The First Scottish decision on QOCS

This action was heard before Sheriff Fife on 13 December 2022 in ASPIC. The incident concerned a trip over loose baskets in a supermarket. The pursuer was a customer in premises operated by Iceland Foods Limited. As she was shopping, she tripped over several shopping baskets which had been stacked on the floor near the head of the checkout. The pursuer fell sustaining injury. She was 80 years old at the time of the accident and 82 years old at the proof. Following proof, decree of absolvitor was granted in favour of the defender and the defender lodged a motion for the expenses of the action.

The defender’s motion was in the following terms:

“… the Defender moves the court, in terms of OCR 31A.2(10)(a) to grant expenses of process against the pursuer in favour of the Defender.

The Defender submits that an award of expenses should be made on grounds contained in sections 8(4)(b) and (c) of The Civil Litigation TCL (Expenses and Group Proceedings) (Scotland) Act 2018 (“the 2018 Act”).

It is submitted that the Pursuer in bringing and proceeding with the litigation behaved in a manner, which was manifestly unreasonable. Further, the pursuer conducted the proceedings in a manner that amounted to an abuse of process.”

At the pre-trial meeting, the defender invited the pursuer to abandon the action. She refused. In the final days before proof, the pursuer received a settlement offer from the defender which she rejected.

The defender’s esto position was that they should receive expenses from the date of the pre-trial meeting as that was the date on which the pursuer should have accepted the invitation to abandon the action.

Submissions for the defender

The defender submitted that the term “manifestly unreasonable” should be defined using the conventional rules of statutory interpretation and be given its ordinary meaning. They submitted that “abuse of process” should be defined as per Macphail Sheriff Court Practice, 4th Edition at para 2.23 as:

“… misuse of the procedure of the court in a way which … would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied. 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 concept of an abuse of process would include the making of false averments of fact based on fabricated documents, but it is not confined to fraud. 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.”

The defender gave examples of what an abuse of process would look like, such as presenting a case in bad faith with no genuine belief in its merits, using fraudulent means or proceeding with an improper ulterior motive. The Defender also stated that the pleadings were relevant in deciding on whether there had been an abuse of process and, relying again on MacPhail, that a pleader had a duty to:

“draft the pleadings in good faith, with candour and honesty. They should state matters as facts only if they have before them evidence to support their averments, and they should never make averments for which they have no evidence”

The defender submitted that the pursuer made 17 different averments for facts that they offered to prove for which no positive evidence was lead at proof. This included a failure to lead evidence on the defender’s packing policy and how the defender failed in their duty to the pursuer by not following that policy. The Pursuer only lead two witnesses: the pursuer herself and her daughter. No liability or medical expert evidence was lead by the pursuer.

Finally, the defender submitted that the pursuer may have had an improper motive for the proceedings as the pursuer gave evidence in cross-examination that she was only in court because someone was rude to her.

Submissions for the pursuer

The pursuer submitted that the test for unreasonableness should be the same at that set out in the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (‘Wednesbury unreasonableness’) as this was the test in Sheriff Principal Taylor’s mind when he wrote the Taylor Review – Review of Expenses and Funding of Civil Litigation in Scotland – Report.

It was submitted that “abuse of process” should be defined as per Sheriff Principal Taylor’s report as conduct where a litigant has “deliberately set out to deceive the court” and has “compromised the integrity of the court’s procedures”. They argued that “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 without merit”.

In response to the defender’s assertions about a lack of positive evidence being lead, the pursuer highlighted that evidence as to the existence of the policies came from the agreement of various documents lodged in process as well as a joint minute of admissions. They also highlighted that whilst they did not lead their own liability expert, the defender’s expert was lead at proof and evidence could realistically have been obtained from him. They also argued that there is

“a distinction between advancing an argument or arguments which the court does not accept and advancing an argument that is bound to fail. This case was a clear example of where the former occurred. The pursuer was simply not found to be reliable, and the defender was found to have a reasonable system of inspection. Those two findings were fatal to the pursuer’s claim, but were not inevitable. … The test was high – “manifestly unreasonable” or “no, or substantially no chance of success”. It was not “is the pursuer likely to lose?”. [para 52]

Decision

Sheriff Fife agreed with the pursuer on all aspects. He stated that this was not a case where he found the pursuer uncredible. However, he did find her to be unreliable. Looking at the evidence, Sheriff Fife stated that whilst he did not interpret the evidence lead in a way that was favourable to the pursuer, it had been open to him to interpret it differently. The motion in respect of section 8(4)(b) was refused. Also, he stated that this was not a case where the pursuer had no chance or substantially no chance of success. He decided that there had been no abuse of process. The motion in respect of section 8(4)(c) was also refused.

Regarding the pursuer’s ulterior motive, this argument was rejected as having no merit. Sheriff Fife opined that the pursuer was in court on the advice of her solicitors.

Sheriff Fife did provide us with guidance on how these terms should be applied in future cases. The term “manifestly unreasonable” should be given its ordinary meaning of “obviously unreasonable”. “Abuse of process” should be defined as per Macphail Sheriff Court Practice, 4th Edition at para 2.23 as quoted above. He also provided agents with a warning when running arguments based on these terms, particularly when running an argument based on an “abuse of process”. Sheriff Fife drew attention to the gravity of these type of motions and their allegations. These motions level allegations against not only the pursuer but also her solicitors. He warned that “an allegation of abuse of process by solicitors is of a very serious nature, attacking the professional conduct and action of the solicitors.” In future we should consider carefully whether the circumstances are appropriate for making such serious allegations. Therefore, arguments under sections 8(4)(b) and (c) should only be used in the most serious of cases.