ServicesSCUNK1995 SC 282; 1995 SLT 553; 1995 SCLR 345

Gillespie v Fitzpatrick 2003 SLT 999

Gould v Glasgow City CouncilUNK 2004 SLT 1189; 2004 SCLR 638

McIntosh v British Railways BoardSC 1990 SC 338; 1990 SLT 637

Wilson v Glasgow City CouncilUNK 2004 SLT 1189; 2004 SCLR 638

At advising, on 14 September 2004, the Lord Ordinary (Temporary Judge J Gordon Reid QC, FCIArb) refused the defender's motion-

Temporary Judge J Gordon Reid- [1] In this action, the pursuer seeks decree in terms of a minute of tender and acceptance thereof and certification of two expert witnesses. The defender asserts that expenses should be modified to the sheriff court scale without the sanction of counsel. Certification of the expert witnesses is not opposed.

Nature of the Action

[2] The action was raised in January 2004 under the new Court of Session Rules relating to personal injuries (ch 43) which came into force in 2003. The pursuer sued for £25,000 and settled at £3,400 on 2 July 2004 when the tender was accepted. The pursuer averred that when alighting from a bus in the dark, she stepped into a hole or depression in the road surface, fell and was injured. She twisted her ankle, suffering a Weber A fracture, required physiotherapy and was absent from work for about three months.

[3] The defect in the road surface was said to be a reportable defect in terms of certain codes of practice. Her case, in summary, was that the defect was present for at least 12 months before the accident and ought to have been discovered and remedied by an adequate and properly executed system of inspection and maintenance. The defence was that the system in operation accorded with the practice of other local authorities. There was no plea of contributory negligence.

[4] In the course of procedure under the new rules, the pursuer valued her claim at £5,200 of which £4,500 was attributed to solatium. The defender's valuation was £3,400.

Submissions

[5] In support of his motion to modify expenses, counsel for the defender submitted that the action was straightforward; when raised the pursuer's solicitors must have been aware, having regard to the medical report in their possession, that the value of the claim would never exceed £5,000. The fact that there were new rules in the Court of Session was irrelevant. New rules were introduced in the sheriff court in 1993 and this did not affect the position. He sought to compare the legal expenses generally awarded in the sheriff court and the Court of Session at...

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