About this case:

• Citation:
  [2025] SC EDIN 84
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Walls

Pursuer Andrew Harkin raised a claim against Annette McNeil seeking damages arising from a road traffic accident, which the court was advised had settled in June 2025. In opposition to the motion, the defender argued that no special reason for the making of interim payment had been established, as was the case in precedents relied on by both parties.

The case was heard by Sheriff Charles Walls, with Mutapi, solicitor, appearing for the pursuer and McNulty, solicitor, for the defender.

Floodgates would open

In March 2024, the pursuer raised an action seeking £50,000 in solatium from the defender. On 4 June 2025, just over a month before the dates for the assigned diet of proof, the court was advised the action had settled. On 23 June 2025 the court interponed authority to a Joint Minute which, inter alia, assoilzied the defender, found the defender liable to the pursuer for the expenses of the cause as taxed, and allowed an account of expenses to be lodged with the Auditor of Court for taxation.

On 13 June 2025, a judicial account in the sum of £35,428.35 was intimated to the defender’s agents. Negotiations commenced between the defender’s agents and the pursuer’s law accountants, with the defender’s final offer being £30,000, made on 28 July 2025. In response, the pursuer confirmed that a diet of taxation would be required and asked whether the defender might make an interim payment towards expenses to cut down on any interest which may ultimately be payable. No response was received, leading to the pursuer’s motion.

The defender’s agent cited Tods Murray WS v Arakin Ltd (2013) in which Lord Woolman found that special reasons justified interim expenses based on the high value of the case, the pursuer having spent over £1 million in legal costs. Reference was also made to Kidd v Paul & Williamson LLP and another (2017), in which the scale and complexity of the litigation together with the likely size of the award justified an order. Here, it was submitted that none of these factors were present, the account was relatively modest, and if delay in having accounts taxed was seen as a special reason the floodgates would be opened to a vast number of similar motions.

For the pursuer it was submitted that there were significant delays in accounts being taxed by the Auditor of Court, with particular examples cited featuring delays of 6 to 10 months. There was no prejudice to the defender in making an interim payment, and no special reason was needed for an award of interim expenses. It was noted that, as the pursuer was not himself responsible for outlays and fees in respect of the action, the party who was out of pocket was the pursuer’s agents, but this was typical for personal injury actions and that was a factor to which the court ought to have regard.

No control over time

In his decision, Sheriff Walls began by observing: “Although it was a matter of agreement, there appear to be no authorities which address whether an order for interim payment of expenses can competently be awarded in the Sheriff Court. It seems to me that there is no reason why the position now taken in the Court of Session ought not to be followed in the Sheriff Court.”

He continued: “The applicable rules of court (whether in the Court of Session or the Sheriff Court) provide a mechanism whereby an award of expenses may be made, quantified by the Auditor of Court, extracted and in due course enforced. This is the ‘ordinary way’ in which, absent agreement, a party with an award of expenses in its favour gets paid. What all the cases identify, in one way or another, is that there must be a basis for the court to exercise its discretion to depart from the ordinary way. It makes no difference, in my view, whether that is described as a ‘special reason’ or as ‘sufficient reason’.”

Considering whether the reason advanced by the pursuer was a sufficient basis for interim award, Sheriff Walls said: “The length of time being taken to tax accounts is a source of concern to firms who act for pursuers in personal injury cases. It may also be a concern to parties with awards of expenses that need taxed in other types of action. However, this court has no control over the length of time that the Auditor of Court takes to tax accounts. The schedule of taxation timescales produced by the pursuer speaks for itself but confirms that the delay in having an account taxed is not unique to this case.”

He concluded: “In the cases I have referred to, concerns about liquidity, the burden of funding ongoing litigation, and outstanding legal fees accruing interest are examples matters found to justify an award of interim expenses. None of these are factors are present in this case. Depending on the facts of any given case, other facts may justify an award of interim expenses. However, a common feature of all the cases is that the order for interim payment of expenses was justified in view of the position of the pursuer. As accepted by the pursuer’s agent, in this case the pursuer has no remaining financial interest in this case.”

Accordingly, the sheriff refused the pursuer’s motion for an interim award.