A recent decision from the All‑Scotland Sheriff Personal Injury Court, Gordon Dunn v Menzies Distribution Limited [2026] SC EDIN 22, highlights the consequences for pursuers who abandon their claim after evidence emerges which contradicts their initial allegations, and the court’s willingness to disapply Qualified One‑Way Costs Shifting (“QOCS”) on the grounds of fraudulent representations and abuse of process. The decision also demonstrates that, where fraud is established, pursuers may face a significantly increased expenses risk, including an award on the ‘solicitor‑client’ scale rather than the usual ‘party‑party’ basis.

Background

In Dunn, the pursuer alleged that the defender, his former employer, lost his personnel file containing sensitive personal information, including details of a past abusive relationship, giving rise to a data breach for which the defender was liable. The defender denied that any such breach had occurred.

The pursuer claimed that learning of the loss of his personal data caused a severe deterioration in his mental health, triggering depressive symptoms, heightened anxiety, sleep disturbance, loss of motivation and intrusive negative thoughts. He said this prevented him from working, left him dependent on his parents for daily support and made it difficult for him to cope in public settings.

On that basis, he sought and obtained an interim anonymity order, which temporarily prevented his name being publicly disclosed in court documents. Such an order is typically granted to protect individuals said to be particularly vulnerable. The pursuer’s former agents submitted that the order was necessary as public identification would risk further psychological harm to him.

Surveillance and online research carried out on the defender’s behalf revealed a markedly different picture. After the alleged loss of his personnel file, the pursuer had:

  • travelled abroad to busy tourist destinations;
  • lived with a partner rather than with his parents (as he claimed);
  • continued working in an NHS procurement role; and
  • set up and operated a property‑related business.

These findings were materially inconsistent with the pursuer’s account to medical experts and with the symptoms said to underpin his claim. When presented with the evidence, the pursuer accepted it was accurate. His agents then withdrew from acting and he sought to abandon the action against the defender.

Defender’s Motion

Following disclosure of the surveillance evidence, and the pursuer’s stated intention to abandon the claim, the defender enrolled a motion seeking, among other things, to disapply QOCS and find the pursuer liable for their expenses on a ‘solicitor‑client paying’ basis. The pursuer did not attend this hearing nor was he represented.

The defender submitted that QOCS should be disapplied on four separate grounds:

  • Abandonment of the action;
  • The pursuer’s fraudulent representations about his symptoms, daily functioning and employment;
  • Manifestly unreasonable conduct in persisting with a claim built on those fraudulent representations; and
  • Abuse of process arising from the anonymity order, which was founded on information later shown to be inaccurate and continued to be relied upon despite being misleading.

It was further argued that advancing a claim on a false factual basis and putting the defender to unnecessary time and expense before abandoning the action only when confronted with contradictory evidence, justified an enhanced award of expenses in the defender’s favour (on the solicitor-client paying scale).

Court’s Decision

The Sheriff granted the defender’s motion in full. QOCS was disapplied on three grounds: abandonment, fraudulent representation and abuse of process. He considered it unnecessary to address whether the pursuer’s conduct was also manifestly unreasonable, having already found that the pursuer knowingly advanced a fraudulent case.

The Sheriff held that the pursuer knowingly presented a false account of his symptoms, functioning and employment status to expert witnesses and to the court. These misrepresentations were directly contradicted by the surveillance evidence which the pursuer accepted as accurate. He also concluded that the interim anonymity order – obtained on information later shown to be incorrect – had been improperly sought and relied upon, amounting to an abuse of process.

The Sheriff awarded the defender expenses on the solicitor‑client scale, noting that a standard party‑party award would not adequately reflect the avoidable cost and procedure caused by the pursuer’s conduct. This means the defender can recover a significantly greater proportion of its actual legal spend than would ordinarily be the case, reflecting the court’s disapproval of how the claim was advanced.

Key Takeaways

This decision provides a clear example of how Scottish courts will respond where a claim is advanced on a false premise and later abandoned. For defenders, it reinforces the value of early, targeted investigation — particularly surveillance — and highlights that, where fraud is established, QOCS may be disapplied with substantial consequences in terms of expenses for dishonest pursuers.

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

Contributors

Carly Forrest

Partner

Stephen Kirk

Solicitor