Tuesday, November 7th, 2023

Elaine Murray v Robert Mykytyn - [2023] SC EDIN 32

David Swanney successfully opposed the defender’s motion for an award of expenses against the pursuer, in this road traffic accident claim.

This was an action to which QOCS applied, and following success at proof the defender enrolled a motion for expenses to be granted against the purser. The defender alleged that the pursuer’s conduct of proceedings was manifestly unreasonable, in terms of section 8(4)(b) of the Civil Litigation (Expenses and Group Proceedings) Act 2018, and rule 31A.2(1)(a) of the Act of Sederunt (Sh Ct Ordinary Cause Rules) 1993.

To determine whether conduct was unreasonable, as set out in the case of Lennox, the court must be satisfied that the conduct was obviously unreasonable. The defender stated that the ’s memory issues, caused by the pursuer's narcolepsy, and the inconsistencies in her evidence, but particularly in the evidence of her husband (the driver of the vehicle in which the pursuer was a passenger) should have signified to the pursuer that her claim had no chance of success. The defender argued that by persisting with a claim that had no prospect of success, the pursuer exhibited behaviour that was manifestly unreasonable.

The pursuer however argued that the pursuer’s claim was not bound to fail, and that there were several features of the claim which pointed in the opposite direction. David Swanney submitted that it was not inevitable that the court would find the pursuer’s evidence unreliable, and that it is not uncommon for road traffic cases to involve conflicting accounts of events. The pursuer’s evidence was consistent with her case on record, and had some similarity to her husband’s evidence. Counsel submitted the pursuer's case was a “a million miles” from a situation where the only conclusion was that the pursuer was bound to lose.

The Sheriff of the All Scotland Sheriff Personal Injury Court found that while there were some concerns about the reliability of the pursuer’s evidence, this was not sufficient to meet the threshold of manifestly unreasonable conduct.

David Swanney then successfully sought an award of expenses from the defender, in respect of the motion.

A copy of the full judgment can be found here.

David Swanney also appeared in the Lennox case to which the Sheriff, Campbell, made reference in his judgment. This was the first reported case relating to QOCS since its implementation. A copy of that judgment can be found here.

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