Monday, May 26, 2008

Expenses changes in the Court of Session after personal injury claim success

Changes to the expenses regime in the Court of Session after a personal injury case in which the action was settled for £2,500, and the court then asked by the defenders to award expenses at the sheriff court scale.

The Scotsman reports :

Summary change to expenses


THE case of Hylands v Glasgow City Council was no different from so many other personal injury actions, but it could turn out to be the claim which heralds an end to a blight on the country's supreme civil court.

Ann Hylands, a clerical assistant with the council, was not badly hurt when a partition fell and struck her back. Her case for compensation was straightforward, yet it was raised in the Court of Session, and gave fodder to those who believe that judges in the highest court should have their time and brains exercised by more taxing issues than low-value reparation.

The Court of Session has introduced simplified procedures for personal injury actions and made it a more attractive forum than the local sheriff courts. So, as long as the initial claim was for more than £1,500 – below which a case went to the sheriff court – lawyers from all over Scotland have headed to Edinburgh.

One way of discouraging the trend would have been to award only sheriff court expenses in cases where the sum ultimately recovered, by an out-of-court settlement or an award by a judge, was small by Court of Session standards, and more in keeping with the sheriff court.

However, judges in a number of cases, where the sums recovered had been between £1,450 and £3,400, found themselves unable or unwilling to impose the expenses sanction. How could you blame someone, they asked, for taking advantage of the Court of Session's procedures, often resulting in a quicker outcome?

Now, the Hylands case has seen a reversal in thinking. The action settled for £2,500, and Lord Drummond Young was asked by the council to award expenses at the sheriff court scale.

He said: "The level of expenses in a (sheriff court) summary cause is substantially less than that found in the Court of Session. 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 … 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."

Lord Drummond Young said exceptions would exist, and he found that, in the Hylands case, the Court of Session summons had been prepared before the increase in the sheriff court limit, and served just after the new limit came into force. He refused to modify the expenses.

"I would emphasise, however, that that decision is made on the very specific circumstances of the present case. 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," he added.

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