Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 40
PD975/08	OPINION OF LORD MATTHEWS in the cause NEIL EMERSON Pursuer; against THE EDRINGTON GROUP LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Wilson; Digby Brown SSC

Defenders: Cleland; Simpson & Marwick WS

19 March 2009

Introduction

[1] This case called before me on the motion roll.

[2] The pursuer's motion was for decree in terms of a Minute of Tender, number 17 of process and a Minute of Acceptance thereof, number 19 of process and for certification of Mr Kenneth MacKenzie, an ENT consultant and Mr David E Smith, a consultant forensic engineer, as skilled witnesses.

[3] The tender was in the sum of £2,000 net of any benefits recoupment in terms of the 1997 Act, together with the expenses of process to date. Liability was never accepted.

[4] The defenders did not oppose certification of the skilled witnesses and sought expenses in their favour from the date of tender. In turn that was not opposed by the pursuer. The issue which came before me was the defenders' contention that expenses should be awarded on the Sheriff Court summary cause scale only.

Background

[5] The action was one for personal injuries under Chapter 43. It sought payment of £15,000 in respect of hearing loss said to be due to continuous exposure to noise at work. There was a claim for solatium and a claim for disadvantage on the labour market. The pursuer was still in the employment of the defenders and was, it is said, still exposed to high levels of noise.

[6] The pursuer was born on 8 November 1963. It is said in Article 5 of Condescendence that he has no family history of deafness and that he has sustained a bi-lateral high frequency sensorineural hearing loss over the speech frequencies of 1, 2 and 3 KHZ, of 16.7 dB on the right and 16.7 dB on the left. His impairment is said to be permanent and likely to deteriorate with age. It is said also that he has difficulty hearing conversations in company and listening to television as well as difficulty communicating with members of his family.

Submissions for the Pursuer

[7] It was accepted by Mr Wilson, who appeared for the pursuer, that the hearing loss was not particularly severe. However he laid stress on its permanence and the likelihood of deterioration.

[8] Mr Wilson submitted that hearing loss cases were not straightforward. There were often complexities of evidence and issues about liability and causation. The medical reports in connection therewith were very complex.

[9] He accepted that the sum accepted was below the privative jurisdiction of the Sheriff Court. The summons was signetted on 23 May 2008, the increase to £5,000 in the privative jurisdiction having effect in relation to any proceedings commenced on or after 14 January 2008. Nonetheless, he submitted that it was inappropriate to award expenses on the summary cause scale, although he accepted that it was open to the court to modify the expenses under rule 42.5 of the Rules of Court.

[10] There was, he said, a great deal of guidance to be found in previous authority. In the first place he referred me to McIntosh v British Railways Board 1990 S.C 338, which obviously pre-dated the new Chapter 43 procedure.

[11] That case dealt with the circumstances in which a Court of Session action should be remitted to the Sheriff Court but there were a number of observations contained in it which were of significance. The pursuer raised an action for damages under the optional procedure and it was remitted to the Sheriff Court by the Lord Ordinary, principally because the claim was small and straightforward. The decision of the Lord Ordinary was reversed after a reclaiming motion. Amongst other things Lord Hope, delivering the Opinion of the Court, said the following at page 343:

"In this situation the proper approach to this section seems to us to be that, except in extreme cases, the fact that the claim is small and straightforward is not enough to justify a remit to the sheriff court. By extreme cases we mean cases where it is obvious from the pleadings, whatever may be the sum sued for, that on no possible view could the pursuer recover more than the upper limit to the privative jurisdiction of the sheriff court. If this is the case, then the action is plainly appropriate for the sheriff court, because it ought not to have been raised in the Court of Session at all. But if the pleadings show that the pursuer could possible recover more than the upper limit then the action should be regarded as appropriate for the Court of Session unless some other factor is present which shows that the nature of the particular case is such that it is appropriate for it to be dealt with in the sheriff court."

His Lordship went on:

"The pursuer is entitled to avail himself of the jurisdiction of whichever court he finds more convenient or appropriate to his own circumstances. It is not for the court to deprive him of his choice on grounds which would apply generally to every case of that type. No doubt this right is subject to the power to remit which each court has under the relevant statute, but that power should only be exercised on grounds which are particular to the case. There may well be sound practical reasons for choosing one court as against another, and unless Parliament directs otherwise the court which is chosen must deal with the case which is before it....But there are other advantages in terms of speed and procedure which are not generally to be found in the sheriff court under its present rules. There is the right to a jury trial in actions of damages for personal injuries in terms of sec 11 of the Court of Session Act 1888, except of consent or on special cause. Civil jury trials are no longer competent in the sheriff court. Then there is the optional procedure under Rules 188E-188P of the Rules of the Court of Session which offers particular advantages to litigants in the Court of Session in those actions of reparation to which these rules apply. 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 which 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 in the court which is best able to achieve this result. Procedure by way of summary cause in the sheriff court is cheap and simple, but a pursuer under that procedure cannot recover more than the upper limit in value for actions for payment of money, currently £1,500 exclusive of interest and expenses. This makes it unsatisfactory for actions of reparation where a pursuer might possibly recover more than that amount, which is no doubt why actions of reparation are not often brought under that procedure. In Hamilton v British Coal Corporation 1990 S.L.T 287 Lord Morison said that the unavailability of optional procedure in the Sheriff Court was not a factor to be taken into account, and in Westcott v James Dickie & Co Ltd 1991 S.L.T 200 Lord Caplan agreed with Lord Morison. The Lord Ordinary in the present case was of a different view. As he put it, the court is well entitled to have regard to any practical or procedural advantages which are to be found in adopting one forum rather than another. We agree with the Lord Ordinary on this point, because in our opinion these are matters which the litigant himself may properly take into account in making his choice as to which court in which to raise his action and they are relevant to the question whether it is appropriate that the action should remain in that court."

At page 345 he went on as follows:

"The Lord Ordinary had regard to these practical and procedural advantages in reaching his decision nevertheless to remit, and to that extent what he did cannot be criticised. But in our opinion the pursuer's counsel was right when she said that the Lord Ordinary placed too much reliance on the factors of smallness and simplicity and that he did not give proper regard to the pursuer's right to choose the forum in which to pursue his claim....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: e.g. Smith v British Rail Engineering Ltd 1985 S.L.T. 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 a valuable safeguard in the defenders' interest against their being exposed to claims in this court where the awards are trivial in relation to the expenses. But it would be wrong, in our opinion, to employ sec. 14 as if it were a means to the same end, unless it were clear from the pleadings at the outset that on no possible view could the pursuer recover a sum in excess of the privative limit for actions in the sheriff court."

[12] Mr Wilson then went on to consider the case of Coyle v William Fairey (Installations) Ltd 1991 S.C 16.

[13] In that case the pursuer raised an action of damages in the Court of Session in respect of personal injuries, which was settled for the sum of £1,000 by way of tender and acceptance. Expenses on the Court of Session scale were sought by the pursuer and this was opposed by the defenders. The Lord Ordinary awarded expenses on the summary cause scale without sanction of counsel. The pursuer had sued for £10,000 and at the time of raising the action the limit of value for summary causes in the Sheriff Court had been £1,000. The pursuer reclaimed. At page 18 Lord Morison, delivering the Opinion of the Court said the following:

"It is clear from the latter part of his opinion that the Lord Ordinary based his decision on the value of the settlement, taking the view that because of that value the case was appropriate for decision as a summary cause in the sheriff court. But in the first place he was apparently not referred to sec. 35 of the Sheriff Court (Scotland) Act 1971. This section provides the definition of what constitutes a summary cause, and it includes within that definition "actions for payment of money not exceeding £1,500" (at the time of the motion the latter sum being £1,000). The amount sued for in the present case was £10,000. It may readily be accepted, as was represented by the reclaimer's counsel, that the settlement must have made some allowance, however slight, for a risk of failure on the merits, or of a finding of contributory negligence. Thus there is no question but that if the pursuer in the present case had raised the action in the sheriff court it would have proceeded on the ordinary roll and would not appropriately have been placed on the summary cause list. The Lord Ordinary misapprehended the position in this respect, and it is clear that he proceeded partly on the basis of that misapprehension."

[14] His Lordship quoted McIntosh and then went on as follows at page 19:

"Respondents' counsel contended that the references in this stage to 'the sum recovered', the 'advantage of knowing the result not enjoyed by the pursuer's advisers at the start of the case' and to cases in which 'awards are trivial in relation to the expenses' demonstrated that in the present case the amount of the settlement provided the decisive criterion for determination of the question of modification, in the absence of any special features such as complexity or general importance. In our view this submission, which accords with the Lord Ordinary's approach, is incorrect. 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 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. The court's judgment on that matter may be assisted by a consideration of events which have occurred subsequent to the date on which the choice was made, including the very important consideration of the result of the case: but the result, particularly if it is one which is achieved by settlement, does not necessarily resolve the issue whether the initial choice of forum was inappropriate on the ground that the value of the claim was not commensurate with Court of Session expenses. For example, a pursuer might well agree to a settlement at a figure substantially less than that at which a claim had been properly valued, in order to avoid a prolonged period of delay and uncertainty, or because further information had come to light of which the pursuer's advisers were justifiably unaware when the action was commenced."

[15] Mr Wilson submitted that there were four factors at play before the section 43 innovation. In the first place, if the sum recovered was small then the court would take account of that. In the second place, however, the level of recovery was not conclusive. In particular, if there was a settlement designed to resolve uncertainty or delay then that had to be taken into account.

[16] In the third place, one had to take account of the specific advantages of Court of Session procedure such as jury trial and the optional procedure, as it then was, for reparation actions, although I have to say that that does not appear self evident from Coyle. At page 20 Lord Morison said that on the authority of McIntosh these latter considerations (that is, the level of justice and the procedures of the Court of Session) "were relevant to the question whether the case was 'appropriate for the Court of Session' in the sense conveyed by sec. 14 of the 1985 Act; but they do not affect the 'risk' which the pursuer incurred that expenses would be modified."

[17] Approaching the matter in another way, though, it does seem to me that where there are procedures designed to allow an action to proceed to a conclusion swiftly and with a minimum of expense then these are matters which can justifiably be taken into account.

[18] The fourth factor, according to Mr Wilson, was that a decision whether the initial choice of forum was justified depended on the circumstances known to the advisers when proceedings were raised.

[19] He submitted that after the section 43 procedure innovation there had been a series of cases which were all summarised in the most recent of them, namely Hylands v Glasgow City Council 2008 S.L.T 988.

[20] In that case the pursuer sought damages in respect of injuries sustained at work. A tender for payment of £2,500 was accepted and the defenders enrolled for modification to the summary cause scale in the Sheriff Court. The summons had been signetted on 10 January 2008, following the defenders' second repudiation of liability. At that time the privative jurisdiction was still £1,500 but by the time the summons was served it had increased to £5,000. Summary cause proceedings would have been inappropriate at the time the action was raised and in all the circumstances of the case, which were somewhat special, Lord Drummond Young refused the motion for modification. He did observe, however, that it would be appropriate to modify a pursuer's expenses if similar facts were to occur in the future "in the absence of special circumstances."

[21] In the course of his opinion Lord Drummond Young referred to a number of authorities namely Benson v City of Edinburgh District Council 2005 1 S.C 24, Coyle, Galbraith v First Glasgow (No.1) Ltd 2006 S.L.T 317, Hunt v British Bakeries Ltd, 2005 SCLR 178, McIntosh and Wilson v Glasgow City Council 2004 S.L.T 1189.

[22] All of these decisions pre-dated the raising of the privative jurisdiction. It was of significance that as well as raising the levels for the privative jurisdiction and the summary cause there was now, under rules 8.2 and 8.3 of the Summary Cause Rules 2002 to be a hearing on the calling date when the Sheriff was to ascertain the factual basis for the action and any defence and the legal basis on which the action and defence were to proceed. The Sheriff was also directed to seek to negotiate and secure settlement of the action between the parties and could immediately proceed to an immediate hearing on issues of law so that the procedure was informal and expeditious. Lord Drummond Young opined, and I agree with him, that it seemed that the Summary Cause Rules were well directed towards securing an agreed settlement at a very early stage. Moreover, Chapter 34 of the Summary Cause Rules made specific provision for actions of damages for personal injury which have no equivalent in ordinary cause procedure. Its advantages were precisely the advantages of the Chapter 43 procedure.

[23] Mr Wilson was aware that there was an experimental procedure for reparation actions in the Sheriff Court at Glasgow, where this case could have been raised, but neither he nor Mr Cleland, who appeared for the defenders, invited me to make anything of that.

[24] Lord Drummond Young analysed the authorities and in relation to McIntosh and Coyle said the following, at paragraph 5:

"The result of McIntosh and Coyle is accordingly that, if the sum recovered by the pursuer is small, that is a factor that the court may take into account in determining whether expenses should be awarded on the Court of Session scale or one of the sheriff court scales. The argument for restricting expenses to a sheriff court scale is obviously particularly strong when the sum recovered is below the level of the privative jurisdiction of the sheriff court, because in such a case the action should not normally have been raised in the Court of Session at all. Nevertheless, the level of recovery is not conclusive; if it appears that the sum ultimately recovered was the result of a settlement designed to resolve delay or uncertainty, or because further information had come to light as the action proceeded, it might be appropriate to award expenses at the Court of Session level. Likewise, as pointed out in McIntosh, the court may have regard to specific advantages of Court of Session procedure, notably the existence of jury trial and special procedures available under the Rules of Court for the expeditious disposal of reparation actions. In view of those advantages, it will usually only be in cases where the pursuer falls short of the privative jurisdiction of the sheriff court by a substantial margin that expenses will be modified."

[25] At paragraph 6 he said the following:

"Since McIntosh and Coyle were decided, Chap. 43 of the Rules of Court has come into operation. This has provided significant advantages for litigants in personal injury actions, and it is clear that such cases are now disposed of more quickly and more cheaply than was formerly the case. In view of the advantages of the Chap 43. procedure, Outer House judges have in recent years been more reluctant than formerly to modify expenses because the pursuer has recovered a small amount. Thus in Wilson v Glasgow City Council, Lady Smith refused to modify expenses in two cases where the pursuers accepted tenders of £2,250 and £2,000 respectively. She referred to the advantages of the new procedure and expressed the view that, in view of very clear liability on the part of the defenders, the cases were likely to settle in early course under that procedure. In addition, jury trial might have been appropriate if the cases had not settled. In Benson v City of Edinburgh District Council, Judge J.G. Reid QC refused to modify expenses in a case where an action raised for £25,000 was settled, following acceptance of a tender, for £3,400. He pointed out the advantages of Chap. 43, in particular the requirements of early disclosure, early evaluation of prospects and early valuation of the claim; it was obvious that these considerations were 'likely to lead to settlement at a much earlier stage than hitherto was the norm'....That in turn meant that the level of expenses was not likely to be particularly high by comparison with the rates of sheriff court expenses. ....Judge Reid further indicated...that it was not necessarily inappropriate for a straightforward claim known to have a maximum value of £5,000 to be raised in the Court of Session; such claims were ideally suited to the Chap.43 procedure and if it were thought appropriate to keep such cases out of the Court of Session that could be done by raising the privative jurisdiction of the sheriff court."

[26] Lord Drummond Young pointed out that both in Hunt and in Galbraith Lady Smith and Lord Kinclaven laid stress on the Chapter 43 procedure. The efficiency and expedition of that procedure often provided a good reason for raising proceedings in the Court of Session. At paragraph 8 his Lordship said the following:

"Thus the introduction of the Chap. 43 procedure appears to have brought about a change in the practice of the court; it has become relatively unusual for expenses to be modified even where the damages accepted by a pursuer are relatively modest. That practice has proceeded, however, on the basis that the privative jurisdiction of the Sheriff Court is £1,500. In Benson, Judge Reid expressly referred to the possibility that the privative jurisdiction might be raised if it were thought desirable to keep claims of low value out of the Court of Session..."

His Lordship then referred to the new regime in the sheriff court summary cause. At paragraph 10 he said the following:

"I was also provided with information about the level of fees likely to be incurred in a personal injuries action in the Court of Session and a personal injury claim that proceeds as a summary cause in the sheriff court. It is not necessary to go into the figures in detail; I was satisfied that the level of expenses in a summary cause is substantially less than that found in the Court of Session."

At paragraphs 11 to 13 he said the following:

"11 The clear intention underlying the legislation increasing the privative jurisdiction and the financial limit for summary causes is that claims of small value should proceed as summary causes in the sheriff court and not in the Court of Session. In my opinion those changes have important implications for the level of expenses that may be recovered in the Court of Session. It seems to me that the approach to the modification of expenses laid down in McIntosh and Coyle must once again receive full effect. While a judge dealing with a motion for modification of expenses has a discretion, it is a major factor in the exercise of that discretion that the level of damages ultimately awarded or accepted fell significantly below the level of the privative jurisdiction of the sheriff court. That factor is not conclusive for the reasons set out in para 5 above; nevertheless, it seems to me that it is important. Moreover the financial limit for summary causes has been increased, and in such cases a simple and expeditious procedure is now available under the Summary Cause Rules. In the circumstances I am of the opinion that the advantages of the Chap. 43 procedure are unlikely to be material in a case where the award is significantly below the level of the privative jurisdiction. Finally, the increase in the privative jurisdiction is a clear indication that claims for relatively small amounts are not appropriate for jury trial. That is no doubt justified on the basis that a jury trial is a relatively costly and time consuming procedure, the costs in question comprising not only legal expenses but also the services of members of the public.

12. For the reasons stated, I am of the opinion that since the increase in the privative jurisdiction of the sheriff court the expenses awarded to a pursuer who recovers a sum significantly below the remit of the privative jurisdiction should normally be modified to the summary cause scale without certification for counsel. Exceptions may exist, such as where the pursuer's claim raises an issue of fact or law of some difficulty, or where some unforeseen factor has arisen as the action proceeded, or where it appears that the pursuer has accepted a compromise figure to avoid the delays and uncertainties of litigation. Likewise, if the pursuer does not fall below the level of privative jurisdiction by a significant margin, it can normally be inferred that it was reasonable to raise proceedings in the Court of Session. Because in a summary cause the damages awarded may not exceed £5,000, if there is a realistic possibility that a greater sum might be awarded the choice is between the Court of Session and ordinary cause procedure, and in those circumstances the advantages of the Chap.43 procedure and the possibility of jury trial may be significant, as accepted in Wilson; Benson; Hunt; and Galbraith.

13. In the present case, the pursuer has accepted a tender of £2,500. In my opinion that is significantly below the level of the privative jurisdiction, and in the absence of special circumstances I would consider it appropriate to grant the defenders' motion to modify expenses to the summary cause scale without certification for counsel. It was not suggested that the present case was one of particular difficulty, or that the settlement was the result of unforeseen circumstances, or that the pursuer accepted a figure well below what the claim was truly though to be worth; nor was it suggested that there were any other exceptional circumstances apart from the specialty discussed in the next paragraph. Consequently, were it not for that specialty, I would have granted the defenders' motion."

[27] The specialty related to the timing of the raising of the action vis a vis the change in the upper level of the privative jurisdiction of the Sheriff Court.

[28] Mr Wilson said that there was no suggestion that a jury trial would have been appropriate in this case. He also accepted, as I think he was driven to, that the sum accepted was significantly below the limit of the privative jurisdiction.

[29] Nonetheless, he submitted that there were special circumstances, such as were desiderated by Lord Drummond Young.

[30] At the time when the action was raised, the information available suggested that the likely value of the claim exceeded the privative jurisdiction of the Sheriff Court. It would not have been appropriate to raise it as a summary cause. Quantifying the damages in a personal injury case was not a science, and a judgment call had to be made. The evidence upon which the damages were quantified was a report from a medical expert, Mr Kenneth MacKenzie, number 6.1 of process. He was a consultant ENT surgeon and confirmed the averments in Article 5 to which I have already referred.

[31] On the basis of that report it had been thought that the likely value of solatium would have been in excess of £5,000.

[32] In this connection I was referred to a number of authorities. In the first place, reference was made to the Judicial Studies Board Guidelines, 9^th Edition, at page 18. The category in question covered the bulk of deafness cases which usually resulted from exposure to noise over a prolonged period. It was said that the disability was not to be judged simply by the degree of hearing loss; there was often a degree of tinnitus present. Age was particularly relevant because impairment of hearing affects most people in the fullness of time and impacts both upon causation and upon valuation.

[33] At the lowest level, slight or occasional tinnitus with slight hearing loss attracted an award for pain, suffering and loss of amenities of between £4,750 and £8,000. As it transpired, the 8^th edition was in place at the time the action was raised and the range was between £4,300 and £7,375 and I proceed on that basis. In the case of Earlam v Hepworth Heating Ltd, Kemp and Kemp E2-009 a claimant was 46 at the date of the trial. His hearing was, as Mr Wilson put it, "a little bit worse" than the pursuer's in the current case but his symptoms appeared somewhat similar and he was awarded £5,500 for pain, suffering and loss of amenities in 1996. That figure would now be £7,700.

[34] That claimant did not suffer from tinnitus.

[35] In Lewis v BTR Plc, Kemp and Kemp E-010, a 1996 case, pain, suffering and loss of amenities was assessed at £5,500 for a male who was 35 at the date of injury and 42 at the date of trial. His problems were said to be slightly less significant than those experienced by the pursuer. He did not suffer from tinnitus but had heard "high pitched whines" occasionally. That award would have been rounded up to £7,040. In Davies v Calsonic Llanelli Radiators Limited, Kemp and Kemp E-012, pain, suffering and loss of amenities were assessed at £3,750 (now £5,100) in 1997. The claimant was a male who was 52 at the date of the injury and 54 at the date of trial. His loss was described as a minor one which troubled him "effectively only in the home and not socially away from the home or in the course of any of his hobbies." He did not suffer from tinnitus.

[36] There do appear to be certain similarities between that case and the pursuer's.

[37] Mr Wilson drew my attention to the claim for loss of employability. For a man of 44 it was appropriate to take account of the medical advice that his hearing loss would deteriorate with age. He was still in employment and exposed to the noise. His choice was to carry on working with the defenders while still subject to the noise or else to leave that employment and take his chances on the labour market.

[38] In Rooney v Guinness Plc 1999 S.L.T. 700, the pursuer was a female factory worker aged 59 at the conclusion of the proof. She sought damages for deafness said to have been caused in the workplace but failed on the merits. The Lord Ordinary, Lord Osborne, held that had he been assessing damages he would have done so on the basis that she had mild sensorineural hearing loss affecting both ears, which had been caused equally by congenital factors and exposure to noise. She had given evidence that she had difficulty in hearing what was being said to her in conversation, which embarrassed her. She required assistance to hear the television and telephone and she sometimes wore a hearing aid but was self conscious about that. Her social life had been restricted. His Lordship would have proceeded in the basis that a hearing loss in the region of 17 dB was attributable to excessive noise and would have awarded £3,000 by way of solatium.

[39] There was a claim for loss of employability in that case but his Lordship would have made no award under that head. The pursuer had retired from her job for health reasons unrelated to her hearing and since her retirement she had not looked for employment of any kind. Any difficulties which she might encounter in relation to obtaining future employment would be likely to arise from osteoarthritis. She had in any event almost reached retiring age.

[40] Mr Wilson submitted that the figure of £3,000 would be £3,960 nowadays.

[41] In the circumstances it was not appropriate to criticise the agents for having raised the action in the Court of Session. Had it been raised at summary cause level then any award of damages would have been restricted to £5,000 and, given the possible level of solatium, had the action been raised at summary cause level the agents could quite properly have been criticised. If it had to be raised in the Sheriff Court it could only properly have been raised as an ordinary action but that was not the defenders' position. They referred only to summary cause procedure. If I were satisfied that it was not appropriate to raise the matter as a summary cause then that was an end of the matter.

[42] Settlement of the case had come about because after the action was raised the defenders had the pursuer medically examined, on 6 October 2008, by Mr. John A Crowther, F.R.C.S, whose report was 7/6 of process. He took a different view of the mechanism of the pursuer's hearing loss. He accepted that there was hearing loss but opined that only a very small proportion of it in his opinion was attributable to work, namely no more than 5-10%. He also thought that the pursuer's age was a factor, as well as his cholesterol level. These factors only became known to the pursuer's agents when the report was intimated, some time after the action was raised. It was thought that if his opinion was accepted then the damages awarded would be in the region of the sum in the tender and perhaps less. The pursuer wanted to accept it and see an end to the litigation.

Submissions for the defenders

[43] In reply Mr Cleland submitted that this was a straightforward case and damages were never likely to be more than £5,000. Apart from Hylands, all of the authorities pre-dated the increase in the privative jurisdiction limit. That could not be underestimated as a factor. It had been clear for some time that the limit of £1,500 was too low and too many low value cases were coming to this court. Nonetheless Mr Cleland accepted that it would have been reasonable to raise the action in this court before 14 January 2008 because of the advantages of Chapter 43 procedure. In all the authorities referred to, the Lord Ordinary was not satisfied that the Sheriff Court was likely to be cheaper.

[44] That all changed as at 14 January 2008. The change was not just in relation to the limit but also in relation to the new summary cause proceedings which were similar to Chapter 43.

[45] The valuation of the claim in this case was £7,500 for solatium and £5,000 for loss of value in the labour market but Mr Cleland submitted that the most important factor to take into account was the level of the settlement. One had to look at the realistic value if the case had gone to proof.

[46] One did not expect the pursuer's agents to have crystal balls but the test was whether the decision to raise in the Court of Session was reasonable. The pursuer and his agents ought to have known that the value of this case was not likely to exceed £5,000. Mr Cleland accepted, however, that they did not have the benefit of Mr Crowther's report when the action was raised.

[47] Mr MacKenzie's report made no mention of the age of the pursuer as being a relevant factor. The agents could to some extent rely on that but they must have known that in the case of a man in his mid-forties age was likely to be relevant. Age was referred to at page 18 of the JSB Guidelines as a relevant factor, although he accepted that it was not clear whether age was factored into the range.

[48] Age was well recognised in noise induced hearing loss cases as being relevant and the agents ought to have taken the matter up with Mr MacKenzie.

[49] Mr Clelland pointed out that the JSB guidelines referred to tinnitus, which the pursuer did not have. The figures in the range were all based on slight or occasional tinnitus and the pursuer fell below the bottom of the range. The English authorities all came from County Courts and the most authoritative guidance was to be found in Rooney.

[50] There was nothing to vouch the claim for loss of employability. Even on full liability the damages were unlikely to exceed £5,000 and, had further enquiry been made of Mr MacKenzie, he would probably have confirmed that age was a particularly relevant factor.

[51] The level of settlement was the major factor and there were no special circumstances in the case.

[52] Mr Cleland accepted that some hearing loss cases could be complex. In this case, however, there was only one defender. Mr MacKenzie's report did not appear to be particularly complex, and that indeed is true. Hearing loss cases were often straightforward, as, he said, this one was.

[53] Mr Cleland relied on paragraphs 11 and 12 in Hylands. The clear intention of Parliament was to take claims such as this out of the Court of Session. The settlement was significantly less than the privative limit. If the sum settled for fell just below the limit that might tip the balance in favour of the pursuer but this was less than half of the limit.

[54] Nothing said in McIntosh about remitting cases in any way prejudiced the power of the court to modify expenses where the award was trivial in relation to expenses. Reference was made to Benson and Galbraith. The obvious way to get round the difficulty of low value cases being in the Court of Session was to raise the privative limit and that is what had happened.

[55] There had been no reported decisions since Hylands and the reasoning of Lord Drummond Young had not been commented on by other judges.

[56] Solatium in hearing loss cases did not generally exceed £5,000 and Mr Cleland repeated that the agents should have had regard to the pursuer's age.

[57] The pursuer had not set out any special circumstances which would justify a departure from what should be the norm according to Lord Drummond Young and expenses should be awarded on the summary cause scale.

Reply for the Pursuer

[58] Mr Wilson had little to add on the question of loss of employability. If the pursuer had any disability which might affect his prospects then the court could make an award to reflect that. As far as age was concerned, the pursuer's expert had had the benefit of meeting the pursuer and examining him. He knew his age and had not seen fit to make any comment on it.

Discussion

[59] I find myself in full agreement with the reasoning of Lord Drummond Young in Hylands. Nonetheless I have decided that there are special circumstances in this case such that expenses should be awarded on the Court of Session scale rather then the Sheriff Court summary cause scale.

[60] As was pointed out in McIntosh the court at this stage has the advantage of knowing what the result is. However, while that is an important consideration, it is not the only factor to be taken into account and its significance can be somewhat diluted, as was recognised in Coyle and in Hylands, where the case has proceeded by way of settlement to avoid the delays and uncertainties of litigation, which I accept was the position here.

[61] I was not provided with any figures but expenses on the summary cause scale would obviously be smaller than those on the Court of Session scale. I am not able to say, however, that the sum of £2,000 was trivial in relation to expenses on the Court of Session scale in this case. There has been very little by way of procedure in the Court of Session, as a perusal of the motion sheet and the interlocutor sheet discloses.

[62] Nonetheless, it is correct to say that the sum of £2,000 is significantly smaller than the upper limit of the privative jurisdiction of the Sheriff Court. In those circumstances I have to consider carefully whether, following Coyle, the initial choice of the Court of Session was justified in all the circumstances of the case known to the pursuer's advisers when the action was raised. The higher level of expenses likely to be incurred by bringing an action here is a factor to which I am enjoined to have regard in terms of Coyle. That, of course, was decided before the advent of Chapter 43 procedure, which had the effect of limiting costs and securing expedition. Similar expedition can now be achieved in the Sheriff Court under the summary cause procedure and it seems to me that the issue in the present case really comes down to whether the valuation of the case can be justified. The defenders do not claim that the action should have been raised in the Sheriff Court under ordinary procedure so the question is whether it was reasonable to value the damages at more than £5,000.

[63] In approaching that, I have to have regard to all the circumstances of the case known to the pursuer's advisers when the action was raised.

[64] Since this case settled and no evidence was led, the court is at something of a disadvantage in assessing precisely what the level of damages would have been on full liability. Nonetheless, having regard to the authorities which were cited to me, it seems to me that it was reasonable for the agents to conclude that the case would have attracted damages at a level greater than £5,000. In these circumstances it would not have been appropriate for them to raise the action as a summary cause, which is the only alternative desiderated by the defenders.

[65] While the Judicial Studies Board Guidelines refer to tinnitus there is no question of that in the other authorities to which reference was made. It is not self evident that the pursuer's age (44) should have contributed to his deafness, particularly since that was not a matter raised by Mr MacKenzie. At the time of raising the action the pursuer's agents did not have the benefit of the report from Mr Crowther which assesses at 5-10% the contribution made to the pursuer's deafness by his exposure to noise at work. That figure is so small that one can well understand why the pursuer would wish to accept a settlement.

[66] Furthermore, the authorities do not deal directly with the claim for loss of employability. No award was made in Rooney but the lady had already virtually reached retirement age. The pursuer in the present case has a long way to go and it cannot be affirmed that no award would have been made under this head, despite the lack of vouching hitherto.

[67] Mr MacKenzie's report is somewhat brief but I do not think that it was unreasonable for the pursuer's agent to accept it at face value. It was not for them to seek to undermine it. I cannot say that the action was particularly complex, on the basis of the two medical reports before me. Nonetheless, I am clear that the pursuer accepted a compromise figure to avoid the delays and uncertainties of litigation and that the unforeseen factor of Mr Crowther's report arose after the action was commenced. In these circumstances I hold that it was reasonable to raise proceedings in the Court of Session.

Decision

[68] I shall grant decree in terms of the minutes of tender and acceptance and I shall certify Mr Kenneth MacKenzie and Mr David E Smith as skilled witnesses who prepared reports with a view to giving evidence. I find the defenders liable to the pursuer in the expenses of process as taxed on the Court of Session scale to the date of tender and find the pursuer liable to the defenders in expenses as taxed on the Court of Session scale from the date of tender. Parties were agreed that the date of tender was a matter to be decided by the Auditor.