From 3 April 2017, Pursuer’s Offers can be used in Ordinary Cause Sheriff Court actions (actions for over £5,000) and in the Court of Session.
It is available to be used in any court action where a sum of money is sought by the Pursuer and is not restricted to just personal injury actions. The Scottish Civil Justice Council which have prepared the new rules have expressly stated that it has been introduced in order to promote and encourage early settlement of cases. Lord Carloway noted that the lodging of a well pitched Pursuer’s Offer will provide a strong inducement for Defenders to settle.
The inducement to settle is not so much a reward for settling but a punishment for not settling, just as is the case with Minutes of Tender at present. It is similar to the procedure for a Minute of a Tender which is when the Defender makes a formal offer to the Pursuer to pay a sum of money with court expenses in addition. If the Pursuer does not accept the offer and the court later awards a sum equal to or greater than the amount in the Minute of Tender then there are consequences in expenses. Those consequences are that the Pursuer has to pay the Defender’s expenses from the date that the Pursuer ought reasonably to have accepted the Minute of Tender and recovers no expenses from the Defender.
Similarly, if the Defender does not accept the Pursuer’s Offer and the court later awards an amount more than or equal to the sum sought in the Pursuer’s Offer then the Defender must pay interest on the sum from the date of the Pursuer’s Offer and pay up to 50% extra in court expenses. The court does have the ability to waive the requirement for payment of interest and uplift on fees but only on cause shown. Presently, there is no indication as to what the court will deem to be “cause shown” but if recent decisions in the All-Scotland Personal Injury Court are anything to go by it will be a reasonably high bar.
Earlier settlement of cases in what can be a lengthy process must be welcomed, especially for an injured person. What is clear is that any Pursuer’s Offer will have to be expertly judged to ensure that a claim is not undervalued but still sufficiently attractive to the Defenders to encourage them to accept it at an earlier stage so they run the risk of failing to beat it at any proof diet.
Stephanie Watson is an Associate in our personal injury team and can be contacted on 0800 731 8434.
