Scottish Court of Session Decisions

[5] Mr Stevenson, on behalf of the pursuer, opposed the defenders' motion for expenses and moved the pursuer's motion for expenses. He submitted that it was not open to the defenders to rely on a minute of tender which had been withdrawn. Once the minute of tender had been withdrawn it was no longer in process and was no longer open for acceptance.

[6] Mr Stevenson suggested that there was a further complication. The proofs in all three cases had proceeded together. In each of the other two cases the defenders had not resisted the pursuers' motions for expenses. An award of expenses in favour of the defenders from the date of lodging the minute of tender for £15,000 would make the task of untangling the expenses a very difficult one for the auditor.

[7] In relation to the actions of the pursuer and his advisers during the period when the Minute of tender for £15,000 was live, Mr Stevenson submitted that the pursuer had acted reasonably.

[8] The principles underlying the operation of minutes of tender are set out in the following two authoritative passages. In Brackencroft Ltd v Silvers Marine Ltd, unreported, 6 January 2006, a decision of the First Division, the Lord President delivering the Opinion of the Court said:

"In a judicial system where the ordinary rule is that expenses are awarded to the ultimately successful party, it is important that there be in place an established practice which will allow a defender, who does not concede liability but wishes to guard against the risk of being found liable to some extent, to protect his position by making a without prejudice offer to settle the action in a specific sum. In Scotland the principal mode whereby a defender may so protect his position is by the making of a without prejudice judicial tender. At one time such tenders were made on record. That practice has been departed from. A judicial tender is now made by the lodgement, as separate item of process, of a Minute of tender."

In Ferguson v Maclennan Salmon Co Ltd 1990 SC 45 at page 51, Lord McCluskey said:

"The principle must be that if one party makes a judicial offer in clear and unambiguous terms which it is open to the other party to accept, thereby ending the litigation (in whole or in part), and the other party does not accept it, then if, after further litigation, a court makes an award which benefits the non-accepting party to no greater extent than he would have been benefited as by accepting the offer, then, in the absence of other decisive considerations, it is he, not the offeror, who should pay for the unnecessary litigation subsequent to its date."

[9] I do not consider that any difficulties which the auditor might experience in disentangling the expenses because the expenses of this pursuer would be on a different basis from those of the pursuers in the other two cases are matters which I should take into account. No doubt the auditor, applying his considerable skills and experience, would be able to resolve such an issue.

[10] In my opinion no great point of principle arises in the present case. I accept the proposition advanced by Mr Stevenson that once a minute of tender has been withdrawn it not open to a defender to rely on it in the sense that he cannot resurrect the minute of tender and suggest that it was still live at the time of the proof in May 2005. However, as I understood the submissions of Mr Mitchell, that is not what the defenders here are seeking to do. The defenders are asking the court to look back over the conduct of the litigation in order to ascertain whether the pursuer acted unreasonably in failing to accept the tender while it was still live in process. What the defenders are saying is that at a particular point in the conduct of litigation the pursuer acted unreasonably and that that should have a consequent effect upon the question of expenses.

[11] When analysed in this way, the sole question becomes whether the pursuer acted reasonably. At the time when the minute of tender was lodged the pursuer was in possession of medical advice which led his legal advisers to the view that the claim was valued in excess of the sum offered in the minute of tender. When further medical information available to the defenders was disclosed to the pursuer's advisers, it was proper and responsible for them to invite their own expert to access the views expressed by the defenders' expert. Having done that, it seems to me that it was reasonable to place the matter before counsel in order that counsel could review the value of the claim in the light of the latest medical views. The minute of tender was available to those advising the pursuer between 13 September and 7 October 2004. That was a period of just over three weeks. The period from the lodging of the Minute of tender for £15,000 to the proof date was a period of five weeks. In my opinion, looking at the whole circumstances, the steps taken by the solicitors acting for the pursuer in relation to the minute of tender and the defenders' medical information were reasonable. It would be necessary and responsible to obtain the views of their own medical expert and thereafter to have the views of counsel who had been instructed, and would have been preparing for proof, before deciding whether to advise the pursuer to accept the minute of tender.

[12] Having reached the conclusion that the pursuer did not act unreasonably in failing to accept the tender during the period in which it was live, the ordinary rules as to expenses following success apply. The pursuer beat the tender that was live at the time of the proof and accordingly he is entitled to his expenses. Accordingly, I shall make an award of expenses in favour of the pursuer.