Letter: ex-protocol expenses

Regarding the item headed “Client pays the price after firm sues for protocol expenses” (Journal, October 2013, 43), the reporting of the case Lawson v Sabre Insurance (Sheriff Murray at Peterhead) was without legal context. Allow me to provide some such context.

• In Brown v Sabre Insurance (OH, Lord Boyd of Duncansby, 25 April 2013), identical circumstances were considered. Lord Boyd found in favour of the pursuer by awarding him more in expenses than the defenders would have paid had they adhered to the voluntary pre-action protocol, and almost three times the expenses that Sabre contended for on the old chapter 10 scale. The pursuer was found to have been “entitled to raise the action in the absence of agreement to negotiate under the protocol”.
• In Durie v Sabre Insurance (Sheriff Lindsay Foulis at Perth, 27 June 2012), again identical circumstances were considered. Sheriff Foulis summarises succinctly in his note: “the issue in this case was whether the pursuer acted reasonably in raising the action without giving the defenders the opportunity to consider the medical report on the pursuer. I consider that the pursuer did so act”.
• Appeal of Sheriff Murray’s decision was actively considered, but not ultimately pursued on grounds that doing so would further delay settlement and that he appeared in any event to be very much in the judicial minority.

By way of background, the insurers concerned are ones who wish to render futile a protocol which has been agreed between the Law Society of Scotland and the Forum of Scottish Claims Managers, and which Lord Boyd, in Brown, noted as setting “standards… to be regarded as a normal reasonable approach to pre-action conduct”.

For those of us committed to that sort of approach, it is heartening to note the weight of judicial authority appears heavily in favour thereof, to say nothing of Lord Gill’s endorsement of the protocol route to litigation avoidance in his civil justice review.

Finally and on a different note, the headline suggests that our client was left financially out of pocket as a result of Sheriff Murray’s decision. That may be due to the sheriff’s comments along the lines that the client had to bear the financial consequences of the decision to litigate. The headline however is quite simply wrong. Ms Lawson paid no price as a result of the decision. She received her full damages and this firm accepted, albeit with significant reservation, the restricted expenses awarded.