20 January 2017
The Scottish Civil Justice Council has recently issued an update which, amongst other things, deals with the topic of Pursuers’ offers. This is an issue which is likely to be of particular interest to practitioners and insurers alike.
The reintroduction of Pursuers’ offers is proposed only to apply to cases in the Court of Session and Sheriff Court ordinary procedure cases. It is not clear from the Scottish Civil Justice Council’s update alone whether such offers will apply to personal injury actions in the Sheriff Court which proceed under a specific procedure before that Court although it would seem surprising if they do not.
The applicable Table of Solicitors’ Fees will also have to be amended to include fees for making and considering Pursuers’ offers. The specific amendments to the Rules of the Court of Session and Sheriff Court have yet to be published. It remains to be seen when that legislation will be brought forward, though the intention seems to be to bring forward the Amendment to the Rules, together with the amendments to the Table of Solicitors’ Fees at the same time.
There was a brief period of time in the past when Pursuers’ offers did form part of the Rules of the Court of Session with the intended aim of encouraging early settlement in cases. Those rules were revoked in 1996 and have not been seen since, until now.
The proposed reintroduction of Pursuers’ offers will serve to bring the position in Scotland in line with the position in England and Wales where it is open to a Claimant and a Defendant to lodge a Part 36 offer with the court and then seek to rely on this offer if a sum greater than the sum offered is achieved, or not, as the case may be.
The rationale behind the reintroduction of Pursuers’ offers may again be to encourage early settlement of cases. However, it is not clear from the Scottish Civil Justice Council’s update whether there will be an uplift on the fee element in a Pursuer’s Account of Expenses if the Pursuer achieves a higher offer at proof (trial) than in the offer they lodge with the Court. If a Pursuers’ offer is to have any bite one may anticipate that there will be an adverse expenses (costs) implication for a Defender should they not accept the Pursuer’s offer and that Pursuer goes onto achieve a greater award of damages at proof.
In disease cases we have been seeing a rise in certain Pursuers’ firms seeking to make Pursuers’ offers in given cases. There is presently no procedural mechanism for them to do so, but as above, this will soon be subject to change.
The timing and amount to be tendered/offered is often a complex question and it remains to be seen how Pursuers’ offers will operate in practice and the point of which they may be deployed in a litigation. The Scottish Civil Justice Council’s update on this issue will be a key legislative development on which to keep a close eye as the coming legal year unfolds.
If you require further information about this update, please do not hesitate to contact:
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Wendy Thomson |
Mark Hastings |