In B v Inverurie Skip Hire Ltd [2019] CSOH 47 the pursuer suffered head injuries in an accident for which the defenders had admitted liability and brought a claim for physical and psychological injuries. The main issues were the cause, nature and extent of the head injuries and the existence of continuing cognitive and mobility problems.

Proceedings were raised in February 2017, and the defenders lodged medical reports in October 2017 and February 2018. A Minute of Tender was lodged in June 2018. Further medical reports and three surveillance reports with accompanying DVD footage were lodged in March and April 2019.

The pursuer accepted the defenders' Tender in April 2019. After this, the defenders enrolled a motion seeking to have the pursuer found liable to them in the expenses from the date of the minute of Tender. This is normal practice when there has been a delay in the acceptance of a Tender.

The pursuer argued that the defender had disregarded the terms and spirit of the Court Rules when it came to Tenders by delaying disclosure of the surveillance evidence and accompanying expert reports. The pursuer pointed out that the first surveillance footage was available as early as December 2017. The pursuer also relied on a Practice Note which stressed the necessity for early disclosure, and emphasised that non-compliance with the spirit of early disclosure might have consequences on the issue of expenses.

The Court disagreed with the pursuer’s position and found:

  • The defenders’ delay in disclosing the surveillance material was justified. The truthfulness of self-reported symptoms can only be challenged by a defender producing objective evidence to the contrary. The primary way of obtaining such evidence is from surveillance, carried out on a number of occasions over a reasonably substantial period of time, and as close to the diet of proof as possible. To require that defenders lodge such evidence bit by bit as it became available would prevent them from putting forward an effective defence.
  • There is no rule which obliges defenders to disclose all expert and other evidence which they have at the same time as lodging a Tender.
  • While practice notes encourage early disclosure of expert reports, (the benefits of which are clear), there were circumstances in which early disclosure is not appropriate or required. The circumstances of this case were in that category.
  • The Court is not to determine post-Tender expenses by reference to the state of evidence or the pursuer's apparent prospects of success at any given time. The court had to consider the issue at the end of the case, and determine what had prolonged it.

In recent years, there has been a shift towards early disclosure of evidence in Scotland which is generally regarded as a positive development. However, this case illustrates that, despite the rhetoric, each case will continue to turn on its facts and that Defenders can keep their cards close to their chest, if they can provide good reason for doing so.