Tender under simple procedure leaves expenses uncapped, sheriff rules
A defender in a simple procedure case who lodged answers and later tendered a sum in settlement which was accepted, was not entitled to have liability in expenses capped at 10% of the sum decerned for, a sheriff has ruled.
Sheriff Kenneth McGowan at Edinburgh Sheriff Court made an order for the claimant, Ian Graham, to lodge an account of expenses in his action for payment against Paul Farrell, on the basis that the respondent "has not proceeded" with his defence in terms of s 81(5) of the Courts Reform (Scotland) Act 2014.
The action was one in which the claimant orignally obtained decree together with undefended scale expenses of £315.87. Decree was recalled on the basis of non-service of certain documents and that there was a defence to the claim. Mediation was unsuccessful; the respondent was ordered to lodge revised answers and an evidential hearing was fixed. In advance of that the respondent lodged a tender for £3,000, with the taxed expenses of process to date, in full settlement of the claim, which was accepted.
On the claimant's motion for an account of expenses and a hearing on expenses, the respondent argued that the sum decerned for being £3,000, the Sheriff Court (Simple Procedure) (Limits on Award of Expenses) Order 2016, provision 3(b) applied and expenases awarded could not exceed 10% of the claim. The 2015 case of Tallo v Clark, founded on by the claimant, where the case settled after the defence was lodged and the pursuer was found entitled to uncapped expenses, could be distinguished because the tender reserved all the defender's pleas and there was no admission of liability, and there was a statable defence which would have been proceeded with had the tender not been accepted.
Sheriff McGowan agreed that the "sum decerned for" meant the suym for whch was decree was granted, contrary to the claimant's argument that it meant the sum sued for, but otherwise agreed with the claimant's position. The fact that the case was settled by tender and acceptance made no diference, and the tender had carried an offer to pay expenses. Tallo applied and "has not proceeded" with the defence meant "not proceeding with the hearing on evidence and obtaining a decision
or judgment of the court".