Expenses in low value personal injuries actions before the Court of Session (again)
Following the unsuccessful outcome of the attempts by defenders to have awards of expenses modified in low value cases such as Wilson (and Gould) v Glasgow City Council, Benson v City of Edinburgh District Council, and Hunt v British Bakeries referred to in the February 2005 article in Insight, we can report that appeals in Wilson and Benson were resolved by agreement between the parties without any formal ruling. The Inner House has yet to deliver an authoritative decision upon the question of whether certain cases involving personal injuries in which the Pursuer has the option of suing in either the Sheriff Court or Court of Session – currently still anything in which the sum sued for exceeds £1,500 - are nonetheless to be considered more appropriate for one or other forum in terms of the expenses that should be awarded.
A recent short opinion entered upon the Scottish Court Service website in respect of another case, Donald Smith v BP Oil Refinery Grangemouth Refinery [2006] CSOH 103 suggests that a further appeal on the expenses issue may yet be heard.
In that action, Lord Dawson heard some evidence in relation to an industrial deafness claim in which the sum sued for was £70,000. The case was ultimately resolved when the Pursuer accepted a tender in the sum of £500 once it became apparent during the course of the evidence that any hearing loss he suffered which was not age-related was minimal.
The Lord Ordinary’s written note will have been produced following an appeal being entered against his disposal of the issue of expenses. It contains the observations, “A short discussion took place on the question of expenses of which I have no note and little recollection…I thought that I did award expenses on the Sheriff Court Small Claims scale…I certainly intended to do so. I sanctioned the employment of counsel as the Pursuer was entitled, however regrettably, to bring his action to the Court of Session and the issues raised in the pleadings were substantial.”
Since the Small Claims (Scotland) Order 1988 provides that, “…the sheriff may award expenses not exceeding £75” in respect of a small claim with a value above £200, the fact that the involvement of counsel was sanctioned by the court is unlikely to provide much comfort to the Pursuer with respect to the actual cost of proceeding with his action before the Court of Session. All but £75 of that would appear to be irrecoverable in the light of the Lord Ordinary’s decision. It is unclear whether there was also an award to the defender from the terms of the Lord Ordinary’s note.
In the event that the appeal proceeds to a judicial determination by the Inner House, some guidance may be provided upon the circumstances under which it is appropriate to modify expenses in lower value cases which has so far gone unresolved at the appellate court level since the current personal injuries procedure was introduced to the Court of Session.
Contact
Graham Weatherston
(Information posted in September 2006 and may not have been updated at time of reading).