August EWJ 24 - Flipbook - Page 93
Scottish Personal Injury Claims: When Will
Delay in Accepting a Tender be 'Unreasonable'
A party who has been successful in a Scottish personal injury action has, until recently,
generally been entitled to recover expenses (costs) from their unsuccessful opponent on the basis
that expenses follow success.
ceedings when the tender was made; (ii) the stage of
the proceedings when the tender was accepted; (iii)
the length of any delay; and (iv) the reasons for that
delay ([12]).
This principle is not absolute of course, and the most
notable new exception in recent years has been the introduction of the 'QOCS' system which largely protects a pursuer from any liability for their opponent's
costs, even in the event that their claim fails. From a
defender's perspective, a key departure from the default QOCS rule concerns the situation where the defender makes an offer to settle a case by way of a
'tender'. If the pursuer is ultimately awarded less than
the sum offered by the defender, or has delayed in accepting the tender, then while the pursuer will normally still be awarded expenses up to the date of
tender, the defender is entitled to apply for QOCS to
be disapplied and for an award of expenses against
the pursuer from the date of tender. Any such award
in the defender's favour will be restricted to a sum
equivalent to 75% of the sum tendered.
In Anderson, Sheriff Campbell readily accepted that
a period of 5 months elapsing before the acceptance
of the tender was "sub-optimal" and one "which calls
for explanation". However, on the facts, he considered
there was such an explanation. The tender had been
lodged midway through a period when the action had
been sisted to allow parties to investigate. Crucially, he
found that it was appropriate for the pursuer to wait
until they obtained a medical report for vouching and
quantification purposes before accepting the tender.
The 9 month delay in obtaining that report was also,
in the round, reasonable in the circumstances. The
pursuer had been on holiday on the first date for consultation, the second appointment was cancelled by
the expert and the third consultation went ahead
followed by production of the report in early course.
Sheriff Campbell KC, in Anderson v Emtelle UK Ltd
[2023] SC EDIN 40 had to deal with disapplying
QOCS when a tender was accepted (in the defender's
submission) late. The test in the relevant court rules is
whether the pursuer has "unreasonably delayed" accepting the tendered sum. The question for the court
was therefore what amounts to unreasonable delay.
Three elements of Sheriff Campbell's decision are of
particular interest for defenders.
Firstly, a lengthy delay will not necessarily be sufficient
for it to be considered unreasonable.. Having accepted
that there had been a lengthy delay, the sheriff still
looked to identify whether there had been some
"wilful failure or other unreasonable conduct by the
pursuer" ([14]). This suggests a defender in these circumstances should be looking to identify either some
deliberate act or failure to act on the part of the pursuer or a general approach to consideration of the tender which will allow the court to conclude that the
pursuer should have accepted the tender at an earlier
date.
The pursuer in Anderson instructed solicitors in
October 2022 and his action was raised in November
2022, shortly before the expiry of the triennium. The
action was quickly sisted (paused) to allow both parties
to undertake further investigations. The pursuer had
disclosed medical records, and on the basis of a view
on prognosis contained within them, the defender
lodged a tender in March 2023. The pursuer had instructed a medical expert in November 2022 shortly
before the action was raised, however the report was
not received until August 2023. That delay was due
to appointment cancellations on both the pursuer and
expert's part. The tender was accepted soon after the
report was received. The pursuer lodged a motion for
decree (judgment) in terms of the minute of tender
and minute of acceptance, but the defender opposed
the pursuer's motion and made a counter motion for
its own costs which post-dated the lodging of the tender. While the tender had ultimately been accepted,
the defender argued that the 5 months taken to accept the tender meant the pursuer had "unreasonably
delayed" within the meaning of the court rules.
Secondly, Sheriff Campbell accepted the pursuer's
submission that he required to obtain a medical report before he was able to decide whether the tender
should be accepted. In doing so, he rejected the defender's suggestion that the pursuer should have been
able to make that decision based purely on the content of the existing medical records as the defender
had done.
Lastly, the decision in Anderson highlights the change
in the default position following the introduction of
QOCS. Now, the default is that the pursuer will not
have an award of expenses made against them and
the onus is on the defender, not just to persuade the
court to exercise its discretion in a particular way, but
to satisfy itself that the statutory test of 'unreasonably
delayed' has been met.
Ultimately and perhaps disappointingly for defenders, Sheriff Campbell held that it did not. He held that
this issue will always be a matter of the particular facts
and circumstances of the case but the key considerations in all such cases will be (i) the stage of the proEXPERT WITNESS JOURNAL
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AUGUST 2024
