British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GRUBB AGAINST JOHN FINLAY [2018] ScotCS CSIH_29 (13 April 2018)
URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_29.html
Cite as: [2018] CSIH 29, [2018] ScotCS CSIH_29
[New search] [Printable PDF version] [Help]
Page 1 ⇓
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Drummond Young
[2018] CSIH 29
PD452/14
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motion
in the cause
GRANT GRUBB
Pursuer and Respondent
against
JOHN FINLAY
Defender and Reclaimer
Pursuer and Respondent: A Smith QC, Smart; Clyde & Co
Defender and Reclaimer: Bain QC; Digby Brown
13 April 2018
Introduction
[1] Two issues arise. The first concerns the power of the court to dismiss an action,
summarily at the stage of a proof, when the pursuer is found to have acted dishonestly. The
second is whether a pursuer, who has been awarded damages, should, in the absence of a
tender, be the subject of a contra award of expenses because of his dishonest conduct.
Page 2 ⇓
2
The Record
[2] The pursuer sued the defender for £500,000 in respect of an accident which occurred
in a petrol filling station in Dundee on 22 May 2011. The defender reversed his Peugeot into
the front of the pursuer’s stationary car. The defender admitted that this had happened.
The only issue was quantum of damages.
[3] The pursuer averred that he had sustained a whiplash injury to his cervical spine.
What had been a low (4 mph) impact collision had jerked the left side of his neck, left arm
and shoulder at a time when the pursuer had his left hand on the steering wheel. He had
suffered an impingement of the C7/C8 nerve roots.
[4] The pursuer maintained that he had ongoing symptoms, notably pain in his left
shoulder, shooting pains in his left arm and numbness and tingling in the fingers of his left
hand. He had developed a chronic (myofascial) pain symptom and a chronic adjustment
order. He had problems sleeping. He had psychological problems with driving. He had
faecal incontinence. He was unable to help with household tasks. He had been unable to
continue with his work as a chef with David Lloyd Leisure, where he had worked in excess
of 10 hours per week. He had initially returned to work. He had increased his hours, but
had difficulty coping with this because of pain and tiredness. His employment had been
terminated following his becoming irritated and frustrated and being involved in a
“disagreement at work”. He had stopped work as a driver for Embassy Tandoori; for which
he had been paid “cash in hand”.
[5] The defender averred that the pursuer was exaggerating his symptoms for financial
gain. He had a pre-existing history of anxiety and depression. Although he had told the
medical experts that he had not driven since the accident, he had been convicted of driving
Page 3 ⇓
3
without insurance in September 2011. He had increased his hours of work after the
accident. He had been the subject of a “final warning”, having been working at a market
stall at Errol in June 2011 when absent from David Lloyd Leisure on the grounds of ill
health. He had been dismissed for misconduct in November 2011.
The tender and the first diet of proof
[6] On 15 April 2014 the defender lodged a tender for £30,000. This was withdrawn on
31 October 2014. The proof, which had been set down for 4 days, commenced on
25 November 2014. The Lord Ordinary does not provide a narrative of the testimony
adduced at this diet. It is therefore expedient to have some recourse to the transcription in
order to see how matters developed.
Dr Alan Forster
[7] Unusually, the proof did not start with the pursuer’s testimony, but that of Dr Alan
Forster, a consultant clinical neurophysiologist, who had been instructed by the pursuer. He
had examined the pursuer once in 2013, when he conducted nerve conduction studies
relating to the C7/8 roots. Dr Forster was of the opinion that the pursuer’s symptoms were
consistent with the accident. He had reported that:
“though the sensory assessment and the history of pain is somewhat subjective,
Mr Grubb appears genuine and appears to have a chronic pain problem likely to last
a long time, with a degree of C7 and possibly C8 compromise as part of this
problem”.
The report had continued:
“…Mr Grubb does not show any evidence of wilful exaggeration of his pain
problems and actually presents with a very positive outlook… [H]is pain problem, a
well recognised physical disorder … is a direct cause of (sic) the accident…
Mr Grubb has developed a myofascial pain syndrome affecting his neck and upper
thoracic area and left shoulder”.
Page 4 ⇓
4
[8] In cross-examination, Dr Forster acknowledged that the pursuer’s description of the
accident was more violent than that depicted in the CCTV images. The pursuer had told
him that he had not been working because of difficulties with holding and lifting. He had
said that he found driving difficult because of his pain and the medication. Dr Forster
accepted that some of what he had been told by the pursuer had been “factually incorrect”.
Since he had been convicted of driving without insurance, that demonstrated that he was
capable of driving. Lifting goods from a cash and carry was more than Dr Forster would
have expected the pursuer to have been capable of doing, as would lifting ladders and
satellite dishes. It was possible that the pursuer was “making it up” but, if that were so, he
had had to be consistent with a lot of people over a long time. He accepted that the pursuer
had not “played totally straight” on the driving issue. Dr Forster continued (p 199):
“To say he’s a 100 per cent malingerer, I don’t think is correct … The level of
inconsistencies you’re suggesting suggests that he has conned everybody all the way
through, with all clinical examinations and all findings. I don’t think he’s that sharp
… I don’t think he’s capable of that … it’s a very, very consistent presentation”.
The Pursuer
[9] The pursuer was aged 31. At the very start of his testimony, he spoke to having
stomach problems, anxiety, dizziness and headaches. He gave an account of the accident in
the filling station, during which he had experienced immediate discomfort in his arm. He
had felt groggy or dazed, with a buzzing in his head. The pain developed over time.
[10] The pursuer had been finding work stressful as a result of the effects of the accident.
He was having mood swings and losing his temper. He did not tell the doctors that he had,
as he admitted, been dismissed following an altercation with his manager because of
embarrassment. He admitted being caught three times when driving without insurance. He
Page 5 ⇓
5
had not seen his father for several years, although the insurance for the car had been in his
father’s name. The pursuer said that he was presently physically “pretty bad”. He was
finding it hard to sleep and to get up. He found basic tasks difficult. He could not lift with
his left hand. He suffered from depression.
[11] The cross-examination was combative. The insurance policy had been taken out in
2011 in his father’s name, giving an address at which the pursuer lived. There had been a
period when he had not seen his father for several years, albeit not immediately prior to the
accident. He had not paid tax on his earnings at the Embassy Tandoori. He had been at
Errol market after the accident because his brother had asked him to help out. The only
times he had been driving after the accident were when he had been stopped by the police.
He had bought a car because he wanted to push himself to drive.
[12] It was put to the pursuer that a Mr Kinney had lent him a van on a number of
occasions to take goods to the market. He had been caught driving Mr Kinney’s van, which
he and his brothers had been using to move a bed and table. It was also put that his brother
Aaron had said that the pursuer had frequently gone to the cash and carry to pick up goods,
but the pursuer denied driving his brother’s van. He did admit helping his brother with the
installation of satellite dishes, but not after the accident. The pursuer did have a conviction
for theft in November 2000 from a relative, whom he said had owed him money.
Dr Colin Rodger
[13] Dr Rodger had been interposed initially during the pursuer’s testimony. He was a
consultant psychiatrist, instructed by the pursuer. He had seen the pursuer in January 2013.
The pursuer had told him that he had had “no contact with his father for approximately
9 years since his father was convicted and imprisoned in relation to charges regarding child
Page 6 ⇓
6
pornography”. The pursuer had said that he had no psychiatric history and no previous
convictions. In fact, the pursuer had had two bouts of depression; one in 2004 and another
in 2008 when he had separated from the mother of his son.
[14] Dr Rodger considered that the pursuer had a chronic adjustment disorder
precipitated by the accident and its associated physical difficulties and limitations. He
thought that it required treatment by antidepressants and therapy. He would improve with
this treatment, but might get worse without it.
[15] Dr Rodger had seen the pursuer again in October 2014. By this time, the pursuer had
been having additional difficulties, which he had attributed to the medication, including
blurred vision, hallucinations, faecal incontinence, sleep disturbance, low mood and anxiety.
He was on an unusually high dose of amitriptyline. The pursuer’s circumstances, and
symptoms, were quite rare for someone who had been involved in a minor accident.
Fabrication for financial gain had to be considered, but the physical findings could not be
simulated. Dr Rodger remained of the view that the pursuer had a chronic adjustment
disorder precipitated by the accident.
[16] In cross-examination, Dr Rodger said that the pursuer had told him that he had no
children, although he later found out that he had a son. He had not told him about the
conviction for theft. He did have a past psychiatric history. The pursuer had been
inconsistent in telling him that he had not driven but had been convicted of driving without
insurance. Dr Rodger’s impression was that the pursuer had stopped working because he
could not cope with the job; not that he had been sacked. Reports of the pursuer’s
functioning indicated a better level than the impression which Dr Rodger had gained.
Despite considering the possibility of exaggeration and the inconsistencies, Dr Rodger
Page 7 ⇓
7
remained of the view, which he had expressed in his reports, about the genuineness of the
pursuer’s symptoms.
The application to dismiss
[17] The continued diet of proof was fixed for 22 September 2015. However, the defender
sought to lodge additional productions, some of which were illegible, and this diet was lost.
Expenses were reserved. On 16 October 2015 a new diet of 12 days was fixed for
27 September 2016. When it resumed, the defender moved that the action be summarily
dismissed. This application had only been intimated on the previous afternoon. It took two
days to debate. Under reference to Shetland Sea Farms v Assuranceforeningen Skuld 2004 SLT
30, Hepburn v Royal Alexandra Hospital NHS Trust 2011 SC 20, Lord Reed: “Lies, damned lies:
Abuse of Process and the dishonest litigant” (Edinburgh University, 26 October 2012) and the
Justice and Courts Act 2015, s 57) it was argued that, since the pursuer had been found to be
“fundamentally dishonest” in relation to his claim, the action should be dismissed as an
abuse of process and affront to the interests of justice.
[18] The Lord Ordinary accepted that “in an appropriate case, the court may exercise a
power to dismiss an action if a fair trial is impossible, or if there is a fundamental dishonesty
on the part of the pursuer, or if there is an abuse of process” but that this power required to
be exercised “sparingly”. He was “not satisfied that dismissal [was] appropriate or justified
... at this stage”. An informed decision on the pursuer’s credibility was more appropriately
taken after hearing the remainder of the evidence. The proof then continued. At advising,
the Lord Ordinary recorded that the defender’s submission based on fundamental
dishonesty, which was renewed at the end of the proof, was not well founded. To dismiss
Page 8 ⇓
8
the action would have been to create injustice. The pursuer would be deprived of his (by
then proven) entitlement to damages and the defender would avoid his corresponding
responsibilities.
The Lord Ordinary’s decision
Merits
[19] On 24 May 2017, the Lord Ordinary found in the pursuer’s favour to the extent of
granting decree for payment of £7,321.32 (inclusive of interest), as opposed to the £500,000
concluded for, the Statement of Valuation of £382,000 or the £183,000 ultimately sought. The
Lord Ordinary provides little more than a sketch of what evidence was adduced at the
continued proof. However, the Opinion is not entirely devoid of clues to his reasoning. He
did say that the defender’s expert, namely Dr Jon Stone, who had thought that the accident
was sufficient to trigger a chronic pain syndrome, was not convinced that any cervical
radiculopathy (compressed nerve) had been caused by the accident. This was because the
pursuer had not reported symptoms of this at the time. Although the pursuer had not
concocted the “entire story”, and a link between the accident and the radiculopathy was
possible, it was very unlikely.
[20] The Lord Ordinary found as fact that, at the time of the accident, the pursuer had
been sitting in the driver’s seat, leaning over to pull the petrol cap release lever. He had felt
the force of the collision on his left arm, which was on the steering wheel. There was a sharp
shooting pain that went along his arm and up to his neck. The pain got worse as the day
went on. It went down his left arm to his hand and little finger. It radiated up the lateral
aspect into his neck and shoulder. He telephoned his insurance company that day and
attended his general medical practitioner on the following day. The effects of the accident
Page 9 ⇓
9
had persisted for a period of about 12 months. Contrary to the defender’s protestations of
fundamental dishonesty, the Lord Ordinary found the pursuer’s account to be acceptable in
its essentials in relation to that period.
[21] The Lord Ordinary was, however, prepared to “give the defender the benefit of the
doubt in relation to the question of causation”. He was not satisfied that, on the balance of
probabilities, the effects of the accident had continued beyond the initial 12 month period.
He was not saying that the pursuer did not have symptoms after that date; simply that they
could not be attributed to the accident. He noted specifically that the conduct of the
litigation, and the surveillance instructed on behalf of the defender, may well have had an
adverse effect on the pursuer’s psychological well-being. He assessed solatium at £6,000,
exclusive of interest.
[22] In a “general discussion” the Lord Ordinary repeated that he did not accept the
defender’s contentions that the pursuer’s claim was fundamentally dishonest. On the
contrary, he accepted the pursuer’s testimony about the accident and its effects over the
succeeding 12 month period. It was on the basis of Dr Stone’s evidence that he concluded
that the symptoms after the 12 month period had not been caused by the accident. To that
extent, as he put it, the Lord Ordinary gave effect to the defender’s criticisms, but no further.
The defence case had been robustly presented, but it had a relatively weak evidential
foundation. The Lord Ordinary commented in particular that the defender’s skilled medical
witnesses had given evidence which was diminished as a result of their having been
provided with material, which was either unfounded, unsubstantiated (eg lifting satellite
dishes) or departed from at the proof.
[23] In analysing the pursuer’s case in more detail, the Lord Ordinary explained that he
did not accept the pursuer’s evidence as credible and reliable in “several areas”. These
Page 10 ⇓
10
included his account of his driving abilities. The pursuer was driving a lot more than he
said he was. There were specific instances of this, including, of course, the post-accident
driving without insurance convictions. The pursuer had been less than convincing in
explaining why he had not told the doctors about the real reason for the termination of his
employment with David Lloyd Leisure. The pursuer’s evidence, in relation to claiming
money for the damages to the car, when the insurance was in his father’s name, had been
less than convincing also. In contrast, however, there was independent support for many of
the pursuer’s complaints. Dr Forster, in particular, had said that the pursuer would not
have been able to manufacture accurate responses to the nerve conduction tests.
[24] The Lord Ordinary was critical of the defender’s approach to the case. The
defender’s representatives had formed a view at a “fairly early stage that the pursuer had
fabricated his whole claim and that the claim was fundamentally dishonest”. The Lord
Ordinary did not share the defender’s considerable antipathy towards the pursuer; this
presumably being a reference again to the defender’s representatives, rather than to the
defender himself. The pursuer’s character failings and flaws, and his lack of candour, were
not sufficient to deprive him of his entitlement to damages. The Lord Ordinary was
particularly critical of the way in which detailed allegations had been put to the pursuer by
the defender’s counsel in cross-examination, which turned out to be baseless. The medical
evidence from the pursuer’s consultant orthopaedic surgeon, namely Mr Dunston, had
described the whiplash type injury as consistent with the mechanism of the accident. Even
Dr Stone had been prepared to say that he thought that the pursuer had been injured and
that there had been some pain afterwards, albeit that he did not think that the accident had
caused any radiculopathy.
[25] The Lord Ordinary continued:
Page 11 ⇓
11
“[40] With some hesitation I have reached the conclusion that the defender’s
criticisms of the pursuer’s case, and the evidence of the defender’s witness Dr Stone,
are sufficient to prevent me from holding that the effects of the accident extended for
more than a period of 12 months.
[41] In short, I am satisfied that on a balance of probabilities the pursuer suffered
soft tissue injury as a result of the accident and that the effects lasted for a period of
about 12 months or so. However, I cannot attribute subsequent complaints to the
accident even although those complaints may seem real to the pursuer and even
although they find some support in the expert evidence. The necessary causal link
has not been established to my satisfaction in relation to the later complaints.”
Expenses
[26] The Lord Ordinary found the pursuer liable to the defender in the expenses of the
action, modified to two-thirds. This of course means that the pursuer will require to pay
5/6ths of the costs of the process, even although there was no tender extant. In explaining
this decision, the Lord Ordinary said that he was not prepared to ignore the fact that the
pursuer had presented various parts of his case with a “significant lack of candour”. Had he
been candid and forthright throughout, the case would probably have concluded after a
relatively short proof. A recurring theme was the pursuer’s lack of candour, with a focus on
his lack of credibility and reliability. That undermined most of his case, including his
position on causation. Although the lack of candour had not been enough to warrant
depriving the pursuer of a finding on liability, it did play a material part in the pursuer
obtaining only a modest award by way of damages relative to the sum sued for (£500,000),
the pursuer’s statement of valuation (£382,000) and eventual submission (£183,000). The
pursuer achieved very limited success, approaching almost complete failure. The court
could and should mark its disapproval of a claim presented with such a lack of candour and
that could be reflected in the finding on expenses. The 2/3rds award reflected the defender’s
substantial success after proof. The restriction reflected the extent to which the defender
Page 12 ⇓
12
had advanced propositions which proved to be unfounded and the fact that the pursuer had
succeeded to some limited extent.
Submissions
Defender and Reclaimer
[27] The defender maintained that the Lord Ordinary had erred in refusing to terminate
the proceedings summarily because they had amounted to an abuse of process. The
evidence, which the Lord Ordinary had heard at the time of the initial motion for dismissal,
ought to have led him to conclude that the pursuer was presenting a claim which was
fundamentally dishonest. The pursuer had accepted that he had stated to the insurers that
he was his father, thus inducing them to send him a cheque for the damage to the car. This
demonstrated a willingness to lie to an insurer for financial gain. The pursuer had misled
the court, and lied to medical experts, about his ability to drive after the accident. He had
not been honest on whether he had returned to work after the accident and/or the reasons
for his employment being terminated. He had represented to the medical experts that the
accident had been a violent one, with immediate pain and discomfort, but this had been
contradicted by the CCTV images. He had said that he had had no contact with his father
for a long number of years, but this was inconsistent with the insurance being in his father’s
name. He had admitted that he had not paid any tax on his earnings as a takeaway driver.
He was accordingly a person prepared to defraud the tax authorities. He had a conviction
for theft, which he had not disclosed to the medical experts. In these circumstances, it was
impossible for the court to ascertain where the lies stopped and the truth began.
[28] If a pursuer was dishonest within the context of an action, a defender could not be
afforded a fair hearing. The court had a duty to intervene and stop the case. Once it was
Page 13 ⇓
13
established that the pursuer was not an honest person in relation to the claim, a defender
should not be obliged to incur the expense of going through a continuing court process. The
pursuer had been representing to the court that his left arm was substantially or completely
disabled, leading to a significant wage loss and services claim. Even in the absence of a rule,
the court had power to stop the proceedings (Hepburn v Royal Alexandra Hospital (supra);
Shetland Sea Farms v Assuranceforeningen Skuld (supra) at paras [143]-[146]). The power to
bring proceedings to a halt was not restricted simply to forensic fairness, but to fairness as a
generality as it affected defenders. The concept of fundamental dishonesty had been
discussed in the context of the English rules of procedure (London Organising Committee of the
[29] Reclaiming motions solely on expenses were severely discouraged (Lord Advocate v
Mackie 2016 SLT 118 at para [11]). Expenses were incidental to a cause and the terms of an
award lay at the discretion of the judge before whom the case had been heard, provided that
the discretion had been exercised along conventional lines (ibid). The Lord Ordinary had
taken into account all of the relevant factors. It could not be said that his decision had been
so manifestly unfair as to amount to a miscarriage of justice. Although the usual rule was
that, in the absence of a tender, the pursuer would be awarded the expenses. The statement
that expenses followed success was subject to innumerable qualifications and a successful
party could be refused expenses in certain circumstances (Howitt v Alexander and Sons 1948
SC 154 at 158). The feature here was that there had been a lack of candour.
Pursuer
[30] The pursuer maintained that the Lord Ordinary had been correct to refuse to accede
to the defender’s motion for dismissal after the court had heard only four days of evidence.
Page 14 ⇓
14
Dismissal was a draconian measure, only to be exercised in exceptional circumstances and
with the overriding emphasis being on whether a fair trial of the issue between the parties
remained possible. The defender did not assert that this was such an exceptional case or
that he had not received a fair trial. The Lord Ordinary referred to the evidence available
and adequately explained why he had resolved this issue in the pursuer’s favour, having
ultimately carried out a detailed assessment of credibility and reliability. He found that the
pursuer had been injured in an accident caused by the defender. He found that the pursuer
continued to suffer from symptoms as at the date of the proof, although “with some
hesitation” he felt unable to make a continuing award because of issues of medical
causation.
[31] The pursuer’s false statement to the insurers, that he was his father, was a collateral
matter and irrelevant to the facts in issue. Any fraud committed was purely technical. The
point about the pursuer lying to the doctors about his ability to drive was something
canvassed during the proof and taken into account. It did not undermine the expert medical
opinion in support of the pursuer’s case. Similar considerations applied to the pursuer’s
account of not returning to work. The defender’s contention, that the accident had not been
a violent one, was not supported by the CCTV images. The degree of contact which the
pursuer had with his father was a peripheral and not a straightforward issue. The Lord
Ordinary had been aware of the pursuer’s earnings as a takeaway driver. The pursuer’s
conviction for theft was irrelevant.
[32] The Lord Ordinary had erred in awarding the defender the expenses of process,
albeit restricted. He had exercised his discretion wrongly, taken into account irrelevant
factors and left important ones out of account. It was accepted that expenses were a matter
for the discretion of the first instance court, but the appellate court could interfere in these
Page 15 ⇓
15
circumstances and where the Lord Ordinary had reached a decision which was plainly
wrong (Ramm v Lothian and Borders Fire Board 1994 SC 226 at 227). The Lord Ordinary had to
exercise his discretion in accordance with established principles. The first principle was that
the cost of litigation should fall on the person who had caused it (Shepherd v Elliot (1896) 23
R 695 at 696; Howitt v Alexander and Sons (supra) at 157). If a defender sought to avoid the
expenses of a litigation, then he had a straightforward remedy; that was to use the tendering
system (Macfadyen ed: Court of Session Practice “Expenses” at para L [104]). This system
provided parties with a reasonably certain basis upon which they could proceed (Hodge v
British Coal Corporation (No. 3) 1992 SLT 1005 at 1007).
[33] The pursuer had succeeded in the action and obtained a decree. The Lord Ordinary
had rejected the defence to the effect that the pursuer had suffered no injury and that his
claim was fundamentally dishonest. He had found the approach taken by the defenders to
be unjustified. He had rejected significant proportions of the defence evidence, which had
taken up several days of proof. At a pre-trial meeting, on 18 November 2014, following
upon the withdrawal of the tender, the defender’s representatives had advised that there
would be no offer in settlement. The proof diet set down for 22 September 2015, had been
discharged as a result of the production of late evidence by the defender. The motion to
dismiss, which had been intimated only the day before the continued proof, had taken up
two days. The Lord Ordinary’s Opinion in relation to expenses seemed to be different from
that which he had expressed on the merits. The considerations that the pursuer had insisted
on propositions which had been unfounded, and that he had presented a case that was
lacking in candour, were irreconcilable with his conclusions on the merits. The Lord
Ordinary failed to exercise his powers in accordance with established principles. He had not
recognised that the defender had consciously departed from the recognised means of
Page 16 ⇓
16
protection (Hodge v British Coal Corporation (No. 3) (supra); Summers v Fairclough Homes
[2012] 1 WLR 2004 at paras [12] and [17]). In short, the decision of the Lord Ordinary on expenses
had amounted to a manifest injustice.
Decision
Application to Dismiss
[34] It is not disputed that the court has an inherent power, in appropriate circumstances,
to dismiss an action summarily, even in the absence of a rule permitting it to do so. That
was determined in the context of excessive delay in Hepburn v Royal Alexandra Hospital 2011
SC 20, LP (Hamilton) at para [27], following Moore v Scottish Daily Record and Sunday Mail
Lord Reed at para [47]). It is neither practical nor desirable to define the situations in which
this power may be exercised, but the question of whether a fair trial remains possible is a
factor of considerable, although not always determinative, weight (ibid, LP (Hamilton) at
paras [25]-[26]; Lord Reed at paras [47]-[51]). The power is a draconian one which should be
regarded as an option of “last resort” (Tonner v Reiach and Hall (supra), Lord Abernethy,
delivering the Opinion of the Court, at para [123]). This will be especially so when the court
is asked to dismiss a case on grounds which do not feature in the averments or the pleas-in-
law (see Hepburn v Royal Alexandra Hospital (supra), Lord Carloway at paras [56]-[57]). It
requires particular care where, as here, the parties have not only already agreed, or the court
has determined, that the cause is to be determined after a proof but that step of process has
also already commenced. It must be in a very rare and exceptional case indeed that the
court will bring a case to a sudden and permanent end, whilst one party is in the process of
leading evidence to prove his or her averments.
Page 17 ⇓
17
[35] Even if it were appropriate to dismiss a case summarily because a pursuer had been
“fundamentally dishonest” in relation to his action, a matter which in this jurisdiction will at
least remain one dependent upon the particular facts and circumstances (cf Criminal Justice
and Courts Act 2015, s 57; London Organising Committee of the Olympic and Paralympic Games
Ordinary not to be fundamentally dishonest in relation to his claim. On the contrary, his
contention, that he was involved in an accident of the nature which he described, was found
to be accurate. It was supported by CCTV images, witnesses and an admission of liability.
His claim to have been injured in this accident was also found to be a valid one, despite the
defender’s contrary position. The Lord Ordinary accepted the pursuer’s evidence that he
had sustained an injury with effects lasting for a year and which sounded in an award of
£6,000 by way of solatium. That claim was supported by medical evidence, notably from
Dr Forster, and Mr Dunston and even, to a degree, Dr Stone. The pursuer did not make a
fundamentally dishonest claim. He made a good, if exaggerated, claim. Even that
exaggeration has to be seen in the context of the Lord Ordinary’s finding that the pursuer
has continuing symptoms, albeit that they cannot, in the Lord Ordinary’s view and
preferring one body of medical evidence over another, be causally linked to the accident.
[36] It would have been quite inappropriate for the Lord Ordinary to have dismissed the
pursuer’s action summarily during, or at the end of, the proof. The purpose of the rules of
procedure are to provide for the orderly progress of cases, some of which will involve
disputed fact. The procedure laid down for the determination of fact is that the court will
hear a proof at which testimony will be heard and properly assessed after due consideration,
involving a comparison of the testimony of one witness with that of another. This process
should not be interrupted except, as indicated above, in rare and exceptional cases involving
Page 18 ⇓
18
considerations far different to those involved here. It is particularly important that parties
should not be allowed to invoke the court’s inherent power in the manner which occurred
here; with a motion intimated on the eve of a continued proof some months after the bulk of
the material relied upon by the defender had become known. For all of these reasons, the
reclaiming motion is refused.
Expenses
[37] Appeals on expenses “should not be entertained except where there has been an
the Court, at para [23], citing Caldwell v Dykes (1906) 8 F 839, LP (Dunedin) at 840). Awards
of expenses are discretionary and will only be reversed upon the conventional grounds
applicable to the exercise of a discretion. The appellate court must take care not to substitute
its own view, based on the limited, printed material in the process before it, in contrast to
the first instance judge’s complete knowledge and understanding of the whole proceedings
before him or her.
[38] The Lord Ordinary’s award in favour of the defenders is, at first sight, a surprising
one. After all, the defenders had declined to lodge a tender (after withdrawal of an earlier
one). In normal circumstances, the rules applicable to tenders ought to be applied, even
where the award is small (if not de minimis). The rules on tenders ought not to be lightly
departed from (see Lord Carloway in Macfadyen ed: Court of Session Practice (L/105)
para [104]). Expenses ought normally to follow success, and the pursuer was successful in
that he achieved an award in his favour.
Page 19 ⇓
19
[39] There are exceptions to the general rule. One is where the conduct of a party has
been improper (eg dishonest) or unreasonable. This was the position in Ramm v Lothian and
Borders Fire Board 1994 SC 226 (see LJC (Ross), delivering the Opinion of the Court, at 227
and following Maclaren: Expenses at 21). As in this case, the pursuer in Ramm had succeeded
in obtaining an award of damages and there had been no tender. Yet the Lord Ordinary
declined to award him expenses because much of the proof had been taken up exploring a
ground upon which the pursuer had failed. The Lord Justice Clerk stated that the starting
point ought to have been the fact that the pursuer had succeeded in obtaining a decree (for
£688) and, in the absence of a tender, he “clearly had to vindicate his right to damages”. In
that case it was doubted whether the Lord Ordinary had done that, but, even then, that was
not regarded as fatal to the award, as he had put forward a number of reasons for his
decision. In this case, the Lord Ordinary noted the tender and its withdrawal. He regarded
the presence or absence of a tender as “an important factor (often the decisive factor)” but
correctly stated that it was not the only consideration. The conduct of the parties was also
something to be taken into account.
[40] The Lord Ordinary appears to have had regard to all the relevant factors, and does
not mention any irrelevant ones in adjusting the balance. He has explained, perhaps with
greater force in his Opinion on expenses than that on the merits, the importance of what he
politely describes generally as a “lack of candour”, in relation to several aspects of the
pursuer’s testimony, notably (reverting to the earlier Opinion), but by no means exclusively,
his driving after the accident and moving furniture. The Lord Ordinary’s view was that, if
the pursuer had been candid and forthright throughout, the proof (were there to have been
one at all) would have been a short one. In all these circumstances, the court is unable to
hold that there are any grounds upon which the Lord Ordinary’s discretionary decision on
Page 20 ⇓
20
expenses could be successfully impugned. No miscarriage of justice has occurred. The cross
appeal is accordingly refused.