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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gunn and Others (Owners and Crew of "Sea King") v. Hunter and Others (Owners of "Lora") [1886] ScotLR 23_395 (17 February 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0395.html Cite as: [1886] ScotLR 23_395, [1886] SLR 23_395 |
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Page: 395↓
Before an action (for salvage) was raised the defenders had without prejudice offered £50 to settle the claim. This had been refused, and the action brought. The defenders renewed on record their offer of £50, but without offering expenses. After a proof had been fixed the pursuers put in a minute accepting the offer of £50. Held ( diss. Lord
Page: 396↓
Shand, alt. judgment of Lord Trayner, who found no expenses due) that the pursuers, by reason of their refusal to accept before going into Court the sum which they ultimately accepted as sufficient, were responsible for the litigation, and were therefore liable in expenses to the defenders.
This was an action arising out of salvage services rendered by the steam trawler “Sea King” to the s.s. “Lora.” The pursuers were William Gunn, the owner, and others, the crew who were on board the “Sea King” at the time the services were rendered, and they concluded against William Hunter and others, the owners of the “Lora,” for £150.
Before the action was raised the defenders on 1st December 1885 wrote to the pursuers offering £50 in full of all claims, “but this offer is not to be founded on if rejected.” This was refused on 7th December by the pursuers, who intimated that they would not take less than £90, with £3, 3s. of expenses, and on 12th December the summons was served.
The defenders in their defences offered £50 (under reservation of their whole pleas) in settlement of the pursuers' claims. There was no offer of expenses.
On 19th January 1885 the record in the action was closed, and a proof fixed for 17th February. On 30th January the pursuers lodged a minute accepting the judicial offer, and co die the Lord Ordinary (Trayner) in respect of this minute discharged the order for proof and decerned against the defenders for £50. He found no expenses due to or by either party.
The defenders reclaimed on the question of expenses, and were heard in the Single Bills. They argued that as before any expense had been incurred they had offered just what the pursuers ultimately accepted, and as they had repeated this offer on record, they should be found entitled to expenses— Owners of the “Vulcan” v. Owners of the “Berlin,” July 6, 1882, 9 R. 1057; Critchley v. Campbell, Feb. 1, 1884, 11 R. 475; Bilsborough v. Bosomworth, Dec. 5, 1861, 24 D. 109.
The pursuers replied—The Court was here asked to interfere with what the Lord Ordinary had done in the exercise of his discretion. This would not be done without showing reason. The Lord Ordinary considered that the right of the pursuers to get expenses incurred prior to the judicial offer would be balanced by the defenders' right to get expenses subsequently, and therefore had found no expenses due. The defender here had not made any proper tender— Little v. Burns, Nov. 16, 1881, 9 R. 118. In the “ Vulcan's” case ( supra) the point had not been argued.
At advising—
But the present case does not fall under either of these rules, for there are these peculiarities, (first) that there was here an extra-judicial offer of £50, which was rejected by the pursuers, and then the action was raised. If that offer had not been repeated on record, then that extra-judicial offer would have flown off altogether—that is to say, there would no longer have been an existing tender—and the defender would have come in pleading on the merits of the case that he was entitled to absolvitor, and taking up the position that he was not liable to pay anything. In that case the defenders would have taken the full benefit of all his pleas and might have been assoilzied, but then the question of expenses would have been determined as it has been here.
But when the extra-judicial offer is repeated on record, that shows that the defenders were throughout, from the time the claim was made, or rather from the commencement of the extrajudicial negotiations, down to the termination of the case, and have always been, willing to pay the sum of £50 in settlement of the pursuers' claim.
That is a totally different case from either of those two which I have adverted to. It appears to me that the conduct of the defenders has been so reasonable that, considering the pursuers have only got the sum tendered, the defenders are entitled to expenses.
But here I think the principle of judicial tender is applicable. If the defender, when the case comes into Court, makes an offer without expenses, that cannot be held to put him in the position of claiming expenses. But, on the other hand, if an extra-judicial offer previously made has been refused, and expense thereby occasioned, and if the defender in his defences repeat the offer originally made, and this is ultimately accepted by the pursuer, then as the expense has been caused by the pursuer the defender is entitled to get expenses.
In the cases to which we were referred the question was considered, whether an extrajudicial offer should be taken into account at all in dealing with expenses. In Ramsay's Trustees v. Souter, March 19, 1864, 2 Macph. 891, it was thought competent. And the same view was taken by Lord Deas in the case of Little v. Burns, supra.
I think that for a very long time the effects of judicial and extra-judicial tenders have been well known and recognised by the profession, and that the effect of altering the judgment of the Lord Ordinary would be to unsettle the rules which have been so recognised. In the case of extra-judicial offers the Court has reached this result,
Page: 397↓
On the other hand, a judicial tender, in order to be looked at, must be accompanied by an offer of expenses. There was no such tender here. The offer though repeated, was not accompanied by an offer of expenses, and if the defenders are well founded in saying that that repeated offer was sufficient to entitle them to expenses, I do not see why the argument should stop there. I think that the same legal consequence would follow if the defenders offered the same sum, less the expenses which they have incurred owing to the pursuers' conduct. The argument for the defenders would be as strong in this case as in the other.
That, I think, would introduce extreme looseness in practice, and in my opinion it would be better to adhere to the established rule. Therefore, though the Court may look at an extrajudicial offer as bearing on the conduct of the parties, I think that a tender must be irrespective of what has been done before, and must be accompanied by an offer of expenses.
I think that we should follow the course taken in Critchley v. Campbell, and that we should adhere to the interlocutor of the Lord Ordinary.
One thing is quite clear, that the pursuers by bringing and insisting in this action have gained nothing; they have got just what they would have got if there had been no proceedings at all, and so the pursuers are the parties who have caused all the expense. I should have thought it unfortunate if in such circumstances there had been a rigid rule of practice to prevent our taking that fact into consideration.
This case is certainly to be distinguished from one in which an extra-judicial offer has not been renewed, and for this obvious reason, that if the defender does not renew his offer, he then goes into Court and takes his chance of getting off altogether, or of being found liable for a less sum than that which he offered. But here the offer which was made was renewed on record, and was before the pursuer for acceptance throughout. That I think is quite distinguishable from a case where there has been an extra-judicial offer not renewed.
The Court recalled the interlocutor of the Lord Ordinary in so far as it found no expenses due to or by other party, and found the defenders entitled to expenses.
Counsel for Pursuers— Salvesen. Agents— Beveridge, Sutherland, & Smith, S.S.C.
Counsel for Defenders— Dickson. Agents— Macrae, Flett, & Rennie, W.S.
