Pre-med muddle

The Scottish Voluntary Pre Action Protocol is well established in Scotland, having been introduced in January 2006. Its aim is to promote early settlement of claims, without the need for litigation. Whilst the protocol is voluntary, 36 UK insurers are currently signatories to the protocol, with many more agreeing to deal with claim under its terms.

The protocol encourages early sharing of information, medical evidence and documents. It is silent, however on the matter of offers made prior to medical evidence being exhibited.  DAC Beachcroft Scotland were recently instructed to act in a case which had been removed from the SVPAP by the pursuer's solicitor as they deemed pre-medical offers to be out with the spirit of the protocol.

The insurer received intimation of claim in the prescribed form and responded timeously, admitting liability, agreeing to deal with the claim in terms of the protocol and making an offer of £1,500 to settle the claim without the need for medical evidence together with an offer to pay expenses on the protocol scale. The pursuer's solicitor responded, rejecting the offer and advising that they felt that the insurer had breached the protocol. Medical evidence was exhibited and the insurer was invited to make an offer within 7 days, failing which court proceedings would commence. The pursuer raised proceedings and we were instructed to defend the matter.

A tender of £8,000 was lodged and the pursuer accepted, enrolling a motion seeking judicial expenses. This was opposed on the grounds that the pursuer had acted unreasonably in raising court proceedings and therefore should not be entitled to full judicial expenses. We offered to pay the pursuer's expenses on the protocol scale. This was refused and a hearing was fixed.

The matter of pre-medical offers is not considered within the protocol and has never been addressed by the Courts. Accordingly, we advised the pursuer's solicitor that we would be seeking to have expenses modified to NIL, given the totally unreasonable way in which the pursuer and her solicitors had conducted themselves. The stakes were high; we knew that the pursuer's solicitor regularly removed cases from the protocol for totally unjustified reasons. The last thing they would want is a decision from the bench confirming that that in doing so, they were acting unreasonably. The day before the case was due to call in court, the pursuer's solicitor made an offer to settle expenses on the protocol scale, with court dues in addition. This was considered carefully. Our client was willing to agree to expenses on the protocol scale, however on our advice, was not willing to pay the court dues. The offer of protocol expenses was put to the pursuer's solicitor, who initially refused. We maintained a robust stance: if protocol expenses were not agreed we would proceed to the hearing. Late in the afternoon before the hearing, the pursuer accepted the offer, resulting in a saving of approximately £5,000 for the insurer.

The fight on expenses will continue as long as litigation does. In order for us to have a strong argument before the courts, insurers have to ensure that any pre-litigation offer carries with it an offer of expenses. The courts have consistently held that an offer to pay damages is meaningless without an offer of expenses.