Shane Dundas

Shane Dundas called to the Bar in 2019  having completed his traineeship with one of Scotland’s leading litigation firms.

He has experience in the areas of professional liability, commercial litigation, personal injury and industrial disease. He has appeared regularly in the Sheriff Court, having conducted several proofs and debates. During devilling, he built upon his experience in these areas, as well as gaining exposure to clinical negligence, professional regulation and public law issues.

Shane has a particular interest in professional (including clinical) liability, commercial law, information technology and media law.

He completed his LLB and Diploma in Professional Legal Practice at the University of Edinburgh, where he was President of the University of Edinburgh Mooting Society.

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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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Compensate Personal Injury Network Conference

Lisa Henderson QC on panel discussing Robertson Review and what’s next for the legal profession.

Full programme including details of other sessions and break out sessions on flyer below.

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Ampersand Advocates shortlisted for Chambers of the Year at British Claims Awards 2019

Ampersand is delighted to be shortlisted for Chambers of the Year at the British Claims Awards 2019.

The British Claims Awards champions ‘Claims as a Service’ throughout all lines of insurance and industry. Teams and individuals from insurers, brokers, MGAs, law firms and other specialists will be recognised for their work in improving the claims landscape for customers.

Details of all the 2019 finalists can be viewed here. The winners will be announced at a ceremony taking place on 6th June 2019 in London.

 

 

 

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Society of Advocates in Aberdeen Lunchtime seminar: Quantum In Serious Injury Cases

Society of Advocates in Aberdeen event

Ampersand advocates Lisa Henderson QC and Louise Milligan, Advocate on Quantum In Serious Injury Cases.

This session will cover some of the issues that arise in assessing quantum in serious injury cases – such as life expectancy, the Ogden Tables, care and case management costs etc.

See Society of Advocates in Aberdeen’s website for details here.

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Teacher and assistant fail in action following injuries caused by pupils at complex needs primary school

SAMANTHA EGAN and DIANE LATTO v GLASGOW CITY COUNCIL, [2019] SC EDIN 19

The pursuers were, respectively, a pupil support worker and a class teacher employed by the defenders at an additional support needs primary school. They were assigned to a primary 6 class of pupils. There were initially four pupils in the class all of whom frequently exhibited challenging behaviour, including spitting, scratching and biting. There were four members of staff assigned to the class (the pursuers and two other support workers). The pursuers reported repeated incidents involving the pupils (particularly hair pulling, scratching and spitting).  Ultimately both pursuers were injured in incidents involving pupils, and they raised proceedings. SE raised one action and DL raised two actions. The actions were not formally conjoined, but all three actions were heard at a two-week proof diet.

The pursuers argued that the defenders had not provided a safe system of work, and in particular that the school risk assessments paid insufficient regard to transitions of pupils to and from the classroom. They also argued that the staff: pupil ratio was inadequately low. The defenders contended that the system was a reasonable one, and that challenging behaviour by the pupils and consequent risk to staff could never be eliminated.

Sheriff Fife held that the pursuers had failed to prove breach of duty or causation. The issue of transitions had been assessed in the risk assessments, and it could not be said that it had been assessed in an unreasonable way. The head teacher and deputy head had made decisions about staffing levels and it could not be said that the staff: pupil ratios were unreasonable.

James McConnell of Ampersand acted for the defenders. The full decision can be found here.

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