Elise Camilleri-Brennan: Digby Brown succeeds in QOCS case

Elise Camilleri-Brennan: Digby Brown succeeds in QOCS case

Elise Camilleri-Brennan

Digby Brown has succeeded in challenging a defender’s argument to have Qualified One-Way Cost Shifting (QOCS) disapplied following the alleged ‘constructive abandonment’ of the pursuer’s claim against the first defender, writes Elise Camilleri-Brennan.

The pursuer, a self-employed joiner, was at his place of work on a building site when a wooden partition fell over and struck him. It was disputed as to what caused the partition to fall; be it the actions of the pursuer, or those of his colleague.

Proceedings were raised against the first defender as the main contractor of the site, and the second defender as the de-facto employer of the pursuer and his colleague.

Prior to litigation, the pursuer’s claim was intimated under the Compulsory Pre Action Protocol (CPAP) to both defenders, with each denying liability. Each defender blamed the other, resulting in proceedings being raised against both parties. Settlement was reached following the acceptance of a pursuer’s offer by the second defender.

The pursuer then intimated his motion to grant decree in terms of the minute of offer to settle, to find the second defender liable for expenses of the action, to find no expenses due to or by the first defender, to certify the pursuer’s medical expert, and to assoilzie the defenders from the craves of the writ.

However, the first defender opposed the pursuer’s motion before enrolling their own. They submitted that, as in accordance with Chapter 31A.2.(2)(d) of the Ordinary Cause Rules, the pursuer had abandoned the action against the first defender at common law. The first defender therefore sought to have the pursuer held liable to them in terms of the expenses of the action. The granting of this motion would mean the pursuer’s QOCS protection would be lost.

The second defender also opposed the pursuer’s motion on the basis that they should not be liable for expenses relating to the involvement of the first defender in the action.
An opposed motion hearing took place in the All-Scotland Personal Injury Court, heard by Sheriff Campbell.

The pursuer’s counsel made several points clear to the sheriff regarding the first defender’s motion. Three pursuer’s offers had been intimated to both parties, with the amount which was ultimately accepted by the second defender satisfying the pursuer’s claim in full. At the point of settlement, the pursuer’s claim against the first defender therefore remained valid. As no minute of abandonment was lodged, the requirements of Chapter 31A.2.(2)(d) were not satisfied.

In response to the second defender’s opposition, the pursuer’s counsel submitted that expenses protection for the second defender could have been achieved through use of either a Houston or Williamson Tender, although neither were lodged. Further, inclusion of the first defender in the action had been encouraged by the second defender.

Counsel for the first defender, whilst referring to paragraph 14.23 of MacPhail’s Sheriff Court Practice, maintained that the pursuer’s actions amounted to “‘onstructive abandonment’. Despite no minute of abandonment having been lodged, the pursuer’s actions indicated he was not going to proceed further against the first defender, and so this substantially amounted to abandonment.

The second defender’s argument rested on the point that the party which caused the expenses ought to bear them. The second defender refuted the pursuer’s submission that they had encouraged the involvement of the first defender in the action and submitted that this was solely due to the actions of the pursuer.

Ultimately, Sheriff Campbell did not accept that the pursuer had constructively abandoned the action. He noted that the context of the MacPhail excerpt referred to is crucial, being that constructive abandonment is possible where the pursuer intimates at the bar that he does not intend to proceed further in the action and moves the sheriff to assoilzie the defender, or when the pursuer lodges a minute which is not accurately framed. According to Sheriff Campbell, when taken as intended, the passage in MacPhail depicts “plainly a different situation from accepting an offer bringing an action to an end”.

Sheriff Campbell also noted that this overlooks the court’s control of the process of abandonment. He pointed out paragraph 14.20 of MacPhail, where it notes that a party requires the leave of the court to withdraw its claim or defence. He considered this to be a more accurate and common characterisation of abandoning an action.

He went on to say, “whilst it is true that the pursuer is not able to insist on the principal craves of the action because he has received full value, the question of liability for expenses as between the pursuer and first defender remains very much live”. Accordingly, the argument of abandonment was rejected.

The second defender failed to persuade Sheriff Campbell of their argument, with the sheriff stating it was insufficient. It was clear that in acceptance of the pursuer’s offer, liability for the expenses of process was also accepted.

The pursuer was found not to have acted unreasonably in raising and maintaining the action against both defenders and was entitled to the expenses of the action from the second defender.

The recent case of Alan McRae v Screwfix and Royal Mail [2023] SC EDIN 28 involved the disapplication of QOCS following abandonment of an action. In McRae, the claim was settled against the second defender following the acceptance of a pursuer’s offer. The pursuer then lodged a Minute of Abandonment in respect of the first defender. Sheriff Fife was persuaded by the first defender’s submissions and the pursuer was found liable to the first defender for expenses.

The absence of a Minute of Abandonment separates McRae from the recent decision in Evans. The approach of the court in each of these situations provides clarity for both pursuers and defenders alike in the context of abandonment of an action. This is an important development in the growing case law concerning QOCS.

Elise Camilleri-Brennan is a solicitor at Digby Brown LLP

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