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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gorman v. Hughes [1907] ScotLR 44_309 (15 January 1907)
URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0309.html
Cite as: [1907] SLR 44_309, [1907] ScotLR 44_309

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SCOTTISH_SLR_Court_of_Session

Page: 309↓

Court of Session Inner House First Division.

[Single Bills.

Tuesday, January 15. 1907.

44 SLR 309

Gorman

v.

Hughes.

Subject_1Expenses
Subject_2Modification
Subject_3Jury Trial in Court of Session
Subject_4Verdict for £10 where £250 Claimed — Pursuer Aware that Damages could not Amount to £25.
Facts:

A pursuer raised an action in the Court of Session for £250 in name of damages sustained by his being run over by the defender's motor car. The jury awarded him £10.

The Court, on the defender's motion, modified the pursuer's expenses to one-half of their taxed amount, holding (1) that the pursuer was bound to have

Page: 310↓

known that under no possible circumstances could he obtain a verdict for even £25, and (2) that the defender was fairly entitled to maintain that he was not in fault.

Observed by the Lord President—“I see no reason for dissenting to what is laid down in the case of Ridley v. Kimball & Morton, May 23, 1905, 7 F. 655, 42 S.L.R. 559, that the special circumstances of each case must be considered. Farther, in a motion of this sort, the Court is entitled to be enlightened by the judge who presided at the trial as to what these circumstances were. I say this with a view to future practice.”

Headnote:

On 10th July 1906 Frederick L. Gorman, spirit salesman, Glasgow, raised an action of damages in the Court of Session against George Hughes, wine and spirit merchant, Glasgow, in which he claimed £250 as damages. He averred, inter alia, that while cycling on Great Western Road, Glasgow, he was suddenly knocked down by a motor car belonging to the defender and seriously injured; that he required medical attendance, and was unable to follow his occupation; and that the cost of repairing his bicycle was over £5.

The case was tried before the Lord President and a jury. The facts on which the pursuer's claim was based appear from the Lord President's opinion.

The jury awarded the pursuer £10. The defender, who denied that he was in fault, had made no tender.

The pursuer having moved the Court to apply the verdict and find him entitled to expenses, the defender maintained that no expenses should be allowed.

Argued for defender—The action should have been brought in the Sheriff Court, as it must have been perfectly obvious to the pursuer that under no possible circumstances could he have obtained a verdict even for £25. Accordingly, the pursuer's right to expenses was limited by the Sheriff Court scale. Against these, however, the defender was now entitled to set off the extra unnecessary expense he had been put to in the Court of Session, with the result that the expenses to which the pursuer was originally entitled were entirely wiped out— Wilkie v. Alloa Railway Company, December 3, 1884, 12 R. 219, 22 S.L.R. 166.

Argued for pursuer—The defenders had made no tender. The pursuer was therefore entitled to expenses without modification— M'Gilp v. Caledonian Railway Company, October 26, 1904, 7 F. 4, 42 S.L.R. 33; M'Daid v. Coltness Iron Company, Limited, November 4, 1904, 7 F. 32, 42 S.L.R. 50; Ridley v. Kimball & Morton, Limited, May 23, 1905, 7 F. 655, 42 S.L.R. 559. Section 40 of the Court of Session Act 1868 (31 and 32 Vict. c. 100) implied that a verdict for £5 or over carried expenses.

 Judgment:

Lord President—This is a notice of motion to apply the verdict in a case in which Frederick Gorman was pursuer and George Hughes defender, the case being an action of damages by a cyclist for injuries caused to him by being run over by the defender's motor car. The action concludes for £250; a verdict was returned for £10; and the defender, who has nothing to say against the verdict being applied, submits that full expenses ought not to be awarded, on the ground that the action was not appropriate for the Court of Session, and was only made competent by the pursuer concluding for a sum entirely incommensurate with what he could hope to get. A case of Ridley v. Kimball & Morton, 7 F. 655, was cited to us, and I see no reason for dissenting to what is there laid down, that the special circumstances of each case must be considered. Further, in a motion of this sort the Court is entitled to be enlightened by the judge who presided at the trial as to what these circumstances were. I say this with a view to future practice. In the present instance I myself happened to be the presiding judge, but it might be otherwise, and the judge who presided might not be one of the Division before whom the motion is made. It was urged that the case was an appropriate one for jury trial, and the investigation as to the facts was by no means easy. That, though true, is not relevant to the question; what is important is the sum which the pursuer thinks he ought to recover by way of damages. I need scarcely say that if there was any likelihood of the pursuer being able to recover a sum greater than the limit below which actions are not allowed in the Court of Session, we should not be inclined to take a critical view of the matter, but if the pursuer knowingly comes into Court well aware that he has no chance of getting a sum equal to that limit, a different question arises. In such circumstances a pursuer has no business to come to the Court of Session. A decision of the Second Division ( Wilkie v. Alloa Railway Company, December 3, 1884, 12 R. 219, 22 S.L.R. 166) was quoted to us which virtually amounts to that; undoubtedly it is often difficult to estimate the amount of damages to which a pursuer may fairly be entitled, but, having been the presiding judge at the trial, I have no hesitation in saying that this pursuer was bound to know that under no circumstances could he have got £25. His bicycle could have been repaired for 35s. Moreover, I do not think, as regards the bicycle, the claim made was an honest one. The pursuer no doubt had a bad fall, as he was thrown on the hard pavement, but no limbs were broken, and no shock or permanent injuries sustained. He was out of employment for only about a week, and none of these things could have justified him making a claim for £25. I think in such circumstances he had no business to come here. The justice of the case will, I think, be met by modifying the expenses to one-half.

It is said by the pursuer that the defender might have lodged a tender. Decree, after a tender has been put in and accepted, is pronounced on the assumption that the defender is in fault, and in this case I think the defender was entitled to say that he

Page: 311↓

was not in fault at all. That question therefore does not affect the matter which I have already dealt with.

Lord M'Laren—After hearing your Lordship's exposition of the facts I am satisfied that the defender might fairly maintain that he was not liable on the question of fault, and that on no reasonable estimate of its value was the case worth more than £25. It is provided by statute that cases below the value of £25 are to be brought in the Sheriff Court. But we can only imperfectly apply the rule, for in many cases we do not, when the action is initiated, know the real worth of a claim of damages. There are many cases, however, where a pursuer must know the extent of his claim, and in this case the pursuer could not conscientiously say that his claim of damages was worth more than £25. That being so, he can only justify his coming here by a preference for the Court of Session. It would not be convenient that expenses should be taxed on the Sheriff Court scale, and we do not have the machinery for doing so. I think, therefore, we may modify the pursuer's expenses to one-half of the taxed amount as your Lordship proposes.

Lord Kinnear—I agree.

Lord Pearson—I also agree.

The Court found the pursuer entitled to one-half of the taxed amount of his expenses.

 Counsel:

Counsel for Pursuer— Wilton. Agent— C. Clarke Webster, Solicitor.

Counsel for Defender— Hunter, K.C.— Constable. Agents— Simpson & Marwick, W.S.

 1907

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