[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Montgomery v RGC (Offshore) Ltd [1999] ScotCS 238 (14 October 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/238.html Cite as: [1999] ScotCS 238

[New search] [Help]

On 14 October 1999 I refused part of a motion which had been enrolled on behalf of the pursuer. The part which I refused was in these terms:

The pursuer has now reclaimed against this refusal.

This is an action of reparation in which the pursuer originally concluded for damages of £20,000 in respect of vibration white finger allegedly sustained by him in the course of his employment as a grinder with the defenders. The claim was for solatium only. The summons was signetted on 8 September 1998 and after sundry procedure the record closed on 23 December 1998. On 11 February 1999 a proof before answer was allowed and in due course a diet was fixed for 6 July 1999 and three ensuing days. The proof did not proceed because the action was settled. The part of the motion which I have refused arose from the circumstances of the settlement.

On 7 April 1999 a Minute for the pursuer was lodged, in terms of which he offered to settle his action on the basis of payment by the defenders to the pursuer of the sum of £4,000 exclusive of C.R.U. recoupment together with expenses as taxed in full of the conclusions of the summons. The solicitor advocate for the pursuer informed me that this Minute was intimated by fax to the defenders' agents on 2 April 1999. On 11 June 1999 the defenders' agents intimated their agreement to settle the action at £4,000 and the action was settled on that basis. A Joint Minute was lodged on 11 October 1999 stating that the action had been settled extra-judicially and craving the Court to certify a Professor Belch as a necessary expert medical witness for the pursuer who examined the pursuer and reported, to find the defenders liable to the pursuer in the expenses of process as taxed and quoad ultra to assoilzie the defenders from the conclusions of the summons. On the same date a motion was enrolled on behalf of the pursuer and in respect of this Joint Minute to interpone authority thereto, to certify Professor Belch as a necessary expert medical witness for the pursuer and to find the pursuer entitled to an additional fee etc, in terms which I have already quoted. The latter part of the motion was opposed. I heard the solicitor advocate for the pursuer and counsel for the defenders on the opposed part of the motion on 13 and 14 October 1999. (I note that a formal interlocutor dated 13 October 1999 has been omitted from the reclaiming print.)

Rule of Court 42.14 provides that an application for the allowance of an additional fee shall be made by motion to the Court, that the Court may, on such application to it, inter alia determine the application itself, and in determining whether to allow an additional fee, the Court shall take into account any of certain enumerated factors which include "(g) the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing". The solicitor advocate for the pursuer sought to justify the motion for an additional fee under reference to sub-paragraph (g) on the grounds that the pursuer had lodged the Minute on 7 April 1999. This he submitted was a formal step of process which was the mirror image of a Minute of Tender. He referred to Cameron v Kvaerner Govan Limited 1999 SLT 638 in which Lord Bonomy had allowed an unopposed motion for an additional fee. The pursuer in that case had tendered a Minute at the court offices, offering to settle the action for £5,000, but the Minute was refused as incompetent. The action having settled by way of Minute of Tender and Acceptance at the sum of £5,000, the pursuer enrolled a motion for an additional fee and to allow the Minute to be lodged in process. Lord Bonomy held that the absence of a specific rule authorising a Minute by the pursuer did not render such a Minute incompetent, that any step which might clarify the position of a party in a reparation action, or limit the areas of dispute between the parties, or focus the issues between them more clearly, should be encouraged, and the Minute was clearly identifiable as a document which might achieve these objects. The solicitor advocate invited me to follow the same course. He submitted that while the lodging of a Minute was not a necessary step of process, because the offer could have been made extra-judicially, the lodging of the Minute in process rendered the offer formal. The defenders could simply have lodged a Minute of Acceptance, and this would have been contractually binding on the parties.

The solicitor advocate went on to say that this was a very straightforward action. There were no problems about quantum. The case was eminently capable of much earlier settlement. The purpose of the Minute was to focus on what would be acceptable to the pursuer. The present motion depended on the Minute. In any action, the successful party did not recover all the expenses incurred by him, when expenses were awarded on a party and party basis. An award of penal interest was not available. The purpose of the motion was to benefit the client. If I was not prepared to award an additional fee for this purpose, I should award expenses on an agent and client basis, which was a competent way to proceed. Either course would constitute a sanction, which required to be appropriate, effective and to the benefit of the pursuer, the party who had made the offer. The solicitor advocate added that sub-paragraph (g) of the Rules had been criticised as somewhat indefinite. It had however been accepted that it was in itself a penalty, different in nature from the sub-paragraphs (a) to(f).

Counsel for the defenders, in opposing the motion for an additional fee, pointed to the absence of reliance on sub-paragraphs (a) to (f) and to the simplicity of the case. The case was less than usually complicated. If I allowed an additional fee, the uplift would be on all the fees: the Auditor would choose a percentage applicable to all. There was no good reason why the solicitors should be entitled to charge more because of the simple feature of having lodged the Minute. The offer to settle was no more than an offer - a disclosure of what the pursuer would take. It ought not to be regarded as an unusual feature. The Court was in effect being asked to make a penal award. If however a tender had been lodged, the normal consequence of failing to accept it was a simple award of expenses.

Counsel submitted that this was a simple case of vibration white finger, in respect of which only solatium was sought. There was never any question of wage loss. The documents were minimal. No substantial delay had taken place following the pursuer's offer to settle in April 1999. The pursuer had raised the action with medical evidence in place. Following the offer, the defenders had the pursuer examined by an expert on 3 May 1999. Following receipt of the expert's report and consideration thereof by those acting for the defenders, the defenders had on 11 June 1999 agreed to settle the action at £4,000. Counsel submitted that Campbell v Kvaerner Govan Limited was only of limited assistance. An offer to settle was not that unusual and gave rise to no additional responsibility on the pursuer's agents. To the extent that Lord Bonomy might have thought an offer to settle to be definitive, I should not follow him. So far as the alternative part of the motion was concerned, counsel again submitted that there was nothing unusual in the circumstances of the present case to justify departure from a normal award of expenses.

In reply to these submissions, the solicitor advocate for the pursuer said that the medical evidence had been disclosed at the commencement of the case and that the defenders could have had the pursuer medically examined at any time over the period of one year. (He did not explain how this period was calculated). If there had been a settlement in May 1999 he would not have been moving the motion. He sought a sanction of the same kind as arose from the late acceptance of a tender.

I can state my reasons for refusing the motion quite briefly, as I did at the time. I am prepared to proceed on the basis that, as was held by Lord Bonomy in Cameron v Kvaerner Govan Limited, the lodging in process of a Minute offering to settle an action is competent. What effect the Minute then has is a question of the circumstances of the particular case. For present purposes, I do not regard the lodging of a Minute as such to be of particular significance. A pursuer's willingness to settle at a particular figure can just as well be communicated in a letter which states that it will be founded on if the offer is not accepted within a reasonable time. In Cameron v Kvaerner Govan Limited Lord Bonomy concluded by saying that in view of the unusual steps those acting for the pursuer took to promote settlement of the action, he found the pursuer entitled to an additional fee in terms of sub-paragraph (g) of the Rule. If the lodging of the Minute was the only factor that led him to this view, I must respectfully differ from him. The lodging of the Minute is in itself no more than a formality, and its effect requires to be considered in the context of the whole circumstances of the case. I do not consider that, even if there were justification for imposing some kind of penalty or sanction on defenders for having unreasonably delayed in accepting an offer, an award of an additional fee would be appropriate. If there has been unreasonable delay, then the appropriate course appears to me to make an award of expenses against the party who has delayed. These need not be on the usual party and party basis, but may be on the basis sought in the alternative part of the motion. It should be borne in mind, however, that an award of expenses against a pursuer who delays unreasonably in accepting a tender is normally on a party and party basis; and the attempt by the solicitor advocate for the pursuer to equiparate the present Minute with a Minute of Tender, does not appear to me to point to the result he contended for. In any event, even if an additional fee may in some circumstances be justified if defenders delay unreasonably in accepting an offer to settle, having regard to the information provided by counsel for the defenders I do not regard the delay in the present case as having been unreasonable. For the reasons I have given, I am not persuaded that it would be appropriate to do other than make a straightforward award in favour of the pursuer of the expenses of process, as agreed in the Joint Minute.

The grounds of appeal were lodged before I prepared this Opinion, and in preparing it I have attempted to take account of them.