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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v. Had-Fab Ltd [2004] ScotCS 36 (21 January 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/36.html Cite as: [2004] ScotCS 36, 2005 SCLR 129 |
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OUTER HOUSE, COURT OF SESSION |
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A1586/02
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OPINION OF LORD CLARKE in the cause JAMES EDWARD MARTIN Pursuer; against HAD-FAB LIMITED Defenders:
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Pursuer: Bell, Q.C.; Thompsons
Defenders: Stephenson; Anderson Strathern, W.S.
21 January 2004
[1] When this action, in which the pursuer sues the defenders for damages for personal injuries, came to be called before me for proof on 21 January 2004, senior counsel for the pursuer advised me that the action had settled by the acceptance, by the pursuer, of a tender in the sum of £8,513.74, with expenses, to the date of the tender. The tender is No.18 of process. It was lodged on the morning of 21 January 2004. The acceptance of the tender is No.19 of process. The Minute of Tender is in the following terms:"Stephenson for the defenders states to the court that, without admitting liability and under reservation of his whole rights and pleas, the defenders hereby tender to the pursuer the sum of EIGHT THOUSAND FIVE HUNDRED AND THIRTEEN POUNDS SEVENTY FOUR PENCE (£8,513.74) with the expenses of process to the date hereof in full satisfaction of the conclusions of the summons; declaring that the said sum tendered to the pursuer is after deduction of any sum the defenders are obliged to deduct from an award of damages under and in terms of the Social Security (Recovery of Benefits) Act 1997."
"Fife for the defenders, without prejudice to and under reservation of their whole rights and pleas and without admission of liability tendered and hereby tenders to the Pursuer the sum of SIX THOUSAND POUNDS (£6,000) STERLING declaring that said sum is net of the recoupable benefits which will be paid by the defenders to the Compensation Recovery Unit in terms of the Social Security (Recovery of Benefits) Act 1997 together with the expenses of the action to date as the same may be taxed."
The net value to the pursuer of the new tender was different, because since the tender, No.15 of process, had been lodged, a new certificate of deductible benefit had been received on behalf of the pursuer, which altered significantly the figure which the pursuer had, as at November 2003, been informed were the deductible benefits. The new certificate from the relevant department, had been lodged the day before the commencement of the proof and had been intimated to the defenders on that date. The previous certified sum in respect of deductible benefits was £2,320.85. The corrected sum was now only £40.71. The tender, No.15 of process, had never been withdrawn. In the circumstances the Court should award the pursuer expenses only until the date of the tender, No.15 of process, and should award the defenders expenses against the pursuer from that date or, alternatively, the Court should find no expenses due to or by either party from the date of the tender, No.15 of process. An award of expenses to the pursuer up to the date of the new tender, No.18 of process, would be unfair in the circumstances since the gross sum offered to settle the action in both tenders was the same and considerably more expense had been incurred since the date of the first of the two tenders in question. The principal sum involved had remained the same, although the amount the pursuer would now receive was more than he thought he would receive, as at November 2003.
[4] Junior counsel for the defenders recognised, of course, that his motion regarding expenses contradicted what was said in the Minute of Tender, No.18 of process, namely that the defenders were offering to pay the pursuer the expenses of the process to the date of the tender. Counsel said that that wording had to be employed in the tender to make it "a proper tender". The wording, however, did not preclude the Court from adjusting the award of expenses. These submissions were made under reference to the case of McKenzie v H D Fraser & Son 1990 S.C. 311. The decision, in that case, which followed from a report of the case by the Lord Ordinary to the Inner House, was concerned with the question of what was the appropriate wording, in a judicial tender, in relation to expenses and what were the consequences of using the wording, used in the present case, i.e. "expenses of process to date". The First Division held that the wording "expenses of process to date of the tender" was the appropriate form of wording to be used and disapproved of a suggestion that the wording might be "such expense as to the court shall seem proper". The First Division, however, went on to indicate that the wording which they approved of as being appropriate for use in a Minute of Tender did not remove the Court's discretion in relation to expenses. The particular question which arose, in that case, was whether or not, where the tender had offered "expenses of process to date", and that tender had been accepted, nevertheless, the Court could, modify the expenses in question to the sheriff court scale. The First Division decided that it was open to the Court to do so. Counsel for the defenders, in the present case, urged me, following the line of thinking in the case of McKenzie, to grant decree for the principal sum in the Minute of Tender, but as far as expenses were concerned, refuse to make an award of expenses to the pursuer to the date of the tender, No.18 of process, and instead to adopt one or other of the alternative approaches to expenses which I have noted above. [5] In reply, senior counsel for the pursuer submitted that the Minute of Tender, No.18 of process, and the acceptance thereof, No.19 of process, constituted a binding contract between the parties capable of being enforced as such. See McMillan v Meikleham 1934 S.L.T. 357. It carried with it an obligation on the defenders to pay the pursuer the expenses of the process to the date of the acceptance. Had the defenders chosen not to supersede their tender of November 2003, No.15 of process, with the new tender, No.18 of process, lodged on the morning of the proof, the position would, of course, have been different. But the defenders had decided to make a fresh offer in the shape of the new tender, which expressly contained an offer to pay the pursuer's expenses of process to its date. When the previous tender had been lodged, the pursuer was under the impression that the deductible benefits were significantly more than, in the event, they turned out to be. The relevant department had not intimated its corrected statement of the deductible benefit to the pursuer's agents until 18 December 2003. The new tender, as far as the pursuer was concerned, represented a significant improvement on what was offered in the tender lodged in November 2003. The dispute between the parties had, ultimately, been concerned with whether or not there had been any contributory negligence on the part of the pursuer. The sum now tendered did not involve any deduction in respect of contributory negligence. Counsel for the pursuer renewed his motion for expenses to be awarded to the pursuer to the date of the tender, No.18 of process. [6] I reached the view that the pursuer's position on the matter was correct. The defenders were not asking me to modify the expenses of process to the date of tender, which would otherwise have been covered by the expression "the expenses of process to the date hereof" by reference, for example, to an appropriate scale or by reference to certain specified items of expense. They were, in effect, inviting me to re-write the tender by removing the words "expenses of process to the date hereof" and by substituting therefor the words "expenses of process to the date of the tender No.15 of process". I do not consider that the case of McKenzie, is authority for allowing me to do so. That case, in my opinion, is authority for the proposition that the phrase "expenses of process to date" does not remove the element of discretion in the Court as to what properly should be allowed by way of expenses to that date, by way of modification or, indeed, say, by way of awarding an additional fee. It is no authority, in my judgment, for ignoring the actual wording in the judicial tender in relation to expenses and substituting therefor a quite different basis upon which expenses are to be awarded. It would have been open, as counsel for the pursuer submitted, for the defenders, in the present case, simply to have rested their position on the tender, No.15 of process, and not to have lodged a fresh tender in the terms they did. It would have been open to them to seek to reach an agreed settlement with the pursuer which would have sought to deal with the expenses in the way the defenders now ask the Court to deal with them. They did not rest their position on the tender No.15 of process. They did not reach an agreement with the pursuer in relation to expenses. Instead they made the offer in relation to expenses in the terms they did, which is contained in No.18 of process. In that situation, to ask the Court now, in effect, to re-write the terms of the tender, is something that I cannot accede to. If I were to do so, that would, in my judgment, apart from anything else, involve countenancing the destruction of any certainty as to what is being offered when the approved wording in relation to expenses is contained in a judicial Minute of Tender and would also be to ignore the contractual nature of the Minute of Tender and its acceptance. For these reasons, I granted the pursuer's motion and found the defenders liable to the pursuer in the expenses to the date of the Minute of Tender, No.18 of process.