The decision provides useful guidance to both pursuers and defenders.
The facts are straightforward.
Mr Bent sustained injury in a road traffic accident. He brought a summary cause action, which was settled by Minute of Tender and Acceptance. On an opposed motion, the sheriff found no expenses due to or by either party. That decision that was appealed, with parties suggesting that there was a point of general importance in so far as the extent to which the court ought to have regard to the voluntary pre action protocol and whether the protocol should be regarded as setting out a reasonable approach to pre action conduct.
How the case was dealt with pre litigation followed a familiar pattern. A letter of claim was sent to the defenders insurers on 12 June 2014. The insurers were signatories to the protocol. They had 21 days to acknowledge the claim and advise whether they considered it suitable for the protocol.
No reply was received and on 18 July 2014 proceedings were raised with no further warning, as the protocol entitled the pursuer to do. At first instance, the sheriff disapproved of such peremptory conduct. He took the view that litigation was the last resort and that if litigation was raised without warning, the party doing so ran the risk of being liable for expenses or modification or no award at all. The Sheriff also criticised the letter of claim for providing insufficient information to allow liability or quantum to be considered.
The defenders had argued that the litigation was unnecessary and by implication unreasonable. Consequently, expenses should be awarded to the defender or modified to nil. The sheriff didn't go that far, but did find no expenses due to or by either party.
On appeal, counsel for the appellant (the pursuer) made the case that the pursuers had followed the protocol to the letter. The style intimation of claim followed the protocol style and they were entitled to raise proceedings without any further warning. He maintained that the Sheriff had erred in insisting that further steps be taken by the pursuer. By doing so, he had undermined the operation of the protocol, which was accepted as reflecting reasonable practice. That approach risked depriving the protocol of any value.
In response, the respondent's solicitor conceded that the defender was a signatory to the protocol, had not responded within the 21 days and that the intimation of claim was in the proper style. She conceded that the pursuer was entitled to raise proceedings without further warning and that following the protocol reflected reasonable practice.
In light of those concessions, the Sheriff Principal found that the Sheriff had erred. There was no need for the additional steps and no unreasonable conduct in commencing proceedings without warning.
The defenders then sought to argue that, in the context of this case, the litigation had been unnecessarily prolonged. Again, this situation is familiar.
The defenders asked for medical evidence. The pursuer replied that it would be provided after the form of response was lodged. The defender pointed out that the case should be capable of resolution before the return day. The pursuer sought an admission of liability and agreement on expenses. Liability was admitted on 14 August, the medical evidence released on 28 August and the form of response lodged on 29 August. No agreement had been reached on expenses.
The Sheriff Principal accepted that there was some delay in making the medical report available. Usefully, he thought it unnecessary to get agreement on expenses in advance of an offer to settle. He refused a motion to restrict to protocol fees, because the defenders had admittedly not followed the protocol. He wasn't whole heartedly convinced that the delay amounted to unreasonable conduct justifying modification. However, the pursuers had offered a 15% modification at first instance and he awarded that. The sting in the tail for the successful pursuer was that sanction for junior counsel was refused.
If counsel has elected to charge a fee, this may have proved to be a rather Pyrrhic victory.
There is useful guidance and lessons to be learned by both pursers and defenders from this case. If you are a signatory to the protocol, follow it to the letter. Respond on time. If you don't and proceedings are raised, you've only yourself to blame. Any argument that raising so quickly is unreasonable is unlikely to succeed. Once proceedings have been raised, the court will expect expeditious co-operation between parties. Any grand standing by parties is likely to be frowned upon. Liability should be admitted promptly, but it's not necessary to agree expenses in advance of making an offer.
This case, and others, brings further clarity to how the protocol should operate in practice. As we face a period of intense court reform, where the distinction between conduct pre and post litigation may become blurred, this case has valuable lessons for all practitioners.