McIlvaney v A Gordon & Co Ltd [2010] ScotCS CSOH_118 (16 July 2010)

McIlvaney v A Gordon & Co Ltd [2010] ScotCS CSOH_118 (16 July 2010)

Where a defender makes a pre-litigation offer of the full value of the claim and repeats it as a judicial tender, and the pursuer's only benefit from litigation is a favourable award of expenses (not a higher principal sum), the court may exercise its discretion to modify expenses to nil, as private arrangements with claims companies are irrelevant to the defender's liability for expenses.

Citation
[2010] ScotCS CSOH_118
Parties
Pursuer: James McIlvaney; Defender: A. Gordon & Co Limited
Jurisdiction
Scotland
Judgment Date
16 July 2010
Procedural Posture
Personal Injury Reparation / Post Settlement Motion Regarding Expenses
Outcome
Defender's motion granted; expenses of process modified to nil.
Legal Topics
Expenses, Pre Litigation Offers, Settlement, Claims Management Companies
Civil Procedure Personal Injury Expenses Pre Litigation Offers Settlement Claims Management Companies

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Parties

James McIlvaney

Pursuer

A. Gordon & Co Limited

Defender

Procedural Posture

Personal Injury Reparation / Post Settlement Motion Regarding Expenses

Legal Issues

  1. 1 Whether the defender's liability for expenses should be modified to nil where a pre-litigation offer matched the sum accepted in settlement
  2. 2 Whether the pursuer acted reasonably in refusing the pre-litigation offer and raising proceedings

Ratio Decidendi

Where a defender makes a pre-litigation offer of the full value of the claim and repeats it as a judicial tender, and the pursuer's only benefit from litigation is a favourable award of expenses (not a higher principal sum), the court may exercise its discretion to modify expenses to nil, as private arrangements with claims companies are irrelevant to the defender's liability for expenses.

Court Disposition

Defender's motion granted; expenses of process modified to nil.

Orders

  • Expenses of process payable by the defender in pursuance of the Minute of Tender and Minute of Acceptance of Tender modified to nil.