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21 June, 2019

AB v Inverurie Skip Hire Ltd [2019] CSOH 47

Case comment by Michael Way, advocate

Lord Bannatyne considers post-tender expenses following late disclosed surveillance

Facts

The pursuer suffered injuries in June 2015 following a fall from a lorry. Proceedings were raised in February 2017. Liability was admitted at an early stage, although contributory negligence and causation issues were raised. Statements of valuation of claim (“SVC”) were lodged by October 2017. The pursuer valued the claim around £2.5m. The defender around £270,000. The defender lodged initial reports covering psychiatry, neuropathology and pension loss. Various pre-trial meetings (“PTM”) were scheduled, then either cancelled or postponed by the defender. In February 2018, further reports covering neurology, orthopaedics and care planning were lodged by the defender.

A tender was lodged by the defender on 29 June 2018. The tender offered to settle at £225,000 – at just under 9% of the pursuer’s SVC. The pursuer did not accept the tender timeously. 9 months passed. On 26 March and 1 April 2019, the defender then lodged five surveillance reports, with accompanying DVD footage, and six further medical/care reports commenting thereon. At the PTM on 2 April 2019, the pursuer stated he intended to accept the tender. Formal intimation and lodging of the Minute of Acceptance followed on 4 April 2019.

Issue

The defender’s motion was for the expenses of process following the lodging of the tender on 29 June 2018. The pursuer opposed on the grounds that the ordinary rule that expenses follow success ought to be applied and the court ought to exercise its discretion relative to expenses due to the defenders, in a situation where the defenders were said to have disregarded the terms of a practice note and the terms and spirit of the Rules of Court (at [7]). The defender’s position was that the rules on post-tender expenses were long established general rules which should be applied accordingly (at [14]). The questions for the Court were, in essence:

  1. Was the defender’s failure to disclose surveillance material sufficiently early causative of unnecessary procedure; and if so
  2. Should the usual rules for post-tender expenses not apply?

Decision

Lord Bannatyne granted the post-tender expenses to the defender, applying the usual rules (at [41]). These rules are laid out at {4]-[5] of the decision.

The nature of surveillance evidence is such that, to be carried out effectively, it must be done in “circumstances where it is not disclosed to the pursuer” (at [24}).

Further to be “credible and convincing, the surveillance must be carried out: (1) on a number of occasions; (2) over a reasonably substantial period of time; and (3) up to a point as close as possible to the diet of proof.” (at [25]).

Lord Bannatyne accepted the pursuer’s contention that the Practice Notes quite rightly encourage early disclosure. However, in these particular circumstances early disclosure could not have been required. Practice Note No.1 of 2007 provided that failure to disclose might sound in expenses, unless there is a reasonable excuse. The Court was satisfied that these circumstances amounted to a reasonable excuse (at [30]).

The Court also considered that to allow the pursuer’s motion would, “considerably undermine the system of tendering” (at [27]). In an adversarial system of litigation there was no obligation on a defender to disclose all evidence pre-tender so that the pursuer could accept or reject a tender “in full knowledge of that evidential position” (at [32]).

Further, Lord Bannatyne considered there was no obligation to lodge any surveillance material pre-proof. It could have been used in cross-examination to challenge the pursuer’s credibility in any event (at [34]). The content of the surveillance could not realistically have been any surprise to the pursuer given both his own knowledge of his actions and the defenders pleadings (at [37]). That his agents might not have known is insufficient to displace the usual rules.

Analysis

This case turned on the particular nature of surveillance evidence. It might be that in a different situation, the Court might be more receptive to the otherwise well-founded submissions concerning the spirit of the rules concerning early disclosure.

However, in the circumstances the usual rule that post-tender expenses should be awarded to the tenderer held true. If there was no obligation to lodge any of the surveillance evidence pre-proof, then it could not be held against the defender for failing to lodge it until they did.

Counsel and agents for pursuers will have to be mindful of the fact that such surveillance can be, and is, carried out. An agent’s lack of actual knowledge of a pursuer’s actions will be unlikely to be accepted as a reasonable ground to argue that, had the agent actually known, a tender would have been accepted earlier. Accordingly, full and frank discussions with pursuers about such matters may be necessary.

Representation

Ampersand’s Brian Fitzpatrick appeared for the pursuer.

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