DM v. JM & Ors [2011] ScotCS CSOH_70 (05 May 2011)

DM v. JM & Ors [2011] ScotCS CSOH_70 (05 May 2011)

The pursuer was successful against the second defenders, who failed to make a clear, adequate, or formal offer of settlement. The offers made were insufficient, lacked clarity on payment date and expenses, and did not justify depriving the pursuer of expenses. The first and second defenders had separate interests, and expenses must be assessed accordingly. The pursuer is awarded 100% of taxed expenses prior to proof and for specific motions against the second defenders, and 50% of taxed expenses for the proof itself. No expenses are due between pursuer and first defender for the proof, but the first defender is liable for up to £5,000 of pre-proof expenses caused by him.

Citation
[2011] ScotCS CSOH_70
Parties
Pursuer: D M (AP); First Defender: J M (AP); Second Defenders: THE W TRUSTEES LIMITED; Third Defender: K B (AP) as legal representative of R M, S M and J M
Jurisdiction
Scotland
Judgment Date
05 May 2011
Procedural Posture
Matrimonial/family Law Financial Provision / Post Proof, Determination of Expenses
Outcome
Partially in favour of pursuer on expenses; specific allocations made between parties.
Legal Topics
Expenses (costs), Financial Provision on Divorce, Trust Asset Distribution, Legal Aid, Offers of Settlement
Family Law Trusts and Estates Civil Procedure Expenses (costs) Financial Provision on Divorce Trust Asset Distribution Legal Aid Offers of Settlement

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Parties

D M (AP)

Pursuer

J M (AP)

First Defender

THE W TRUSTEES LIMITED

Second Defenders

K B (AP) as legal representative of R M, S M and J M

Third Defender

Procedural Posture

Matrimonial/family Law Financial Provision / Post Proof, Determination of Expenses

Legal Issues

  1. 1 Entitlement to expenses between pursuer and first defender
  2. 2 Entitlement to expenses between pursuer and second defenders
  3. 3 Effect of offers and negotiations on expenses

Ratio Decidendi

The pursuer was successful against the second defenders, who failed to make a clear, adequate, or formal offer of settlement. The offers made were insufficient, lacked clarity on payment date and expenses, and did not justify depriving the pursuer of expenses. The first and second defenders had separate interests, and expenses must be assessed accordingly. The pursuer is awarded 100% of taxed expenses prior to proof and for specific motions against the second defenders, and 50% of taxed expenses for the proof itself. No expenses are due between pursuer and first defender for the proof, but the first defender is liable for up to £5,000 of pre-proof expenses caused by him.

Court Disposition

Partially in favour of pursuer on expenses; specific allocations made between parties.

Orders

  • Pursuer awarded 100% of taxed expenses of process prior to proof against second defenders (except as previously dealt with).
  • Pursuer awarded 50% of taxed expenses of the proof against second defenders (except as previously dealt with).