Friday, September 22nd, 2017
Following a proof, Lord Kinclaven awarded a pursuer damages of £6,000 for a whiplash type injury. The defenders had not lodged a tender, as they considered that the pursuer was behaving in a fundamentally dishonest manner. The defenders sought on two occasions to have the action summarily dismissed on the basis of that dishonesty. However, those motions were refused. It was admitted that the defender drove in a negligent manner, causing the collision; but not that it led to any injury to the pursuer.
In the light of the decision on the merits and the claim of the pursuer being dishonest in the presentation of his claim, the defenders moved for expenses of process. The pursuer moved for expenses on the grounds that he had obtained an award of damages and there was no tender.
His Lordship refused the pursuer’s motion for expenses; and found the pursuer liable to pay the defenders two thirds of their expenses of process.
This case is an example of the wide discretion which the court enjoys in ordering expenses; and is a warning that when a successful pursuer has been dishonest with the court, he may not obtain expenses; and may indeed be found liable to make payment to the defenders in respect of his unreasonable conduct.
The defenders were represented by both Andrew Smith QC and Kay Springham QC, the latter of whom presented the argument to Lord Kinclaven. The pursuer was represented by Dorothy Bain QC and James Hastie. A copy of the decision can be found below.
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