Personal injury court refuses motion to treat final interlocutor as ‘pro non scripto’

Sheriff Kenneth McGowan
Sheriff Kenneth McGowan
A defender in a claim for damages for personal injuries in which a final decree was granted after the action settled has had an application to have the interlocutor treated as “pro non scripto” refused.
In the case of Louise Halligan v Sutherland’s Fruit & Veg Ltd and Wilko Stores Ltd, sheriff in the All Scotland Personal Injury Court outlined the procedure to be adopted where a “Williamson tender” has been lodged an explained the circumstances in which an interlocutor may be treated as pro non scripto.
‘Williamson tender’
Sheriff Kenneth McGowan heard that in November 2017 the second defenders lodged a Williamson tender offering to share liability to the pursuer with the first defenders to the extent of 50% each, and thereafter a standard interlocutor was pronounced discharging all diets and putting the case out by order on 15 January 2018 in event that a joint minute was not lodged.
The following month the first defenders lodged a motion “to accept the defenders’ minute of tender” with the hearing of the motion fixed for January 15, but later that month a joint motion was signed by all parties along with the pursuer’s unopposed motion for decree.
In light of these events on December 22 the sheriff clerk’s office enquirer with the parties whether the hearing on January 15 was still required, to which the second defenders’ agents responded that the opposed motion “still requires to call as it is in respect of a separate matter between the defenders“.
But on December 29 a final interlocutor was prepared reflecting the terms of the joint minute and decree was granted.
Then on January 12, following negotiations between the defenders as to the terms of the motion, an amended motion was lodged, which motion rejected by court on the basis that the final interlocutor had already been granted.
‘Pro non scripto’
The second defenders submitted that the court should treat the interlocutor of 29 December 2017 as pro non scripto; find the first defenders liable to the second defenders in the expenses of process from the date of the second defenders’ tender; and thereafter grant the pursuer’s motion interponing authority to the joint minute.
It was argued that the court had the power to correct an interlocutor and it was appropriate to do so in this case, given the intentions of the parties.
It was clear that the first defenders had accepted that there was some liability to the second defenders in the expenses occasioned by the late acceptance of the tender. 
The only effect of the first defenders’ opposition to the present motion would be to block the taxation of the second defenders’ account of expenses.
But the first defender opposed the motion, as there was no procedure which allowed the interlocutor to be treated as pro non scripto.
The interlocutor of 29 December 2017 had in effect been obtained by all parties, the pursuer had acted on the terms of that interlocutor and the taxation of the pursuer’s account was due to take place.
It was submitted that the court only had limited power to change its own interlocutors and that the proper procedure would be to mark an appeal.
Motion refused
The sheriff observed that the case was an example of the “unfortunate effects” which occur when cases “go off the rails procedurally”.
In a written note, Sheriff McGowan said: “It appears to me that a number of things have gone wrong. The first matter to deal with is the apparent misapprehension as to the nature and effect of Williamson tenders. 
“Such a tender may be described as a formal offer made by one party who has a potential liability in a case (usually a defender but it may be a third party) to agree with another party who has a potential liability, the basis on which the first party is prepared, in conjunction with the second party, to settle (or attempt to settle) such liability as may be found to exist. 
“In addition to the foregoing, it is implicit in a Williamson tender that the party making the offer to settle on one basis or another is in effect saying to the other potentially liable party ‘if you reject this offer and it turns out that in due course liability is established against you to a greater extent than I am prepared to share with you (as expressed in the tender), I will found that as regards expenses’.
“A number of things may happen where a Williamson tender is lodged. It may be accepted – thereby opening the way for (joint) negotiations with a pursuer. It may be rejected (either expressly or by being ignored) in which case it simply sits in the process. Its future relevance in that situation will depend on the final disposal of the case, either by negotiation or judgement. But a Williamson tender cannot generate a decree. In this respect it is quite different from a minute of tender or a pursuer’s offer.
“Turning to the present case, the first defenders’ motion lodged on 5 December was unnecessary and inept. No motion is required where a Williamson tender is being accepted.”
He added that the “appropriate time” for dealing with any argument as between the defenders arising from the Williamson tender was when the issue of expenses in the case was being dealt with.
The next thing that “went wrong” procedurally was the processing of the unopposed motion, by the sheriff clerk’s office, which gave rise to the final interlocutor.
In considering whether the court had the power to treat that interlocutor as pro non scripto the sheriff, with “great reluctance”, refused the motion after concluding that the circumstances in this case did not fall within any of the “limited categories” where the court may alter its own interlocutor.

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