Now that's what I call summary cause expenses argument number 87

The never ending argument regarding a pursuer's right to recover Summary Cause expenses in a Small Claim continues. DAC Beachcroft Scotland successfully opposed a pursuer's motion for Summary Cause expenses in Aberdeen Sheriff Court recently.

The pursuer raised a small claim, seeking recovery of £2,230 in respect of credit hire charges. Liability was admitted, the dispute related solely to quantum. We entered proceedings and lodged defences calling on the pursuer to confirm if he was impecunious and stating that the period of hire was excessive. An offer was made prior to the case calling in court. This was rejected and following robust negotiations, settlement was agreed extra-judicially at the reduced sum of £1,575. The pursuer sought expenses on the summary cause scale in the region of £2,500. We maintained that the pursuer was only entitled to expenses on the small claims scale, which amounted to £157.50. A hearing on expenses was fixed.

At the hearing, the pursuer's solicitor made reference to several authorities, including somewhat surprisingly the decision of Sheriff Principal Stephen in the case of Tallo v Clark (considered in our September newsletter). Our primary argument was based upon the decision in Tallo, as in that case, Sheriff Principal Stephen made it perfectly clear that a defender is only exposed to summary cause expenses once a Proof is fixed. It was our argument that as a proof had not been fixed, the pursuer was only entitled to small claims expenses.

Our secondary position was that a defence in relation to quantum (the sum sought being excessive) was stated and maintained. The pursuer accepted a reduction of £655 on the sum sought.

The Sheriff preferred our argument and refused the pursuer's motion for expenses on the Summary Cause Scale and awarded small claims expenses, resulting in a saving of over £2,000.

It appears that the pursuer's agent in this case misunderstood the decision in Tallo. Had a Proof been fixed, then Tallo would have been wholly supportive of the pursuer's motion. It is perfectly clear, however that when a Proof has not been fixed, there is no entitlement to Summary Cause expenses. 

The decision of the Sheriff in this case highlights the importance of a strategy being agreed at an early stage and insurers giving authorisation for early offers to be made. This will enable us to continue the ongoing fight against disproportionate expenses.