Scottish Personal Injury Claims: When will delay in accepting a tender be 'unreasonable' ?

A party who has been successful in a Scottish personal injury action has, until recently, generally been entitled to recover expenses (costs) from their unsuccessful opponent on the basis that expenses follow success. 

This principle is not absolute of course, and the most notable new exception in recent years has been the introduction of the 'QOCS' system which largely protects a pursuer from any liability for their opponent's costs, even in the event that their claim fails. From a defender's perspective, a key departure from the default QOCS rule concerns the situation where the defender makes an offer to settle a case by way of a 'tender'. If the pursuer is ultimately awarded less than the sum offered by the defender, or has delayed in accepting the tender, then while the pursuer will normally still be awarded expenses up to the date of tender, the defender is entitled to apply for QOCS to be disapplied and for an award of expenses against the pursuer from the date of tender. Any such award in the defender's favour will be restricted to a sum equivalent to 75% of the sum tendered. 

Sheriff Campbell KC, in Anderson v Emtelle UK Ltd [2023] SC EDIN 40 had to deal with disapplying QOCS when a tender was accepted (in the defender's submission) late. The test in the relevant court rules is whether the pursuer has "unreasonably delayed" accepting the tendered sum. The question for the court was therefore what amounts to unreasonable delay. 

The pursuer in Anderson instructed solicitors in October 2022 and his action was raised in November 2022, shortly before the expiry of the triennium. The action was quickly sisted (paused) to allow both parties to undertake further investigations. The pursuer had disclosed medical records, and on the basis of a view on prognosis contained within them, the defender lodged a tender in March 2023. The pursuer had instructed a medical expert in November 2022 shortly before the action was raised, however the report was not received until August 2023. That delay was due to appointment cancellations on both the pursuer and expert's part. The tender was accepted soon after the report was received. The pursuer lodged a motion for decree (judgment) in terms of the minute of tender and minute of acceptance, but the defender opposed the pursuer's motion and made a counter motion for its own costs which post-dated the lodging of the tender. While the tender had ultimately been accepted, the defender argued that the 5 months taken to accept the tender meant the pursuer had "unreasonably delayed" within the meaning of the court rules. 

Ultimately and perhaps disappointingly for defenders, Sheriff Campbell held that it did not. He held that this issue will always be a matter of the particular facts and circumstances of the case but the key considerations in all such cases will be (i) the stage of the proceedings when the tender was made; (ii) the stage of the proceedings when the tender was accepted; (iii) the length of any delay; and (iv) the reasons for that delay ([12]). 

In Anderson, Sheriff Campbell readily accepted that a period of 5 months elapsing before the acceptance of the tender was "sub-optimal" and one "which calls for explanation". However, on the facts, he considered there was such an explanation. The tender had been lodged midway through a period when the action had been sisted to allow parties to investigate. Crucially, he found that it was appropriate for the pursuer to wait until they obtained a medical report for vouching and quantification purposes before accepting the tender. The 9 month delay in obtaining that report was also, in the round, reasonable in the circumstances. The pursuer had been on holiday on the first date for consultation, the second appointment was cancelled by the expert and the third consultation went ahead followed by production of the report in early course. 

Three elements of Sheriff Campbell's decision are of particular interest for defenders. 

Firstly, a lengthy delay will not necessarily be sufficient for it to be considered unreasonable.. Having accepted that there had been a lengthy delay, the sheriff still looked to identify whether there had been some "wilful failure or other unreasonable conduct by the pursuer" ([14]). This suggests a defender in these circumstances should be looking to identify either some deliberate act or failure to act on the part of the pursuer or a general approach to consideration of the tender which will allow the court to conclude that the pursuer should have accepted the tender at an earlier date. 

Secondly, Sheriff Campbell accepted the pursuer's submission that he required to obtain a medical report before he was able to decide whether the tender should be accepted., In doing so, he rejected the defender's suggestion that the pursuer should have been able to make that decision based purely on the content of the existing medical records as the defender had done. 

Lastly, the decision in Anderson highlights the change in the default position following the introduction of QOCS. Now, the default is that the pursuer will not have an award of expenses made against them and the onus is on the defender, not just to persuade the court to exercise its discretion in a particular way, but to satisfy itself that the statutory test of 'unreasonably delayed' has been met. 

Where does this leave a defender who wants to lodge (and hopefully gain cost protection) from a tender when the pursuer has not yet obtained the necessary evidence to quantify their claim? Had the defender lodged a supporting medical report, might that have made a difference? Or would the court still have considered it reasonable for the pursuer to be given time to obtain their own? 

It seems that in Anderson the lack of time the pursuer's solicitor had to investigate the claim prior to raising proceedings was a relevant factor. It would be interesting to know whether the outcome in Anderson would have been the same if the pursuer had instructed solicitors sooner. Had that been the case, it would have, presumably, allowed more to be made of the argument that the pursuer ought to have been in a position, at an earlier stage, to properly quantify his claim. And, in turn, to know at an earlier stage, whether or not the tender should be accepted. 

The QOCS system has only been in place in Scotland since 2021 and remains in its infancy. Case law is starting to develop but it may be some time before the inter-relationship between tendering and QOCS is fully understood.