MORAG HARRISON AGAINST COMPASS GROUP, UK AND IRELAND LIMITED
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
IN THE ALL-SCOTLAND SHERIFF COURT
[2017] SC EDIN 42
PIC-PN209-17
NOTE BY SHERIFF FIONA LENNOX REITH, QC
In the cause
MORAG HARRISON
Pursuer
Against
COMPASS GROUP, UK AND IRELAND LIMITED
Defenders
Pursuer: Pilkington, Advocate; DJ Mackay & Partners, Solicitors, Edinburgh
Defenders: Murray; Berrymans Lace Mawer, Solicitors, Edinburgh
Edinburgh, 5 June 2017
The sheriff, having heard parties' procurators on the pursuer's opposed motion, number 7/2 of process, grants same in full; allows the joint minute from parties to be received and form number 12 of process; thereafter, interpones the authority of the court thereto and, in terms thereof, finds the defenders liable to the pursuer in the expenses of the cause, as taxed; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and report; certifies Mr James Mace, Orthopaedic Consultant, Royal Bolton Hospital, Minerva Road, Farnworth, Bolton, BL4 0JR, and Mr Jeffery Todd Reid, Consultant Trauma & Orthopaedic Surgeon, Edinburgh Orthopaedic Specialists, 2-8 Millar Crescent, Edinburgh, EH10 5HW, as skilled witnesses who prepared reports for the pursuer; on cause shown, sanctions the cause as suitable for the employment of junior counsel; finds the defenders liable to the pursuer in the expenses of the opposed motion, as taxed; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and report; on cause shown, sanctions the cause as suitable for the employment of junior counsel for the opposed motion; quoad ultra assoilzies the defenders from the craves of the initial writ.
NOTE
Introduction
[1] An opposed motion on behalf of the pursuer called before me on 5 June 2017. The motion sought (1) to interpone authority to a joint minute and to certify Mr James Mace, Orthopaedic Consultant, Royal Bolton Hospital, Bolton and Mr Jeffrey Todd Reid, Consultant Trauma and Orthopaedic Surgeon, Edinburgh as skilled witnesses who prepared reports on behalf of the pursuer and (2) to certify the cause as suitable for the instruction of junior counsel. This motion was opposed on behalf of the defenders. The defenders’ position was that litigation had not been necessary and, therefore, that expenses should be modified, and that instruction of junior counsel had not been necessary. If it was, sanction should be limited to one consultation. Certification of Mr Reid and Mr Mace was, however, not opposed.
[2] Following submissions, the motion was granted in full, and the award of expenses was not modified.
Agreed timeline
[3] The parties had helpfully entered into a joint minute of admissions in relation to a timeline setting out the key events for the purposes of the motion and opposition thereto. The agreed timeline was as follows:
1. “That the copy correspondence forming 6/1 to 6/13 of Process are true copies of the originals and that they represent a true and accurate record of the correspondence exchanged between the parties in relation to this action.
2. The pursuer was injured in the defenders’ premises when she tripped over a box on 5 February 2014.
3. The pursuer intimated her claim to the defenders through her solicitors on 11 February 2014.
4. The defenders’ insurers Gallagher Basset International Limited (“GB”) acknowledged receipt of the letter of claim on 14 February 2014.
5. GB admitted liability to the pursuer’s solicitors on 28 July 2014 “subject to causation.”
6. The defenders’ e-mail to the pursuer dated 28 July 2014 stated:
“We ask that you forward your client’s medical evidence as soon as it becomes available.”
7. By letter dated 15th December 2014 the pursuer’s solicitors wrote to GB and advised:
“We write to confirm that our client has ongoing symptoms in regards to her left shoulder and requires corrective surgery to be performed in relation to that. She is currently on waiting list for same and as soon as surgery has concluded and she has recuperated thereafter we shall forward to you medical evidence in support of our client’s claim…”
8. The pursuer was initially listed for elective left shoulder arthroscopic evaluation surgery with iliac crest bone grafting and open stabilisation on 24th March 2015 at The Royal Infirmary of Edinburgh.
9. The surgery was cancelled by the hospital on 23rd March 2015.
10. The surgery was performed by Consultant Orthopaedic Surgeon Mr Robinson on 26th May 2015
11. The pursuer was discharged from hospital on 1st June 2015 for follow up review in the orthopaedic out-patient clinic.
12. The pursuer began a course of shoulder physiotherapy on 24th June 2015.
13. The pursuer’s solicitors next wrote to the defenders on 21 September 2015.
14. The pursuer’s letter of 21 September 2015 stated:
“… our client is undergoing continuing treatment at the current time. When this has been completed we will look to instruct an appropriate medical expert for the purpose of obtaining an independent report, This will be forwarded to you in due course together with our statement of valuation of claim.”
15. Her shoulder physiotherapy ended in January 2016.
16. The pursuer’s solicitors requested records from Lothian NHS Board by letter dated 17th February 2016.
17. The records were sent to the pursuer’s solicitors by letter dated 2nd March 2016
18. By letter dated 4th March 2016 the pursuer’s solicitors instructed “Medics Network”, Wilmslow, Cheshire to instruct a consultant orthopaedic surgeon specialising in shoulder injuries to examine the pursuer as soon as possible.
19. On 16 April 2016, the pursuer was seen by Mr James Mace for the purposes of a medical examination, for a medico-legal report…
20. Mr James Mace is a Consultant Orthopaedic Surgeon based at the Royal Bolton Hospital in Bolton, England.
21. By email dated 10th May 2016 the medical report was emailed by “Medics Network” to the pursuer’s agents.
22. By letter dated 10th May 2016 the pursuer’s solicitors sent a copy of the medical report to the pursuer.
23. The pursuer telephoned her solicitors on 2nd June 2016 to advise that she had received the medical report. She also advised that she had been diagnosed with breast cancer with a mastectomy procedure planned for 2nd June 2016.
24. Mr James Mace’s medical report was disclosed to GB by letter dated 26th July 2016.
25. On 16 April 2016, Mr James Mace recommended to the pursuer that he further examine the pursuer sometime between September and November 2016.
26. The pursuer’s solicitors requested that Mr Mace see the pursuer again for a supplementary report on 27th September 2016
27. On 24th October 2016 the pursuer’s solicitors telephoned Medics Network to chase an appointment date for Mr Mace to see the pursuer. They were advised that Mr Mace could not likely see the pursuer again until about 17th January 2017. The pursuer’s solicitors advised that the matter was urgent and asked that the pursuer be retained on Mr Mace’s list for review for an appointment as soon as possible.
28. The pursuer did not see Mr James Mace again.
29. By letter dated 24th October 2016 the pursuer’s solicitors wrote to GB in the following terms:
“We refer to our previous letter to you dated 26th July 2016 enclosing a copy of a medical report upon our client’s injuries by Mr James Mace Consultant Orthopaedic Surgeon. You will note that a further medical examination was recommended following a further period of recovery and treatment. We have instructed a further appointment with Mr Mace but understand he has limited availability at the current time and an appointment may not become available until early 2017. You will be aware the triennium date is approaching and we may require to raise and serve court proceedings in the new year to protect our client’s right to claim. If that course of action does prove necessary we can then seek a sist of the action to allow for completion of the report and associated settlement negotiations.
30. By letter dated 3 November 2016, the pursuer’s agents wrote to the defenders stating that the pursuer’s claim was being handled by a different solicitor.
31. That same letter stated:
“Given the approaching triennium and the unavailability of …. Mr James Mace … we would propose having our client examined by a shoulder expert who can provide an earlier appointment. We are currently arranging this and will provide you with details of same in due course. We shall try to avoid litigation if at all possible but it may be that we will require to raise a protective court action.”
32. On 15 November 2016 the pursuer was seen by Mr Jeffrey Todd Reid for the purposes of a medical examination, and for a medico-legal report...
33. Mr Jeffrey Todd Reid is a Consultant Trauma and Orthopaedic Surgeon based in Edinburgh with an expertise in shoulder trauma and injury.
34. By email dated 6th December 2016 Edinburgh Orthopaedics advised that the report had been typed and was with Mr Reid for proof reading.
35. By emails dated 13th, 22nd December 2016 and 4th January 2017 the pursuer’s solicitors chased up sight of the medical report.
36. The report was sent by letter dated 4th January 2017 to the pursuer’s solicitors.
37. The pursuer was sent a copy of the report by letter dated 6th January 2017 by her solicitors.
38. The medical report from Mr Jeffrey Todd Reid was disclosed to GB by letter dated and email 17 January 2017 with a statement of valuation of claim.
39. The pursuer’s pre-litigation statement of valuation of claim totalled £133,555.62.
40. The letter and email from the pursuer to GB dated 17 January 2017 stated:
“Please find enclosed a copy of our client’s Statement of Valuation of Claim together with supporting medical evidence.
Given the approaching triennium we would ask you to return to us with offer in settlement of the claim so that we may take instructions prior to 23rd January 2017 if (sic) no offer is forthcoming within that time then we will shall (sic) have no alternative but to raise a court action to protect our client’s position. In these circumstances please advise whether you wish to nominate Scottish solicitors to accept service of the Summons (sic).”
41. GB instructed their solicitors on 23 January 2017.
42. The defenders’ solicitors wrote to the pursuer’s agents on 25 January 2017 confirming that they were instructed to accept service of the court proceedings. That letter stated:
“We should put you on notice that the defenders have not had sufficient time to review the medical evidence and your statement of valuation of claim recently intimated to them. As you are aware, the normal practice would be for a period of five weeks to be afforded an opportunity of reviewing quantum and making a settlement offer.
In any event, now that we are instructed we will review your statement of valuation and your medical evidence and will revert back to you shortly once we have obtained instructions on a settlement proposal.”
43. Service was effected on the defenders on 2 February 2017.
44. The defenders’ solicitors BLM wrote to the pursuer’s solicitors by letter dated 20th February 2017 enclosing a Minute of Tender in the sum of £42,000 net of benefits by way of Minute of Tender which “we are lodging with the court”. A faxed copy of said letter was also intimated to the pursuer’s solicitors Edinburgh Agents Bonnar Accident Law.
45. A telephone call was then made by BLM to the pursuer’s solicitors instructing them to “ignore the letter” and that it had been sent by mistake.
46. By email dated 27th February 2017 the pursuer’s solicitors advised BLM:
“Yes I can confirm that Bonnar & Co provided us with a copy of your fax however we also received a letter enclosing the Tender. A telephone message was received from BLM to say that we had to ignore the Tender as it was sent in error. I then called BLM to clarify that it was definitely sent in error and was advised that this was the case. I took this to mean that the Tender had been withdrawn.
Please intimate matters to our Edinburgh agent. We have not consulted with the client regarding the Tender as we were of the view that it had been withdrawn. We will revert in due course regarding the Tender.”
47. By email dated 27th February 2017 BLM advised:
“The tender remains lodged and ready to be accepted. We sent the tender to both you and your Edinburgh agents in error and we considered it appropriate for only one firm to get intimation. That explains why we asked you to ignore that intimation…”
48. By email dated 27th February 2017 BLM advised:
“It does look like there has been much confusion here. For the avoidance of doubt, the tender has not been either informally or formally withdrawn. It remains lodged in process and is capable of being accepted. “
49. By letter dated 27th February 2017 the pursuer (was) advised of the Tender by her solicitors.
50. By email dated 8th March 2017 BLM advised:
“We refer to the above matter and to our minute of tender to which there is yet to be a response. In light of this we require to now proceed with our own quantum investigations. We have identified Mr Iain Brown Consultant Orthopaedic Surgeon who is able to see your client at the Edinburgh Clinic in Colinton, Edinburgh…”
51. A telephone consultation with the pursuer, her solicitor and counsel took place on 9th March 2017.
52. On 10 March 2017, the pursuer rejected this sum and advised that she would accept £50,000.
53. On 17 March 2017, the defenders offered the pursuer the increased sum of £45,000 net of benefits. The CRU certificate dated 22nd August 2016 advised a NIL repayable figure.
54. On that same date (17 March 2017), the pursuer accepted the sum of £45,000 net of benefits.
55. The pursuer’s unabated Judicial Account of Expenses as intimated to the defenders’ agents totals £8,349.12.
56. 6/13 of Process is a calculation totalling £5,462 and is a true and accurate calculation of the expenses and outlays to which the pursuer would have been entitled in accordance with the Scottish Voluntary Pre-Action Protocol had the claim settled without recourse to litigation.
57. 6/14 of Process is a draft account of expenses for the defenders totalling £2,627.50 and is a true and accurate calculation of the judicial expenses and outlays which have been incurred by the defenders during the litigation to date.
58. It cost the pursuer an addition sum of around £2,867.12 (£8,329.12 - £5,462) to litigate her claim.
59. It cost the defenders additional sums to instruct their solicitors to protect their position procedurally. The sum contained in 6/14 is a reasonable estimate of those additional sums.”
Summary of submissions for the pursuer
Modification of expenses
[4] Mr Pilkington told the court that the pursuer had sought damages in the sum of £100,000 following an accident in a shop on 5 February 2014. She had tripped over a box of magazines left on the floor. Liability was admitted pre-litigation “subject to causation”, but with contributory negligence averred in the defences. A tender was made in the sum of £42,000 in February 2017 with an eventual offer of £45,000 being accepted on 17 March 2017.
[5] Mr Pilkington submitted that the compulsory pre-litigation protocol did not apply as the case value was in excess of £25,000 and the accident occurred before 28 November 2016.
[6] I was told that, in the present case, parties had agreed to apply the voluntary pre-action protocol. So far as medical reports are concerned, the voluntary pre-action protocol includes the following:
“Medical reports
3.11 A medical report will be instructed at the earliest opportunity but no later than 5 weeks from the date the Insurer admits, in whole or part, liability unless there is a valid reason for not obtaining a report at this stage. In those circumstances, the pursuer's agents will advise accordingly and agree an amended timetable with the Insurers or withdraw the case from the protocol. Any medical report obtained and on which the pursuer intends to rely will be disclosed to the other party within 5 weeks from the date of its receipt. By mutual consent, the Insurers may ask the examiner, via the pursuer's agent, supplementary questions.”
[7] I was then taken through the agreed timeline in the joint minute. The time bar had been due to expire on 4 February 2017. Service of the initial writ had been effected on the defenders two days before the expiry of the triennium. I was also reminded that, by this time, the defenders’ agents had had sight of Mr Mace’s report dated July 2016 and a further report from Mr Reid in January 2017. Mr Pilkington understood that the defenders had not instructed an examination and report in relation to the pursuer in the meantime. Mr Mace’s report included the suggestion that he should further review the pursuer between September and November 2016 to evaluate any on-going change in symptoms and movement. The pursuer had also required further surgery in the form of a mastectomy in June 2016. The defenders had admitted liability. The defenders could have got their own report, but they chose not to do so at that stage. The first mention by the defenders’ agents of obtaining their own medical report had been in an e-mail from them dated 8 March 2017, as referred to in paragraph 50 of the joint minute. Defences had been lodged on 22 February 2017. These had included averments of contributory negligence on the part of the pursuer. This had not previously been advanced by the defenders. Until then, the defenders’ position had been as set out in paragraph 5 of the joint minute, namely that the defenders’ agents had admitted liability to the pursuer’s agents on 28 July 2014 “subject to causation”, which had been understood to mean a medical causation point and not a contributory negligence point.
[8] Mr Pilkington confirmed that no pre-litigation offer had been made.
[9] I was also referred to the report dated 15 November 2016 from Mr Reid, Consultant Orthopaedic Surgeon, number 5/22 of process, at page 8. He had examined the pursuer in November 2016, but his report had not been made available until January 2017 despite numerous reminders from the pursuer’s agents. There had been complexities in relation to the impact of the accident on the pursuer’s ability to look after her sick husband. The pursuer had been the main carer for her husband prior to the accident. Following the accident she had had to give up a number of necessary tasks to other members of the family because of her own difficulties, principally in relation to her shoulder, following the accident.
[10] In relation to the question of conduct of litigation and modification of the expenses, I was referred to Macphail, Sheriff Court Practice (3rd edition) at paragraph 19.07 in relation to the general rule in awarding expenses and at paragraphs 19.09 and 19.10 in relation to the question of modification. Mr Pilkington submitted that, for modification of expenses to be appropriate, there had to be an element of disapproval in relation to any party’s conduct. The pursuer’s conduct could not reasonably be criticised. She had had major shoulder surgery in 2015. A prolonged period of recuperation had then been required through to 2016. A further medical report had been required once the treatment had concluded. I was reminded that, unfortunately, a large part of the limitation period had been taken up with surgery and recuperation, but Mr Pilkington submitted that the pursuer could not be criticised for this, and neither could her agents be criticised.
[11] Mr Pilkington referred to Brown v Sabre Insurance Co Ltd [2013] CSOH 51, and in particular paragraph [19] of the opinion of the Lord Ordinary, Lord Boyd of Duncansby. However, Mr Pilkington submitted that the circumstances in that case could be distinguished from the circumstances in the present case. In Brown, a medical report in the possession of the pursuer had not been furnished to the insurers prior to the action being raised. In the present case, the medical evidence in the possession of the pursuer’s agents had been disclosed prior to commencement of proceedings. This comprised the reports by Mr Mace in July 2016 and Mr Reid in January 2017.
[12] Mr Pilkington next referred me to Gibson v Menzies Aviation (UK) Ltd 2016 SLT (Sh Ct) 179. In that case there had been a deliberate failure by the pursuer’s agents to disclose medical reports. That was not the situation in the present case. In that case Sheriff McGowan modified an award of expenses by two-thirds as he was satisfied that the failure by the pursuer’s agents to disclose the medical reports had been unreasonable and had deprived the insurers of a genuine opportunity to settle the claim pre-litigation, although the chance of pre-litigation settlement could not be quantified with precision and failure to disclose the medical reports had not been the sole cause of the litigation and its attendant costs. In that case Sheriff McGowan had said, at paragraph 45 of his judgment:
“45 In turning to the question of expenses, it seems to me to be necessary to consider whether the failure to disclose the medical reports can be said to have caused or contributed to this action being raised. In considering that question, it is helpful, in my view, to consider the hypothesis: what would have happened had the medical reports been disclosed timeously?”
[13] Mr Pilkington submitted that it would similarly be helpful in the present case to ask what would have happened had the medical report by Mr Reid been disclosed earlier. In this connection, I was reminded that averments about contributory negligence had been made for the first time in the defences. The pre-litigation admission of liability on behalf of the defenders had been understood as having been a full one without any reservation of contributory negligence as the only reservation had been “subject to causation”. This had been understood by the pursuer’s agents to mean medical causation. Even if, therefore, the final report by Mr Reid could have been disclosed earlier (which was not accepted), he submitted that the pursuer would still have been entitled to proceed to litigate in view of the issue of contributory negligence as raised later in the defences. Mr Pilkington told me that, when he had consulted with the pursuer in relation to the tender made by the defenders, he had had to give advice in relation to the contributory negligence issue raised in the defences as well as in relation to issues arising from the medical evidence.
[14] I was also referred to Devine v Laurie [2016] SC EDIN 83, a decision of Sheriff McGowan on 10 October 2016. Sheriff McGowan modified expenses by 20% in a situation where late disclosure of medical reports had delayed settlement with the result that the defenders had been put to more expense than they would otherwise have been. However, that was a situation where there had been a conscious decision to withhold medical reports due to the insurers’ position on contributory negligence. Sheriff McGowan had been critical of the conduct by the pursuers’ agents in withholding reports. Mr Pilkington submitted that the circumstances of the present case, therefore, fell to be distinguished as there were no such circumstances in the present case.
[15] Mr Pilkington submitted that, in the whole circumstances, neither the pursuer nor her agents could reasonably be criticised. There should, therefore, be no modification in relation to the question of expenses.
Sanction for the employment of junior counsel
[16] Mr Pilkington founded upon the factors referred to in section 108(3)(a)(i) and (ii) of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”).
[17] I was reminded that the case had settled for £45,000. This was a substantial sum of money for the pursuer. Without the issue of contributory negligence, the full value of the claim might have been between about £75,000 and £80,000. This was a case where the claim had both been important to the pursuer and of value to her.
[18] I was told that the consultation with the pursuer had extended to over two hours because the she had been particularly exercised by her concerns about the effect of the accident on her ability to look after her husband. This had also raised an issue of complexity because it had been necessary to try to work out the value of section 9 services in this situation. It had been necessary to consider quite carefully, and to understand, the full nature and extent of the assistance which the pursuer had given to her husband prior to the accident. It had, therefore, been necessary to identify what the pursuer had done for her husband before the accident and to identify what she could not now do for him. It had also been necessary to explain the risks to her should the defenders’ offer not be accepted and that a sheriff might not assess the loss of services claim as the pursuer might hope. This was a high value case from the pursuer’s point of view, as well as being important to her in any event. She was very worried about her husband and the services claim as a result of her shoulder injury. She was worried about who was going to pay for the assistance which she had previously been able to give him but now could not. The services issue had been difficult to quantify. Another issue had been that of pre-existing health issues.
[19] In support of counsel’s submissions in relation to the question of sanction for the employment of counsel, I was referred to J’s Parent and Guardian v M&D (Leisure) Limited 2016 SLT (Sh Ct) 185, Dow v M&D Crolla Limited 2016 SLT (Sh Ct) 191 and Cumming v SSE Plc 2016 Rep. L.R. 75 (which was affirmed by the Sheriff Appeal Court at [2017] SAC (Civ) 17)).
Summary of submissions for the defenders
Modification of expenses
[20] In the written opposition to the motion, a major complaint on behalf of the defenders was that the medical evidence from Mr Reid which had been crucial in allowing the claim to be properly valued had not been disclosed to the defenders’ agents until 17 January 2017. The defenders were provided with a five day period within which to make a settlement offer. The initial writ was warranted on 1 February 2017 and served on the defenders on 2 February 2017. A tender in the sum of £42,000 was intimated on 20 February 2017. On 10 March 2017 this was rejected and the pursuer offered to accept £50,000. On 17 March 2017 the defenders increased their settlement offer to £45,000. This was accepted by the pursuer on the same day. Had a medical report been obtained at an earlier stage and promptly disclosed to the defenders it was likely that settlement would have been achieved without the need for any litigation at all.
[21] Mr Murray submitted that there had been additional costs of litigation caused by the delay on the part of the pursuer’s agents in obtaining and then disclosing medical evidence. This had meant that the defenders had been denied a reasonable opportunity to settle matters pre-litigation.
[22] Mr Murray confirmed that liability had been admitted. It was accepted that the pursuer was going to require surgery and that there was, therefore, some delay after Mr Mace examined the pursuer in April 2016. His report had been produced in May 2016. Mr Mace had said that there should be a follow-up appointment between September and November 2016. However, the pursuer’s solicitor had not requested a follow-up appointment until 27 September 2016, well into that period. The defenders were not advised of this until November 2016. I asked Mr Murray whether the defenders’ agents had complained about this to the pursuer’s agents. He said that they had not; they had been waiting to hear from the pursuer’s agents. He submitted that the pursuer’s agents should have foreseen that Mr Mace would be busy and they should have been arranging the follow-up appointment well before they actually did. On 24 October 2016 the pursuer’s solicitors had written to the defenders’ previous solicitors to tell them that Mr Mace might not have an appointment until early 2017. Mr Murray confirmed that the defenders’ agents had not contacted the pursuer’s agents before then to ask or complain about the position.
[23] Despite the absence of any enquiry or complaint by the defenders’ agents, Mr Murray nevertheless complained that Mr Reid’s report had not been disclosed to the defenders’ agents until 17 January 2017. The defenders had then been provided with only a five day period - until 23 January 2017 - to make a settlement offer. Mr Murray submitted that this had not been a reasonable opportunity to consider the report. However, he accepted that the triennium had been due to expire on 4 February 2017.
[24] When I asked Mr Murray to clarify what he maintained as having been “unreasonable” about any conduct on the part of the pursuer in relation to the litigation and in relation to which the court should mark its disapproval by way of modification of expenses, he replied that the defenders had been “deprived of a genuine opportunity to settle the claim pre-litigation”. I noted that this was the same formulation used by Sheriff McGowan in Gibson v Menzies Aviation (UK) Limited at paragraph [50] of his judgment. When I asked Mr Murray to clarify what conduct he was actually founding upon, it transpired that what he characterised as being unreasonable conduct on the part of the pursuer’s agents was their not having requested that Mr Mace see the pursuer again for a supplementary report until 27 September 2016. He again complained that the defenders’ agents had not then seen Mr Reid’s report until 17 January 2017. However, Mr Murray confirmed that the timeline agreed in the joint minute did not include any reminder e-mails or letters from the defenders’ agents, and that this was in notable contrast to the number of letters and e-mails written by the pursuer’s agents to the defenders’ agents throughout. Mr Murray also confirmed that the defenders had not instructed their own examination and report in relation to the pursuer in 2016, even although now complaining about delay on the part of the pursuer’s agents in seeking to arrange the further appointment with Mr Mace in September 2016.
[25] Mr Murray nevertheless submitted that it had been the delay in obtaining the further report (initially from Mr Mace and then from Mr Reid) that had “caused the litigation”. He repeated that the defenders “had not been given an opportunity to make an offer”. At this point, I asked Mr Murray whether the defenders had made a pre-litigation offer, and he said that they had not. It was therefore not clear to me what Mr Murray meant by saying that the defenders “had not been given” an opportunity to make a pre-litigation offer.
[26] Mr Murray accepted that the issue about contributory negligence had not been raised until the defences were lodged.
[27] I was told that, as agreed in the joint minute, as a result of the litigation, the cost to the pursuer had been an additional sum of about £2,867.12. This was on the basis that the pursuer’s unabated judicial account of expenses as intimated to the defenders’ agents totalled £8,349.12, inclusive of VAT. The sum of £2,867.12 was arrived at by then deducting the sum of £5,462 which is the sum which it was agreed would have been the expenses and outlays to which the pursuer would have been entitled in accordance with the voluntary pre-action protocol if the claim had settled without recourse to litigation. It had also cost the defenders additional sums to instruct their solicitors to protect their position procedurally. This had amounted to just over £2,600. The defenders were, therefore, over £5,500 more out of pocket than they would have been had the matter settled without litigation. In this connection, Mr Murray referred to Gibson supra. The further medical evidence had been crucial evidence.
[28] In support of his submissions, Mr Murray also referred to Cornelius v Wendy Beaumont Ltd, Sheriff Braid, Edinburgh Sheriff Court, 11 November 2016 (unreported), at paragraphs 22 and 25, and Devine, supra.
[29] Mr Murray submitted that all three cases to which he had referred had involved some form of delay on the part of the pursuer. The defender in each case had been deprived of an opportunity to settle the claim pre-litigation and had been put to greater expense as a result. He submitted that that had also happened in the present case.
[30] Mr Murray submitted that, through no fault on the part of the defenders in the present case, they were now £5,500 out of pocket. He further submitted that it would be unreasonable to expect the defenders to bear the cost of this. He therefore invited the court to modify expenses by two-thirds, as in Gibson, supra.
Sanction for the employment of junior counsel
[31] Mr Murray’s primary submission was that, if the action had been settled pre-litigation, the employment of counsel would not have been required. Initially, Mr Murray submitted that the case “would” have been capable of resolution. However, when I then reminded him that the issue of contributory negligence had been raised for the first time in the defences, he submitted instead that his position was that, if the medical evidence had been disclosed earlier, it was “likely” that the claim would have been capable of resolution. This was bearing in mind that only two months passed before settlement was reached after disclosure of Mr Reid’s report on 17 January 2017.
[32] Mr Murray told me that his secondary, fall back, submission was that sanction for employment of counsel should be limited to one consultation to discuss the tender and the appropriate level of settlement. He accepted that there had been the complication of the future services claim, but his position was that there had been no benefit to the pursuer in having had counsel draft the initial writ. Liability had been admitted and the contributory negligence argument had been straightforward. It would have been well within the capability of a solicitor to draft an initial writ. The factual circumstances on which the claim had been based were very straightforward. The pursuer had entered a shop and had tripped on a box. The defenders’ position had been that the box of magazines was obvious and that the pursuer ought to have seen it.
Response on behalf of the pursuer
[33] I was reminded by Mr Pilkington that the test in section 108 of the 2014 Act was whether, in all the circumstances of the case, it is “reasonable” to sanction the employment of the counsel. Mr Pilkington had drafted the initial writ. The case was coming up to the time bar; there had been a lot of medical records and information from the Department for Work and Pensions. He had also given advice about further steps that should be taken on behalf of the pursuer. I was reminded that there are now abbreviated pleadings. That had meant that care had had to be taken to aver what was required. A solicitor “could” have drafted an initial writ. However, he submitted that it had been “reasonable” to instruct counsel to draft the initial writ in this particular case. It had been a high value case. The accompanying advice to the agents had included Mr Pilkington raising a number of issues which required attention. There had been a lot of material to read prior to making the averments. Because the averments required to be abbreviated, that meant that they had to be tightly drafted. It sometimes took more skill to draft apparently straightforward pleadings in abbreviated terms.
Discussion and conclusions
Modification of expenses
[34] It is well established the court has a wide and quite general discretionary power to direct that expenses be modified, in the sense of being made subject to restriction, and that modification in this sense may be directed in order to mark the court’s dissatisfaction with, or disapproval of, some aspect of the behaviour of the successful party either as regards the conduct of the litigation or in the matter which gave rise to it: Macphail, supra, at 19.09 and 19.10.
[35] In the present case, the contention on behalf of the defenders was that the litigation had not been necessary because, if the supplementary medical report had been obtained at an earlier stage, it was likely that settlement would have been achieved without the need for litigation. The “delay” in obtaining this report meant that the defenders had been “deprived of a genuine opportunity to settle matters pre-litigation”. This was the conclusion reached by Sheriff McGowan in Gibson, supra. However, that was in quite different circumstances to those in the present case. In Gibson, there had been a deliberate failure by the pursuer’s agents to disclose medical reports as result of which it was clear that the insurers in that case had been deprived of a genuine opportunity to settle the claim pre-litigation. Sheriff McGowan concluded that this failure to disclose medical reports before the action was raised had been unreasonable.
[36] When pressed, it became evident that the conduct which Mr Murray sought to characterise as being “unreasonable” was the pursuer’s agents’ not having requested that Mr Mace see the pursuer again for a supplementary report until 27 September 2016. There was a related complaint that the defenders had only been given a five day period to make a settlement offer when Mr Reid’s report was disclosed to the defenders’ agents on 17 January 2017. However, Mr Murray acknowledged that the triennium had been due to expire on 4 February 2017. His complaint, therefore, went back to the issue of Mr Mace not having been asked to see the pursuer again until 27 September 2016 as that was what had led to the consequent late report from Mr Reid.
[37] Such a complaint might have had some possible force if there had been any enquiry or complaint from or on behalf of the defenders at the time. However, a notable feature of the agreed timeline was the number of letters and emails written by the pursuer’s agents throughout, including the repeated reminders subsequently sent to Mr Reid asking for his report. This was in marked contrast to the lack of communication from or on behalf of the defenders. It was also not clear why, if this had been perceived as being a genuine problem preventing the defenders from attempting to settle the claim pre-litigation, they did not instruct their own report. I, therefore, did not accept that this was a situation similar to that in Gibson where the defenders had been deprived of a genuine opportunity to settle matters pre-litigation. There was also the issue about contributory negligence. This was not raised until defences were lodged. It is, therefore, far from clear that litigation would have been avoided even if Mr Mace had been asked for a supplementary report earlier.
[38] The circumstances in both Cornelius, supra, and Devine, supra, were not in point with the circumstances in the present case either. In Cornelius, the pursuer had chosen not to seek advice on her claim until some weeks before the triennium had been due to expire. Sheriff Braid concluded that it had not been reasonable in the circumstances of that case for the pursuer to have left her claim as late as she did, as result of which the defenders had been given no effective opportunity whatsoever for pre-litigation settlement. In Devine, there had been a conscious decision to withhold medical reports. I, therefore, did not consider that these cases were supportive of the contentions on behalf of the defenders in the present case.
[39] I would add that, in so far as Mr Murray submitted that, “through no fault on the part of the defenders” in the present case, they were now £5,500 out of pocket and that it would be “unreasonable to expect the defenders” to bear the cost of this, I took the view that the correct approach was nevertheless to consider whether there had been some conduct by or on behalf of the pursuer which should be marked by a restriction in the expenses awarded in order to mark the court’s dissatisfaction or disapproval.
[40] In the whole circumstances, I took the view that there had not been conduct of such a nature by or on behalf of the pursuer which would have made modification appropriate in the present case.
Sanction for the employment of junior counsel
[41] I had no difficulty in accepting and preferring the submissions made on behalf of the pursuer to the effect that it would be reasonable to sanction the employment of junior counsel in the present case. This was both as regards difficulty and complexity and as regards importance and value of the claim to the pursuer. It would doubtless, as submitted by Mr Murray, have been within the capability of a solicitor to draft an initial writ in the present case, but I think that it was unfair to suggest that there had been no benefit to the pursuer in counsel having drafted it and, in any event, that is not the test in terms of section 108 of the 2014 Act. Counsel for the pursuer explained the role he had played at that stage, and indeed after that, and I am entirely satisfied that it would be reasonable to grant sanction as a whole and not restricted to one consultation as suggested on behalf of the defenders as their secondary position.
[42] After I had granted the pursuer’s motion, refused to modify the award of expenses and granted sanction for counsel for the cause, Mr Pilkington further moved the court to sanction the employment of counsel for the opposed motion. He submitted that it would be reasonable to do so. The agents had been concerned that, facing a motion for modification and opposition to sanction for counsel, the pursuer might have to meet any shortfall from the award of damages. This would have left “a very large hole” in the damages to be paid to the pursuer. The motion for sanction for counsel in relation to the motion was not opposed.