Scottish Court of Session Decisions

This case called before me on the motion role in relation to the pursuer's unopposed motion dealing with a number of issues. Amendment of the record, pronouncing decree in terms of a minute of tender and acceptance, and certifying two witnesses as skilled witnesses presented no problem. The rest of the minute sought the court's authority to lodge a minute for the pursuer and sought a finding that the pursuer was entitled to an additional fee in terms of Rule of Court 42.14(2)(g) "the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing".

That minute is in the following terms:

It is effectively a minute offering to settle the action by accepting a stated sum along with the expenses of the action.

When those acting for the pursuer tendered the minute of offer to settle at the General Department on 21 October 1998, it was stamped as being presented then, but, after consideration, was not accepted, apparently because the provisions of the Rules of Court formerly dealing with such offers in chapter 34A have been revoked and there was thought to be no precedent for accepting such a document as an individual part of process.

I do not consider the absence of a specific rule in the Rules of Court has any bearing on this issue. The scheme of pursuers' offers under Chapter 34A was introduced as a measure which it was hoped would promote earlier resolution of reparation actions that are likely to settle at some stage prior to proof. The measure included the sanction of an uplift of up to 100% in expenses, which additional sum the pursuer could retain as a bonus. That has been characterised as a penalty. Clearly some legislative power was required to establish such a scheme complete with its sanction.

In declaring Rule of Court 34A.6(2) ultra vires the Court in Taylor v Marshalls Food Group Ltd (No2) 1998 SLT 1022 noted that the pursuer had lodged an offer to settle the case at a certain figure, and subsequently had asked the Court to have regard to that offer when considering on what basis expenses should be awarded. What I was invited to do in relation to the minute was simply to allow it to be received as part of process. I was reminded by Mr Stevenson for the pursuer that there is no statutory basis for defenders' tenders. He invited me to view the minute as similar to a defender's tender in this respect, that it stated in unequivocal terms in the course of the proceedings what was acceptable to the pursuer to resolve the action. He submitted that it had a useful function to play in narrowing the dispute between the parties. He founded upon Ramsay's Trustees v Souter (1864) 2M 891. There the Court decided that, in disposing of the expenses in a cause, the Court should take into consideration a reasonable extra judicial offer to settle made before the action was raised. The Court distinguished such from a "tender". The Lord Justice Clerk (Inglis) defined tenders as follows:

In my opinion, any step which might clarify the position of a party in a reparation action, or limit the areas in dispute between the parties, or focus the issues between them more clearly, should be encouraged unless there are sound reasons why such a course should not be followed. The minute is clearly identifiable as a document which may achieve these objects. I can think of no reason why it should not be received and form part of the process. In attempting to lodge the minute in process and intimating it to the defenders, the pursuer was stating his position in unequivocal terms in the course of the litigation. He was communicating his position to the Court and to the defenders, in the same way as a defender does by lodging a minute of tender. In my opinion, the words of the Lord Justice General "... it is only consonant to general practice and regular procedure that parties engaged in litigation should speak through the process" apply to the minute tendered by the pursuer. Of course, as the decision in Ramsay's Trustees shows, the process is not the only means by which parties engaged in litigation may endeavour to communicate their position to one another.

What the consequences of the lodging of such a document may be in any given case will depend on the circumstances of that case. On one view, a pursuer's minute of offer to settle may have no significant consequence since, in the absence of a tender by the defenders, material success by the pursuer at a figure lower than that which he offers to take is in the ordinary course likely to result in an award of expenses in his favour in any event. On the other hand, it is easy to imagine circumstances, where both parties state their position in the form of minutes and the case is determined somewhere between these figures, and in which the Court might consider these positions clearly stated by the parties in their minutes to be relevant to the question of liability in expenses. These are matters which fall to be resolved when they arise as issues in live cases.

As a result I granted the part of the motion inviting me to allow the minute to be received into process. It was initially tendered on 21 October 1998. The action was finally resolved on the basis of a minute of tender of 13 November and a minute of acceptance of 23 November 1998. The minute of tender was in terms identical to the pursuer's minute. In these circumstances and in view of the unusual steps those acting for the pursuer took to promote settlement of the action, I found the pursuer entitled to an additional fee in terms of Rule of Court 42.14(2)(g).

Since one object or consequence of lodging a minute of offer may be, as in the case of a tender, to enhance the pursuer's position in relation to the expenses of the cause, it would seem prudent to keep it separate from the process which is before the Judge.