Don’t delay in disclosing medical evidence – Robertson v Wilson

A recent decision of the All-Scotland Sheriff Personal Injury Court reinforces the importance of early disclosure of evidence in personal injury claims. The court's message is clear: a party who delays unreasonably in disclosing their evidence risks consequences in expenses/ costs.

Background

The claim arose from a road traffic incident on 25 May 2025. The pursuer’s (claimant’s) solicitors intimated a claim to the defender’s insurers, but having received no response, served court proceedings on 29 April 2026.

The defender’s solicitors contacted the pursuer’s solicitors on 8 May 2026, requesting the pursuer’s evidence. In response, the pursuer’s solicitors advised that the defender should lodge a Notice of Intention to Defend (NID) in the court action, “following which we will arrange to lodge our evidence in terms of the Ordinary Cause Rules”.

The NID was lodged on 13 May, and the evidence was requested again. The evidence was provided on 14 May, and included a medical report dated 3 November 2025 as well as various other liability and quantum documents. On the same day, the defender lodged a tender (part 36 equivalent). On 22 May, the pursuer rejected the tender and lodged a pursuer’s offer (again, part 36 equivalent), which was accepted by the defender shortly thereafter.

Opposed Motion for Decree

The pursuer moved for decree (judgement) in terms of the pursuer’s offer and acceptance, together with judicial expenses. This was opposed by the defender, who invited the court to modify the pursuer’s expenses by 50% on the basis that there had been an unreasonable delay in disclosing the productions.

Parties’ Submissions

There was no suggestion that the evidence should have been disclosed pre-litigation: the defender accepted that the insurer had breached the Compulsory Pre-Action Protocol (CPAP) and the pursuer was therefore entitled to raise proceedings. Instead, the defender’s focus was on the pursuer’s failure to disclose the evidence with the initial court documents.

The defender relied upon Sheriff McGowan’s decision in Zdrzalka v Sabre Insurance [2018] SC EDIN 57, in which the court found that a report upon which a party intends to rely should be made available within a “reasonable time” after receipt. Reliance was also placed on paragraph 5 of the Sheriffdom of Lothian and Borders Practice Note No. 3 of 2016:

“To facilitate early settlement, the principles of early disclosure underlie the procedures set out in Chapters 36 OCR and 34 SCR. Last minute disclosure, i.e. lodging only in accordance with the timetable, of reports from skilled witnesses is discouraged. Failure, without reasonable cause, to lodge reports on which it is intended to rely within a reasonable time after receipt may have a consequence in expenses.”

The defender further referred to Macphail’sSheriff Court Practice which states at paragraph 24-12:

“In an action for personal injuries, it is incumbent on a pursuer to lodge with the initial writ when it is presented for warranting all medical reports on which it is intended, or intended to reserve the right, to rely in the action.”

Against that background, the defender argued that there was no justification for withholding evidence until after the NID had been lodged and accordingly sought a 50% modification of the pursuer’s expenses.

For the pursuer it was argued that the defender’s failure to comply with CPAP should be taken into account; that the defender, not the pursuer, “had caused the delay”; and that in any event, earlier disclosure would not have made a “material difference” to the date of settlement. The pursuer also sought to distinguish Zdrzalka and argued she was entitled to know whether the case would be defended before providing a medical report.

Decision

Sheriff Watson rejected the pursuer’s arguments and awarded the pursuer’s expenses subject to a 50% modification.

Having considered Zdrzalka, the Sheriff did not accept that the case could be distinguished. The pertinent question was not whether the pursuer was entitled to raise proceedings (she was), but whether she was entitled to recover her full judicial expenses despite the delay in disclosing productions. On this point, Sheriff Watson endorsed Sheriff McGowan’s reasoning in Zdrzalka:

“[19]… The court expects parties to cooperate with the principles of early disclosure in order to facilitate early settlement. That is fundamental to personal injury litigation and is encapsulated in paragraph 5 of Practice Note 3 of 2016. The evil struck at is not only last-minute disclosure, but also failure, without reasonable cause, to lodge reports on which a party intends to rely within a reasonable time after receipt.”

The pursuer had been in possession of the medical report since November 2025, yet no explanation was provided for the delay in disclosing it other than a desire to await the lodging of the NID. Sheriff Watson concluded:

“[21] In the words of the Practice Note, the pursuer failed, without reasonable cause, to lodge the report on which they intended to rely within a reasonable time after receipt, and this may therefore have a consequence in expenses.”

Key takeaways

Although Zdrzalka had already established the court’s expectation that expert reports should be disclosed within a reasonable timeafter receipt, Robertson takes this one step further and provides a practical illustration of the consequences of failing to do so.

There was no suggestion in this case that the pursuer’s evidence should have been disclosed pre-litigation, and the pursuer was not in default of the court timetable — the last date for lodging evidence would have been at least several months away. Nevertheless, the decision confirms that where a pursuer intends to rely upon evidence already in their possession, the court will expect that evidence to be disclosed at the outset of the action. A deliberate decision to withhold evidence until after a NID has been lodged is unlikely to find favour with the court.

The expenses consequences may have been limited in this particular case due to the early settlement, but a 50% modification of expenses is, nonetheless, significant.

If you would like to discuss the contents of this article further, please get in touch with our insurance team, or your usual Brodies contact.