The recent decision of the Inner House in Craig Anderson v John Imrie and Antoinette Imrie assessed whether or not a pursuer’s offer in terms of chapter 34A of the Rules of the Court of Session can be lodged and given effect to in the Inner House.
The Lord Ordinary awarded damages to the pursuer in the sum of £325,000 against the second defender. After an appeal was marked, the pursuer intimated and lodged a pursuer’s offer to settle the cause in in the sum of £300,000. This offer was not accepted.
Ultimately, the appeal was unsuccessful and the pursuer sought an award of expenses and 50% uplift in the solicitor’s fees in terms of rule 34A.9. In opposition to the uplift, the defenders argued that pursuers’ offers can only be operated in respect of claims pending in the Outer House. The pursuer’s response was that the rules refer to “the court”, not to the Outer House and that it would be unfair if (unlike tenders) pursuers’ offers were not available in the Inner House.
After consideration of the parties’ positions, the Court held that the application was incompetent. Lord Malcolm opined “it is true that the rules do not expressly exclude pursuers’ offers in the Inner House, but there are a number of indications that this was the intention”. To demonstrate this point the Court noted a number of provisions within chapter 34A, in particular:
- Rule 34A.1 defines a pursuer’s offer as one seeking to “settle a claim against a defender”;
- Rule 34A.3 requires a pursuer’s offer to be lodged in process before the court makes avizandum or gives judgement, or, in a jury trial, the jury retires to consider its verdict;
- Rule 34A.6 states that a Pursuer’s offer can be accepted at any time before the events in Rule 34A.3 after which decree can be granted in terms thereof;
- Rule 34A.5 requires that the court must not be informed of the offer until after judgement or jury’s verdict
- Rules 34A.8 & 34A.9 which state that if a pursuer’s offer is not accepted and the judgement or verdict is at least as favourable to the pursuer as the offer, and the court is satisfied that it was a genuine attempt to settle the proceedings, the pursuer can move for an uplift of 50% on the pursuer’s solicitor’s taxed fees, including any additional fee, in relation to the relevant period.
Upon consideration of the language of chapter 34A, the Court concluded that the wording is redolent of proceedings in the Outer House and that pursuers’ offers under chapter 34A are not available in respect of a challenge to a final decision taken in the Outer House. The Court further noted that this is consistent with the underlying purpose of pursuer’s offers (to encourage early settlement of personal injury actions).
Although the above considerations were sufficient for the disposal of the matter before the Court, the judges did provide a number of further more general observations. These observations can be found in paragraphs 5 to 7 here.
The case provides some welcome guidance to practitioners on the application of the rules on pursuers’ offers.
On February 14, 2019