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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hylands v Glasgow City Council [2008] ScotCS CSOH_69 (13 May 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSOH_69.html Cite as: [2008] CSOH 69, [2008] ScotCS CSOH_69 |
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OUTER HOUSE, COURT OF SESSION [2008] CSOH 69 |
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PD56/08 |
OPINION OF LORD DRUMMOND YOUNG in the cause ANN CATHERINE HYLANDS Pursuer; against Defenders: ________________ |
Pursuer:
McConnell; Thompsons
Defenders: Cleland;
G. Lindsay, Edinburgh City Council
13 May 2008
[2] The
basis for the motion was that the sum accepted by the pursuer in terms of the
tender and acceptance was less than the limit of the privative jurisdiction of
the sheriff court. The privative
jurisdiction of the sheriff court, fixed by section 7 of the Sheriff
Courts (
[3] The significance of the privative jurisdiction of the Sheriff Court was explained in two cases, McIntosh v British Railways Board, 1990 SC 339, and Coyle v William Fairey Installations Ltd, 1991 SC 16. In the first of these cases the First Division considered a motion that an action should be remitted to the sheriff court. Lord President Hope stated (at 343):
"The privative jurisdiction of the sheriff court is defined by reference to a particular sum of money, so that everyone knows that all causes not exceeding that sum in value must be brought in the sheriff court. All causes exceeding that sum in value may be brought either in the Court of Session or in the sheriff court at the option of the pursuer ....
In this situation the proper approach to [the section permitting a remit] seems to us to be that, except in extreme cases, the fact that the claim is small and straightforward is not enough to justify a remit to the sheriff court. By extreme cases we mean cases where it is obvious from the pleadings, whatever may be the sum sued for, that on no possible view could the pursuer recover more than the upper limit to the privative jurisdiction of the sheriff court. If this is the case, then the action is plainly appropriate for the sheriff court, because it ought not to have been raised in the Court of Session at all. But if the pleadings show that the pursuer could possibly recover more than the upper limit then the action should be regarded as appropriate for the Court of Session unless some other factor is present which shows that the nature of the particular case is such that it is appropriate for it to be dealt with in the sheriff court".
The Lord President then referred to the availability in the Court of Session of jury trial and the optional procedure for reparation actions; these were not available in the sheriff court. He continued (at 344):
"It is not right that litigants should be deprived of these advantages just because their claims are small and simple, so long as they are claims which can competently be made in this court. The smaller and simpler the claim that more force that is in the point, in the general public interest, that they should be dealt with as quickly as possible in the court which is best able to achieve this result. Procedure by way of summary cause in the sheriff court is cheap and simple, but a pursuer under that procedure cannot recover more than the upper limit in value for actions for payment of money, currently £1500 exclusive of interest and expenses. This makes it unsatisfactory for actions of reparation where a pursuer might possibly recover more than that amount, which is no doubt why actions of reparation are not often brought under that procedure".
In relation to expenses, the court's view was as follows (at 345),
"Nothing in what we have said so far is intended to restrict in any way the power of the court to modify an award of expenses to a pursuer at the end of the case. A pursuer who raises his action in the Court of Session and seeks to take advantage of the practices and procedures of this court must take account of the risk that if the sum which he recovers is small he will be confined to expenses on the sheriff court summary cause scale or on the sheriff court ordinary court scale with or without sanction for counsel according to the circumstances ... At this stage, when all the facts are known and all imponderables are out of the way, the court can reflect its view as to whether in the event the sheriff court was the appropriate court for the determination of the case. It does so with the advantage of then knowing the result, which is an advantage not usually enjoyed by the pursuer's advisers at the start of the case. This is a valuable safeguard in the defenders' interest against their being exposed to claims in this court where the awards are trivial in relation to the expenses".
[4] In Coyle v William Fairey Installations Ltd, the question that arose was whether expenses should be modified. The approach taken in McIntosh was followed; the court stated (at 1991 SC 19):
"The proper approach ... is that in respect of actions brought in the Court of Session the court should determine whether the initial choice of that forum was justified in all the circumstances of the case known to the pursuer's advisers when the action was raised, having regard to the high level of costs likely to be incurred by bringing an action there. The court's judgment on that matter may be assisted by a consideration of events which have occurred subsequent to the date on which the choice was made, including the very important consideration of the result of the case; but the result, particularly if it is one which is achieved by settlement, does not necessarily resolve the issue whether the initial choice of forum was inappropriate on the grounds that the value of the claim was not commensurate with Court of Session expenses. For example, a pursuer might well agree to a settlement at a figure substantially less than that at which a claim had been properly valued, in order to avoid a prolonged period of delay and uncertainty, or because further information had come to light of which the pursuer's advisers were justifiably unaware when the action was commenced".
[5] The result of McIntosh and Coyle is accordingly that, if the sum recovered by the pursuer is small, that is a factor that the court may take into account in determining whether expenses should be awarded on the Court of Session scale or one of the sheriff court scales. The argument for restricting expenses to a sheriff court scale is obviously particularly strong when the sum recovered is below the level of the privative jurisdiction of the sheriff court, because in such a case the action should not normally have been raised in the Court of Session at all. Nevertheless, the level of recovery is not conclusive; if it appears that the sum ultimately recovered was the result of a settlement designed to resolve delay or uncertainty, or because further information had come to light as the action proceeded, it might be appropriate to award expenses at the Court of Session level. Likewise, as pointed out in McIntosh, the court may have regard to specific advantages of Court of Session procedure, notably the existence of jury trial and special procedures available under the Rules of Court for the expeditious disposal of reparation actions. In view of those advantages, it will usually only be in cases where the pursuer falls short of the privative jurisdiction of the sheriff court by a substantial margin that expenses will be modified.
[6] Since McIntosh and Coyle were decided, Chapter 43 of the Rules of Court has come
into operation. This has provided
significant advantages for litigants in personal injury actions, and it is
clear that such cases are now disposed of more quickly and more cheaply and was
formerly the case. In view of the
advantages of the Chapter 43 procedure, Outer House judges have in recent
years been more reluctant than formerly to modify expenses because the pursuer
has recovered a small amount. Thus in
[7] In Hunt v British Bakeries Ltd, 2005 SCLR 178, the pursuer accepted a
tender of £1,450, slightly below the limit of the privative jurisdiction
of the sheriff court that was then in force.
Lady Smith refused a motion to modify expenses. She pointed out (at paragraph [9]) that,
when a case was likely to fall not far outwith the privative jurisdiction, it
did not require to be raised in the sheriff court, and did not require to be
raised as a summary cause. In addition,
it appeared that the action was likely to settle, which meant that the Chapter 43
procedure was important; no cogent
argument was advanced to the effect that a similar efficiency and expedition
would have been achieved in an ordinary cause in the sheriff court, or that an
ordinary cause would have cost less.
Lady Smith concluded (at paragraph [12]) by pointing out that
the wider issue of whether straightforward, small value personal damages claims
should as a matter of principle be litigated in the Court of Session was not
addressed. Finally, in Galbraith v First
[8] Thus
the introduction of the Chapter 43 procedure appears to have brought about
a change in the practice of the Court; it
has become relatively unusual for expenses to be modified even where the
damages accepted by a pursuer are relatively modest. That practice has proceeded, however, on the
basis that the privative jurisdiction of the sheriff court is £1,500. In Benson
Judge Reid expressly referred to the possibility that the privative
jurisdiction might be raised if it were thought desirable to keep claims of low
value out of the Court of Session. The
limit of the privative jurisdiction has now been raised by a substantial
margin, to £5,000, under the Sheriff Courts (
[9] The latter change is significant. If an action proceeds as a summary cause in the sheriff court, the procedure is informal and expeditious. Rules 8.2 and 8.3 of the Summary Cause Rules 2002 provide that in every defended action a hearing is to be heard on the calling date, at which the sheriff is to ascertain the factual basis for the action and any defence and the legal basis on which the action and defence are to proceed. The sheriff is also directed, by Rule 8.3(2)(b), to seek to negotiate and secure settlement of the action between the parties. If he is unable to do so he must identify and note the issues of fact and law which are in dispute and note any agreed facts. He may further proceed to an immediate hearing on issues of law. On that basis it seems that the Summary Cause Rules are well directed towards securing an agreed settlement at a very early stage of proceedings. Moreover, Chapter 34 of the Summary Cause Rules makes specific provision for actions of damages for personal injury; this part of the Rules has no equivalent in ordinary cause procedure. Chapter 34 provides for a short and simple form of summons and the lodging along with the summons of the pursuer's medical reports and a statement of valuation of claim (Rule 34.2). If the defender wishes to defend the action he must complete and lodge a form of response giving notice of the grounds of fact and law on which he intends to resist the claim, together with a brief statement of the facts upon which he relies. Thus the procedure that is available in personal injury actions under the Summary Cause Rules is designed to identify any issues in dispute at an early stage, to provide a valuation of the claim at an early stage, and to achieve a settlement, if that is possible, at an early stage. Those are precisely the advantages of the Chapter 43 procedure in the Court of Session.
[10] I was also provided with information about the level of fees likely to be incurred in a personal injuries action in the Court of Session and a personal injury claim that proceeds as a summary cause in the sheriff court. It is not necessary to go into the figures in detail; I was satisfied that the level of expenses in a summary cause is substantially less than that found in the Court of Session.
[11] The clear intention underlying the legislation increasing the privative jurisdiction and the financial limit for summary causes is that claims of small value should proceed as summary causes in the sheriff court and not in the Court of Session. In my opinion those changes have important implications for the level of expenses that may be recovered in the Court of Session. It seems to me that the approach to the modification of expenses laid down in McIntosh and Coyle must once again receive full effect. While a judge dealing with a motion for modification of expenses has a discretion, it is a major factor in the exercise of that discretion that the level of damages ultimately awarded or accepted fell significantly below the level of the privative jurisdiction of the sheriff court. That factor is not conclusive for the reasons set out in paragraph [5] above; nevertheless, it seems to me that it is important. Moreover, the financial limit for summary causes has been increased, and in such cases a simple and expeditious procedure is now available under the Summary Cause Rules. In these circumstances I am of opinion that the advantages of the Chapter 43 procedure are unlikely to be material in a case where the award is significantly below the level of the privative jurisdiction. Finally, the increase in the privative jurisdiction is a clear indication that claims for relatively small amounts are not appropriate for jury trial. That is no doubt justified on the basis that a jury trial is a relatively costly and time-consuming procedure, the costs in question comprising not only legal expenses but also the services of members of the public.
[12] For the reasons stated, I am of opinion that since the increase
in the privative jurisdiction of the sheriff court the expenses awarded to a
pursuer who recovers a sum significantly below the limit of the privative
jurisdiction should normally be modified to the summary cause scale without
certification for counsel. Exceptions
may exist, such as where the pursuer's claim raises an issue of fact or law of
some difficulty, or where some unforeseen factor has arisen as the action
proceeded, or where it appears that the pursuer has accepted a compromise
figure to avoid the delays and uncertainties of litigation. Likewise, if the pursuer does not fall below
the level of privative jurisdiction by a significant margin, it can normally be
inferred that it was reasonable to raise proceedings in the Court of Session.
Because in a summary cause the damages awarded may not exceed £5,000, if
there is a realistic possibility that a greater sum might be awarded the choice
is between the Court of Session and ordinary cause procedure, and in those
circumstances the advantages of the Chapter 43 procedure and the
possibility of jury trial may be significant, as accepted in, Wilson, Benson, Hunt and Galbraith.
[13] In the present case, the pursuer has accepted a tender of £2,500. In my opinion that is significantly below the
level of the privative jurisdiction, and in the absence of special
circumstances I would consider it appropriate to grant the defenders' motion to
modify expenses to the summary cause scale without certification for
counsel. It was not suggested that the
present case was one of particular difficulty, or that the settlement was the
result of unforeseen circumstances, or that the pursuer accepted a figure well
below what the claim was truly thought to be worth; nor was it suggested that there were any
other exceptional circumstances apart from the specialty discussed in the next
paragraph. Consequently, were it not for
that specialty, I would have granted the defenders' motion.
[14] The specialty is that the present action was raised immediately
following the increase in the privative jurisdiction. On
[15] In my opinion the pursuer is correct in submitting that the
reasonableness of any particular form of proceedings must be tested at the date
when those proceedings were raised. In
the present case, the raising of proceedings involved two stages: the signeting of the summons and its
subsequent service. The summons was
signeted three days after a second rejection of the pursuer's claim by the
defenders. In view of the two rejections
of the claim, I am of opinion that it was reasonable to begin an action
immediately. The increase in the
privative jurisdiction was due to come into effect four days later, with the
consequences described above, but it is unrealistic to expect that those
responsible for the formal steps of court procedure would have that in mind
when they had the summons signeted following the rejection of the pursuer's claim. When the summons was signeted the privative
jurisdiction was £1,500. It was not
disputed that the pursuer was likely to recover a sum in excess of that amount,
and in fact she did so. Consequently
summary cause proceedings would not have been appropriate, and the choice was
between an action in the Court of Session and a sheriff court action proceeding
as an ordinary cause. In those
circumstances Court of Session procedure had the advantage of the Chapter 43
procedure; the ordinary cause procedure
did not have any equivalent of Chapter 34 of the Sheriff Court Rules or Chapter 43
of the Rules of Court. Jury trial was
also a possibility in the Court of Session.
In the light of those advantages of Court of Session procedure, it had
been recognized in a series of cases,
[16] Once the summons was signeted, the pursuer was committed to proceedings in the Court of Session. In theory the pursuer's agents, noticing that the privative jurisdiction had been increased, might have taken no further steps with the signeted summons and instead raised summary cause proceedings in the sheriff court. That would, however, involve wasting the work that had been done, and it assumes that the significance of the increase in the privative jurisdiction should have been noticed. In all the circumstances it does not seem realistic to expect that Court of Session proceedings should have been terminated after the summons had been signeted. I am accordingly of opinion that it was reasonable for the pursuer's agents to continue with the Court of Session action by serving the summons, notwithstanding the increase in the privative jurisdiction.
[17] The defenders' argument was based on the proposition that an
action is "commenced" at the date of service. It seems clear that that is the normal rule; that appears from paragraph 6.06 of
Lord Macphail's work on Sheriff Court Practice, and it seems correct in
principle, since it is only at service that a defender is convened. It follows that it would have been
incompetent to raise an action in the Court of Session concluding for less than £5,000
at the time when the present action was commenced. Nevertheless, the present action was not
incompetent, because the conclusion was for more than that amount. The sanction for raising an action for an
amount that truly falls below the limit of the privative jurisdiction lies in
expenses, or possibly a remit to the sheriff court. In the present case any sanction would have
taken the form of modified expenses. For
the reasons already stated, I am of opinion that the pursuer's agents acted
reasonably in the steps taken to initiate the present action. In those circumstances I decline to exercise
the court's jurisdiction to modify the pursuer's expenses. I would emphasize, however, that that
decision is made in the very specific circumstances of the present case, which
arise out of the increase in the privative jurisdiction. If similar facts were to occur in future, I
am of opinion that in the absence of special circumstances it would be
appropriate to modify the pursuer's expenses.