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Scottish Sheriff Court Decisions |
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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Allan v. Jenkins [2003] ScotSC 46 (01 October 2003) URL: http://www.bailii.org/scot/cases/ScotSC/2003/46.html Cite as: [2003] ScotSC 46 |
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SC1953/02
JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the cause
MISS CHRISTINE ALLAN
PURSUERS
against
MR MARK JENKINS
DEFENDER
Act: Mr Stevenson, David C Clapham, SSC.
Alt: Miss P Buchanan, Messrs HBM Sayers, Solicitors.
GLASGOW, 1 October2003.
The Sheriff Principal having resumed consideration of the cause, refuses to answer the question contained in the Stated Case as inappropriate; sustains the appeal; recalls the interlocutor complained of dated 2 April 2003 and reduces the expenses assessed as payable by the defender by 50% in terms of Regulation 14(f) of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993; finds the defender and respondent liable to the pursuer and appellant in the expenses occasioned by the appeal.
NOTE:
[1] Although appeals on the question of expenses are not encouraged this Stated Case raises an important issue of practice. Moreover, the amount of expenses involved in the cause is £1,713.20 which far exceeds the value of the claim itself. I have accordingly no doubt that the appeal merits due consideration.
[2] The case involves a straightforward claim for damages arising out of a road traffic accident. Damages were agreed at £969.99 which, curiously, appears to be more than the sum sued for. The case proceeded to a proof at which absolvitor was pronounced in favour of the defender.
[3] Thereafter the defender's account of expenses, charged under Chapter IV of the relevant Table of Fees, was assessed at £1,713.20 and the matter continued for decree. At that stage the attention of the court was drawn to paragraph 14(f) of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993 as amended. The effect of that regulation is that in a case "of a value of less than £1,000" the fees chargeable shall be reduced by 50% "unless the sheriff, on a motion in that behalf, otherwise directs". Such a motion was made to the sheriff on behalf of the successful defender. He upheld it and directed that the 50% reduction should not apply. He said:
"I considered that the successful defender should not be out of pocket on the basis of a reduction of assessed expenses on a party party basis. A defender if he believes the claim against him to be unjustified has no option but to defend the action. The pursuer who initiates the action does so in the knowledge that he risks a reduction in the expenses in the event of limited success or success for a small sum. The defender in my respectful view is entitled to defend and if successful recover the whole costs of that defence".
[5] On behalf of the pursuer and appellant Mr Stevenson, Solicitor, contended that this observation disclosed no proper basis for a departure from the clear terms of the regulation. He referred to Charles Rogers & Sons v G & H Mullen, 1957 SLT 23 (Lord Blades at p 25) as authority for the proposition that if the court was to depart from the "usual course" in awarding expenses there required to be material upon which that discretionary power should be exercised. What the sheriff had said amounted to an assertion that Regulation 14(f) did not apply to the accounts of successful defenders. That view was plainly wrong.
[6] In reply Miss Buchanan, Solicitor, contended (i) that the sheriff was correct to draw a distinction between pursuers' and defenders' accounts in relation to the application of Regulation 14(f); (ii) in any event he had not acted unreasonably and consequently could not be said to have erred in the exercise of his discretion. Accordingly it would not be proper for an appellate court to interfere.
[7] Dealing with the second of these arguments first, it appears to me that the line adopted by the sheriff in granting the defender's application was one which could be said to be applicable to any summary application in which the defender is successful. That being so, I do not see that it can be regarded as an exercise of discretion, the essence of which involves a distinct judgment on a particular matter. The question therefore resolves itself into the short one of whether Miss Buchanan is correct in her contention which was, in effect, that Regulation 14(f) does not apply to defenders' accounts.
[8] That argument proceeds upon the footing that, as Miss Buchanan put it, "when there is no sum decerned for there is no value". That proposition is reflected in the question posed by the sheriff in the body of the Stated Case which is:
"Should the assessed expenses in this case awarded in favour of the defender be reduced by 50% in terms of Regulation 14(f) by reason of the fact that technically the value of the claim was nil?"
[9] In my judgment the proposition that the cause has no claim is in itself wrong. I do not consider that a claim - particularly one where there is an agreed figure for damages - has no value, or ceases to have a value simply because the defender is not found liable to pay. Further, it is plain from a reading of the General Regulations contained in the 1993 Act of Sederunt that they are intended to apply to accounts of both parties - for example Regulation 9 which deals with a situation where "a party" has been unsuccessful in any particular part of the cause. In a footnote to the Table in Regulation 14(f) it is provided that "value" in relation to any action in which a counterclaim has been lodged is the total of the sum craved in the writ and the sum claimed in the counterclaim. That definition cannot sit alongside the proposition that a case in which the defender is successful has "no value". Read in conjunction with Regulation 2 which provides that the pursuer's solicitor's account shall be taxed by reference to the sum decerned for unless the court otherwise directs, the clear conclusion is that in cases where the defender is successful the level of recovery of his solicitor's account is dealt with by reference to the sum craved. That is the "value" of the action. Regulation 2 protects defenders against the possibility of artificially high levels of expenses resulting from exorbitant claims; treating the amount craved as the value of the cause provides no disincentive to defenders to agree damages as was suggested by Miss Buchanan in the course of argument.
[10] In these circumstances in the absence of reasons particular to the cause for directing that the reduction contained in Regulation 14(f) should not apply it is my view that the sheriff was bound to apply it. The question contained in the body of the Stated Case is not appropriate in respect that it refers to "the fact that technically the value of the claim was nil". The proper question is whether grounds existed for not applying the reduction and in my opinion there were not. It follows that this appeal must succeed, and expenses will follow success.
