A recent decision from the Court of Session (High Court equivalent) highlights the consequences of delaying acceptance of a Minute of Tender (Part 36 Offer equivalent) and the court’s willingness to disapply Qualified One-Way Costs Shifting (“QOCS”) in certain circumstances.
Background
Mr Gasper brought a claim for £2 million against two defenders. He alleged that both defenders had negligently failed to investigate his symptoms of prostate cancer on multiple occasions, until the point that he was given a terminal diagnosis. He claimed that his life expectancy would have increased had his cancer been diagnosed earlier. The defenders denied liability but maintained that, even if Mr Gasper’s cancer was diagnosed earlier, it had already metastasised, and his life expectancy would not have improved. Therefore, the defenders argued that any damages awarded to Mr Gasper should only reflect the fact that his suffering would have been alleviated sooner.
Legal Issue
A joint tender of £30,000 was lodged by the defenders in December 2024. After two rejections, the pursuer eventually accepted the tender in August 2025 - over eight months later. The defenders sought expenses from the date of the tender, arguing that the delay was unreasonable thereby triggering one of the exceptions to QOCS under the Court of Session Rules. In Scotland, QOCS places a restriction on a pursuer’s liability for expenses in personal injury claims, which can only be disapplied where the requirements for one of the exceptions are met.
The pursuer argued that the eight-month delay was not unreasonable as the medical evidence evolved significantly after the tender was lodged and it was only after a joint meeting of the experts, when the pursuer’s expert departed from his previous advice, that the pursuer appreciated the weakness of his case and could assess the reasonableness of the sum tendered.
Decision
The court was clear that 8 months was a delay. The key question was whether that delay was unreasonable and that had to be judged objectively. The court held that the eight-month delay was unreasonable. To reach this decision, the court considered four relevant factors:
- The period of delay.
- The information reasonably available to the pursuer at the time the tender was intimated and lodged.
- Whether further expert evidence or information was reasonably required before the tender could be properly considered; and
- The procedural stage the action had reached.
In terms of points 1 and 4, the court considered it relevant that the tender was lodged shortly after the parties’ court pleadings were finalised but not accepted until five months after the exchange of expert reports, and two months before the proof (trial), during which time expenses continued to be incurred.
In terms of points 2 and 3, the court found the pursuer had all necessary medical evidence by early 2025 to enable him to make an informed decision on the tender. The court rejected the pursuer’s argument that the medical evidence ‘evolved’, as the pursuer’s expert reports consistently expressed possibility not probability in relation to causation (the necessary test being the balance of probabilities). No new medical evidence on causation had been obtained and the views of the pursuer’s expert at the joint meeting were arguably more favourable than the expert’s report.
The court also dismissed the notion that the disparity between the sum sued for and the tendered amount justified the delay. It was evident the pursuer was strategically holding out in the hope for an increased offer, which did not materialise.
Expenses were awarded in favour of the defenders from the date of tender. The level of expenses was capped at 75% of the damages awarded to the pursuer in line with the Court of Session Rules. The Court rejected the pursuer’s submission that this should be further modified, stating there is nothing in the language of the rule to suggest the Court has any discretion or power to do so.
Overall, the decision in Gasper v Tain & Fearn Medical Practice & Anr is a welcome success for defenders, as it confirms that QOCS is not a shield against all cost risks for pursuers.
If you have any questions please contact our contributors below or our Insurance Team.
Contributors
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Trainee Solicitor
