SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS
AT ABERDEEN
A1204/03
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JUDGMENT
of
SHERIFF
DOUGLAS J CUSINE
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in the cause
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ARTHUR DACRE
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PURSUER
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against
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ABERDEENSHIRE
COUNCIL
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FIRST DEFENDERS
AND
ENNSTONE THISTLE LIMITED
SECOND DEFENDERS
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ABERDEEN,
22 August 2007.
The
sheriff, having resumed consideration of the cause, Sustains the third plea-in-law for the first defenders and the
fourth plea-in-law for the second defenders and assoilzies them from the craves
of the Initial Writ; Finds the first defenders liable in
expenses to the second defenders; Finds the first defenders liable to the
pursuer in the expenses of the cause to the date of tender and the first
defenders entitled to expenses against the pursuer thereafter; Allows an account of said expenses to be
given in and remits the same, when lodged, to the auditor of court to tax and
to report.
NOTE:
[1] On 30th June 2000, the
pursuer was injured when his motor cycle skidded on the B977 Kintore to Lyne of
Skene road, Aberdeenshire. The first
defenders, as the roads authority, were responsible for maintenance and repair
of the road. The first defenders had
entered into a contract with the second defenders to carry out surface dressing
of the road.
[2] An
action was raised by the pursuer against the first and second defenders in
June 2003, a tender of £25,000 was made
on 7th August 2006
and that tender was accepted in July of 2007.
[3] The
pursuer was represented by Mr Smith and the first and second defenders by Mrs
Stewart.
[4] Mr
Smith, for the pursuer, submitted (a) that the first defenders should be made
liable for the expenses of the second defenders, and (b) that the pursuer
should be entitled to expenses down to the date on which the pursuer accepted
the sum tendered.
[5] Mrs
Stewart submitted (a) that decree of absolvitor should be granted in favour of
the first defenders with expenses against them in favour of the pursuer to the
date of the tender and that the pursuer should be liable for the expenses
thereafter, and (b) that the pursuer should be found liable for the expenses of
the second defenders.
[6] Mr
Smith advised me that there had been correspondence between the pursuer's
solicitors and the insurers for the first defenders between March 2001 and
January 2003, during which time the first defenders were claiming that
liability for the accident lay not with them but with the second
defenders. In 2003, the pursuer had
raised an action against both defenders and Mr Smith's position was that that
was a prudent course of action, given that the second defenders were being
blamed by the first defenders but neither was admitting liability. It was not until 2004 that the first
defenders admitted that the second defenders had not done any work on the road
at the time of the pursuer's accident.
That, however, had not been admitted on Record; rather there was a general denial by both
defenders. The action was sisted in
September 2003, the sist being recalled in January 2007.
[7] In support of his proposition that the
first defender should be liable for the second defenders' expenses, Mr Smith
cited Mitchell v Redpath 1990 SLT 459, an Outer House decision of
Lord Weir. In that case, Lord Weir
stated the general rule, namely that where a pursuer convenes two defenders and
one is assoilzied, the pursuer should be made liable for expenses of successful
defender and that the unsuccessful defender should not be so liable. However, as his Lordship pointed out, that
general rule did not apply where the first defender induced the pursuer to
convene a second defender, the question being, "Whose fault was it that the
additional defender was brought into court?"
In that case, his Lordship held that there was nothing in the first
defenders' averments which should have caused the pursuer, as a matter of tactics,
to call the second defenders. The case
against each defender was different, and the first defender had no averments of
fault against the second defenders.
[8] Mr
Smith sought to distinguish Mitchell on the basis that in the present
case, the first defenders initially blamed the second defenders for the
accident and that is reflected in the pleadings.
[9] So
far as the pursuer's entitlement to expenses is concerned, Mr Smith's position
was that the pursuer could not be expected to accept the tender when his
solicitors required a medical report in order to determine whether the sum offered
was reasonable. Mr Smith advised me the pursuer had been examined by an
orthopaedic surgeon on 4th
July 2006, but despite assurances from him and his secretary that a
report would be produced, none was. It
was until May of 2007 that it was clear that the report would not be
forthcoming, at which point another report was instructed and once that second report
had been received, the pursuer had been advised to accept the defenders' tender,
and had done so. The problems with the
first report had been drawn to the attention of the defenders by the pursuer's
solicitors. In that connection, Mr Smith
referred to MacPhail on Sheriff Court
Practice, 3rd edition,
paragraph 14.45 and the case of Smeaton v. Dundee Corporation 1941 SC
600.
[10] Mrs
Stewart, for the first and second defenders, was not critical of the pursuer's
decision to bring in the second defenders, but she advised that the first
defenders had written to the pursuer's solicitors on 8th January 2004 advising them that the
second defenders had no involvement in repairing the road at the time of the
pursuer's accident. She submitted that
the norm was that the pursuer should pay the second defenders expenses because
these defenders had been successful, and that should be done in this case.
[11] So far
as the first defenders' liability for expenses in connection with the tender
were concerned, she referred to MacPhail on Sheriff
Court Practice, 3rd edition, paragraphs 14.45 and 14.51. Her
position was that the norm was that expenses should be granted against the
first defenders in favour of the pursuer down to the date of the tender, but
that the pursuer be liable for the expenses thereafter. The norm should apply
in this case.
DECISION
(1) The liability of the
first defenders for the expenses incurred by the second defenders.
I find the first defenders liable for these
expenses.
The accident
took place on 30th June
2000. I was advised that
between March 2001 and January 2003, the solicitors for the pursuer were in
correspondence with Zurich, the
first defenders' insurers, and in that correspondence, the first defenders had
denied liability, but blamed the second defenders. The action was raised against both defenders
on 24th June 2003
and no criticism was levelled at the pursuer for so doing. I was shown copies of letters and emails from
7th July 2003 to 10th July 2007 in which the pursuer's
solicitors were advised by the solicitors for the second defenders that the
second defenders had not been working on the stretch of road at the time of the
pursuer's accident and the pursuer's solicitors were therefore requested to
abandon their action against the second defenders.
However, the
first defenders' defences which were lodged on 16th July 2003 (No. 10 of Process) aver that
the first defenders were not doing work on the stretch of road at the date of
the accident. Reference is made to a
contract entered into between the first defenders and the second defenders
dated 24th March 2000
for repair of the stretch of the road, but no reference is made in the defences
to the date of commencement of that work.
In the first
defenders' defences as adjusted, which were lodged on 8th August 2006 (No. 14 of Process),
the stance taken by the first defenders is unaltered, namely that they were not
working on the stretch of road at the time of the accident. That position is also reflected in the Record
which was lodged on 12th
February 2007 (No. 18 of Process).
The second
defenders' defences, which were lodged on 30th July 2003 (No. 12 of Process), contain a
general denial, a position which is maintained on Record.
Among the items
of correspondence which I have seen is a letter from the pursuer's solicitors
to the solicitors for the second defenders dated 17th December 2004. That letter narrates the advice of counsel
for the pursuer which was that the pursuer should not abandon the action
against the second defenders at that stage because the first defenders'
averments were a denial that they were working on the road at the material
time.
In my opinion,
the question who was responsible for the repair work to the road on the day of the accident was ascertainable by the first
defenders. Reference could have been
made to the contract between them and the second defenders which, one would
assume, would identify a commencement date for the work. Even if the work did not commence on that
date, the first defenders could have ascertained when it did commence. While one would not expect the first
defenders necessarily to accept liability for the accident, they could have admitted,
in their pleadings, that at the date of the accident, the second defenders had
no involvement in the repair works to the road.
The fact that the second defenders remain a party to the action and
hence have incurred expense is not in any way the responsibility of the
pursuer. In my opinion, the present
situation falls within the exception to the general rule as set out by Lord
Weir in Mitchell. Lord Weir posed
the question, "Through whose fault was it that the additional defender was
brought into court?" or to put it
another way, "Through whose fault was it that the second defender continued to
be a party to the action?" The answer,
in my opinion, is that the fault lay with the first defenders.
(2) The expenses of the pursuer down to
the acceptance of the tender
I have decided
to remit this matter to the auditor to determine the date by which the sum
tendered ought to have been accepted.
That is the norm as is made clear in MacPhail on Sheriff Court Practice at paragraph 14.51. The passage does, however, go on to state,
"In an unusual case where all the material facts are before him, the sheriff
himself can determine the date." That
issue arose in Smeaton, where the Lord Ordinary had determined the date by
which the tender should have been accepted.
That case, like the present one, was where the decision about accepting
the tender had to be made against the background of a medical report. In Smeaton, the Second Division, reversing
the decision of the Lord Ordinary, pointed out that the circumstances
surrounding the decision to accept the tender were "eminently matters for
consideration of the Auditor." (1941 SC
per Lord Justice-Clerk Cooper at page 604.)
Similar observations are made by the other judges namely, Lords Mackay,
Wark and Jamieson.
In the present
case, I was advised that the report on the pursuer's medical condition had been
requested from a Mr Keating who had, from July 2006 to May 2007, given no
indication that a report would not be forthcoming; rather the opposite was the
case. However, in May 2007, he had
stated that he would not produce a report.
Another report was therefore asked for and when that report was received,
the pursuer accepted the tender. My
reasoning for leaving this matter to the auditor, apart from the fact that this
is stated in Smeaton as being the norm, is that he or she will have the
opportunity to hear submissions on this matter, against the background of such
correspondence as there is regarding the problems with the production of the
first report and be able to determine whether or not the pursuer should have
sought a second report at an earlier stage, and, if so, when.
