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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 36
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PD727/05
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OPINION OF LORD
KINCLAVEN
in the cause
LOUISE GALBRAITH
Pursuer;
against
FIRST GLASGOW
(No 1) LIMITED
Defenders:
________________
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Pursuer:
Christine; Thompsons
Defenders:
Wilson; Simpson & Marwick.
1 March 2006
Introduction
[1] This
is a personal injuries action, under Chapter 43 of the Rules of the Court of
Session, which settled by way of Minute of Tender and Acceptance for £2,875.
[2] The
case came before me on the Motion Roll on the opposed motion of the
pursuer.
[3] The
pursuer's motion was for decree in terms of the Minute of Tender and Acceptance
of Tender respectively Nos 12 and 13 of Process and to certify Mr Ian Anderson
FRCS, Consultant in Accident and Emergency Medicine, Victoria Infirmary,
Glasgow G42 9TY as a skilled witness in the cause in respect that he prepared a
report on the instructions of the pursuer's agents.
[4] The
pursuer's motion was opposed by the defenders but only in relation to
expenses. The defenders moved for
modification of the pursuer's expenses to expenses on the sheriff court
ordinary scale without the sanction for counsel. The reason for the defenders' opposition was
stated to be that the pursuer's agents are only entitled to expenses on the
sheriff court scale on the basis that proceedings ought to have been raised in
the sheriff court.
[5] On
the information available, and having heard counsel for both parties, I decided
to grant the pursuer's motion as enrolled.
[6] In
the whole circumstances, and the exercise of my discretion, I decided to refuse
the defenders' motion for modification.
I did so for the reasons outlined below.
The Background
[7] The pursuer is Louise Galbraith. She is a schoolgirl who was born on 17 March 1988. The defenders are First Glasgow (No 1)
Limited who operate a bus service.
[8] The
action relates to an accident on 21
October 2003. The pursuer
was injured when stepping from a bus.
She suffered soft tissue injury to her right wrist. The sum sued for is £10,000.
[9] The
Summons was signetted on 9 May 2005. Defences were lodged thereafter.
[10] On 23 August 2005
on the unopposed motion of the pursuer Lady Dorrian granted commission and
diligence to recover the documents called for in the Specification of Documents
for the pursuer No.10 of Process.
[11] On 1 September 2005
Lady Dorrian allowed the Record to be received and marked No. 11 of Process,
allowed parties a proof of their respective averments on record and appointed
the proof to proceed on 16 May 2006
and the three ensuing days.
The Pleadings
[12] The Closed Record is dated August 2005 and includes the
following averments:-
"STAT. 4
On or about 21 October
2003 the Pursuer was travelling on a number 41 bus service operated
by the Defenders towards Knightswood Cross, Glasgow. The bus was a vehicle known as a Dennis
Dominator and was driven by an employee of the Defenders whose identity is
unknown to the Pursuer. At a bus stop at
Knightswood Cross she made to leave the bus by means of a door situated at approximately
the middle of the nearside of the vehicle.
The bus was stationary. As she
went to step from the bus the driver of the bus caused the bus to move off
causing the Pursuer to fall from the bus onto the road landing on her right
side. The driver failed to check that
the Pursuer had alighted from the bus before moving off. She thereby sustained the loss, injury and
damage hereinafter condescended upon.
Believed and averred that the defenders no longer permit passengers to
leave vehicles of the type involved in the pursuer's accident by the door at
approximately middle of the near side of the vehicle. The defender's averments in answer are denied
except insofar as coinciding herewith.
ANS. 4
Not known and not admitted that on 21st October 2003 the Pursuer was travelling
on a number 41 bus service. Not known
and not admitted that at a bus stop at Knightswood Cross she made to leave the
bus by means of a door situated at approximately the middle of the nearside of
the vehicle. Quoad ultra denied.
STAT. 5
As a result of the accident the Pursuer sustained loss injury and
damage. She attended the Nurse at her
school and subsequently at the Western Infirmary, Glasgow
where an x-ray of her right wrist was taken it was initially thought that she
had sustained a fracture of her distal right radius and a plaster cast was
applied. On subsequent examination after
removal of the plaster cast, it was thought that she had sustained soft tissue
injuries rather than a fracture".
She had to wear a light weight protective cast on her wrist of approximately
two weeks. She suffered pain in her
wrist. She is right handed. She was absent from school for several days
and on her return encountered difficulty with her school work because of the
injury to her right wrist. It affected
her ability to prepare for examinations.
She required assistance from her mother with various domestic tasks for
a number of weeks after the accident.
Reference is made to Section 8 of the Administration of Justice (Scotland)
Act 1982. The Pursuer accordingly claims
for (a) past solatium with interest thereon, (b) past Section 8 services with
interest thereon. The defenders'
averments in answer are denied except insofar as coinciding herewith.
ANS. 5
The extent of loss, injury and damage sustained by the Pursuer is
not known and not admitted. Quoad ultra denied. Explained and averred that the sum sued for
is excessive.
STAT. 6
This action is based upon (a) the Defenders fault at common law and (b)
the Defenders vicarious liability for the acts and omissions of their employee.
ANS. 6
Admitted that the Defenders are vicariously liable for the acts and
omissions of their employees. Quoad ultra denied."
The Submissions for the Pursuer
[13] Mr Christine outlined the pursuer's submissions as follows.
[14] As appears from the Record, the action concerned an accident on
a bus owned and operated by the defenders which took place on 21 October 2003.
[15] There was pre-litigation correspondence. Liability was repudiated. No offer was made.
[16] The pursuer's agent considered the matter and mindful of past
cases decided that proceedings in the Court of Session under Chapter 43
procedures might encourage early settlement.
[17] The summons was signetted on 9 May 2005. The
defenders agents advised of their interest.
Full medical records were sent to them together with a medical report
from Mr Anderson. The defenders did not
require to obtain their own report.
Skeleton defences were lodged. On
16 August 2005 the pursuer
lodged her valuation which was at £3,705.
There was no adjustment of the defences.
On 30 August 2005
the pursuer's agents sent a copy witness statement to the defenders'
agents. This was from a factual witness
who was on the bus. On 7 September 2005 the defenders
tendered £2,875. On 12 September 2005 the tender was accepted. The whole process took about 12 weeks.
[18] The pursuer's claim was for past solatium and services. Past solatium was valued at £3,000 plus
interest of £420. Past Section 8
services were valued at £250 plus interest of £35. There was no wage loss claim. CRU was nil.
[19] In relation to the defenders' opposition, Mr Christine's
starting point was that the question of expenses is one for the discretion of
the court looking at the particular circumstances of each case.
[20] The primary position for the pursuer was that this case was on
all fours with a number of previous cases heard in the Outer House in recent
times. I was informed that certain of
those cases were being reclaimed but I understand that the cases concerned have
since been settled without any substantive decision in the Inner House.
[21] Mr Christine referred me in to Wilson v Glasgow City Council
and Gould v City Council 2004 SLT
1189 (a decision of Lady Smith. at pages 1191 E-F and 1191 J-L); Benson v City of Edinburgh District Council 2004 SLT 1227 (a decision of
Temporary Judge J G Reid QC, at pages 1228 G-L, 1229 D-F, 1229 L to 1230A and
1230 C-G) and Hunt v British Bakeries Limited, an unreported
decision of Lady Smith dated 20 October 2004.
[22] Mr Christine summarised those cases as follows. They were all Court of Session cases. Each of the cases settled speedily and at
modest levels. Some settled below the
level of the present tender. In each
case the court refused to mitigate the award of expenses. In each case the court accepted that it was
appropriate to find the pursuer entitled to Court of Session expenses.
[23] In Wilson v
Glasgow City Council and Gould v City
Council 2004 SLT 1189 the tenders accepted were for £2,250 and £2,000
respectively. Lady Smith took the view
(at page 1191 K-L) that "Practice has however changed since the era of McIntosh
and Coyle" (referring to the cases of McIntosh
v British Railways Board (No 1)
1990 SC 338 and Coyle v William Fairey Installations Ltd 1991
SC 16 respectively). Lady Smith
considered that the fact that a case was straightforward did not give rise to
the inference that it would have been significantly cheaper to conduct it in
the sheriff court. The assessment by the
pursuer's agents of the cases being likely to cost less than if they were
conducted in the sheriff court appeared fair and reasonable given the
likelihood of settlement. In those
particular cases, it could not be said that the awards seemed trivial in
relation to the expenses. Lady Smith
refused the defenders' motions for modification.
[24] In Benson v City of Edinburgh District Council 2004
SLT 1227 the pursuer sustained injuries after alighting from a bus. She raised an action under Chapter 43 Rules
and accepted a tender of £3,400. Temporary
Judge J G Reid QC took the view that the award or settlement was not trivial in
relation to the expenses. He considered
that in choosing the Court of Session the pursuer had selected a procedure
designed to encourage speedy and economic resolution of her claim and she could
not justifiable be criticised for doing so rather than choosing to raise her
action in the sheriff court. Temporary
Judge J G Reid QC also took the view that it did not necessarily follow that it
was inappropriate for a straightforward claim, which at the raising of the
action was known to have a maximum value of £5,000 to be raised in the Court of
Session. It could be argued that Chapter
43 made such claims ideally suited to the new rules. The pursuer's motion for expenses was granted
and defender's motion for modification was refused.
[25] In Hunt v British Bakeries Limited (unreported 20 October 2004) the pursuer
accepted a tender for £1,450. Lady Smith
said (at paragraph 10):-
"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 agent to raise the action in this court".
[26] Mr Christine also referred me to the decision of the First
Division in McIntosh v British Railways Board 1990 SC 338
particularly at pages 344 and 345. In
that case Lord President Hope described advantages of optional procedure in the
Court of Session (at page 344) and then said:-
"It is not right
that litigants should be deprived of these advantages just because their claims
are small and simple, so long as they are claims that can competently be made
in this court. The smaller and simpler
the claim the more force there is in the point in the general public interest,
that they should be dealt with as quickly as possible."
[27] In the present case, the pursuer's agents considered that
Chapter 43 procedures were the most appropriate. Chapter 43 procedures encouraged the
settlement of claims and that applied to small claims too. This case is a good example of how effective
those procedures can be through encouraging an early realistic valuation. Early valuation brought, in response, an
early realistic tender. Settlement was
achieved with a minimum of procedure and in the absence of any court time. It was an economic and efficient way to
proceed. It was the momentum created by
Chapter 43 which prompted the settlement.
That momentum would not have been there in the sheriff court ordinary
procedure.
[28] Based on the experience of his instructing agents, Mr Christine
submitted that (compared with Chapter 43 procedure in the Court of Session)
there is greater scope for delay in sheriff court ordinary procedure. In the sheriff court options hearings can be
continued. Debates are more
commonplace. There is more scope for
proof dates to be delayed. Very few
sheriff court actions settle, I was informed, until 14 days prior to proof.
[29] In the present case, the decision was taken that the Court of
Session offered the best forum for early resolution. In fact, having raised an action in the Court
of Session, the matter was resolved at an early stage.
The Submissions for the Defenders
[30] Mr Wilson for the defenders contended that expenses should be
on the ordinary sheriff court scale without the sanction for counsel.
[31] The defenders took no particular issue with the chronology
given by the pursuer but there were one or two additional features. In the period prior to litigation discussions
were ongoing. The insurers were advised
that there were independent witnesses to the accident. Details were sought and in August 2004 the
pursuer's agents included a letter a statement from a Miss Freeland. Liability was however disputed. Miss Freeland was a friend of the pursuer and
as such she was considered not to be truly independent. There were witness statements to the effect
that many people were getting off the bus and the defenders sought further
information. It was quite appropriate,
it was suggested, for the defenders to take the stance which they did. The summons was signetted on 9 May 2005. On 1
July 2005, after defences had been lodged, the pursuer's agents
supplied contact details for a Lindsay Rankine who was an independent
witness. A copy witness statement was
sent on 30 August 2005. The tender was lodged on 7 September 2005 which was one week later. The defenders were happy to proceed on the
basis of the pursuer's medical report.
[32] Mr Wilson did not accept that it was the momentum from Chapter
43 which resulted in settlement. It was
not unreasonable, he submitted, to suggest that this is an action which would
have settled early if it hade been raised in the sheriff court.
[33] It was accepted that in the sheriff court this would have been
an ordinary action rather than a summary cause or a small claim.
[34] Turning to the nature of the case itself, Mr Wilson submitted
that this was the most straightforward of claims imaginable. The bus moved. The pursuer fell. She landed on her right side. At first it was thought that she might have
suffered a fracture of the right radius but it was quickly discovered to be a
soft tissue injury. The only claim made
was for past solatium and services. The
case was entirely straightforward.
Liability was denied. The claim
was first intimated on 20 December
2003. In February 2004 the
request for independent witness was made.
There was no contributory case.
It was hard to imagine a more straightforward action. The medical report was dated 7 January 2005 and predated the
raising of the action. The sum sued for
was £10,000. It was a very minor
injury. The tender was £2,875. The settlement sum was not large.
[35] The Rules of Court give complete discretion to the court in
relation to the modification of expenses.
Rule of Court 42.5.(1) provides for such modification "as the court
thinks fit".
[36] Mr Wilson also referred me to Coyle v William Fairley
1991 SC 16 particularly at pages 18 and 19.
In Coyle Lord Morison,
delivering the opinion of the court said (at page 18):-
"The amount of
any settlement or award is relevant in determining whether modification should
be made to expenses awarded to a pursuer in an action brought in the Court of
Session but it does not provide the only criterion by which that matter is to
be determined."
[37] Lord Morison then went on to consider the case of McIntosh v British Railways Board 1990 SC 338. He concluded that in McIntosh (at page 345) the court was at pains to point out that
"Nothing in what we have said so far is intended in any way to restrict the
power of the court to modify an award to expenses to a pursuer at the end of a
case". In McIntosh the opinion (at page 345) continued as follows:-
"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 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
the sanction for counsel according to the circumstances, e.g. Smith v British Rail Engineering Ltd 1985 SLT 463. 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
defenders' interests against their being exposed to claims in this court where
the awards are trivial in relation to the expenses."
[38] Lord Morison (in Coyle
at page 19) went on to say:-
"The proper
approach ... is that in respect of actions brought in the Court of Session the
court should determine whether the initial choice of that 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."
[39] Having regard to the cases of McIntosh and Coyle, Mr
Wilson accepted that the amount of any settlement does not provide the only
criterion in relation to expenses. He
submitted, however, that the pursuer had to accept the risk that there may be
an application made to modify expenses (and this was not disputed).
[40] The central feature of Mr Wilson's submission was his
contention that in the present case the sheriff court was the appropriate forum
because (a) there were material cost differences between proceedings in the
Court of Session and proceedings in the sheriff court and (b) that the Court of
Session costs were out of proportion to the damages.
[41] Mr Wilson accepted that the pursuer was able to rely on Outer
House cases concerning Chapter 43 procedure and he commented on each of those
case in turn.
[42] In Wilson v Glasgow City Council 2004 SLT 1189
modification was refused but Mr Wilson suggested that the court "threw down a
gauntlet to the defenders" to prove that it would be cheaper in the sheriff
court (at page 1191 at paragraphs 7 and 8).
Mr Wilson submitted that in the present case the defenders were able to
demonstrate that it would have been significantly cheaper in the sheriff court. He also submitted that there was also nothing
in the history or chronology of the present case which suggest that the pursuer
would have been prejudiced in relation to the promptness of the settlement had
the matter been litigated in the sheriff court.
[43] Benson v City of Edinburgh District Council 2004
SLT 1227 also concerned someone alighting from a bus. However, Benson
could be distinguished. In Benson the pursuer's injuries were more
significant. The pursuer valued her
claim at £5,200 and accepted a tender of £3,400. The case on the merits was of also some
complexity. Temporary Judge J G Reid
said (at page 1228 G-H):-
"Had this case
proceeded to proof an all issues it could easily have lasted several days in
the Court of Session. It is doubtful
whether this case can be described as simple and straightforward."
[44] In Benson the
defender's motion for modification was refused.
Mr Wilson, however, drew my attention to paragraph 14 (at page 1229 L-
1230A) where Temporary Judge J G Reid QC stated inter alia:-
"None of the
authorities cited to me requires me to modify the expenses sought by the
pursuer. The most relevant decision is Wilson
and Gould where the effects of the
new Chapter 43 of the Rules of the Court of Session was discussed. Their effect, as Lady Smith describes is
significant. They encourage the 'cards
on the table approach', early disclosure, early evaluation of prospects and
early valuation of the claim. It is
obvious that these considerations are likely to lead to settlement at a much
earlier stage than hitherto was the norm.
Sterile legal debates are discouraged; adjustment and calling before the
court are kept to a minimum."
Although Temporary Judge J G Reid
QC had taken the view that considerations relating to Chapter 43 were
"obviously likely to lead to settlement" Mr Wilson submitted that was not
necessarily so in the present case.
[45] In Benson Temporary
Judge J G Reid QC also took the view at paragraph 15 (at page 1230 D-E) that the defenders "have not established that
the award is trivial in relation to the expenses, or putting it another way,
that the expenses are out of proportion to the damages." Mr Wilson submitted that the same could not
be said in the present case.
[46] In Benson Temporary
Judge J G Reid QC also took the view at paragraph 16 (at page 1230E-F) that:-
"In choosing the
Court of Session, the pursuer selected a procedure which was designed to
encourage speedy and economic resolution of her claim. That seems to me to be materially different
from the argument rejected by the court in Coyle
which proceeded upon the basis of 'the high level of costs likely to be
incurred by bringing an action in the Court of Session (at 1991 SC, p 19). As I have indicated, it has not been
established before me that the costs of this action are at a high level
compared with what they would have been had the action been raised in the
sheriff court and settled at some unspecified date and after unspecified
procedure had occurred. I cannot
therefore accept that, on the ground of costs, the sheriff court was
necessarily the appropriate court in which to raise the action. I do not consider that the pursuer and her
advisers can be justifiably criticised for raising this action in the Court of
Session rather than the sheriff court."
Mr Wilson submitted however that
the same could not be said in the present case.
[47] In Hunt v British Bakeries Limited (unreported 20 October 2004) Lady Smith also
refused modification. In that case the
pursuer accepted a tender for £1,450.
However, as appears from paragraph 3, Lady Smith said:
"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 expenses. That was because there had been so little
procedure."
Mr Wilson submitted that the
present case was in a different position.
[48] In the support of all the forgoing submissions Mr Wilson relied
heavily on two comparative accounts of expenses that had been prepared for the
defenders by law accountants Alex Quinn & Partners Limited. There is no need for me to rehearse the full
terms of those documents. Suffice it to
say that they bear to be itemised accounts of expenses incurred by the pursuer
prepared for comparative purposes. They
were lodged in process for ease of reference.
Both accounts cover the same periods from 7 January 2005 to 3 October 2005 inclusive. One account bears to be prepared under "The
Court of Session (Personal Injuries) Table".
The other bears to be prepared under "The Sheriff Court Table of
Fees". It would however, be fair to say
that the total figures shown in those accounts and the conclusions to be drawn
from them were central to the defender's motion for modification.
[49] Mr Wilson also provided copies of two tables of fees namely:-
(1)
Table of Fees of Solicitors in the Court of Session : Act of Sederunt
(Rules of the Court of Session) 1994; and
(2)
Table of Fees of Solicitors in the Sheriff
Court : Act of Sederunt (Fees of Solicitors in the
Sheriff Court)(Amendment
and further provisions) 1993 (SI 1993 No 3080).
[50] In explaining the defenders' position, Mr Wilson very fairly
indicated that the comparative accounts involved a certain amount of
guesswork. However, the sheriff court
account brought out a total figure of £4,091.22. The Court of Session account brought out a
figure of £4,466.76. Mr Wilson suggested
that at first sight there was not a great deal of difference between the two
totals (£375.54) but he explained that the accounts did not take account of
counsel's fees. In the present case the
work concerned was carried out in-house by solicitor-advocates. The work in respect of those fees was
estimated to amount to £1,292.51. If
that sum is added to the Court of Session fees them the total figure becomes
£5,759.27. That figure is almost exactly
twice the settlement figure. Mr Wilson
submitted that there is not the slightest possibility that this case would ever
have received sanction for the employment of counsel in the sheriff court. It was suggested that if this had been a
Legal Aid case (and it was not) the Scottish Legal Aid Board would never have
granted sanction for the employment of counsel.
Mr Wilson suggested that the true comparison was between the Court of
Session figure (plus counsel) of £5,759.27 and the sheriff court figure of
£4,091.22 which brought out a difference between the two accounts of
£1,668.05.
[51] Mr Wilson took two points from the accounts and the figures
which he referred to:-
(1)
Firstly, he submitted that the present case can be distinguished from Benson v Hunt. In the present case
the expenses were, Mr Wilson submitted, out of proportion to the damages. The expenses figure is almost twice the
settlement sum.
(2)
Secondly, he submitted that the pursuer ought to have been aware that it
would cost significantly more to litigate in the Court of Session. In that situation, modification is a risk
which the pursuer takes.
[52] In the circumstances, Mr Wilson submitted, modification of
expenses was appropriate in this case.
The Response by the Pursuer
[53] Mr Christine responded briefly to the defenders' submissions as
follows.
[54] On the question of what was "trivial" Temporary Judge J G Reid
QC said in the case of Benson (2004
SLT 1227 at page 1228L):-
"By the use of
the word 'trivial' I take the court to be applying the ordinary meaning of that
word, namely, of small value, trifling or of no significance."
In the present case, it cannot be
said that £2,875 is "trivial". It is a
significant sum for the pursuer.
[55] Mr Christine submitted that the defenders' approach missed the
point. The procedures in the Court of
Session and the sheriff court are different.
Chapter 43 procedures create an environment for the early disposal of
such cases. They facilitate early
disposal. By contrast the sheriff court
procedures are more akin to ordinary Court of Session procedures as opposed to
Chapter 43. The fact that this case
settled within three months in the Court of Session under Chapter 43 procedures
does not mean that the case would have settled within the same period in the
sheriff court. The defenders' are simply
not comparing like with like. Having
raised the action in the Court of Session it settled and it settled quickly
with a total absence of court time.
[56] Mr Christine also explained that the comparative figures
founded upon by the defenders did not arrive with the pursuer's agents until
the day before the hearing of the present motion. In depth analysis was simply not possible. In any event it may not simply be a question
of adding solicitor-advocates' fees.
There were fees for two consultations, the summons and the valuation of
the claim. The difference founded on by
the defenders (of £1,668.05) may not be that large and it may not even be there
at all.
[57] Even if the defenders' hypotheses were correct (and that was
not conceded) it would still have cost £4,091.22 to recover £2,785 in the Sheriff
Court.
[58] The defenders' have also assumed that this case would have
settled as quickly in the Sheriff Court as it did in the Court of Session and
without further hearings or procedure.
That was an unwarranted assumption.
[59] In short, Mr Christine's principal point by way of response was
that the defenders were simply not comparing like with like.
[60] Modification should be refused.
Discussion
[61] I have given careful consideration to the very helpful
submissions of both parties, which I have outlined above in some detail.
[62] On the information available, however, I was not satisfied that
I should grant the defenders' motion for modification. In outline, my reasons are as follows.
[63] Clearly, the question of modification of expenses is
essentially one for the exercise of my discretion. That is not in dispute.
[64] Rule 42.5.(1) of the Rules of the Court of Session 1994
provides that:
"In any cause
where the court finds a party entitled to expenses, the court may direct that
expenses shall be subject to such modification as the court thinks fit".
[65] In general terms, I found myself in agreement with the approach
adopted by Lady Smith and Temporary Judge J G Reid QC in the Outer House cases
of Wilson v Glasgow City Council and Gould v City Council 2004 SLT 1189, Benson
v City of Edinburgh District Council
2004 SLT 1227, and Hunt v British Bakeries Limited, unreported 20
October 2004.
[66] I agree that practice has changed since the era of McIntosh and Coyle (McIntosh v British
Railways Board (No 1) 1990 SC 338 and Coyle
v William Fairey Installations Ltd
1991 SC 16).
[67] The practices and procedures under Chapter 43 of the
Court of Session Rules were brought in to force on 1 April 2003. As is well known, they were based on the
recommendations of Lord Coulsfield's Working Party. The new procedures made several important
changes intended to achieve speedier resolution of personal injuries claims in
the Court of Session. Suffice it to say,
for example, that there is now no automatic right to a debate; pleadings are
abbreviated, there is mandatory exchange of valuations and there are mandatory
pre-trial meetings with a view to settlement.
There are, as yet, no corresponding practices and procedures in the
sheriff court.
[68] I
am aware, thanks to the work of the Personal Injuries User Group, that steps
are currently being taken to carry out a review of Chapter 43 practices and
procedures. It is hoped that the review
will produce a research-based evaluation of whether the aims and objectives of
the new procedures have been met. I
recognise, depending on the findings of that evaluation, that my currents views
may have to be modified in future.
[69] For present purposes, however, I require to proceed on the
basis of the information presently before me.
Having regard to the nature of the Coulsfield reforms, and in the
absence of evidence to the contrary, it seems reasonable to proceed on that
basis that in general terms (and for aught yet seen) Chapter 43 procedures
appear to be successful in achieving their aim of earlier settlements.
[70] In the present case, having heard counsel, I was not satisfied
that the pursuer or her agents could or should be criticised for seeking to
take advantage of the perceived benefits associated with Chapter 43. The pursuer's advisers took the view that
there were practical and procedural advantages in proceeding in the Court of
Session. They felt here was an increased
prospect of settlement. They also
considered that the procedure in the sheriff court action may have continued
for a longer period perhaps until shortly before proof.
[71] The earlier decisions by Lady Smith and Temporary Judge J G
Reid QC also supported the pursuer's agents in their decision to take advantage
of Chapter 43 procedures.
[72] Despite the defenders' references to the comparative accounts,
I was not satisfied that there were material extra costs involved in this
action as compared with what would have happened if this action had been raised
in the Sheriff Court.
[73] I agree with the submissions made by Mr Christine, set out
above, to the effect that the defenders were not comparing like with like.
[74] I was not satisfied that the two comparative accounts had the
effect contended for by the defenders.
[75] Nor was I satisfied that the settlement sum of £2,875 was
"trivial" for present purposes.
[76] Finally, I should add that the discussion before me related to
the comparatively narrow issue of modification outlined above. Understandably the wider
issues of principle as to how best to deal with straightforward low-value
personal injuries cases (in the Court of Session, or the sheriff court or otherwise)
so as to minimise disproportionate costs were not addressed in any detail on
the motion roll. Those wider issues also
await evidence-based evaluation and review.
[77] It was not suggested by the defenders that the cost of
litigating in the Sheriff Court
was disproportionate to the award. On
the contrary, the defenders motion was for modification to sheriff court
ordinary scale.
[78] In the result, the defenders' contentions were not established
to my satisfaction.
[79] In my opinion, in the circumstances outlined above, the
pursuer's submissions fall to be preferred.
Decision
[80] In the whole circumstances, and for the reasons outlined above,
I shall grant the pursuer's motion as enrolled and refuse the defenders' motion
for modification.
