27 June 2019

The recent opinion of Lord Bannatyne in the Outer House case, AB v Inverurie Skip Hire Limited [2019] CSOH 47, illustrates some of the issues likely to be considered by the Court where a Minute of Tender has been accepted and there is a dispute regarding the defender’s entitlement to expenses from the date of the Tender.

The court should consider the procedure as a whole, at the end of the case, to determine what, if anything, has prolonged the action. The full decision can be accessed via the link here

In AB, the pursuer suffered a head injury subsequent to having fallen from an HGV trailer. Primary liability was conceded, with contributory negligence a live issue. The defenders valued the claim at £269,736. The pursuer valued his claim at £2,563,042.

The Minute of Tender was lodged on 29th June 2018 for £225,000. The Minute of Acceptance of Tender was intimated and lodged on 4th April 2019 (two days after the Pre-Trial Meeting), approximately nine months after the Tender had been lodged. In between these two dates, the defenders had been busy, having obtained and lodged a number of medical reports, along with surveillance footage, part of which was intimated on 1st April 2019. There was no disagreement as to the pursuer’s entitlement to expenses to the date of the Tender. However, surprisingly or unsurprisingly, despite the approximate 9 month gap between the Tender having been lodged and accepted, the pursuer opposed the defenders’ motion which had sought an award of expenses from the date of the Tender onwards. 

In opposing the defenders’ motion, the pursuer in part relied upon the content of Practice Note 1 of 2007, which provides that early disclosure of evidence is an underlying feature of the procedure, which may facilitate early settlement. The pursuer argued that, had the defenders’ evidence been lodged at an earlier date, additional procedure and expense might have been avoided.

The defenders’ position was that surveillance has to be carried out over a period of time and could not be disclosed on a piecemeal basis. The defenders also argued that: (1) the pursuer knew how he had acted at the time of the surveillance and that his agents were deemed to have knowledge of what he was able to do; and, (2) the medical evidence lodged after the Tender did not materially alter the defenders’ position, which had been averred on record, well before the Tender was lodged.

The pursuer’s position regarding early disclosure of evidence has to be considered in the context of the defenders’ argument that it was the pursuer who had prolonged litigation, causing considerable additional expense and procedure and that, if the defenders’ motion for expenses were to be refused, this would be to drive a ‘coach and horses’ through the system of Tendering where the Tender is an effective means of protection against the accumulation of expenses.

Lord Bannatyne found in favour of the defenders. They had been forced by the pursuer to continue to seek to vindicate their position after the Tender was lodged. They were not obliged to lodge the surveillance material or medical evidence which challenged the pursuer’s credibility and reliability, before the proof. The pursuer’s claimed ‘deficits’ were reliant upon his truthful self-reporting of symptoms, which could be challenged only by objective evidence of the contrary position.

This case illustrates that while the issue of expenses is a matter for the discretion of the court, the general rule is that expenses follow success. The result is a welcome reminder of this. It also serves as a reminder that expenses may be awarded against the party who has caused another party to the action to vindicate their rights.

Contact: Alistair Barbour, Associate awb@bto.co.uk T. 0141 221 8012