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Cite as: [2004] ScotCS 75, 2004 SCLR 638

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Wilson & Anor v. Glasgow City Council [2004] ScotCS 75 (11 March 2004)

OUTER HOUSE, COURT OF SESSION

PD623/03

PD667/03

OPINION OF LADY SMITH

in the cause

HAZEL WILSON

Pursuer;

against

GLASGOW CITY COUNCIL

Defenders:

and

ELIZABETH GOULD

Pursuer:

Against

GLASGOW CITY COUNCIL

Defenders:

________________

Pursuers: Lloyd; Thompsons

First Defenders: Forsyth, Edward Bain

Second Defenders: O'Rourke, Edward Bain

11 March 2004

Introduction:
[1] These two cases came before me together on the motion roll. Both were personal damages actions. Wilson had been raised in August 2003 and Gould had been raised in September 2003. Accordingly, 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 to them.

[2] In Wilson, the pursuer sought damages for past solatium and past services in respect of rib fractures and soft tissue injuries, the symptoms from which subsisted for a period of about four months. She had been injured when she fell down a flight of slippery steps at the defenders' premises in the course of her employment with them. The pursuer's statement of the value of the claim was lodged on 15^th December 2003 (No. 9 of process). It attributed the sum of £3,500 to solatium and £300 to services. The defenders lodged a statement of value of claim on 29^th January 2004 (No.11 of process). It attributed the sum of £1,800 to solatium and £200 to services. The defenders lodged a Minute of Tender (No.12 of process) in the sum of £2,250 (net of any liability under s.6 of the Social Security (Recovery of Benefits) Act 1997) also on 29^th January 2004. That tender was accepted by Minute of Acceptance of Tender (No.13 of process) which was lodged on 9^th March 2004.

[3] In Gould, the pursuer sought damages for past solatium and past services in respect of a blunt force head injury, the symptoms from which lasted also for a period of about four months. She was employed by the defenders as a cook and had been injured when the door of a refrigerator that she was trying to open suddenly came away from its hinges causing her to fall backwards and hitting her on the head. The pursuer's statement of the value of the claim (No. 10 of process) was lodged on 15^th December 2003. It attributed the sum of £2,500 to solatium and £90 to services. The defenders lodged a statement of value of the claim (No. 13 of process ) on 10^th February 2004. It attributed the sum of £1,700 to solatium and £50 to services. The defenders had lodged a Minute of Tender (No. 12 of process) on 27^th January 2004 in the sum of £2,000 (net of any liability under section 6 of the Social Security (Recovery of Benefits) Act 1997. That tender was accepted by Minute of Acceptance of Tender (No. 14 of process) which was lodged on 9^th March 2004.

[4] The pursuers enrolled for decree in terms of the Minutes of Tender and Acceptance and certification of one skilled witness. Those motions were not opposed. However, the defenders enrolled for modification of their liability in expenses to that of the Sheriff Court ordinary scale without sanction for counsel, in terms of Rule of Court 42.5. That motion was opposed.

The defenders' submissions:

[5] It was submitted by counsel for the defenders in both actions that the cases were of trivial value, that there were no complexities involved in the litigations and that there was no need for the employment of counsel. Mr O'Rourke, for the defenders in the Gould case, said that valuation and tendering had been dealt with by the agent instructing him "in house" without reference to counsel, as it was a straightforward matter. The same agent was instructed in the Wilson case. It was said that the low value and straightforward nature of the claims was evident from the outset and that, in these circumstances, the pursuers should have raised the actions in the Sheriff Court rather than in the Court of Session. Reference was made to McIntosh v British Railways Board 1990 SC 338 in support of a submission that whilst it was recognised that the pursuers were entitled, given the limits of the privative jurisdiction, to raise these actions in the Court of Session, they should not have done so. The power to modify expenses was a valuable safeguard for defenders and ought to be exercised in this case. Reference was also made to the case of Coyle v Fairey Installations Ltd 1991 SC 16 in support of a submission that the point at which to test whether the pursuer should have raised the action in the Sheriff court was at the beginning of the action. It should, in this case, have been obvious to the pursuers, at the outset , that these were always going to be straightforward cases of low value. Gordon v Strathclyde Buses 1995 SLT 1019 was referred to as an example of a case which settled for £1,450 where modification was granted and reference was also made to Campbell v SCA, unrepd 19^th May 1995, as an example of a case in which modification was not granted, even although the damages were small, in the sum of £2,500.
The pursuers' submissions:

[6] For the pursuers, it was conceded that the cases were straightforward and of modest value and it was accepted that the court had the power to modify expenses. However, the onus lay on the defenders to satisfy the court that there ought to be modification. The correct test, as gleaned from McIntosh and Coyle was that the court required to be satisfied that the likely expenses far outweighed the value of the claims. In these cases, the genuine expectation of the pursuers' agents had been that it would be less expensive to litigate in the Court of Session than in the Sheriff Court because of their experiences of the operation of the new rules for procedure in personal damages actions. Only simplified pleadings were required, more efficient procedures ensued once the action was raised, the rules were designed to secure resolution of disputes as quickly as possible, and procedure roll debates were the exception, unlike the sheriff court where, in their experience, debates were a regular feature. Further, these pursuers would have sought to exercise their right to a jury trial and the damages awarded by a jury could well have been considerably higher than the sums that the pursuers decided to accept when tendered. Nothing advanced by the defenders by way of submission had been to the effect that the expense of running these actions in the Court of Session was likely to be higher than in the sheriff court.

Discussion:

[7] In determining whether or not to grant the defenders' motion, I took account of the fact that there was no dispute between the parties as to the straightforward nature of these claims and that they were of modest value. However, it seemed to me that the reason why expenses have hitherto been modified in cases falling into that category is that they are suitable for the practices and procedures of the sheriff court and it is likely that it will cost significantly less to litigate there. It has been seen as prejudicial to a defender to be forced to litigate in the Court of Session because it has been assumed that it will be significantly more expensive to do so and that is not a prejudice which he can reasonably be expected to suffer if the case is straightforward and of modest value. That would appear to be the thinking that underlies what was said in McIntosh by the Lord President in delivering the opinion of the court @ 345:

"Nothing in what we have said so far is intended to restrict in any way the power of the court to modify an award of expenses to a pursuer at the end of the case. A pursuer who raises his action in the Court of Session and seeks to take advantage of the practices and procedures of this court must take account of the risk that if the sum which he recovers is small he will be confined to expenses on the sheriff court summary cause scale or on the sheriff court ordinary scale with or without sanction for counsel according to the circumstances: At this stage, when all the facts are known and all imponderables are out of the way , the court can reflect its view as to whether in the event the sheriff court was the appropriate court for the determination of the case . It does so with the advantage of then knowing the result, which is an advantage not usually enjoyed by the pursuer's advisers at the start of the case. This is a valuable safeguard in the defender's interest against their being exposed to claims in this court where the awards are trivial in relation to the expenses."

The same assumption also appears to underlie the thinking in Fairey. At p.19, Lord Morison in delivering the opinion of the court, having referred to McIntosh, said:

"The proper approach, as is made clear in the passage read as a whole, is that in respect of actions brought in the Court of Session the court should determine whether the initial choice of forum was justified in all the circumstances of the case known to the pursuer's advisers when the action was raised, having regard to the high level of costs likely to be incurred by bringing an action there."

[8] The power to modify an award of expenses is contained in Rule of Court 42.5 which provides:

"(1) In any cause where the court finds a party entitled to expense , the court may direct that expenses shall be subject to such modification as the court thinks fit."

[9] Accordingly the court has a discretion and can be expected, in the usual way, to exercise that discretion in a manner that seeks to do justice as between the parties. The court is not required to modify an award of expenses in every case which is straightforward and of modest value. Such cases have, on occasion, attracted modification in the past but, as is clear from McIntosh and Fairley, that is because the view has been taken that they could, without prejudice to the pursuer's interests, have been conducted in the Sheriff Court and it is significantly more expensive to conduct them in the Court of Session.

[10] There is no doubt that the present cases could have been raised in the Sheriff Court and that, given their straightforward nature, the pursuer need not have been concerned about the practices and procedures of that court putting him at any disadvantage. Practice has, however, changed since the era of McIntosh and Coyle. It is no longer the norm for senior and junior counsel to be instructed in personal injury actions, solicitor-advocates carry out work which previously required the instruction of counsel and the new rules for the conduct of personal damages actions have potential for maximising efficiency. So, the fact that a case is straightforward does not give rise to the inference that it would have been significantly cheaper to run it in the Sheriff Court. Counsel for the defenders made no such submission. On the contrary, as I have noted, counsel relied on the fact that the case had largely been dealt with by agents on an "in house" basis without resort to counsel. As against that, I was advised by the pursuer's counsel that his agents' genuine assessment at the outset was that the cost of litigating these claims in the Court of Session would in fact be less. Given the features of the new procedure on which he relied, I saw no reason to doubt the veracity of that representation. Indeed, whilst it was, at one point in discussion, conceded by Mr Lloyd that when assessing the likely cost of litigation, an agent is required to assume that a proof will ensue, I am not convinced that that was a concession he required to make. One of the objectives of the new procedure for personal damages actions is firmly to encourage agreement and settlement where possible and to seek to facilitate that happening at an early stage. In these cases, given the nature of the claims, which included apparently unanswerable statutory cases, it is difficult to envisage that the defenders would have done other than concede liability. Contributory negligence might have been an issue but, in all likelihood, as proved to be the case, not such as seriously to impede settlement. It would have been reasonable to assess these cases as being highly likely to settle and, given the expedition of the new procedure, likely to do so in early course. That being so, the assessment of the pursuer's agents of these cases as being likely to cost less than if they were conducted in the Sheriff Court appears to have been a fair and reasonable one. Further, whilst the amounts at which the cases settled were modest, the fact of their simplicity makes it seem likely that the pursuers would, in the absence of settlement, be well placed to insist on a jury trial. In that event, the sums recovered could have been significantly higher and the comparison between the values of the claims and the expenses of litigating them may then not have fallen into that category of cases in which the awards seem trivial in relation to the expenses.

[11] I was not, in all these circumstances, satisfied that the award of expenses ought to be modified in any way and I refused the defenders' motion. I was invited to grant leave to reclaim on the basis that it was felt that the decision raised an issue of principle relating to the operation of the new rules applicable to personal damages actions. I granted leave.