Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 35
	OPINION OF LORD KINCLAVEN in the remitted cause DAVID SANDEMAN BOATH Pursuer; against PERTH AND KINROSS COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: McLean, Q.C.; Thorntons

Defenders: Moynihan, Q.C.; Brodies LLP

11 March 2010

Introduction

[1] At the By Order hearing this morning both parties invited me to recall the sist, to make an award in relation to the expenses of process to date, and to re-sist the cause for negotiations.

[2] Counsel very helpfully reminded me about the background to the case and outlined the practical implications of my decision on expenses. Mr McLean, for the Pursuer, provided me with a written "Note of Factual Background" (which I can refer to for its terms) and both counsel addressed me in support of their respective motions.

[3] On behalf of the pursuer, Mr McLean sought an award of expenses in his favour - for reasons foreshadowed in his Note.

[4] On behalf of the defenders, Mr Moynihan moved for an award on no expenses due to or by either party. He suggested that my views in relation to the debate could be translated across to the whole cause. Mr Moynihan also reminded me of the Written Note of Argument which had been lodged by the defenders (No 28 of Process) - which I see reflected in my opinion dated 15 May 2009, [2009] CSOH 66, at paragraphs [77] to [109]. The defenders had succeeded on important points.

[5] I can outline my decision, briefly, as follows.

Discussion

[6] As appears from my earlier opinion, it cannot be said that the pursuer was wholly successful. He was not. The defenders were clearly successful on several important matters.

[7] However I was satisfied that the pursuer achieved what can be described as "substantial success" - in relation to matters which are of considerable importance to him.

[8] In other circumstances, I might have gone on to consider directing that an award of expenses should be subject to modification, for example, by restricting the award by a percentage (in this case a small one) to reflect the fact that the pursuer failed in relation to some important issues - but it was a matter of agreement between the parties that I should not do so.

[9] Whether this case amounted to a "test case" or not is not the determinative issue. Whether the pursuer or the defenders would "win" after proof - is a matter I simply cannot predict. However, it is clear that the case did involve important questions of law. That much appears from my earlier opinion. The issues raised were properly raised. It can also be said that much of the factual and legal background which the pursuer required to cover (in order to succeed in the way in which he did) was also relevant and provided the background to the other issues before me at debate (where the pursuer was not successful). Several concessions were also made (and very properly made) by the defenders. In the result the pursuer succeeded on an important point. He asserted and successfully vindicated a right of importance to him and others. The extent to which I would have modified my finding on expenses to reflect what might otherwise be seen as an element of "mixed success" would still have resulted in the pursuer being found entitled to "substantially all" of his expenses. In that situation (if that were to be my conclusion), both parties were agreed that I should simply make an award in the pursuer's favour in respect of the expenses of process to date.

[10] In the whole circumstances, and exercising my discretion as best I can in the somewhat unusual circumstances of this case (and having regard to the respective submissions and concessions by counsel) I have reached the conclusion that the appropriate course is to refuse the defenders motion and to find the pursuer entitled to the expenses of process to date.

[11] I should record my thanks to counsel for focusing the issues so clearly.

Decision

[12] In short, in the exercise of my discretion, I shall find the pursuer entitled to the expenses of process to date.

[13] On joint motion I shall re-sist the cause for negotiations.