Sheriff Appeal Court refuses appeal against finding that motorbike dealer was liable for expenses of abandoned action against it

About this case:

• Citation:
  [2024] SAC (Civ) 10
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Original pursuer and respondent Norman Christie abandoned his action against Portman Motors after it repaid him the original price of the vehicle. The company argued it was materially prejudiced by not being allowed to proceed to a proof before answer.

The appeal was heard by Sheriff Principal Sean Murphy KC. The appellant was represented by Mr Whyte, solicitor, while the respondent’s representation was provided by TC Young, solicitors.

Merely disagreed with decision

The action arose after the defender purchased a motorbike from the appellant for the sum of £15,295. In August 2022 he intimated to the appellant that the machine was faulty, and later that month left it at their premises. He raised an action seeking declarator that the bike was not of satisfactory quality, repayment of the purchase price, and £1,000 for his inconvenience.

After settlement discussions between the parties which did not reach a full conclusion, the appellant repaid the purchase price to the respondent. At a pre-proof hearing on 27 June 2023 the sheriff granted an opposed motion to abandon made by the respondent and assoilzied the respondent from craves 1 to 3 of the initial writ. At the subsequent expenses hearing, the sheriff found the appellant liable for the expenses of the cause, but limited to 60% of judicial expenses.

It was submitted for the appellant that the sheriff erred by allowing the respondent to make an oral motion to abandon at the bar in the absence of a written motion and of confirmation of the legal basis for that motion. Her decision that he had enjoyed significant success in the action was plainly wrong. Had the court decided after proof that the respondent had not been entitled to reject the vehicle, he would not have been entitled to recover the price.

For the respondent it was submitted that he had settled for ninety four percent of the sum sued for, which could not be considered as failure. No error of law had been identified by the appellant, which merely disagreed with the sheriff’s decision. The appellant could not rely on privilege attaching to settlement discussions because that right had been waived in the course of written submissions to the court.

A favourable settlement

In his decision, Sheriff Principal Murphy said of abandonment: “The sheriff did not err in law by allowing the respondent to abandon his action. The motion was competent and she correctly interpreted paragraph 14.23 of Macphail’s Sheriff Court Practice. She correctly identified that the core of the action was crave 2 and that settlement had been effected in relation to that matter.”

He continued: “The appellant’s assertion that he should be allowed to proceed in relation to the remaining craves sits uneasily with his decision to settle the principal financial claim made by the respondent. To proceed further would have been pointless and a waste of the court’s time and resources: the appellant had been assoilzied in relation to the remaining craves. Accordingly the sheriff’s reasoning displays no error of law.”

On whether the decision on expenses was correctly made, the Sheriff Principal said: “In the present case the appellant contends that the sheriff was plainly wrong to consider that the making of what is described as ‘an interim payment’ by the appellant to the respondent constituted success. I cannot accept that proposition. The respondent effectively received the principal sum sued for which can only be regarded as a favourable settlement and he declined to press the ancillary parts of his claim.”

He concluded: “The sheriff therefore decided the question of expenses in the manner that the court would usually do following proof, that is by considering whether the respondent had achieved success in his action. She was correct to conclude that by receiving the principal sum sued for the respondent had achieved substantial success. It followed that it was within her discretion to award expenses to the respondent.”

The appeal was therefore refused, with the court adhering to the sheriff’s interlocutor of 24 July 2023.