Scottish Court of Session Decisions

[1] This case called before me in relation to the question of expenses consequent upon the matter having been resolved by the acceptance by the pursuer of a tender from the first defenders said to be in full in the conclusions of the summons. As matters presently stand no order has been made against the second defenders, nor have they been granted absolvitor.

[2] The issues before me concerned a motion by the second defenders for their expenses from the pursuer and the motion by the pursuer for relief in respect of such an award of expenses, if made, against the first defenders.

[3] The action in question is one of reparation consequent upon the pursuer having apparently fallen down some stairs while working as a shopfitter in premises in Lanark. The first defenders, upon the averments, were the main contractors and as such it is said they had overall responsibility for health and safety. The second defenders were electrical sub-contractors and were sued by the pursuer upon the basis that they had responsibility for the lighting, or lack of it, on the staircase in question which was said to be one of the reasons for the accident having occurred. On the face of the Closed Record, no attempt was made by the first defenders to blame the second defenders, although I was informed that very close to the proof an amendment process involving adjustment as well would have introduced a plea of apportionment as between the first and second defenders at the instance of the first defenders.

[4] As I have indicated very close to the date of the proof the matter was resolved by the pursuer accepting a tender from the first defenders in a sum, which counsel for the pursuer maintained was an adequate reflection of the value of the claim and therefore left no point in taking the matter any further against the second defenders. Equally, it was submitted that failure to accept the tender would expose the pursuer to the risk of not beating it. It was not disputed that the terms of the tender were habile to cover right of relief as between the pursuer and the first defenders in respect of any award of expenses made to the second defenders, but the questions that arose were first of all whether such an award should be made and, secondly, whether such relief should be granted.

[5] With regard to the position of the second defenders, counsel maintained that as a defender who had successfully avoided any liability in the determination of the case, they were entitled to expenses from the pursuer as being the person who had brought them into the action. The only response that counsel for the pursuer could make to this suggestion was that it would be inequitable to make such an order having regard to the fact that the pursuer had legitimately sued both defenders but had been precluded from going against the second defenders beyond the lodging of the tender by reason of the fact that given the amount being offered, the pursuer had no option but to accept it.

[6] I am quite unable to accept this argument. The pursuer served a summons against both defenders and must accordingly bear the consequences of failing to succeed against one of them, in this case the second defenders. Quite simply, the second defenders have been brought unnecessarily into this action in the way the matter has developed and accordingly must be entitled to their expenses. I shall so order.

[7] The real issue before me is whether or not these expenses should be the matter of a right of relief as between the pursuer and the first defenders.

[8] I was referred to a number of authorities which it was suggested established general rules in this matter. In particular I was referred to Clegg v McKirdy and McMillan 1932 S.C. 442; MacDonald v Scottish Motor Traction Company Ltd 1948 S.C. 529; Johnston v Lithgows 1964 S.L.T. (Notes) 96; McLinden v Colvilles 1967 S.L.T. (Notes) 80; Mitchell v Redpath Engineering 1990 S.L.T. 259; Bremner v Press Off-shore Ltd &c 1994 S.C.L.R. 773 and MacIntosh v Galbraith 1900 3 F. 66.

[9] Counsel accepted that the matter was one for the discretion of the Lord Ordinary and I am far from satisfied that it is appropriate to establish any general rules against that context. Suffice it to say however, that in my opinion the essential question that requires to be answered in determining an entitlement to expenses is who has put whom to the litigation. In the simplest and most obvious of cases an unsuccessful pursuer must pay the defender's expenses as indeed must the defender in relation to a successful pursuer. That balance can be altered by means of a tender which has the effect, if not accepted, if the pursuer thereafter fails to beat, he must pay the defender's expenses from the date when that tender should have been accepted since at that point it is the defender who has been put unnecessarily to the litigation. In relation to a successful defender it seems to me that prima facie he should always be entitled to his expenses against the person who has sued him, which will usually be the pursuer, who in turn must accept that responsibility unless he has been induced by somebody else to sue the particular defender. Normally such would be the case when by pleading one defender blames another, thus causing the pursuer to take steps to protect his position against that eventuality turning out to be correct. Such inducement need not be in the pleading, but could be in pre-litigation correspondence. A classic example of this general situation is to be found in MacDonald supra. The converse, however, is to be found in Mitchell supra and the test therefore to my mind must be whether upon the pleading or for some other reason the decision to sue the relevant defender now claiming expenses was induced by another party to the action so as to render it prudent for the pursuer to sue both or more. Prudence enters into the equation having regard to what is said in MacIntosh supra in the sense that if due diligence revealed that the relevant defender should not have been sued the pursuer cannot thereafter suggest that he was induced so to do.

[10] Against that background I agree generally with the reasoning of Lord Weir in Mitchell supra. The question is what is to be determined as the reason for the pursuer suing the successful defender in the first place. It does not matter to my mind whether the action is finally resolved by a decree or by tender, a distinction which counsel for the pursuer sought, in my opinion wrongly, to make.

[11] In these circumstances I consider that an examination of the pleading in this case makes it clear that the pursuer chose to sue both defenders from the outset without any inducement on the part of the first defender to require him to sue the second defender. Indeed upon one view prudence would suggest that only to sue the first defender would have been a legitimate and correct line to take in as much that given the main contractor had overall responsibility for the site, it is inconceivable that to my mind if liability was going to be established at all, that it would not be established at least to some extent against the main contractor and that would have been sufficient to justify the pursuer suing the first defender alone. I do not consider that the attempt at the very late stage to admit a plea of apportionment between the defenders makes any difference to this primary position. The pursuer elected to sue both defenders. The first defender did nothing to induce that situation and in my opinion it follows that the pursuer must accept responsibility for the second defenders' expenses upon the basis that as far as his action is concerned, that defender has been successful.

[12] In these circumstances I consider that this case mirrors Mitchell in every respect and accordingly it would not be appropriate to grant a right of relief, such as Lord Cameron of Lochbroom thought was appropriate by reason of the pleading in Bremner supra.

[13] For these reasons I shall find the pursuer liable to the second defenders in their expenses and quoad ultra make no order.