Sheriff Appeal Court allows appeal after expenses awarded against successful party in parking fine dispute

About this case:

• Citation:
  [2025] SAC (Civ) 2
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Smaira Saleem successfully defended a case raised by Euro Car Parks Ltd, which operated the car park on the campus of Robert Gordon University, after establishing that she had not been the driver of the vehicle on the days that the charges were incurred. The sheriff, however, awarded expenses to the pursuer after finding that they were merited by her conduct of the case.

The appeal was heard by Sheriff Principal Sean Murphy KC, with Hutcheson, solicitor, appearing for the defender and appellant and Cargill, solicitor, for the pursuer and respondent.

Devoid of merit

The appellant was the registered keeper of a Vauxhall Corsa which was repeatedly left in the RGY car park in contravention of its permit system, and also commonly left in a disabled parking bay without displaying the necessary badge. Some 49 fixed penalty charge tickets were issued as a result of these contraventions. At the diet of proof in Paisley Sheriff Court, the defender testified that on each of the days in question her son, who was a student at RGU at the time, had been the driver of the vehicle, which he affirmed in his own evidence on the second day of proof.

In light of her son’s evidence, the respondent indicated that it no longer sought decree against the appellant, who was assoilzied by the sheriff. He issued an interlocutor on 6 November 2023 in which he found the respondent entitled to expenses on account of the appellant’s conduct of the case, finding that she had obstructed and obfuscated matters and failed to demonstrate the degree of candour which the court was entitled to expect.

For the appellant it was submitted that expenses ought to have been awarded to her as the successful party, who had been vindicated in her position that she was not the driver of the vehicle. The respondent’s case had been so devoid of merit that it had moved for dismissal of its own action and consented to degree of absolvitor. In these circumstances, the sheriff’s decision was highly unusual and the result of a misapplication of both substantive and procedural law.

The respondent submitted that the principle of expenses was the cost of litigation should fall on the party that caused it. The appellant had not disclosed who the driver of the vehicle on the relevant dates was until the proof and had tried to oppose a motion for specification of documents in September 2022 which sought to identify who was insured to drive the vehicle in question. Her conduct justified the sheriff’s decision on expenses.

Reluctantly reached conclusion

In his decision, Sheriff Principal Murphy noted: “The appellant had failed to respond in any way to any of the voluminous correspondence sent to her before litigation commenced which made it plain that action might be taken against her in respect of parking charges and that she had been contacted because she was the registered keeper of the vehicle and therefore was assumed to have been the driver at the material time. It is difficult to consider that proceedings against the appellant would have followed if she had identified the actual driver at a much earlier stage, which was clearly the sheriff’s position.”

He continued: “I have therefore reached the conclusion that the sheriff was correct to consider that the actions - or inaction - of the appellant in failing to identify her son as the driver caused or contributed to the raising of the action and its progress to the stage of a proof before answer which took up two days of court time. The appellant therefore was responsible to a significant extent for the raising of the action and its progress to the stage of proof before answer.”

Evaluating whether this merited an award of expenses, the Sheriff Principal said: “I note that the respondent did not cease to pursue the matter until the appellant’s son had confirmed the position so that I have reluctantly reached the conclusion that litigation may have been necessary for that position to have been properly established. I consider that the appellant was at fault and that her behaviour certainly caused unnecessary expense but the respondent might also have taken action before the debt had accumulated to the extent it did and might have made some further enquiries such as seeking to obtain information from the appellant’s insurers with the sanction of the court.”

He concluded: “I have therefore concluded that the circumstances of the present case fall within the categories set out in paragraph 19.15 of MacPhail’s Sheriff Court Practice [on refusal of expenses for a successful party] rather than the following section [on unreasonable conduct by the successful party causing litigation to take place] so that the sheriff has erred by awarding expenses against the appellant.”

The appeal was therefore allowed solely to extent of finding no expenses due by either party.