Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS   Case Number: SF29/12 2014SCEDIN 9
	Judgment by   SHERIFF PRINCIPAL MHAIRI M STEPHEN   in appeal by   JONATHAN BURNS Pursuer and Appellant   in the cause   JONATHAN BURNS Pursuer and Appellant   against   ROYAL MAIL GROUP LTD Defenders and Respondents   ___________________________

 

 

Act:  Crooks, solicitor, (Bonnar & Co) for the appellant

Alt: Toledo, solicitor (Morton Fraser) for the respondents

 

 

 

 

1. This summary cause action is for damages for personal injury which the pursuer (appellant) sustained on 11 August 2011 in the car park at the Ability Centre, Carmondean, Livingston.The averments are simple and straightforward.The pursuer says that the defenders’ vehicle was parked and stationary in the car park.As the pursuer walked past the stationary vehicle, the driver, who is the defenders’ employee, reversed the vehicle and struck the pursuer causing the injuries narrated in paragraph 5 of the statement of claim.The pursuer clearly restricts his claim to solatium and the services rendered to him in the immediate aftermath of the accident.He is careful to given proper specification of the medical treatment he required and how the injury affected him.The pursuer makes clear the legal basis for his claim namely that the defenders are vicariously liable for the fault and negligence of their employee driver, D Crew.

    

2. The action was lodged at Livingston Sheriff Court on 10 December 2012;warranted a few days later and served on the defenders shortly after that. The return day in terms of Summary Cause Rule 4.5(6) is 21 February 2013. This is the last day on which the defenders may return a form of response to the court.If the defender does not lodge a form of response on or before the return day the action proceeds under Chapter 7 of the Summary Cause Rules as an undefended action and the pursuer may minute for decree prior to the calling date (7 March 2013).The sheriff may grant decree with expenses against the defender (Rule 7.1(7) of the Summary Cause Rules 2002).

    

3. This is a personal injury action.Chapter 34 of the Summary Cause Rules applies if a form of response is lodged.A timetable is prepared setting out the important steps of process which the parties must adhere to prior to proof which is also fixed in the timetable.

    

4. On 19 February 2013 the defender enters the process by lodging Form 10(a) (form of response) with defences attached together with a minute of tender offering to settle the action on payment of £750 to the pursuer together with the expenses of process.The defences do not advance matters either for the pursuer or the court.Little is admitted apart from the defenders’ designation;jurisdiction and that the driver is an employee of the defenders.The averments of fact as to the mechanics of how the accident occurred and loss and injury are not known and not admitted. Otherwise there is a denial with no explanation or indication of the defenders’ position on either liability or quantum.

    

5. The stated case records that the action had, in effect, settled prior to the date fixed as the calling day (7 March 2013) which was discharged once defences were lodged in accordance with Chapter 34 procedure.The cause called before the sheriff on 21 March 2013 on an incidental application by the pursuer for decree in terms of the minute of tender and acceptance thereof.

    

6. On 21 March 2013 the information set out in this preamble was available to the sheriff prior to the incidental application calling.At first blush, this seems a relatively positive outcome.The action has settled very early in proceedings and parties are spared the expense of following the procedure required of them by Chapter 34 - the “guided tram rail” procedure, as I might call it - being the equivalent of the case flow management procedure adopted in the Court of Session by Chapter 43 procedure and in ordinary procedure in the Sheriff Court by Chapter 36.This procedure requires both parties to prepare and meet certain steps of procedure with a view to limiting the issues for proof;agreeing what can be agreed – all with the purpose of encouraging efficiency and early settlement under the court’s oversight.

    

7. Now emerges the issue which brings this positive state of affairs to an abrupt end.The pursuer’s motion is opposed and the hearing continued for written submissions to be lodged.Submissions and supplementary submissions together with authorities were lodged and that, taken along with the sheriff’s retirement from the bench, led proceedings to be delayed until 21 August 2013 for the sheriff’s decision.By contrast there had been no delay in acceptance of the tender.The defenders opposed an award of expenses on the summary cause scale applicable to a defended action.They oppose on the basis that the “pursuer’s conduct of the litigation had been such” that the sheriff should exercise his discretion to modify the award of expenses from the defended to the undefended summary cause scale.

    

8. On the face of the pleadings and procedural history it is difficult to find anything adverse to say about the pursuer’s conduct of his case.Nevertheless, when addressing the sheriff the pursuer’s solicitor was able to say more about the pre-litigation phase of his claim for damages.The sheriff helpfully records the timetable at pages 3 and 4 of the stated case.To summarise, the accident occurs on 11 august 2011;the pursuer’s solicitor intimates a claim to the defenders on 8 December 2011 and seeks the defenders’ agreement to proceed on the basis of the voluntary pre-action protocol.Apart from a formal acknowledgement the pursuer’s solicitor got nowhere substantially with the defenders who failed to communicate about the claim and failed to confirm that the claim could be handled in terms of the protocol.The pursuer provides further information and a sketch of the locus.On 6 June 2012 the pursuer requests an indication from the defenders on liability (as a matter of urgency).No response comes and the pursuer raises this action approximately six months later.

    

9. The defenders’ opposition to an award of expenses in the normal manner relates to a period of approximately one month commencing 16 January 2013.On that date, the defenders make an informal offer to settle for the principal sum of £750 together with expenses on the undefended summary cause scale.That offer was rejected as regards both principal sum and expenses. A counter proposal is made of £1,100 together with summary cause expenses.The defenders reject the counter proposal and the original (unacceptable) offer is renewed which was, once again, rejected during a telephone call between the parties’ solicitors.During that telephone call there was discussion of the pre-litigation issues and the offer on expenses.There was an indication that the defenders might offer by way of expenses the equivalent of the protocol fees despite the defenders’ failure to deal with the claim under the protocol.Subsequently, the offer of £750 together with the undefended summary cause fees was repeated for a third time and for the third time rejected.All these negotiations were conducted over a period of four weeks all prior to the return date.The defenders rely on this period of failed attempts at settlement as the justification for pointing to the pursuer’s unreasonableness in the conduct of this litigation.The pursuer decided to accept a like amount when it was tendered formally on 19 February.As the stated case narrates:-

   “Because of this, the litigation was unnecessarily prolonged.  By not accepting the offer the action had become defended and the only benefit of the prolongation of the litigation was an increased award of expenses.”

    

   Thus the defenders’ position is that the expenses to be awarded to the pursuer should be modified to summary cause expenses on the undefended scale on account of the unreasonableness of the pursuer’s conduct in refusing the extra-judicial offers.  The defenders argue that the pursuer had no good reason to refuse the offers as can be seen by his acceptance of the same amount once tendered.

    

10. Having heard parties at some length and having considered the submissions the sheriff issued his interlocutor on 21 August 2013 inter alia granting decree in favour of the pursuer for the sum of £750 together with expenses modified to the summary cause undefended scale thus acceding to the defenders’ opposition.His reasons are given in the note attached to the interlocutor.The pursuer appeals that decision.

     

    APPEAL

11. I heard this appeal on 30 January 2014.Mr Crooks presented submissions on behalf of the pursuer and appellant under three headings:-
    1. The sheriff misunderstood and misapplied the material facts and thus erred by exercising his discretion on expenses in an unreasonable manner.There was no basis to justify departure from the normal rule on expenses.

        

    2. The sheriff misdirected himself in law in stating that undefended summary cause expenses were all the pursuer was entitled to at the stage the extra-judicial offer was made.As a matter of law the pursuer was entitled to judicial expenses in a defended summary cause.

        

    3. The sheriff erred by failing to take into account a relevant consideration namely that the defenders could have lodged a tender to protect their position on expenses earlier in proceedings and certainly at the same time as the informal offer or offers were made.

        

       Mr Crooks argued that I should answer all questions of law in the affirmative and allow the appeal quoad expenses.

        

12. The defenders and respondents were represented by Ms Toledo.She conceded, and properly so, that the pursuer in this action was justified in raising these “proceedings” (compared with the circumstances in McIlvaney v A Gordon & Company Limited [2010] CSOH 118).She adopted the reasoning of the sheriff who, in his note sets out the parties competing submissions carefully and gave his well-reasoned decision after due consideration of all the facts and circumstances together with the authorities.His reasoning can be found at paragraphs 33 to 44 of the stated case.Ms Toledo emphasises the discretionary nature of the sheriff’s decision on expenses and the restricted role of the appellate court in appeals against such decisions.In essence the sheriff was correct in concluding that the pursuer acted unreasonably in refusing the defenders’ offer of £750 and thereby prolonging the litigation.

     

13. The sheriff referred to certain authorities which had been cited to him during submissions.These authorities were also referred to in the appeal:-Shepherd v Elliot (1896) 23R 695; Calder v Rush 1970 SLT (Sh Ct) 51;McIlvaney v Gordon (supra);Campbell v Gallagher (an unreported decision of Sheriff Principal Lockhart dated 13 March 2012);Moloney v Royal MailLimited (an unreported decision of Sheriff Douglas Brown at Hamilton on 9 July 2012).Additionally, Mr Crooks referred to Davies v Sabre Insurance (an unreported decision of Sheriff Foulis 27 June 2012) and Brown v Sabre Insurance (unreported decision of Lord Boyd of Duncansby April 2013).Mr Crooks also referred to the Report of Scottish Civil Courts Review and the Voluntary Pre-action Protocol.

     

14. Following parties’ submissions I decided to give an ex tempore decision after considering the argument and authorities.I did so for a number of reasons:-

    Firstly – the point on appeal is essentially a short point – had the pursuer’s conduct of the litigation been unreasonable with the result that the litigation was prolonged such as to justify modification of the pursuer’s expenses in terms of the tender?  Did the sheriff therefore err in the exercise of his discretion in modifying the award of expenses in terms of the tender to the summary cause undefended scale?

     

    Secondly – as these are summary cause proceedings I was keen to give parties a decision without further delay aware that some considerable time and procedure had already been devoted to the question of expenses in this modest claim.  I allowed the appeal principally due to the error of law manifest in paragraph 40 of the stated case.  In my opinion the sheriff erred (1) in stating that the action was undefended and (2) in deciding that all the pursuer was entitled to by way of expenses was undefended expenses.  It is, in my opinion, almost tautologous that a sheriff determining expenses on a minute of tender and acceptance of tender is determining expenses in a defended cause.  His analysis of prior but recent extra-judicial negotiations has to be considered in the context of this being the earliest possible stage of a defended action.  A full written judgment has been requested.

     

    DECISION

15. The sheriff’s decision on expenses involves the exercise of discretion.It is well recognised that a judge or sheriff has a wide discretion as to expenses in any cause.

     

16. The principle governing an award of expenses is generally taken to be that expenses follow success.The rule is not a hard and fast one and there can be variances depending on the nature of the litigation; evaluation of success and an analysis of the ebb and flow of the litigation.McLaren states the principle at page 21:

    “The principle upon which expenses are awarded is, that if any party is put to expense in vindicating his rights, he is entitled to recover it from the person by whom it was created, unless there is something in his own conduct that gives him the character of an improper litigant, in insisting on things which his title does not warrant.”

     

    This statement follows from the decision in Shepherd v Elliot 1896 23R 695.

     

17. The role of the appellate court in appeals involving discretionary decisions is well established and conveniently set out in Macphail on Sheriff Court Practice Chapter 18 particularly paragraphs 18.110 to 112.The appellate court is only entitled to intervene if in exercising his discretion the sheriff got it plainly wrong or misdirected himself in law or when conducting the “balancing exercise” had regard to facts or circumstances which were irrelevant or he failed to give due weight to a matter which was material or relevant.The law as to the function of the appellate court is well known and well established.Lord President Cooper in Howitt v W Alexander and Sons 1948 SC 154 considers the role of the appellate court in appeals involving expenses and has the following to say:-

    “An award of expenses according to our law is a matter for the exercise in each case of judicial discretion, designed to achieve substantial justice, and very rarely disturbed on appeal.”

     

    Accordingly, it is well recognised that the sheriff’s discretion includes modification or departure from the normal rules on expenses.  However, there must be material which justifies the departure from the normal rule that the successful party is entitled to his or her expenses in raising court proceedings.  The sheriff is entitled to take account of the conduct of the parties prior to and in the course of litigation (McIlvaney v A Gordon Company Limited (supra) and Campbell v Gallagher (supra)).

     

18. Before I leave McLaren on expenses at page 4 the author describes expenses as “being merely accidental to a cause”.The author makes that observation in the context of emphasising the discretionary nature of the judge’s decision on expenses.It does not mean that the crave is of little importance, rather that the crave for expenses stands alongside the principal crave or craves on the merits of the cause.In an ordinary civil action the expenses form a separate crave.In summary cause procedure expenses follow the claim or order sought.It goes without saying that expenses are important to any party in court proceedings.The expenses are of particular importance to pursuers in personal injury actions. This is likely to be the pursuer’s only involvement with the civil courts and anxiety about expenses is recognised.It is also well recognised and a source of complaint that the level of expenses recovered by the successful party in a judicial account or assessment is but a percentage of the actual fees incurred by the client to his solicitor.In low value cases the award of expenses is often disproportionate both in importance and value compared to the sum sued for as damages.Recovery of a modified amount of expenses may completely erode any damages recovered once the pursuer pays his solicitor’s fees.It is well known that in personal injury litigation many cases proceed on a “no win no fee” basis.The pursuer in such cases relies not only on the agreement of his solicitor to proceed on this basis but also on the solicitor’s experience and skill in assessing the prospects of success and re-assessing once defences are lodged.

     

19. In the present case if the question is asked - who caused the litigation?The answer is straightforward.The defenders have caused the litigation and I say that firstly, from the point of view of who is alleged to have caused the accident and secondly, it is clear that the appellant is not only justified in raising proceedings in the sheriff court but had little option but to raise proceedings given the defenders’ failure to treat or negotiate the claim pre-litigation.The defenders were silent on all aspects of the case both liability and quantum.The defences when lodged are skeletal. But for the tender this summary cause action would have been allocated a proof on both liability and quantum.

     

20. In my view, the sheriff makes an error in law in paragraph 40 in respect that he refers to the proceedings as an undefended cause.He does so in the context of characterising the pursuer’s behaviour in rejecting the informal extra-judicial offer as “unreasonable”. The sheriff sets out his reasoning as follows:-

    “40.   What I have to do, therefore, is consider whether the Pursuer’s refusal of the offer was reasonable.  The answer to that question must be that it was not.  The ‘rights of the parties’ (Shepherd v Elliot) are that the Pursuer is entitled to £750 in reparation from the Defenders, along with whatever legal expenses to which he was entitled as a matter of law.  The £750 was being offered.  The action was undefended.  Undefended expenses were being offered.  That was all by way of legal expenses to which the Pursuer was entitled at that stage.  Nothing fell to be achieved by further prolonging the litigation other than an enhanced award of expenses”

     

    In asserting that the action was undefended when the pursuer rejected the informal offer and that undefended expenses was all that the pursuer was entitled to at that stage he not only misdirects himself in law but expresses a misconception as to the provisions on summary cause fees.  In the context of dealing with an incidental application for decree in terms of a minute of tender and acceptance that is plainly wrong.  It is a fiction.  The sheriff was clearly dealing with a defended cause and to seek to apply the part of the Act of Sederunt dealing with the undefended summary cause expenses is, in my opinion, a complete misconception of the purpose of Part I of Chapter IV of the Act of Sederunt and also I suggest incompetent.

     

21. The 1993 Act of Sederunt dealing with fees for solicitors in the sheriff court makes provision for summary cause expenses at Chapter IV. There are several parts to that chapter depending on when the action was raised and the nature of the action.Only Part I deals with undefended actions.It is also necessary to look at the Summary Cause Rules 2002 especially Rule 7 which deals with undefended actions as I have already observed.Part I of Chapter IV makes provision for fees to cover what the pursuer is entitled to charge for when no defence or response is lodged and the pursuer is therefore entitled to minute for and obtain an undefended decree in absence.In these circumstances, a pursuer is entitled to minute for decree for the sum craved (or such other lesser sum as the pursuer considers proper) together with expenses of £X as stated in Part I.This part of Chapter IV has no effect whatsoever beyond that.There is no provision for a “settlement fee” to which a party is entitled if the cause settles either by extra-judicial offer or by tender.Part I is not a different scale of charge from the other parts of Chapter IV. It is in effect simply that part of Chapter IV which deals with decrees in absence.It is therefore incorrect to refer to Part I as an undefended scale.It is no such thing. It provides for the fee applicable to undefended decrees or decrees in absence. In my view, it is incompetent to modify the expenses of a defended action by purporting to limit a party to Part I expenses.The defenders in this action, and indeed, any defender, have a choice.If he wishes to settle an action and protect his position on expenses he can make an extra-judicial offer or lodge a minute of tender.He can only be certain of limiting his liability for expenses if he lodges a tender.Either way, the action becomes defended and it matters not whether the settlement is achieved by formal or informal means.The important issue being that the action then becomes a defended action.On the other hand, if the defender wishes to restrict a pursuer to Part I summary cause expenses he can stay out of the action in which case the pursuer may minute for decree, mostly likely for the sums sued for, but will be restricted to Part I expenses.In the circumstances of this case the lodging of the tender with the note of response effectively settled the action and limits the expenses.This has been done at a very early stage in proceedings and, leaving aside the opposition to the incidental application, further expense and procedure has been avoided.There has been no need to consider productions, witnesses, valuation and prepare for proof which, after all, is the expensive or business end of any court proceedings.

     

22. I turn to the issue of reasonableness. It is necessary to look at paragraph 40 again.The sheriff states that the question he has to consider is whether the pursuer’s refusal of the offer was reasonable.He proceeds to the conclusion that the answer to that question must be that it was not.The sheriff takes the view that refusal of the informal offer prolonged the litigation in order to achieve an enhanced award of expenses.The sheriff fails to take account of the reasonableness of the pursuer’s position with regard to raising proceedings;his co-operation with the defenders following service of the summons by providing the medical evidence and he failed to have regard to the importance of the award of expenses to a pursuer in Mr Burns’ situation.Judicial expenses, if awarded on the usual party party basis cover only a percentage of the fees incurred by the client to his solicitor.Any shortfall may have to be met from the principal sum.That is a matter between the solicitor and client. If judicial expenses are further restricted as the defenders clearly seek to do then the successful pursuer in a low value claim will understandably lose confidence in our system of justice if the purpose in raising proceedings is significantly eroded.Pursuers will be reluctant to litigate as the risk will be disproportionate to the limited recompense.It is proper for the court to recognise circumstances which will operate as a real impediment to access to justice.Accordingly, in my view, the pursuer was completely justified in regarding his expenses crave or claim as an important component in his case along with the damages offered.When the defenders made the extra-judicial offer with undefended expenses he was at no risk as regards expenses. Standing the defenders’ failure to negotiate, the pursuer had little option but to raise proceedings. He is entitled to judicial expenses on settlement whether by extra-judicial offer or tender.On any view it is difficult to understand how his conduct can be considered unreasonable.The pursuer in any personal injury case requires to prepare on both the merits and quantum prior to commencing the action.This involves expense and outlays to medical witnesses.If the sheriff’s approach is correct then the pursuer will not recover these costs if he accepts an offer immediately following service of the summons.In any event the suggestion that the litigation was prolonged is somewhat illusory.Had the defenders wished to formally protect their interests and expenses a tender could have been lodged at any time following the service of the summons.They did not do that.Once the tender was lodged the pursuer made a decision on the tender promptly. The pursuer was entitled to know what the defenders’ position might be with regard to liability and quantum.The informal offers had been made without prejudice and without admission of liability.When a defender has failed to correspond or negotiate during the pre-litigation process, a pursuer is entitled to know precisely what the defenders’ position might be on liability and quantum as stated in the defences together with any admission or explanation about the circumstances of him becoming injured.That is important when considering any offer to settle.In the light of defences he is entitled to weigh up, with the advice of his solicitors, what course he should take.If a tender is lodged he must consider that without delay as he does in this case.Until a tender is lodged there is really no protection for the defenders or imperative for the pursuer on expenses.To regard this as an undefended action is, as I have said, a fiction.In my view, the pursuer’s behaviour in this case is beyond reproach.He is entitled to raise proceedings and likewise he is entitled to know whether his action is to be defended and if so on what basis.

     

23. The sheriff also erred by taking account of the reported offer of “protocol” level of expenses on the one hand whilst at the same time treating as irrelevant the pursuer’s submission that the court should consider the pre-litigation history of the case when considering the question of expenses.The sheriff deals with the protocol fee at paragraph 41 and has this to say:-

    “What makes the position of the Pursuer even more unreasonable is the fact that the Protocol fee was on offer, a sum considerably greater than even the defended level of expenses.  This was a remarkably generous offer on the part of the Defenders.  It is difficult to understand why the Pursuer did not accept it.  He will be very considerably out of pocket as a result.”

     

    It appears that there was discussion on the telephone about settling for protocol expenses.  This offer was not put in writing by the defenders and in any event the pursuer would not have been minded to accept.  In paragraph 38 the sheriff rejects the pursuer’s point that the entire history of the claim is relevant.  He was wrong to ignore the pre-litigation history (See McIlvaney).

     

24. In the second paragraph of page 14 of the stated case the sheriff rejects the pursuer’s argument with regard to judicial expenses.The paragraph is difficult to follow. However the sheriff’s insistence that the pursuer’s entitlement, on a negotiated extra-judicial but post litigation settlement, would only be to undefended expenses is an error.This is not only manifestly inequitable it is plainly wrong.When an action settles by way of a tender or by way of an extra-judicial settlement it is a defended cause.Part III of Chapter IV deals with personal injury actions.The fees for settlement on tender and extra-judicial settlement are set out at paragraph 16.It follows that the conclusion which the sheriff reaches on the question of the reasonableness or otherwise of the pursuer’s conduct discloses an error of law. His failure to take account of the relevant factors for the pursuer;the weight he places on irrelevant factors such as the discussion regarding protocol fees;the error in categorising an negotiated settlement of the action as “an undefended cause”;and the sheriff’s failure to take into account the pre-litigation history of the case all point to the sheriff having erred in his approach to the balancing exercise when considering the question of reasonableness in the context his decision on expenses.

     

25. The proposition advanced on behalf of the defenders that the appellant’s unreasonable conduct justified the sanction of modification of his entitlement to expenses is disingenuous.Modification to undefended expenses is, in my view, wrong and I suggest incompetent.Part I of Chapter IV is not a different scale but instead is intended to deal with fees chargeable for an undefended cause or decree in absence which these proceedings are not.The arguments advanced in this appeal are the same arguments that were successfully advanced in Moloney v The Royal Mail Group Limited.If the motion for modification or abatement is intended to erode the successful pursuers’ entitlement to judicial expenses that would be a matter of concern.The courts have a legitimate interest in addressing not only unnecessary and precipitate commencement of litigation but also the mischief which arises when a pursuer is forced to litigate by defenders who decline to engage in any meaningful pre-litigation negotiation.As I have mentioned, expenses are a matter of importance to any party.The impact which expenses have on access to justice is recognised.In personal injury actions defenders tend to be insurers or, as in the present case, self-insuring organisations.The pursuers are individuals experiencing in the main their only involvement in the court system.When a successful pursuer fails to recover his judicial expenses this will have a negative impact on access to justice.It is an important principle that a successful pursuer is entitled to his expenses unless there are proper grounds for depriving him of part of them.Discretion on expenses must be exercised judicially that is based on facts which justify any modification.For the reasons I have given I am satisfied that there was no justification for modification and that the sheriff erred in the exercise of his discretion.

     

26. I will mention the voluntary pre-action protocol in personal injury cases.The protocol has been lodged as an authority on behalf of the appellant. The purpose and aim of the protocol is to provide a framework in which cases might settle without litigation.It is now common for parties to lodge protocol correspondence in court proceedings usually relating to the matter of expenses.The protocol has been noted as reflecting good practice by the Scottish Civil Court Review and that Review recommended that the protocol should become compulsory.In the present proceedings, the protocol did not apply as the defenders did not agree to negotiate on the basis of the protocol.They were silent on that matter.Lord Boyd of Duncansby discussed the protocol in the case of Ross Brown v Sabre Insurance Company Limited an unreported decision on 25 April 2013.I agree with the observations made.The administration of justice has an interest in ensuring that, where possible, these claims settle without recourse to litigation.If litigation is required the case flow management procedures in the Court of Session and Sheriff Court provide an effective procedure for resolving or adjudicating litigation.However, the voluntary pre-action protocol is not central to the issues in this case.The pursuer’s offer to negotiate on the basis of the protocol is an important factor in the pre-litigation history.The defenders’ failure to engage with the pursuer’s agents whether on the basis of the protocol or not is another important factor.I accept that a defender who does not agree to negotiate on the basis of the protocol should, as matters stand at present, not carry a penalty as a result.Accordingly, the protocol is a factor but not a decisive factor in these proceedings.What is important is that the court is entitled to look at the pre and post litigation actings of the parties in determining questions relating to expenses.In McIlvaney Lord Tyre considers the question of pre-litigation conduct and offers made pre-litigation.Pre-litigation conduct is therefore an important and relevant factor which the sheriff ought to have regard to.

     

27. I considered the authorities mentioned by the parties.I did not derive great assistance from the recent authorities.Each case turns on its own facts.In McIlvaney the issue is whether the litigation was commenced unnecessarily.The answer on the facts of that case was clear.The action was not justified in light of the pre-litigation offer.The pursuer’s representatives were dissatisfied with the defenders attitude to the payment of their fee.In McIlvaney Lord Tyre deals with pre-litigation offers and takes account of pre-litigation conduct as a relevant factor.In the present appeal the sheriff was critical of the pursuer’s submissions on the pre-litigation history.He was wrong to focus solely on the pursuer’s decision to refuse the offer in January 2013 to the exclusion of the pre-litigation history of conduct by both parties.In Campbell v Gallagher Sheriff Principal Lockhart considered the same issue.On the facts of that case he found that the pursuer had not acted unreasonably in raising proceedings.In this case the sheriff relied on the decision of the Sheriff in Moloney v Royal Mail Group Limited.In Moloney the same defenders represented by the same solicitors advanced the same argument to justify modification from the judicial scale to the undefended scale in a summary cause personal injury action.In that case there is no narrative of pre-litigation conduct.The sheriff modified the successful pursuer’s entitlement to expenses.It follows that I consider that Moloney was wrongly decided also.Modification to what is said to be the undefended scale misunderstands the Act of Sederunt on Solicitors Fees.It is not a separate scale. It is for a discreet part of an undefended action.If modification is justified then, in my opinion, that modification should be reflected in a percentage reduction in the parties’ entitlement to expenses.Modification by assessing them on a part of the Summary Cause Chapter of Fees which relates to decrees in absence is unintelligible.

     

28. Accordingly, I will allow the appeal and recall that part of the sheriff’s interlocutor which purports to award expenses on the undefended scale.It was agreed that as regards the appeal expenses should follow success and I will award the expenses of the appeal to the pursuer.