Personal injury sheriff refuses award of expenses to frozen food supermarket in successfully defended action

About this case:

• Citation:
  [2022] SC EDIN 42
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Robert D M Fife

Decree of absolvitor was granted to Iceland Foods Ltd after pursuer Helen Lennox failed to prove that an injury she sustained in one of their stores was caused by negligence. The defender argued that the pursuer had conducted proceedings in a manner that amounted to an abuse of process and had behaved in a manner that was manifestly unreasonable.

The case was heard by Sheriff Robert Fife in the All-Scotland Sheriff Personal Injury Court, Edinburgh.

No chance of success

On 19 January 2021, the pursuer was shopping in an Iceland store in Glasgow when she tripped over several shopping baskets that had been left on the floor near a checkout. The action proceeded to a proof that was restricted to liability and contributory negligence, following which decree of absolvitor was granted in favour of the defender.

Evidence was given by the pursuer and her daughter in support of her case, along with CCTV evidence, however no positive evidence was led in support of 17 of her averments. These included averments on the conduct of the defender’s staff, that baskets were routinely left in an undesignated location in-store, and that staff ought to have been aware that the stacking of baskets in the area where the pursuer fell constituted a trip hazard.

In terms of section 8 of the Civil Litigation TCL (Expenses and Group Proceedings) (Scotland) Act 2018, the default position is that the court must not make an award of expenses against a person bringing proceedings for a claim for damages for personal injury where the person conducts the proceedings in an appropriate manner. It was the defender’s position that in the circumstances of the case, an award of expenses was appropriate due to the unreasonable behaviour of the defender.

Counsel for the defender submitted that the pursuer had acted unreasonably in including a substantial number of averments she had no evidential basis for and failed to lead any positive evidence to prove her case. She had continued the action in the awareness that it had no or substantially no chance of success. For the pursuer, it was submitted that the test of manifest unreasonableness was a high one that could not be met merely by finding that a pursuer was incredible as a witness.

Different interpretations

Sheriff Fife, in his decision, observed on abuse of process: “It is an abuse of process for a pursuer unreasonably to initiate or continue an action when it has no or substantially no chance of success. The essential question is whether the action compromises the integrity of the court’s procedures. It might do so if it wastefully occupied the time and resources of the court in a claim that was obviously without merit.”

Assessing the merits of the claim, he said: “The defender’s motion in respect of both sections 8(4)(b) and (c) was ill conceived. It appeared to rest on the contention that the pursuer had no chance, or substantially no chance of success, ie, that her claim was without merit and that bringing proceedings, and continuing with them, was manifestly unreasonable and/or an abuse of process, compromising the integrity of the court. The defender had misunderstood i) how high the test is to establish either of the exceptions under section 8(4), and ii) the essence of what the pursuer sought to prove and required to prove in order to succeed with her claim.”

On manifest unreasonableness, he continued: “While I did not accept the pursuer’s submissions on what was shown in the CCTV, I acknowledge there could be different interpretations of what could be seen or inferred from the CCTV. On a different interpretation by the pursuer, the averments criticised by the defender had a factual basis or could at least be inferred from viewing the CCTV. The pursuer and the pursuer’s solicitors have not behaved in a manner which is manifestly unreasonable.”

Addressing any abuse of process, the sheriff said: “The pursuer was very unhappy about what happened to her and how she felt she was treated by one of the staff, whom she said was rude to her. The defender submitted the pursuer had an improper ulterior motive for the litigation by stating she was only in court because someone was rude to her. The pursuer was in court on the advice of her solicitors. I rejected that submission as being of no merit.”

He concluded: “I concluded, on the evidence, that the defender had a reasonable system of inspection and that all safety procedures had been implemented. Again, the CCTV was open to different interpretation and had the pursuer’s interpretation been accepted this may have led to liability being established on the balance of probabilities. On the evidence before the court, this is not a case where the pursuer had no chance or substantially no chance of success. There has been no abuse of process.”

The motion was therefore refused, with Sheriff Fife finding that the defender was liable to the pursuer for related expenses.