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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v. M'Phun [1895] ScotLR 32_471 (23 May 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0471.html Cite as: [1895] ScotLR 32_471, [1895] SLR 32_471 |
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Page: 471↓
A workman was offered £50 as compensation for injuries sustained by him in the course of his employment. The offer was made without prejudice, and under reservation of the employer's whole rights and pleas, but if not accepted was to be founded on in any action the workman might bring. The workman refused the offer and brought an action of damages. The employer in his defences stated that an offer in the above terms bad been made and declined, but the offer was not renewed on record. The pursuer was awarded a sum of £40 by a jury.
The Court (following Critchley v. Campbell, February 1, 1884, 11 R. 475) found neither party entitled to expenses.
Opinion by Lord Young that the rule of Court in the matter of tender was unsatisfactory and should be altered.
On 15th October 1894 William Miller, while in the employment of J. P. M'Phun, timber merchant, Glasgow, and engaged at building operations carried on by his employers, was injured by the fall of a crane.
On 20th December Mr M'Phun's agent wrote to Miller's agents offering £50 in full of all claims by Miller on account of the accident. The offer was made without prejudice and under reservation of Mr M'Phun's whole rights and pleas, but if not accepted was to be founded on in any action Miller might bring. The offer was refused by Miller's agent.
Thereafter Miller raised an action of damages against M'Phun in the Sheriff Court at Glasgow, concluding for £500 at common law, or alternatively for £70, 4s. under the Employers Liability Act.
In his defences M'Phun stated that an offer in the terms above stated had been made and declined, but the offer was not formally renewed.
The case was appealed to the Court of Session for jury trial. At the trial a jury found for the pursuer and assessed the damages at £40.
Both parties claimed expenses.
Argued for the pursuer—No offer had been made judicially or accompanied by an offer of expenses. There was therefore no tender. The case was distinguished from Critchley v. Campbell, February 1, 1884, 11 R. 475, where the claim was for a liquid amount, whereas in the present case the claim was in respect of personal injury the extent of which had not been ascertained at the date of the offer.
Argued for the defender—The narration of the offer on record coupled with the denial of the necessity of the action was tantamount to a judicial repetition of the offer— Gunn v. Hunter, February 17, 1886, 13 R. 593. The action had been raised and continued solely owing to the pursuer's refusal to accept a larger sum than was ultimately awarded to him, and was an unnecessary litigation— Mavor and Coulson v. Grierson, June 16, 1892, 19 R. 868. In any event the pursuer was not entitled to expenses— Critchley v. Campbell, supra.
At advising—
But in this case I am unable to see that the defender placed himself in that position, for on his record he did not take the course of repeating his offer in name of damages and tendering expenses of process up to that date. The case therefore cannot be held to fall under any decision except that of Critchley v. Campbell. In that case before the action was raised an offer was made of a sum down larger in amount than the pursuer afterwards got decree for, and because the offer was not repeated on record the Court held that it was not a case in which expenses should be given to the pursuer, and found neither party entitled
Page: 472↓
I do not think that the rule of this Court in the matter of tender is very satisfactory, and I think it would be well if it was altered, even although it might require legislation to do so. It presents this feature, which is very awkward. A party tenders a sum of money. The tender is not accepted, and the case goes to trial. The battle between the parties is whether anything is due at all or not, and the defender who has made the offer puts in a plea that the Court should hold that nothing is due by him. But he fails, and something is found to be due to the pursuer. Yet in such circumstances the defender, who was entirely unsuccessful in his plea, gets all the expenses of the controversy. That is not satisfactory to my mind. The rule which prevails in England with regard to expenses in such cases is more satisfactory. According to that rule, where a defender has made a tender by paying money into Court, his liability is admitted up to that amount, and the only question remaining to fight about is whether or not the pursuer has suffered damage in excess of that sum, and he only receives expenses if a further sum is awarded to him, otherwise he is liable for the expenses incurred.
I make these observations as there have been indications of a desire on the part of Judges in the other Division of this Court to modify the rule which prevails in Scotland, and I think it is desirable that it should be altered either by Act of Sederunt or if necessary by Act of Parliament.
The Court found neither party entitled to expenses.
Counsel for the Pursuer— Watt— Orr Agent— George Inglis Orr, S.S.C.
Counsel for the Defender— Jameson— Moncreiff. Agents— Drummond & Reid, S.S.C.
