In May last year Lord Kinclaven issued judgement in the case of Grant Grubb v John Finlay, a claim for injury following a road traffic accident. The Pursuer claimed he had sustained a whiplash injury and sought damages of £500,000.
The Defender's position throughout was that the Pursuer was grossly exaggerating his injury and related losses to the extent that it amounted to fraud. The Defender asked the court to dismiss the Pursuer's claim in its entirety.
A tender in the sum of £30,000 was lodged by the Defender in April 2014. It was withdrawn in October 2014 and the Proof started in November 2014.
Lord Kinclaven accepted that the Pursuer suffered 12 months of symptoms that were attributable to the accident. He awarded the sum of £6,000 plus interest. He found the Pursuer liable to the Defender in the expenses of the action modified to two thirds.
Both parties appealed the decision.
Grounds of Appeal
The Pursuer appealed the position in relation to costs as they had been successful at Proof and there was no tender in place. They asked the Court to find the Defender responsible for the costs of the action.
The Defender appealed the Lord Ordinary's refusal to dismiss the action. It was said that the Pursuer presented a claim which was fundamentally dishonest and the Pursuer's conduct in evidence amounted to an abuse of process.
A written judgement was issued last week by Lord Callaway, Lord Brodie and Lord Drummond Young following the appeals.
In relation to the Lord Ordinary's refusal to dismiss the action it was held that the Court has the power to dismiss an action summarily. In this case, the Pursuer was involved in a genuine accident. It was found that he had been injured to a certain degree. It was held that the Pursuer had not made a fundamentally dishonest claim. He made a good, if exaggerated, claim. Therefore, it would have been inappropriate to dismiss the Pursuer's case. Appeal refused.
In relation to the Lord Ordinary's decision on expenses it was noted that Expenses ought normally to follow success and the Pursuer was successful in that he achieved an award in his favour and there was no tender in place.
However, there are exceptions to the general rule. One is where the conduct of a party has been improper (eg dishonest) or unreasonable. It was also noted that Appeals on expenses should not be entertained except where there has been an obvious miscarriage of justice.
The court had modified expenses due to the Pursuer's "lack of candour" in relation to several aspects of his evidence. Had the Pursuer been candid and forthright throughout, the Proof would have been a very short one.
The Inner House judges were not willing to interfere with the Lord Ordinary's discretionary power in relation to expenses. They did not feel that any miscarriage of justice had occurred. Appeal refused.