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Cite as: [2002] ScotCS 316

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King v. Global Marine (UK) Ltd [2002] ScotCS 316 (13 December 2002)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

 

 

 

Lord Justice Clerk

Lord Johnston

Lord Caplan

A2039/99

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

in

RECLAIMING MOTION

by the first pursuer

in the cause

(First) ROBINA KING; (Second) KEVIN KING; (Third) KAREN KING; (Fourth) THOMAS KING; and (Fifth) Mrs. ELEANOR KING

Pursuers;

against

(First) GLOBAL MARINE (UK) LIMITED; and (Second) MACGREGOR ENERGY SERVICES LIMITED

Defenders:

_______

Act: H H Campbell, QC; Thompsons (First Pursuer and Reclaimer)

Alt: Jones, QC, Miss C MacLean; Paull & Williamsons (First Defenders and Respondents)

 

13 December 2002
  • This is an action at the instance of the widow, the two children and the parents of the late Richard King. It arises from a fatal accident that the deceased suffered on board an oil rig owned and operated by the first defenders in the course of his employment with the second defenders.

  • At first, all five pursuers were represented by Thompsons, solicitors, Edinburgh; but in April 2000 the second pursuer withdrew his instructions and has since represented himself. The two defenders are separately represented.

  • The claims by all five pursuers against the first defenders were settled during 2000. The court gave effect to the settlement with the first pursuer, who is the reclaimer, by an interlocutor dated 8 June 2000 which granted decree for damages and expenses.

  • By agreement the second defenders have been assoilzied from the claims of the first, third, fourth and fifth pursuers. The claim of the second pursuer against the second defenders appears to be dormant.

  • This reclaiming motion relates to the recovery by the reclaimer of the expenses awarded to her in terms of the interlocutor of 8 June 2000.

  • Rule of Court 42.1, in its present form, provides inter alia as follows:

    • "42.1.-(1) Where expenses are found due to a party in any cause, the court shall-

    (a) pronounce an interlocutor finding that party entitled to

    expenses and ... remitting to the Auditor for taxation; and

    (b) ... unless satisfied that there is special cause shown for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the Auditor.

    (2) Any party found entitled to expenses shall-

    (a) lodge an account of expenses in process not later than four months after the final interlocutor in which a finding in respect of expenses is made;

    (aa) if he has failed to comply with sub-paragraph (a), lodge such account at any time with leave of the court but subject to such conditions (if any) as the court thinks fit to impose; and

    (b) give written intimation of the lodging of the account, and send a copy of it, to the party found liable to pay those expenses."
  • Thompsons did not lodge the reclaimer's account of expenses within four months after the interlocutor of 8 June 2000. During the course of 2001 they corresponded on the subject with the solicitors for the first defenders, Paull & Williamsons. In a letter dated 30 March 2001, with which the correspondence began, Thompsons said that they hoped to send the draft account of expenses in the near future. They acknowledged that that account was "somewhat late." Thereafter Paull & Williamsons repeatedly urged Thompsons to submit the account while reserving the right to challenge it by reason of its lateness. During that correspondence Thompsons gave as an excuse for their delay the fact that a Fatal Accident Inquiry into the death had only recently been concluded and that the sheriff's findings had not been issued. Paull & Williamsons said that the two questions were not linked. By letter dated 10 July 2001, one of two on the same subject, Paull & Williamsons said the following:

    • " ... Accordingly, on any view these accounts are now considerably overdue and we would now be fully justified in resisting any attempt by you to have them lodged late. Despite that we are prepared to be tolerant for a further week but should advise that if the accounts are not submitted within 7 days of today's date we will simply assume there are no accounts to be rendered."

    Thompsons replied on 11 July 2001 as follows:

    "We are somewhat surprised to have your two letters of 10 July and had thought that you wanted accounts here dealt with. If you wish this you will no doubt not oppose any motion to have the accounts received late. As you know, the sheriff at Dundee appears to be still very far from granting a decision in this case and we need to know what our counsel is charging in both cases before we can complete any accounts.

    However, we will try to have our Accounts Department, hard pressed as they are, to intimate the account to you over the next 5 weeks."

    Thompsons eventually sent the account of expenses with a letter dated 10 October 2001.

  • By letter dated 7 November 2001 Thompsons notified Paull & Williamsons that they were lodging the principal account of expenses for taxation that day. At the request of Paull & Williamsons, the case was put out by order on 29 November 2001. Counsel for the reclaimer moved for leave to lodge the account at the bar. He submitted that the account was not overdue since there had not yet been a "final interlocutor in which a finding in respect of expenses is made" (RC 42.1(2)(a)) and that, if the account was late, the court should allow it to be lodged in the exercise of its discretion (RC 42.1(2)(aa)).

  • The Lord Ordinary refused the motion. He held that the date from which the four-months time limit ran was the date of the final interlocutor in respect of expenses in the action so far as it was laid by the first pursuer against the first defenders, and not the final interlocutor in respect of any questions of expenses in the entire process. On that view, the lodging of the account was out of time. The Lord Ordinary then had to consider whether he should allow it to be received late. Having regard to the history of the case and to the correspondence, he declined to exercise his discretion in favour of the reclaimer.

  • The reclaiming motion has been confined to the question of the interpretation of the words "the final interlocutor in which a finding in respect of expenses is made." (RC 42.1(2)(a)). Counsel for the reclaimer argued that Rule 42.1 applied where expenses were "found due to any party in any cause" (RC 42.1(1)). The final interlocutor to which Rule 42.1(2)(a) referred was the final interlocutor on the subject of expenses pronounced in the "cause," that is to say the "process." In a multi-party process, there could be numerous interlocutors disposing of expenses. The rule contemplated that the time limit would begin to run only when the last of those interlocutors had been pronounced. In the original version of the rule, introduced in 1994, the time limit was said to run after "a final interlocutor in which a finding for expenses is made" (Rules of the Court of Session 1994 (SI No. 1443)). The change from that to "the final interlocutor in which a finding in respect of expenses is made" (Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 1996 (SI No. 1756), para. 2(12)) indicated that there was only one interlocutor on expenses from which the time limit could run, namely the last such interlocutor pronounced in the whole process. A "final interlocutor" had been defined in the Court of Session Act 1868 (s. 53) as being an interlocutor by which, taken by itself or along with previous interlocutors, the whole subject-matter of the cause was disposed of. That emphasised that where there was a multiplicity of claims in one process, the process was to be treated as one indivisible cause. That cause continued until all claims were resolved, no matter how long that took and no matter whether individual claimants who had settled in the meantime had no further interest in it.

  • Counsel submitted that the Lord Ordinary's interpretation raised practical difficulties that were causing concern to the profession. In a case like this, the solicitors for the pursuers could draw up sensible accounts only when all the claims were settled. They could then apportion to the individual accounts outlays incurred in common, such as the fees of counsel and expert witnesses. The commonly adopted block-fee basis of charging would be unworkable if separate accounts were rendered as and when individual claims were settled. Solicitors in a case like this would be disadvantaged if they had to claim for an additional fee or for certification of expert witnesses at a stage when they could not take the whole picture of the litigation into account. To submit individual accounts of expenses during the course of such a litigation was "a daft scenario."

  • Counsel for the respondents adopted the Lord Ordinary's interpretation of the rule. The purpose of the rule was to have the liability under a final award of expenses ascertained within a reasonable time. On the reclaimer's interpretation, a party found liable in expenses could be uncertain of the extent of his liability indefinitely. None of the alleged practical difficulties had been mentioned by the reclaimer's solicitors during the correspondence. On the contrary, they had accepted that the account was out of time. The general difficulties to which counsel had referred were inherent in every multi-party process and were difficulties that, in the event of dispute, would be resolved by the Auditor.

  • Counsel for both parties suggested the possibility of our referring the question to the Auditor for his expert comments; but we reject that suggestion since we consider that the question is simply one of interpreting the rule.

  • In our opinion, this reclaiming motion is misconceived. The straightforward reading of Rule 42.1(2)(a) is that the "final interlocutor" to which it refers is, in this case, the final interlocutor on expenses in the claim by the reclaimer against the respondents, and not the final such interlocutor in the process. The argument of counsel for the reclaimer is fallacious, for two reasons. First, the cause is not synonymous with the process. In every case like this, the cause is that of the individual pursuer. When an individual pursuer's claim is settled, that is the end of the cause that that pursuer has to bring. Second, the word "cause" on which this argument depends is nowhere mentioned in paragraph (2).

  • The Lord Ordinary's interpretation is consistent with the obvious purpose of the rule, which is to ensure that when a decree for expenses is granted, the party liable for the expenses should receive an account of them promptly so that he can know the extent of his liability without undue delay. On that view, the substitution of "the final interlocutor" for "a final interlocutor" in the current wording of the rule is of no significance.

  • If the interpretation contended for by the reclaimer were correct, it would lead to the unreasonable result that where one party to a process settled his claim with an award of expenses and the process thereafter continued for the resolution of other claims in which that party had no interest of any kind, that party would be entitled to defer the lodging of his account until the conclusion of the entire process, no matter how long that took. In the present case it would mean that the second pursuer, who holds the last remaining claim, would in effect control the timetable for submission of all parties' accounts. That cannot be right.

  • We are unimpressed by the practical difficulties which the Lord Ordinary's interpretation is said to cause. In the correspondence, in which Paull & Williamsons repeatedly urged Thompsons to submit the account, none of those difficulties was ever mentioned. On the contrary, it is apparent that Thompsons accepted from the start that the account was overdue and merely put forward an irrelevant excuse.

  • Such difficulties arise, one way or another, in any multi-party process. In a case such as this, they would arise, whatever the interpretation of paragraph (2), if each pursuer was separately represented; or if any one of them insisted that his account of expenses should be submitted immediately after the decree in his favour. They are therefore not difficulties that are caused by the Lord Ordinary's interpretation of the rule. In any event, they are for the most part the sort of difficulties that, in case of dispute, can be resolved by the art of taxation.

  • For these reasons we shall refuse the reclaiming motion.

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