JAMES MURRAY AGAINST ADMIRAL INSURANCE CO LTD

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JAMES MURRAY AGAINST ADMIRAL INSURANCE CO LTD

2SHERIFFDOM OF NORTH STRATHCLYDE AT GREENOCK

2015SCGREE53

JUDGMENT

SHERIFF PRINCIPAL DL MURRAY,

in the cause

JAMES MURRAY

Pursuer

against

ADMIRAL INSURANCE CO LTD

Defender

PD25/14

________________________________________

Greenock, 30 June 2015. Act: Dickson Alt: Dougherty

The Sheriff Principal, having resumed consideration of the cause, Allows the appeal and Recalls the sheriff’s interlocutor of 3 December as adjusted on 26 April in so far as it finds the defender liable to the pursuer in expenses; Finds the defender liable to the pursuer in the sum of £2712.00 inclusive of VAT plus reasonable disbursements as taxed up to 13 March 2014 Allows an account thereof to be given in and remits the same when lodged to the auditor of court to tax and report; except as so modified Adheres to the interlocutor of the sheriff as varied; Finds no expenses to be due to or by either party in respect of the appeal procedure.

DL Murray

NOTE

This is an appeal against the decision of the sheriff in relation to his award of expenses in this case.With the agreement of parties I determined I should deal with the appeal on the basis of a correction to the interlocutor of 2 December 2014 which is the subject of this appeal, in terms of rule 12(2) of the OCR, to correctly reflect the intention of the sheriff.It was the understanding of parties and it is clear from the terms of his note, that the sheriff had intended that the pursuer be awarded his taxed expenses up to the date of the tender with the defender recovering taxed expenses from the pursuer for the period post tender.Accordingly I varied the interlocutor of 2 December by my first interlocutor of 26 April to reflect the agreed intention of the sheriff and the appeal proceeded against the interlocutor as adjusted.
In considering the case and the productions after submissions I noted the copy productions did not include the second page of some of the correspondence.The second page of the letter of 31 January 2013 by which the pursuer’s agents had intimated the claim to the defender was provided and this expressly stated that the pursuer’s agent proposed the claim be negotiated in terms of the Voluntary Pre-action Protocol as agreed between the Law Society of Scotland and the Forum of Scottish Claims Managers (the Protocol).This had only in part been covered in the course of submissions in relation to the defender having offered to pay reasonable costs and expenses in terms of the Protocol. Additionally following perusal of the Protocol, which was produced in the course of submissions I noted that neither party had identified that the pre litigation offer placed the value of the claim above the level to which the Protocol was to apply automatically. Parties had made reference in submissions to McIlvaney v A Gordon & Co Limited [2010] CSOH 118 but had not specifically made reference to the Inner House decision in Gunn v Hunter (1886) 13 R 573 referred to by Lord Tyre which I considered may be relevant.Accordingly I invited agents to address me further on the impact of Gunn v Hunter and the applicability and possible consequences of non-compliance with the Protocol at a continued hearing which took place on 28 May 2014.

Background
This case arises from a road traffic accident on 26 September 2012 in which the pursuer sustained injuries.Parties were agreed as to the timeline of events thereafter. The claim was intimated to the defender by letter from the pursuer’s agents dated 31 January 2013.In this letter the pursuer’s agents proposed the claim should be negotiated in terms of the Protocol.The defender did not respond in terms of the Protocol with a letter in the form of the specimen letter B. Subsequently, the defender indicated that they were prepared to deal with the claim on a without prejudice basis. The defender initially proposed £4,000 in settlement of the claim and indicated that they were prepared to “pay reasonable costs and disbursements in line with the Protocol.”The defender did not however comply with Protocol requirement to set out their position on liability within three months of intimation of the claim. The pursuer’s agents wrote to the defender by letter of 11 December 2013, stating that they had “ingathered all the evidence relating to our client’s losses and attach this herewith for your attention.” In the letter they also valued the claim at £15,970.95 plus certain treatment costs and sought expenses based on the Protocol.
By letter dated 15 January 2014, the defender responded with an offer of £11,500.This offer was described as a global offer inclusive of the price of treatment.The pursuer’s agents rejected the offer by letter of 20 January 2014.The offer was repeated by the defender in their letter 13 March 2014, with confirmation that £2,712 inclusive of VAT plus reasonable outlays would be paid in addition if the offer was accepted.Parties accepted this proposal for costs reflected expenses in terms of the Protocol. This was rejected by the pursuer’s agents in their letter of 18 March 2014. This also narrated that it was now their intention to proceed by way of a court action.Proceedings were served on 26 March 2014.A tender for £5,675 was lodged and rejected.Only in a minute of amendment, lodged on 2 July 2014, did the defender give any explanation of their position on the circumstances of the accident, and no admission of liability was made.On 25 August 2014 a tender in the sum of £7,750 was lodged.This tender was in the usual form without admission of liability and made net of any liability which the defender may have in terms of the Social Security (Recovery of Benefits) Act 1997.It offered the taxed expenses of process to date in satisfaction of the crave in the initial writ. This tender was accepted on behalf of the pursuer on 10 November 2014 the day before the case was to proceed to proof.
The defender moved with reference to McIlvaney v A Gordon & Co Ltd 2001CSOH 118 that the pursuer in rejecting the offer of £11,500 made pre-litigation had acted unreasonably and that the sheriff should exercise his discretion and modify any award of expenses in favour of the pursuers to nil.That motion was opposed by the pursuer’s agent who argued that the pursuer’s conduct was reasonable and in particular the pre-litigation offer was premature, as enquiries on behalf of the pursuer had not yet been finalised.The pursuer further argued that the defender had not conceded liability which they submitted was an important factor in assessing the reasonableness of the pursuer’s actions. Under reference to a decision of Sheriff Principal Stephen in Burns v Royal Mail Group 2014 SCEDIN 9 the pursuer submitted that the principle of supporting access to justice predicated that a successful pursuer should be awarded his expenses unless there is a substantial reason for these not to be awarded. It was the pursuer’s position no such reason arose.

The sheriff’s decision
The sheriff has a wide discretion in so far as expenses are concerned and the sheriff indicated that he drew from the authorities the proposition that in order to deprive the pursuer of the award of expenses there should be proper grounds of material sufficiency in order to justify departure from the normal procedure that expenses follow success.
The sheriff found that the conduct of the pursuer was not so unreasonable as to justify a departure from the normal rule that the successful pursuer is entitled to expenses to the date of the tender.Also following normal practice he found the defender entitled to expenses from the date of tender.
In reaching his conclusion on the pursuer’s entitlement to expenses to the date of the tender, the sheriff found the issue of liability, and the admission or non-admission thereof, to be a matter of significance insofar as management of the case was concerned.In particular, in relation to the ability to advise the pursuer on the prospects of success or otherwise.He also found that there were outstanding issues still being explored by the pursuer’s agent in relation to medical issues and credit hire charges when the pre litigation offer was made. He concluded these issues influenced the approach adopted by the pursuer.His note then contains a typographical error but parties were clear that his intention was to express the position that he did not find the conduct of the pursuer to be so unreasonable as to justify a departure from the normal approach that the pursuer is entitled to judicial expenses to the date of tender.
In exercising his discretion he stated

“I preferred the rationale articulated by Sheriff Principal Stephen in the authority Jonathon Burns v Royal Mail Group Limited. In particular at para. 25 of her decision where she states. When a successful pursuer fails to recover his judicial expenses, this will have a negative impact on access to justice. It is an important principal that a successful pursuer is entitled to his expenses unless there are proper grounds for depriving him of part of them.”

He also records

“In this case the Pursuer will suffer the penalty of being denied the expenses of process from the date of the tender until it was accepted. Given it was accepted the day before a proof expenses will be considerable. In addition he will suffer the penalty of being denied expenses which his representatives would have been entitled to.”

Submissions for defender and appellant
Ms Dickson for the defender and appellant submitted when the pre litigation offer, which had been made with Protocol expenses, exceeded the sum ultimately accepted it was unreasonable to award expenses in favour of the pursuer.It was submitted there was simply no basis for proceedings to have been commenced and accordingly the litigation was unnecessary. She challenged the sheriff’s reasoning, in exercising his discretion, to reach his decision. Firstly that he had taken account of or failed to take account of relevant matters.It was submitted that the sheriff had erred in the exercise of his discretion and given undue weight to the importance of the terms without prejudice in the correspondence and whether the absence of an admission of liability was material where it was clear the issue in dispute was about quantum.The appellant’s agent submitted that correspondence on a “without prejudice basis” was routinely used and was tantamount to an admission of liability and the claim being dealt with in full.She also pointed out that the tender was also made as in normal practice without admission of liability.It was also submitted the sheriff appeared to have taken no account of the terms of the letter of 11 December stating “We have now ingathered all the evidence relating to our client’s losses and attach this herewith for your attention.”
Secondly it was submitted the sheriff failed to take account of the fact that an offer was made with expenses in terms of the Protocol, rendering the proceedings unnecessary. Although it was accepted that the pursuer’s agents were invited to provide further evidence in support of the claim this it was submitted was a case where the pursuer had manifestly acted unreasonably in commencing proceedings.The sum which had been offered pre litigation was greater than the sum tendered which was accepted.It was submitted that the sheriff had, absent any mention of the pre litigation offer exceeding the ultimate settlement, failed to take proper account of this in reaching his decision, and accordingly fallen into error.
Following McIlvaney v A &J Gordon Limited it was unreasonable for the action to have been commenced and it was reasonable to reduce expenses to nil.The casecould be distinguished from Burns v Royal Mail Group as protocol expenses had been offered.Because the defender had made a full extra judicial offer including protocol expenses there were no access to justice issues at play.Campbell v Gallagher 2012 WL1015846 could be distinguished for there was no time bar looming and the pursuer could easily have made further investigations without commencing proceedings.
It was further submitted that the sheriff had wrongly taken into account the impact of the pursuer not accepting the tender when offered.No account it was submitted should have been taken of the expenses which the defender was found entitled to post tender, or that the pursuer’s agent would not recover expenses for their work post tender.These were irrelevant factors. On a proper analysis the sheriff should only have regard to matters prior to the tender being lodged on 25 August 2014 in assessing the entitlement of the pursuer to expenses.By considering the impact of expenses post tender the sheriff had erred.
The defender’s subsidiary position was that if expenses were not to be reduced to nil they should be restricted to those which would have been paid had the offer in March been accepted.In support of such an approach I was referred to Neilson v Motion 1992 SLT 124 a decision of Lord Osborne in the Outer House.In that case it was found that the defender had indicated a willingness to explore extra judicial settlement and this was thwarted by the pursuer’s solicitors commencing litigation prematurely. The defender tendered shortly after proceedings were commenced.Lord Osborne found the pursuer had behaved unreasonably and it was not fair to award judicial expenses but rather expenses on the then applicable table in relation to extra judicial settlements.
Alternatively, if I was not attracted to such an approach but felt expenses should not be reduced to nil I was invited to modify scale expenses. The level of reduction being a matter for me but that if the defender was to suggest a figure a reduction of 50% was proposed.
In submissions on 28 May the defender conceded that they were in breach of the Protocol by not responding in terms of specimen letter B within 21 days of the claim being intimated in the form of specimen letter A and by failing within 3 months to set out the defender’s position on liability. It was submitted that these breaches were cured by the on-going correspondence and offer to settle the claim together with the offer of expenses in terms of the Protocol.It was also confirmed that it was the defender’s intention to deal with the claim in terms of the Protocol. In relation to Gunn v Hunter the defender’s position was that it was an old case decided when there was perhaps less of a focus on access to justice. I was advised the defender did not seek an award of expenses and it was submitted the case could be distinguished on the basis that in Gunn v Hunter there was no formal tender which carried with it an expectation of expenses.

Submissions for the pursuers and respondent
Mr Dougherty for the pursuer confirmed that, subject to two minor adjustments to the timeline produced by the defender, the chronology I have set out in the background was agreed.He explained the statement in the 11 December letter that “we have now ingathered all the evidence relating to our client’s losses” was incorrect.Further information was sought on wage loss which ultimately required a specification of documents.He confirmed that the draft account of the pursuer’s expenses to the date of tender was in the region of £11,500 inclusive of VAT and outlays.He also explained his understanding of the position as regards credit hire charges.Namely that where an extra judicial settlement was reached these would be resolved directly between the insurer and the credit hire company. However where proceeding were commenced these credit hire charges had to be included as a head of claim as had happened here. (This was confirmed as being the defender’s agent’s understanding of the position.)
The pursuer and respondent’s primary position was that there was significant prejudice to the pursuer in the absence of an admission of liability or a clear explanation of the defender’s position on liability.It was also pointed out that the defender had not adhered to the terms of the Protocol in that they had not complied with 3.7 which provides:
“The insurer will have a minimum of three months from the date of specimen letter B to investigate the merits of the claim. No later than the end of that period, the insurer shall reply, stating whether liability is admitted or denied and giving reasons for their denial of liability, including any alternative version of events relied upon and all available documents in support of their position.”
It was therefore submitted that the pursuer had not behaved unreasonably in commencing proceedings and I should adhere to the interlocutor of the sheriff.A wide discretion was available to the sheriff, in making an award of expenses, and I should be reluctant to interfere with the exercise of his discretion.
The pursuer maintained that even if the defender had admitted liability it would still have been justifiable for the pursuer to reject the pre litigation offer on the basis of the information which they had. There were matters to be resolved on the question of the pursuer’s loss of wages and possible downgrading.
It was submitted that this was not a case where McIlvaney had application and I should not modify expenses to nil.It was submitted having regard to Burnsv Royal Mail and the principles enumerated there supported the award of expenses to a successful pursuer for access to justice reasons.
Campbell v Gallagher was cited in support of the actions of the pursuer being reasonable. There the defenders had made pre litigation offers and the pursuer’s agents sought further medical reports.Faced with a triennium, which was to expire in the near future the pursuer commenced proceedings.In all the circumstances the sheriff who was upheld by the Sheriff Principal found the action in pursuing the case was reasonable in the circumstances notwithstanding the tender was at the same level as the pre litigation offer.
In the pursuer’s subsidiary submissions it was relevant that the defender accepted that they were seeking to deal with the claim in terms of the Protocol.It was emphasised that they were in breach of the conditions of the Protocol and that as Sheriff Principal Dunlop had found in Bent v Trevett 2015SCSTIR14 it would be unreasonable to refuse expenses where the pursuer had complied with the Protocol but the defender had not.It was also submitted that the breaches of the Protocol were not rectified by the subsequent correspondence. The Protocol set out precise obligations which were to be complied with at each stage.The pursuer supported the submission of the defender that the case should be distinguished from Gunn v Hunter because there no formal tender with the offer of expenses had been made to the pursuer.
Mr Dougherty invited me if I was not with him in his principal submission to adhere to the sheriff’s interlocutor as corrected, to restrict the level of any modification.If however I concluded that the sheriff had fallen into error in awarding taxed expenses, in making an assessment of expenses this was not an all or nothing situation and he ventured to suggest that a modification to 75% of litigated expenses would be a reasonable level of modification and reflect the access to justice challenges faced by pursuers in personal injury claims.

Decision
I should begin be referring to the dictum of Lord President Cooper in Howitt v W Alexander and Sons Limited 1948 SC 154 that appeals of the discretionary award of expenses are to be discouraged. As has been recognised the judge or sheriff has a wide discretion as to expenses in any cause and an appellate court will be reluctant to interfere with the exercise of discretion.The general principal on expenses is stated at McLaren on Expenses at page 21
“The principle upon which expenses are awarded is, that if any party is put to expense in vindicating his rights, he is entitled to recover it from the person by whom it was created unless there is something in his own conduct that gives him the character of an improper litigant in insisting on things which his title does not warrant.”
But this is an appeal which parties recognised raised issues of general importance. Parties correctly followed the dicta of Sheriff PrincipalSir Alan Walker in Calder v Rush 1970 SLT (Sh.Ct.) 51 by putting forward anagreed timeline and placing the relevant correspondence before the court.I have also found it helpful to be provided with information on the levels of expenses payable under the Protocol and in the draft account of judicial expenses to the date of the tender. I would commend such information being made available to a sheriff in cases when there are to be arguments on the level of expenses to be awarded.
Here the pursuer sought to deal with the claim in terms of the Protocol.It is conceded by the defender that they also intended the claim to be dealt with in terms of the Protocol. The defender did not comply with the terms of the Protocol.In particular by not responding timeously with a response in terms of specimen letter B within twenty one days and failing to set out their position on liability within three months.The defender did however make an offer of £11,500 plus Protocol expenses prior to the litigation.The principal sum then offered significantly exceeding the sum of £7500 which was tendered in August.The tender was accepted by the pursuer on the day prior to the proof in November.
It was accepted by parties that if I found the sheriff to have fallen into error, in the exercise of his discretion, the issue of expenses up to the date of the tender was at large for me to determine.
I have found that the sheriff has fallen into error.He has not had regard to the essential fact that the pre litigation offer of damages exceeded the sum offered in the tender.Neither did he consider the material fact that the pre litigation offer was made with expenses in terms of the Protocol. I also find him to have fallen into error in taking account of expenses post tender.There are no special circumstances which should result in a departure from the normal rule that post tender expenses should rest against the pursuer who delays accepting a tender.There is no appeal against that aspect of the interlocutor and the award against the pursuer of post tender expenses is correct.The sheriff was plainly wrong to have taken account of that award of expenses or the unrecoverable costs incurred by the pursuer post tender in reaching a view on the amount of pre tender expenses.
It follows that the question of expenses is at large.As Lord Boyd of Duncansby explained in Brown v Sabre Insurance [2013] CSOH 51 the court has an interest in ensuring that so far as possible disputes are settled before they reach litigation.I associate myself with the support for the Protocol and the comments expressed in Burns v Royal Mail by Sheriff Principal Stephen and by Sheriff Principal Dunlop in Bent v Trevett.I accept the reasons advanced by Lord Boyd of Duncansby in Brown v Sabre Insurance that the use of the Protocol is to be encouraged and the court should take congnisance of it. It is negotiated between the Law Society of Scotland and the Forum of Scottish Claims Managers.It is desirable that disputes be resolved before they reach the courts, it provides a structure for the negotiation and settlement of personal injury and access to justice is supported by the payment of an injured parties costs in terms of Protocol expenses which have been adjusted and agreed between the Law Society of Scotland and the Forum of Scottish Claims Managers.
Having said that, I have to determine whether this is a claim in which the Protocol has application. It is not disputed that the defender is a signatory to the Protocol.The Pursuer invited the claim to be dealt with in terms of the Protocol.Par 2.3 of the Protocol states:
“The Voluntary Protocol if entered into will apply to all cases which include a claim for personal injury (excepting Clinical Negligence and Disease and Illness cases) and will apply not merely to the personal injury element of a claim but also to other heads of loss and damage. It is primarily designed for road traffic tripping and slipping and accident at work cases where the value of the claim is up to £10,000. The Protocol is voluntary and there is nothing to prevent parties by mutual agreement dealing with any claim of a higher value under the Protocol.”

It is also to be noted that the scale of expenses to be applied gives scope for claims above that value to be dealt with under the Protocol with the agreement of parties.
Having heard the further submissions of the parties it was conceded by the defender at the continued hearing that it was their intention to deal with this as a claim falling under the Protocol.Accordingly I proceed on the basis of the Protocol being applicable.
Clause 3.5 of the Protocol states:

“The Insurer should acknowledge the letter of claim within 21 days of the date of receipt of the letter. The Insurer should advise in a letter in the terms of Specimen B whether it is agreed that the case is suitable for the Voluntary Protocol. If there has been no reply by the defender or Insurer within 21 days, the claimant will be entitled to issue proceedings.”

Clause 3.7 states:

“The Insurer will have a maximum of three months from the date of specimen letter B to investigate the merits of the claim. Not later than the end of that period, the Insurer shall reply, stating whether liability is admitted or denied and giving reasons for their denial of liability, including any alternative version of events relied upon and all available documents supporting their position.”
The defender responded within the 3 month period with an offer and confirmation that they would pay reasonable costs and disbursements in line with the Protocol. Thus the defender’s position was to agree to Protocol expenses but not to set out their position on liability in the claim and if liability was denied, provide their version of events as the Protocol required them to do. I agree with parties that Gunn v Hunter (1886) 13 R 573 may be distinguished.There an extra judicial offer of £50.00 was followed by an offer on record. Here a judicial tender was made which carried with it an offer of expenses, which renders it in one of the separate categories identified by the Lord President in the first paragraph of his judgement.
The defender accepted at the continued hearing that they were in breach of the Protocol by firstly not sending a letter in the form of specimen letter B within twenty one days and secondly not clarifying their position on liability within three months.I do not consider that breach was rectified by the on-going correspondence between the parties.The Protocol is an agreement reached between the Law Society of Scotland and the Forum of Scottish Claims Managers and its use and adherence to it is to be encouraged as an aid to the settlement of cases without resort to litigation. Had the defender complied with the Protocol I would have taken the view that the conduct of the pursuer when faced with a pre litigation offer of Protocol expenses and a principal sum of £11,500 when he subsequently accepted a tender for £7,500 was unreasonable to the extent that it warranted that the pursuer’s expenses should be reduced to nil.Compliance with the Protocol could have effected settlement without litigation and supported access to justice by allowing what may be assumed to be the reasonable expenses of the purser in pursuing his claim, on the basis that these were to be paid at a level agreed by the parties to the Protocol.
But that is not the factual situation here, for the defender did not adhere to the Protocol. I have concluded like the sheriff there is some force in the pursuer’s argument that the absence of an admission of liability, was in terms of advising their client in some ways problematic, but more significantly because this is a specific requirement of the Protocol.Where liability is denied the Protocol requires the defender’s explanation of the circumstances of the accident.There being non compliance with the Protocol I find the pursuer was entitled to commence proceedings.
I also accept there were some further investigations which the pursuer’s agents wished to undertake and Mr Dougherty’s explanation that the terms of the letter of 11 December that all evidence had been ingathered was just wrong.But it is of note that the further enquires did not increase the quantification of the pursuer’s claim.Notwithstanding that similarity with Campbell v Gallagher I distinguish this case from Campbell v Gallagher where the expiry of the triennium was imminent.In this case it still had more than eighteen months to run.There was the opportunity for further investigations to be made without the need for proceedings to be commenced to preserve the position.
I also distinguish the case on the facts from Bent v Trevett where in the absence of a response from the defender, the pursuer commenced proceedings without further intimation. Here the defender had made what proved to be a good offer together with expenses in terms of the Protocol.
These factors lead me to the conclusion that there was a degree of unreasonableness in the pursuer’s action in commencing proceedings which requires that the defender should only be found liable for modified judicial expenses. The salient fact in this case is that the pursuer accepted a tender for £4,000 less than a pre litigation offer which included Protocol expenses.This is not a case where the concerns expressed in the Gill Review of a deliberate policy of under-settlement and then following proceedings being initiated the insurers lodged a tender.It is the obverse, the defender followed a pre litigation offer with a lower tender.The key issue as both parties recognised in the course of submissions was the level of modification that should be made.
I note that Lord Boyd in Brown v Sabre had regard to what the Protocol expenses would have been in fixing the expenses.He awarded expenses on the summary cause scale modified by 15%, which he noted resulted in expenses being awarded in line with Protocol expenses.I also see some merit in the approach of Sheriff Principal Stephen in Burns v Royal Mail that the normal scale of expenses should be utilised and modified as appropriate In neither case, however does it appear that Neilson v Motion was cited.I am attracted to the approach of Lord Osborne in that case where he awarded expenses based on the former Chapter 10 scale. As Lord Osborne put it:
“The course which does commend itself to me as being in accordance with the principles of fairness in the circumstances of the present case is that of modifying the expenses to that level which the pursuer could reasonably have expected to have been paid, if the claim had settled before the commencement of legal proceedings.”

I have concluded that adopting a similar approach achieves what on balance seems to be reasonable and fair, in the circumstances of this case. It reflects a substantial reduction in the judicial expenses, which would be payable without modification, but provides a level of costs which would have been payable had the claim been settled pre litigation. Accordingly I shall award expenses to the pursuer restricted to the sum offered in terms of the Protocol of £2712.00 inclusive of VAT plus reasonable disbursements up to 13 March 2014 as set out in the defender’s letter of 13 March 2014. I do so in preference to further reducing the expenses to base these on the sum actually paid. That on the basis that the pursuer has been prejudiced by the reduced principal sum, and I have concluded that a further reduction in expenses would go too far in penalising the pursuer. It also leaves the defender paying the expenses which they offered prior to the litigation being commenced. The award of these expenses also addresses the access to justice question for it provides the pursuer who has sustained loss with expenses at the level he would have received had he accepted the offer before commencing proceedings.
In relation to the expenses of the appeal the finding results in mixed success for the parties and in those circumstances I make no award of expenses in relation to the appeal.

JAMES MURRAY AGAINST ADMIRAL INSURANCE CO LTD

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