Scottish Court of Session Decisions

Pursuers: Smith, Q.C.; McClure Naismith

Defenders: Ross; Morton Fraser LLP

Third Party: Watt; Aitken Nairn

21 July 2010

[1] This case called before me By Order so that I could deal with questions of expenses arising from my decision on the merits of this action. (See [2010] CSOH 39). On that same day, I pronounced an interlocutor disposing of the expenses and I now give my reasons.

[2] At the diet of proof Mr Watt had appeared for both the defenders and third party but I was advised that a difference of opinion had arisen between them and he now represented the latter. Ms Ross appeared now for the defenders.

[3] The defenders sought expenses against the pursuers, who, in turn, sought to restrict their liability. The third party also sought expenses and there was an issue as to whether these should be payable by the pursuers or the defenders.

Submissions

[4] Mr Smith for the pursuers submitted that the position was not particularly complex. The pursuers had lead at a proof where the defenders and the third party were represented by Mr Watt. In Mr Smith's submission only the defenders could make a claim for expenses against the pursuers, who had not made any case against the third party. The argument between the defenders and the third party was a matter for them.

[5] In Mr Smith's submission the pursuers should only be found liable for the expenses of the proof to the extent of one-half. He pointed out that the proof started on day 1 around 1430 hours and went on till just after 1600 hours. On day 2 the pursuers' proof ran from 1030 until 1050 when it was closed. The pursuers' proof therefore took around 21/2 hours. The defenders' proof started thereafter and occupied the rest of the second day. On day 3 the case started at 1120 and ran until 12 o'clock when there was a motion to add a further witness to the list. That was allowed but the witness did not arrive until 1500 hours. His evidence was concluded by 1520 and he was not crossed. Mr Smith then commenced started his submissions, which occupied the rest of that day and ran from 1030 till around 1130 on the fourth day. Mr Watt began at 1130 and occupied the rest of that day and about an hour of a fifth day which had to be allocated. Mr Smith had replied briefly thereafter. The identity of the additional witness could have been ascertained. There had been a misunderstanding as to whether or not he was available but considerable delay had been caused by his addition and the defenders had to take responsibility for that. Mr Smith also criticised what he said was the repetitive nature of some of the questioning but I need not go into that as I do not consider that anything substantial arises from it.

[6] Ms Ross for the defenders was at something of a disadvantage in that she had not conducted the proof. In her submission the addition of the witness was a relatively minor matter but I could not accept that, since effectively it added another day to the proof.

[7] Mr Watt invited me to certify Mr David Bellamy as an expert witness for the defenders and, there being no opposition, I duly did so. Those instructing him had not known of the existence of the additional witness but I was satisfied that this was a matter which could have been ascertained. He submitted that the delay occasioned by his attendance was of the order of two hours and should amount to 10% at most of the expenses.

[8] He submitted that the basis of my decision was that the pursuer and his witnesses had lied. Had it not been for them there would have been no case.

[9] As far as the third party and the defenders were concerned it was plain that the third party should not have to fund their participation.

[10] He reminded me that the normal rule was that expenses should follow success and submitted that expenses should be paid by the party who caused the successful party to be brought into the litigation. It was the defenders who had convened the third party. Had the pursuers succeeded then the defenders could have looked to the third party for relief. There was no particular need to bring them into the process and the defenders should be responsible for their expenses.

[11] Ms Ross submitted that the pursuers should be responsible for the third party's expenses but recognised that her submission was a difficult one. Broadly speaking, she submitted that both the defenders and the third party had been successful and the pursuers should be responsible for their expenses. It could not be said that the third party had enjoyed success against the defenders and there had been no meaningful dispute between them.

[12] In reply, Mr Smith submitted that more or less an extra day had been added to the proof because of the additional witness but the matter had to be approached broadly.

Discussion

[13] I had no difficulty in certifying Mr Bellamy as an expert witness. I was satisfied that the pursuers should be liable for the defenders' expenses, the only issue being the extent of that liability. Approaching the matter broadly, I took the view that that extent should be 75% in view of the delay occasioned by the addition of the witness whose identity could with reasonable diligence have been ascertained.

[14] As far as the third party's expenses were concerned I noted that the pursuers had not been responsible for bringing them into the process. They had not adopted any averments against the third party and there was in fact no nexus between them at all. I did not think it appropriate that the pursuers should be responsible for their expenses. The defenders on the other hand had convened the third party. Doubtless it was open to the latter not to enter the process at all but they can hardly be blamed for doing so. If the defenders had been confident that they would succeed in the action they need not have convened the third party and even if they had lost they could have taken separate steps against them. In the whole circumstances it seemed to me to be proper that the defenders should bear their expenses.

Decision

[15] I accordingly pronounced an interlocutor disposing of the matter as I have indicated.