Compass Chambers’ David Swanney succeeds in Henry Clarke v Marks & Spencer Plc

David Swanney

Following a decree of absolvitor, the defender sought an order of expenses against the pursuer in terms of Section 8(4)(b) of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018.

The defender alleged that the pursuer’s conduct of proceedings was manifestly unreasonable and consequently that the protections afforded to the pursuer by QOCS should be dis-applied.

Both parties agreed that the principles set out by Sheriff Campbell KC in the case of Carty should be applied, and that the test for dis-applying QOCS is high when considering whether the pursuer’s behaviour has been manifestly unreasonable.

The defender argued that the pursuers case was hopeless and that prospects of success were so obviously low as to amount to manifestly unreasonable behaviour.

Read the judgment here.