Thursday, December 21st, 2023

Henry Clarke v Marks & Spencer Plc

David Swanney successfully represented the pursuer at this opposed motion hearing to determine the issue of expenses in this personal injury action.

Following a decree of absolvitor, the defender sought an order of expenses against the pursuer in terms of Section 8(4)(b) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. The defender alleged that the pursuer’s conduct of proceedings was manifestly unreasonable and consequently that the protections afforded to the pursuer by QOCS should be dis-applied.

Both parties agreed that the principles set out by Sheriff Campbell KC in the case of Carty should be applied, and that the test for dis-applying QOCS is high when considering whether the pursuer’s behaviour has been manifestly unreasonable.

The defender argued that the pursuers case was hopeless and that prospects of success were so obviously low as to amount to manifestly unreasonable behaviour. Key to the defender’s argument was the point that the pursuer had failed to lead evidence necessary to establish liability in a tripping case.

David Swanney, for the pursuer, submitted a twofold response to the defender’s motion; (1) that the pursuer had pled a relevant case on record and led evidence at Proof which was both consistent with those pleadings, and which was sufficient to establish liability if accepted by the Court, and (2) that in respect of a secondary line of argument advanced by the pursuer in his pleadings there had been an oversight on the part of the pursuer’s agents at proof in that there was a failure to lead particular evidence which would have assisted in establishing the pursuer’s argument that the defenders ought to have known about the defect and could have prevented the pursuer's accident from occurring. In relation to the first point, Counsel averred that the evidence put forward by the pursuer in establishing the cause of his fall established a stateable case that had reasonable prospects of succeeding had the pursuer’s evidence as to the nature and extent of the defect been accepted. Secondly, it was argued that while there was evidence not led by the pursuer’s agents at Proof this amounted to no more than an innocent oversight on the part of the pursuer's agent, brought about the inevitable pressures of conducting a Proof. Counsel stated that this oversight falls far short of the type of unreasonable conduct envisioned by s.8 of the 2018 act and that if perfection where what is required of pursuers and agents then these protections would rarely be applied.

The court held that the qualification that the behaviour must be “obviously” unreasonable further emphasises that the bar to dis-apply QOCS is high indeed. Further, the court said that mistakes are made regularly in court and where they are innocent, even careless, resulting from the pressures which an agent is under during the conduct of a proof they should not be viewed as constituting behaviour which is manifestly unreasonable.

The court refused the defender’s motion, and Counsel successfully sought an award of expenses against the defender.

A copy of the full judgment can be found here

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