Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH NUMBER117
A262/09	OPINION OF LORD BRODIE in the cause CRAIG McINTOSH Pursuer; against FIRST GLASGOW LIMITED Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: McConnell, Advocate; Thompsons

Defenders: Cowan, Solicitor-advocate; Simpson & Marwick WS.

6 August 2009

[1] In this action the pursuer sues in respect of damage caused to his motor vehicle in a collision with a bus driven by an employee of the defenders. The sum concluded for is £9,000. There is no head of damages sued for which does not arise from the damage to the pursuer's vehicle. The action is not one in respect of personal injury to which Chapter 43 of the Rules of the Court of Session applies. It is an ordinary action. The defenders do not now dispute liability to make reparation. Accordingly the dispute between the parties relates solely to the reasonableness of the sum sued for. The pursuer has vouched costs and outlays as follows: engineers report, £58.75; repair charges, £2,735.68; and hire charges of £2,949.02. To this might be added a sum in respect of inconvenience.

[2] The case called in the Vacation Court on the defenders' motion to remit the cause to Glasgow Sheriff Court in terms of Section 14 of the Law Reform (Miscellaneous) Provisions (Scotland) Act 1985 and Rule of the Court of Session 32.1. The motion was opposed on behalf of the pursuer. The pursuer was represented by Mr McConnell, Advocate. The defenders were represented by Mr Cowan, Solicitor-advocate.

[3] Mr Cowan began by emphasising the simple and straightforward nature of the action. All that was in issue was whether the pursuer had acted reasonably in mitigating his damage. Mr Cowan explained that this was a case where the pursuer had come to an arrangement with Accident Exchange Limited, the basis of which was that Accident Exchange advanced the cost of repairing the pursuer's vehicle and the cost of hiring a replacement vehicle on credit. The sums which the pursuer sought to recover in the action included credit charges. Mr Cowan confirmed that there were reported instances of a number of cases of this sort which had been litigated in England. These included the decisions of the House of Lords in Dimond v Lovell [2002] 1 AC at 384 and Lagden v O'Connor [2004] 1 AC 1067. Mr Cowan was unaware of any Scottish authority but he did not understand there to be any dispute as to the applicable law. As had been held in Lagden, where the owner of a damaged vehicle had incurred a hire charge which included an element for credit, that could be recovered, provided he had acted reasonably in mitigating his damage. Thus, an impecunious pursuer who could not afford the necessary outlay to provide an alternative vehicle would be entitled to recover the cost of hiring on credit in terms of an arrangement such as had been entered into between the pursuer in the present case and Accident Exchange. However a pursuer who was not impecunious and could afford to meet the outlay himself was bound to mitigate his damage by meeting the cost of car hire without resort to a credit provider. Thus, in the present case quantification of damages would depend upon whether or not the pursuer could justify having entered into the arrangement with Accident Exchange by reason of his impecuniosity. The applicable law being agreed, this was simply a question of fact. This was no more than a simple debt recovery action.

[4] Mr Cowan recognised that the leading case on the application of Section 14 of the 1985 Act was McIntosh v British Railways Board 1990 SC 338. As appears from the Opinion of the Court delivered by Lord President Hope in that case, at 342, the only criterion which section 14 of the 1985 Act provides is that "the nature of the action" makes it appropriate to remit the action to the Sheriff Court. Lord Hope went on to say this:

"The lack of definition makes it difficult to identify exactly what the section was designed to achieve, but the order of words suggests that the reference to the nature of the action is there to ensure that actions whose nature makes them inappropriate for the Sheriff Court are not remitted there, rather than that all actions appropriate for the Sheriff Court are sent to that court. Furthermore the power should be seen as having been introduced to meet the needs of particular cases not to effect a general distribution of work from one court to another. There is no hint in the wording of the section that it was intended to have that effect, and there are sound practical reasons for thinking that if the section was to have the effect of redistributing cases to the Sheriff Court just because they were small or simple the matter would have been approached in a different way."

Having considered the interaction of section 14 with the provisions establishing a privative jurisdiction for the Sheriff Court based on the sum sued for, Lord Hope continued as follows:

"In this situation the proper approach to the section seems to us to be that, except in extreme cases, the fact that the claim is small and straightforward is not enough to justify a remit to the Sheriff Court. By extreme cases we mean cases where it is obvious from the pleadings, whatever may be the sum sued for, that on no possible view could the pursuer recover more than the upper limit to the privative jurisdiction of the Sheriff Court. If this is the case, then the action is plainly appropriate for the Sheriff Court, because it ought not to have been raised in the Court of Session at all. But if the pleadings show that the pursuer could possibly recover more than the upper limit then the action should be regarded as appropriate for the Court of Session unless some other factor is present which shows that the nature of the particular case is such that it is appropriate for it to be dealt with in the Sheriff Court."

[5] Mr Cowan also referred to three decisions at first instance on the application of section 14: McKay v Lloyds TSB Mortgages Limited 2005 SCLR 547 and Drimsyne Estate Limited v Ramsay 2006 SLT 528, where remits had been made, and Paterson v Advocate General for Scotland 2007 SLT 846 where a remit had been refused.

[6] Recognising that he had to do more than do more than demonstrate that the claim was small and straightforward, Mr Cowan pointed to the factors that this was simply a debt recovery action and that it was usual for debt recovery actions to be dealt with in the Sheriff Court, that it was likely that a proof would be fixed before the end of the year if the action was remitted whereas if the action remained in the Court of Session it was unlikely that a proof date would be available earlier than 2010 and that because the cost of counsel would not normally be allowed in the Sheriff Court, the expense of litigating there would be less.

[7] Mr McConnell confirmed that the application to remit to the Sheriff Court was opposed. He referred to what was said by Lord President Hope in the Opinion of the Court in McIntosh and from that drew three reasons for refusing the present application: there was a value in certainty and accordingly the court should be very slow to remit from a court of competent jurisdiction; a party had a right to choose a particular forum as long as it was competent to do so; and it is illegitimate to make a remit to the Sheriff Court simply on the basis that the procedure there would be quicker and cheaper because these are circumstances which would apply in every case whereas what section 14 envisaged as being the criteria for a remit were circumstances which were particular to the action under consideration.

[8] Had I been considering this application uninstructed by authority I would have been sympathetic to it, at least on Mr Cowan's characterisation of what the action involved, although to describe it as relating to an action for debt recovery, as Mr Cowan did on a number of occasions, in my opinion adds nothing to the argument. Debt recovery is not a formal category of action bearing on the privative jurisdiction of the Sheriff Court: cf Drimsynie Estate Limited v Ramsay supra. I am, however, bound to follow the decision in McIntosh v British Rail Board which points to the difficulties that would arise from too readily assuming that section 14 of the 1985 Act provides for a remit simply on the basis that a case is straightforward and of small value. Here Mr Cowan's presentation of the action as involving a straightforward dispute of fact in relation to relatively modest sums was not disputed. Neither was his suggestion that an earlier proof date could be secured in the Sheriff Court and that the expense of the action would be less because the employment of counsel would not be sanctioned. However, as Mr McConnell submitted, these are general considerations. They do not relate particularly to "the nature of the action" under consideration. Moreover, they were not factors which Lord Hodge regarded as sufficiently persuasive in Paterson v Advocate General for Scotland supra, and I would respectfully adopt his approach. I accordingly refuse the application to remit.

[9] Mr Cowan moved for leave to reclaim. There were other similar actions pending in the Court of Session to which the same considerations applied. As had been noted by Lord Hodge in Paterson v Advocate General for Scotland supra at 848I, arguably, the Inner House in McIntosh had put a restrictive gloss on the statutory words and there was accordingly a basis upon which that decision that might merit reconsideration. I did not understand Mr McConnell to oppose the application for leave. In the circumstances I granted leave to reclaim.