Court reduces pursuer’s expenses award due to unreasonable behaviour
Steven Gibson v Menzies Aviation (UK) LTD
This was one of the first published decisions of the All Scotland Sheriff Court at Edinburgh and the reduction of the purser’s expenses by one third due to their pre and post litigation behaviour must be seen as a positive sign for defenders and defendant insurers.
The case was a personal injury action in the Sheriff Court. Liability was admitted and the only issue was that of quantum.
Pre- Litigation activity
Liability was admitted
The insurers had sought – in vain – to obtain medical reports to value the claim
The pursuer’s solicitors should have known the insurers were looking to settle the claim
The pursuers had orthopaedic and psychological reports several months before litigation which they had not disclosed
There was no issue re limitation and no indication proceedings would be raised
The pursuers still did not lodge the medical reports on raising the action
The above factors were considered relevant by Sheriff McGowan when restricting the pursuers expenses. By far the most emphasis was given to the failure to disclose the medical evidence at any stage before litigation and particular criticism was given to this not being disclosed at the time of the action being raised. The Sheriff found the pursuers behaviour to be unreasonable both before and after the raising of the action and commented as follows:
“The failure to disclose the medical reports before the present action was raised was unreasonable and deprived the insurers of a genuine opportunity to settle the claim pre-litigation... I am satisfied that the pursuers’ agents conduct was such that the court should mark its disapproval of it,” included the pursuers continuing refusal once the action was raised to disclose the medical evidence
"no sound reason for the pursuers agents to fail to disclose the medical evidence as soon as it was available…it could have and should have been disclosed before the action a raised"
A common practice of pursuer solicitors in order to maximise expenses has been to raise an action without exhibiting medical evidence or even giving notice of their intention to raise proceedings. This case should act as a deterrent for this behaviour and defenders should seek to rely on this to reduce any court costs where the circumstances are similar. An excellent sign from the judiciary that they will sanction against unreasonable behaviour on the part of pursuers.
For further information please contact Caroline Coyle, Associate on 0141 228 8132.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.