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Scottish Sheriff Court Decisions
You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> Dacre v. Aberdeenshire Council & anor [2007] ScotSC 42 (22 August 2007)
URL: http://www.bailii.org/scot/cases/ScotSC/2007/42.html
Cite as: [2007] ScotSC 42

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

 

A1204/03

 

 

 

JUDGMENT

 

of

 

SHERIFF DOUGLAS J CUSINE

 

 

 

in the cause

 

 

 

ARTHUR DACRE

 

 

 

 

 

PURSUER

 

 

 

against

 

 

 

 

 

ABERDEENSHIRE COUNCIL

 

 

 

 

 

FIRST DEFENDERS

 

AND

ENNSTONE THISTLE LIMITED

 

SECOND DEFENDERS

 

 

 

 

 

 

 

 

 

Act:

SMITH     

Alt:

STEWART     

 

 

 

 

ABERDEEN, 22 August 2007.

 

The sheriff, having resumed consideration of the cause, Sustains the third plea-in-law for the first defenders and the fourth plea-in-law for the second defenders and assoilzies them from the craves of the Initial Writ; Finds the first defenders liable in expenses to the second defenders; Finds the first defenders liable to the pursuer in the expenses of the cause to the date of tender and the first defenders entitled to expenses against the pursuer thereafter; Allows an account of said expenses to be given in and remits the same, when lodged, to the auditor of court to tax and to report.

 

 

 

 

 

NOTE:

 

[1] On 30th June 2000, the pursuer was injured when his motor cycle skidded on the B977 Kintore to Lyne of Skene road, Aberdeenshire. The first defenders, as the roads authority, were responsible for maintenance and repair of the road. The first defenders had entered into a contract with the second defenders to carry out surface dressing of the road.

 

[2] An action was raised by the pursuer against the first and second defenders in June 2003, a tender of £25,000 was made on 7th August 2006 and that tender was accepted in July of 2007.

 

[3] The pursuer was represented by Mr Smith and the first and second defenders by Mrs Stewart.

 

[4] Mr Smith, for the pursuer, submitted (a) that the first defenders should be made liable for the expenses of the second defenders, and (b) that the pursuer should be entitled to expenses down to the date on which the pursuer accepted the sum tendered.

 

[5] Mrs Stewart submitted (a) that decree of absolvitor should be granted in favour of the first defenders with expenses against them in favour of the pursuer to the date of the tender and that the pursuer should be liable for the expenses thereafter, and (b) that the pursuer should be found liable for the expenses of the second defenders.

 

[6] Mr Smith advised me that there had been correspondence between the pursuer's solicitors and the insurers for the first defenders between March 2001 and January 2003, during which time the first defenders were claiming that liability for the accident lay not with them but with the second defenders. In 2003, the pursuer had raised an action against both defenders and Mr Smith's position was that that was a prudent course of action, given that the second defenders were being blamed by the first defenders but neither was admitting liability. It was not until 2004 that the first defenders admitted that the second defenders had not done any work on the road at the time of the pursuer's accident. That, however, had not been admitted on Record; rather there was a general denial by both defenders. The action was sisted in September 2003, the sist being recalled in January 2007.

[7] In support of his proposition that the first defender should be liable for the second defenders' expenses, Mr Smith cited Mitchell v Redpath 1990 SLT 459, an Outer House decision of Lord Weir. In that case, Lord Weir stated the general rule, namely that where a pursuer convenes two defenders and one is assoilzied, the pursuer should be made liable for expenses of successful defender and that the unsuccessful defender should not be so liable. However, as his Lordship pointed out, that general rule did not apply where the first defender induced the pursuer to convene a second defender, the question being, "Whose fault was it that the additional defender was brought into court?" In that case, his Lordship held that there was nothing in the first defenders' averments which should have caused the pursuer, as a matter of tactics, to call the second defenders. The case against each defender was different, and the first defender had no averments of fault against the second defenders.

 

[8] Mr Smith sought to distinguish Mitchell on the basis that in the present case, the first defenders initially blamed the second defenders for the accident and that is reflected in the pleadings.

 

[9] So far as the pursuer's entitlement to expenses is concerned, Mr Smith's position was that the pursuer could not be expected to accept the tender when his solicitors required a medical report in order to determine whether the sum offered was reasonable. Mr Smith advised me the pursuer had been examined by an orthopaedic surgeon on 4th July 2006, but despite assurances from him and his secretary that a report would be produced, none was. It was until May of 2007 that it was clear that the report would not be forthcoming, at which point another report was instructed and once that second report had been received, the pursuer had been advised to accept the defenders' tender, and had done so. The problems with the first report had been drawn to the attention of the defenders by the pursuer's solicitors. In that connection, Mr Smith referred to MacPhail on Sheriff Court Practice, 3rd edition, paragraph 14.45 and the case of Smeaton v. Dundee Corporation 1941 SC 600.

 

[10] Mrs Stewart, for the first and second defenders, was not critical of the pursuer's decision to bring in the second defenders, but she advised that the first defenders had written to the pursuer's solicitors on 8th January 2004 advising them that the second defenders had no involvement in repairing the road at the time of the pursuer's accident. She submitted that the norm was that the pursuer should pay the second defenders expenses because these defenders had been successful, and that should be done in this case.

 

[11] So far as the first defenders' liability for expenses in connection with the tender were concerned, she referred to MacPhail on Sheriff Court Practice, 3rd edition, paragraphs 14.45 and 14.51. Her position was that the norm was that expenses should be granted against the first defenders in favour of the pursuer down to the date of the tender, but that the pursuer be liable for the expenses thereafter. The norm should apply in this case.

 

DECISION

(1) The liability of the first defenders for the expenses incurred by the second defenders.

 

I find the first defenders liable for these expenses.

 

The accident took place on 30th June 2000. I was advised that between March 2001 and January 2003, the solicitors for the pursuer were in correspondence with Zurich, the first defenders' insurers, and in that correspondence, the first defenders had denied liability, but blamed the second defenders. The action was raised against both defenders on 24th June 2003 and no criticism was levelled at the pursuer for so doing. I was shown copies of letters and emails from 7th July 2003 to 10th July 2007 in which the pursuer's solicitors were advised by the solicitors for the second defenders that the second defenders had not been working on the stretch of road at the time of the pursuer's accident and the pursuer's solicitors were therefore requested to abandon their action against the second defenders.

 

However, the first defenders' defences which were lodged on 16th July 2003 (No. 10 of Process) aver that the first defenders were not doing work on the stretch of road at the date of the accident. Reference is made to a contract entered into between the first defenders and the second defenders dated 24th March 2000 for repair of the stretch of the road, but no reference is made in the defences to the date of commencement of that work.

 

In the first defenders' defences as adjusted, which were lodged on 8th August 2006 (No. 14 of Process), the stance taken by the first defenders is unaltered, namely that they were not working on the stretch of road at the time of the accident. That position is also reflected in the Record which was lodged on 12th February 2007 (No. 18 of Process).

 

The second defenders' defences, which were lodged on 30th July 2003 (No. 12 of Process), contain a general denial, a position which is maintained on Record.

 

Among the items of correspondence which I have seen is a letter from the pursuer's solicitors to the solicitors for the second defenders dated 17th December 2004. That letter narrates the advice of counsel for the pursuer which was that the pursuer should not abandon the action against the second defenders at that stage because the first defenders' averments were a denial that they were working on the road at the material time.

 

In my opinion, the question who was responsible for the repair work to the road on the day of the accident was ascertainable by the first defenders. Reference could have been made to the contract between them and the second defenders which, one would assume, would identify a commencement date for the work. Even if the work did not commence on that date, the first defenders could have ascertained when it did commence. While one would not expect the first defenders necessarily to accept liability for the accident, they could have admitted, in their pleadings, that at the date of the accident, the second defenders had no involvement in the repair works to the road. The fact that the second defenders remain a party to the action and hence have incurred expense is not in any way the responsibility of the pursuer. In my opinion, the present situation falls within the exception to the general rule as set out by Lord Weir in Mitchell. Lord Weir posed the question, "Through whose fault was it that the additional defender was brought into court?" or to put it another way, "Through whose fault was it that the second defender continued to be a party to the action?" The answer, in my opinion, is that the fault lay with the first defenders.

 

 

(2) The expenses of the pursuer down to the acceptance of the tender

I have decided to remit this matter to the auditor to determine the date by which the sum tendered ought to have been accepted. That is the norm as is made clear in MacPhail on Sheriff Court Practice at paragraph 14.51. The passage does, however, go on to state, "In an unusual case where all the material facts are before him, the sheriff himself can determine the date." That issue arose in Smeaton, where the Lord Ordinary had determined the date by which the tender should have been accepted. That case, like the present one, was where the decision about accepting the tender had to be made against the background of a medical report. In Smeaton, the Second Division, reversing the decision of the Lord Ordinary, pointed out that the circumstances surrounding the decision to accept the tender were "eminently matters for consideration of the Auditor." (1941 SC per Lord Justice-Clerk Cooper at page 604.) Similar observations are made by the other judges namely, Lords Mackay, Wark and Jamieson.

 

In the present case, I was advised that the report on the pursuer's medical condition had been requested from a Mr Keating who had, from July 2006 to May 2007, given no indication that a report would not be forthcoming; rather the opposite was the case. However, in May 2007, he had stated that he would not produce a report. Another report was therefore asked for and when that report was received, the pursuer accepted the tender. My reasoning for leaving this matter to the auditor, apart from the fact that this is stated in Smeaton as being the norm, is that he or she will have the opportunity to hear submissions on this matter, against the background of such correspondence as there is regarding the problems with the production of the first report and be able to determine whether or not the pursuer should have sought a second report at an earlier stage, and, if so, when.

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URL: http://www.bailii.org/scot/cases/ScotSC/2007/42.html