A Lord Ordinary correctly refused a motion for summary dismissal of an action during a proof in which the pursuer was accused of fundamental dishonesty, but an award against the pursuer of two thirds of the defender's expenses was left standing, despite a modest award of damages in favour of the pursuer and there being no tender in process.

The Inner House made these rulings in an action by Grant Grubb against John Finlay for damages for personal injuries, after the defender reversed into the pursuer's stationary car at a petrol filling station.

The only issue was quantum of damages. The pursuer averred a whiplash injury and nerve damage in one hand, arm and shoulder due to the jerk of the 4mph impact. He sued for £500,000, and lodged valuations of his claim of £382,000 and ultimately £183,000. Although the defender maintained the claim was exaggerated for financial gain, and led evidence of the pursuer's dishonesty regarding his employment and convictions for driving without insurance, among other matters, the pursuer's medical expert believed the symptoms to be genuine. A tender lodged by the defender was withdrawn prior to proof.

At the beginning of a continued diet of proof, the defender moved that the action be summarily dismissed, a motion intimated only the previous afternoon, on the basis that the pursuer had been shown to be "fundamentally dishonest" in relation to his claim. The Lord Ordinary accepted that he had the power, but it was not appropriate or justified to exercise it at that stage. In his final opinion he stated the motion had not been well founded. He awarded damages of £7,231, holding that causation had not been proved regarding many of the effects claimed, and also found the pursuer liable to the defender in the expenses of the action, modified to two-thirds.

On appeal the defender maintained that the Lord Ordinary had erred in refusing to terminate the proceedings summarily, because they had amounted to an abuse of process. On the evidence it was impossible for the court to ascertain where the pursuer's lies stopped and the truth began. The pursuer challenged the award of expenses, arguing that his claim had been found to be justified and there had been no offer in settlement.

Delivering the opinion of the court, Lord President Carloway, who sat with Lords Brodie and Drummond Young, said it was not disputed that the court had an inherent power, in appropriate circumstances, to dismiss an action summarily, but the power was a draconian one and an option of last resort, especially if the grounds did not feature in the averments or pleas in law. "It must be in a very rare and exceptional case indeed that the court will bring a case to a sudden and permanent end, whilst one party is in the process of leading evidence to prove his or her averments." 

Here the pursuer had not been found to be fundamentally dishonest in relation to the accident. "He made a good, if exaggerated, claim. Even that exaggeration has to be seen in the context of the Lord Ordinary’s finding that the pursuer has continuing symptoms, albeit that they cannot, in the Lord Ordinary’s view and preferring one body of medical evidence over another, be causally linked to the accident.

"It would have been quite inappropriate for the Lord Ordinary to have dismissed the pursuer’s action summarily during, or at the end of, the proof."

Lord Carloway added: "It is particularly important that parties should not be allowed to invoke the court’s inherent power in the manner which occurred here, with a motion intimated on the eve of a continued proof some months after the bulk of the material relied upon by the defender had become known."

On expenses, while the Lord Ordinary's award was "at first sight, a surprising one", he had had regard to all the relevant factors, not considered any irrelevant ones, and his view was that, "if the pursuer had been candid and forthright throughout, the proof (were there to have been one at all) would have been a short one. In all these circumstances, the court is unable to hold that there are any grounds upon which the Lord Ordinary’s discretionary decision on expenses could be successfully impugned". Both the appeal and the cross appeal were therefore refused.

Click here to view the opinion of the court.