Raymond Mcateer V. Glasgow City Council

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...