11 July 2018

As insurers will be aware, the court reforms in Scotland have not resulted in civil proofs (trials) being fixed expeditiously in the Court of Session in cases where proofs exceeding 4 days are sought.

In personal injury actions, the court will notionally assign a 4 day proof at the outset of the action. However, if a 6 or 8 day proof is subsequently sought then the pursuer will find that they face a proof assigned for a date around 15 months later. This timescale for a hearing on the evidence serves to lengthen the judicial process and the potential lifecycle of a claim. It is often not in the pursuer or the insurer’s interests to have a case put out to pasture unless the circumstances of that case make it appropriate to do so.

Standing the delays in fixing 6 / 8 day diets of proof, there has recently been a trend of pursuers’ agents seeking to split the proof under the guise of progressing the action. Pursuers have been seeking to preserve the initial 4 days assigned for the case and to have a further 2/4 days fixed a number of months later in the court term. This can cause difficulties in cases where there is an overlap between liability and quantum (i.e. issues of reliability and credibility of a pursuer) which make it inappropriate to split the proof. An added difficulty can also be seeking to identify further dates which are suitable for the judge and Counsel.

In our view, cases in which pursuers’ agents seek to split proofs is one which ought to be carefully considered and opposed in appropriate cases. Although framed under the guise of making the best use of court time and progressing the action, motions to split proofs are often a tactical ploy to seek to procure a settlement offer / an increased offer from insurers given the additional costs that would likely be incurred in defending a split proof. Insurers should bear these points in mind when faced with a motion to split a proof. 

Contact: Mark Hastings, Associate mfh@bto.co.uk T: 0141 221 8012