About this case:

• Citation:
  [2023] SC EDIN 32
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

Defender Robert Mykytyn, who was granted decree of absolvitor in an action raised by pursuer Elaine Murray following a road accident, argued that the pursuer had led multiple conflicting accounts of the accident and ought to have know her case was bound to fail. Esto the court was not minded to find that the pursuer’s conduct amounted to the level of manifestly unreasonable, he sought for there to be no expenses due to or by either party.

The case was heard by Sheriff Kenneth Campbell, with Swanney, advocate, appearing for the pursuer and McNulty, solicitor, for the defender.

Benefit of hindsight

The case arose from a road traffic accident which occurred on 29 July 2021 in which the pursuer was a passenger in a car driven by her husband. Following proof, the sheriff gave an ex tempore judgment absolving the defender. The evidence which was given by the pursuer was fundamentally inconsistent with that of her husband, who himself gave multiple accounts of the incident.

It was accepted by the pursuer that she was forgetful due to narcolepsy, and that her agents were aware of this. The pursuer said she would have corrected her husband if the information which he gave in his police statement was inaccurate, but she did not do so and the 999 call recording to the police was not consistent with the pursuer’s case on record.

It was submitted for the defender that the pursuer’s narcolepsy and the conflicting and unreliable account of events from the driver amounted to exceptional circumstances. The pursuer should have accepted that there was no chance or substantially no chance of success and discontinued the action.

For the pursuer it was submitted that the defender was indulging in a granular examination of the prospects of success, but with the benefit of 20/20 hindsight. There was no finding that the pursuer was unreliable in her evidence. It was not uncommon for there to be multiple accounts in road traffic accident cases, and her agents had taken a reasoned view in the circumstances to lead both.

Broadly in line

In his decision, Sheriff Campbell said of the evidence led: “I found that the pursuer’s account of the accident in her evidence was broadly in line with her pled case. The account given by her husband, who was driving the car, differed in a number of important respects from the pursuer’s account. The defender’s criticisms of the inconsistency of his account compared with earlier occasions were well made, and I found that these were more than mere differences of detail. I held that the pursuer’s husband was not a reliable witness, and that I was unable to place any weight on his evidence.”

He continued: “The pursuer suffers from narcolepsy, and she explained that makes her forgetful, but, she said it does not affect her memory. She had a clear memory of events because they stuck in her mind. Beyond that explanation from the pursuer, I did not hear any evidence, particularly not from an appropriately qualified clinician, about the effect of narcolepsy. Further her account of her husband’s interaction with the defender was not entirely consistent about where the men were during this part of events.”

Assessing his previous findings, the sheriff said: “Against that background, I came to the view that I could not be certain that the pursuer was a reliable witness. The challenge to the defender’s evidence was premised on the accounts of events by the pursuer and her husband being consistent, and thus mutually reinforcing. Nothing put in cross-examination caused me to conclude the defender was incredible or unreliable. The action failed accordingly.”

He concluded: “While it will be evident that I was unimpressed by the evidence of a key witness for the pursuer, that is not of itself sufficient to make the pursuer’s conduct manifestly unreasonable. Nor did I find her to be incredible in her own evidence, albeit I had some concerns about her reliability, these were based on matters external to her evidence. Again, that is not sufficient to meet the threshold of manifestly unreasonable conduct. Similarly, I do not consider that analysis of the evidence discloses any circumstances which are exceptional.”

The motion for expenses was accordingly refused.