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Cite as: [2004] ScotCS 231, 2005 SCLR 178

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Hunt v. British Bakeries Ltd [2004] ScotCS 231 (20 October 2004)

OUTER HOUSE, COURT OF SESSION

PD699/04

OPINION OF LADY SMITH

in the cause

ROBERT HUNT

Pursuer;

against

BRITISH BAKERIES LIMITED

Defenders:

________________

Pursuer: Christine; Thompsons

Defenders: Weatherston, Solicitor Advocate; Brechin Tindal Oatts

20 October 2004

[1] This case came before me on the motion roll. It was a personal damages action to which Chapter 43 of the Rules of the Court of Session, as substituted by Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002 S.S.I 2002 No.570, applied. The action had first called on 8 June 2004. It related to an accident which the pursuer had sustained at work on 4 March 2003.

[2] The pursuer sought decree in terms of a Minute of Tender dated 15 September 2004 and an acceptance thereof dated 30 September 2004, and certification of one expert witness. The tender was for the sum of £1,450. In the usual way, the tender included an offer to pay the pursuer's taxed expenses to the date of tender. The motion was opposed and the reason for opposition marked on the motion sheet was in the following terms:

"The pursuer's motion is opposed by the defenders as the Minute of Tender accepted by the pursuer was for the sum of £1,450. Accordingly any expenses awarded to the pursuer should be restricted to those appropriate to a Sheriff Court Summary Cause action for personal injuries or Sheriff Court ordinary cause without sanction for Counsel."

The pursuer had sought damages for past solatium and past wage loss in respect of injuries which comprised a fracture of the distal phalanx of his little finger, bruising of his ring finger and a sprain of the ulnar collateral ligament of the distal interphalanageal joint. The pursuer's statement of valuation, which was lodged on 20 August 2004, was in the following terms:

"1. Past solatium £1875

2. Interest thereon £ 106.25

3. Past wage loss £ 42.64

4. Interest thereon £ 4.83"

According to the averments in the pleadings, the pursuer had sustained his injuries when his hand had been dragged under a moving roller which transported loaves of bread out of an oven. The pursuer had been trying to free a loaf which had become jammed at the time, something which was a common problem. It was also averred that the stop switch for the roller was not working.

[3] The solicitor-advocate for the defenders stated that he could not assert that the award of damages was trivial in this case in relation to the expenses incurred. That was because there had been so little procedure. However, he submitted, if the case was capable of settlement at £1,450, then it ought to have been brought in the sheriff court, as a summary cause, the form of procedure prescribed for personal injury claims worth £1,500 or less. If that had been done, the recoverable expenses would have been substantially smaller. He referred to the Scottish Law Directory Fees Supplement 2004 and the Regulations relating to fees payable upon taxation to solicitors in the sheriff court. Reference was made to General Regulation 2 which provides:

"2. The pursuer's solicitor's account shall be taxed by reference to the sum decerned for unless the court otherwise directs."

and also to Regulation 14(f) which, under reference to Chapter IV, the chapter which applies to personal injury claims, provides:

"(f) all fees chargeable under that Chapter in respect of the actions mentioned in the left-hand column of the following table shall unless the sheriff, on a motion in that behalf, otherwise directs, be reduced by the amount of the percentage specified opposite those actions in the right hand column of the following table:

Actions

Percentage reduction

of a value from £1,000 to £2,500

of a value of less than £1,000

25%

50%"

The submission seemed to be to the effect that since the action had, as a matter of fact, settled at the sum of £1,450, that demonstrated that it should have been raised as a summary cause, the effect of which would have been that the defenders would have had the benefit of the 25% reduction provided for in the table. It was, though, acknowledged that the sheriff had the power to direct that the percentage reduction should not apply. The circumstances in which the sheriff might do so were not explored.

[4] It was also acknowledged that if the action had included a claim for damages in excess of £1,500, it could not have been raised as a summary cause. It would, in that event, have had to be raised as an ordinary action in the sheriff court. No submission was made that it would have been significantly cheaper to litigate the case as an ordinary action in the sheriff court. Indeed, on the contrary, Mr Weatherston did, at one point, seem to accept that the ordinary cause procedure had the potential for costing more up to the stage of the options hearing, (the point by which parties require to have assessed what are the issues between them and whether any accommodation can be reached) than the present action had cost to date. No submission was made to the effect that litigating the present action as an ordinary cause would have been significantly cheaper or that, in the circumstances, the pursuer's agents should have anticipated that it would be. Ultimately, his position was that the ordinary cause would have been beneficial to the defenders because, to comply with rule 36.17C of the ordinary cause rules, the pursuer would have had to lodge his medical report at the time of raising the action. It seemed to be inferred that, in that event, the defenders might have offered to settle even earlier but he did not explain exactly when that would have been or why that would have meant less expense.

[5] The solicitor-advocate referred to the cases of McIntosh v British Railways Board 1990 SC 338 and Coyle v William Fairey Installations Limited 1991 SC 16. He relied on the fact that the award of expenses was modified in Coyle. He also referred to the case of CR Perry Limited v Connell 1981SLT (Sh Ct) 90.

[6] Counsel for the pursuer drew my attention to the short time that had elapsed between the calling of the case and settlement being achieved. That was, he said, due to the effective workings of the new Chapter 43 procedure. There had been less procedure than would have been required even under the summary cause procedure where there would have had to be a hearing to fix a proof once defences were lodged. He advised that, when the action was raised, his agents' assessment of the likely value of the case was that damages in excess of £2,000 were liable to be achieved. On that basis, even if the action had been raised in the sheriff court, it would have been raised as an ordinary cause. They reached that view under reference to the Judicial Studies Board Guidelines which indicated a range of between £1,500 and £2,500 as appropriate damages for pain and suffering in the case of the fracture of one finger. Conscious, it seemed, of the argument against him to the effect that if the pursuer was prepared to settle for £1,450, then the action should have been raised as a summary cause, counsel explained that when the tender was lodged, the pursuer's agents had taken instructions from him in circumstances where they advised him, as remained their view, that the case was worth more than the tender but he decided, nonetheless, to accept it.

[7] Counsel referred to the cases of Wilson v Glasgow City Council and Gould v Glasgow City Council, both unreported decisions of mine, dated 11 March 2004. He also referred to the case of Benson v City of Edinburgh District Council an unreported decision of Temporary Judge Gordon Reid, Q.C., dated 14 September 2004 in which, in a personal damages case which settled for £3,400, he refused to modify the defenders' liability for expenses in respect that he was not satisfied that, on grounds of cost, the sheriff court was the more appropriate forum. Counsel for the pursuer submitted that, in the present case, the same approach should be adopted as in those cases. He recognised, he said, that each case required to be considered in the light of its own facts and circumstances but when that was done in this case it was clear that it was a prime example of efficiency being achieved with the minimum of procedure and rapid progress to settlement. The case had moved speedily, expeditiously and economically, as the pursuer's agents had anticipated. In short, they had been vindicated. Indeed, if the tables of fees as between this court and the sheriff court were compared, particularly those for ordinary causes, it was not at all clear that litigating in the Court of Session in a case such as the present one would be more expensive. It might in fact be cheaper.

[8] Essentially, the submission for the pursuer was that the defenders had not presented any convincing submission that it was not appropriate or reasonable to decide to raise the action in the Court of Session. The value of the claim was properly and reasonably assessed as being in excess of £1,500, the privative jurisdiction of the sheriff court, and the Court of Session offered an expeditious procedure which compared favourably with the ordinary cause both in terms of that procedure and in terms of cost. It was implicit in the approach of counsel for the pursuer that this case had always been viewed as one that ought to be capable of early settlement.

[9] At the outset, I recognise that this case appears to be a very straightforward personal injuries claim of small value. I cannot, however, accept that the pursuer's agents should have regarded the case as one that required to be raised as a summary cause. On the basis of the Judicial Studies Board Guidelines, they were entitled to take the view that the pursuer's injuries justified an award of solatium in excess of £1,500. There was also a small claim for wage loss. In these circumstances, whilst the case was likely to fall not far outwith the privative jurisdiction of the sheriff court, it did not require to be raised there and did not, equally, require to be raised as a summary cause.

[10] Further, the facts as they were at the time of the raising of the action would, in my view, have justified the pursuer's agents in approaching the litigation on the basis that the action was well founded and that they could safely predict that the defenders would seek to settle the claim at some point. By June of this year, it had become known that the way in which the Chapter 43 procedures were working was to achieve expedition and efficiency of the sort and in the manner discussed in Wilson & Gould, and Benson. No cogent argument was advanced in this case to the effect that similar efficiency and expedition would have been achieved in an ordinary cause nor that an ordinary cause would have cost less or that that was something which the agent should have anticipated. In all these circumstances, I do not see that I can hold that the pursuer's agent should have anticipated that the damages secured would be trivial in relation to the cost of litigating the claim, assuming early settlement, an assumption which seems justified in the circumstances. Those, of course, are circumstances which, so far as the comparative costs of litigating in this court and the sheriff court are concerned, are somewhat different from those which applied at the time of the decisions in McIntosh and Coyle, as discussed in Wilson and Gould, and Benson. I consider that I cannot, accordingly, conclude that, on the defenders' approach which was confined to one of considering comparative costs, it was unreasonable or inappropriate for the pursuer's agents to raise this action in this court.

[11] I would add that different considerations might have arisen if the pursuer's agents had been proved wrong in their assumption that the case would settle efficiently at an early stage. If, for instance, the case had progressed in a way or to a stage where persisting in litigating in this court was liable to be significantly more expensive than in the sheriff court, the view might have been taken that some modification would be appropriate since the pursuer could have moved for a remit to the sheriff court under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. Similarly, if litigating in this court had in fact to led to the incurring of significantly more expense than if it had been litigated in the sheriff court, the soundness of the agent's judgement at the time of raising the action might have been called into question and modification might then have ensued.

[12] I would also stress that the motion was presented on a basis of considering only comparative costs. The wider issue of whether straightforward, small value personal damages claims should, as a matter of principle, be litigated in this court and of whether the introduction and operation of the Chapter 43 rules is to be regarded having legitimately encouraged such actions to be litigated here, was not addressed.