Ballantyne v United Biscuits Ltd [2015]

DAC Beachcroft Scotland successfully secured an award of expenses in Glasgow Sheriff Court, following a pursuer's failure to timeously accept an offer to abandon the court action on a "no expenses" basis.

The pursuer raised an action against her employer, seeking damages for noise induced hearing loss. Court papers were served on the defender in September 2014. Following extensive enquiries an offer to abandon on a no expenses basis was made in April 2015. No response was received to the offer and the case proceeded, with the defenders obtaining their own medical evidence and incurring significant costs. The medical evidence prepared on behalf of the defender was intimated to the pursuer's solicitor, together with additional details of the defence to the action. In August 2015, the pursuer's solicitor advised that the offer to abandon on a no expenses basis was accepted.

We advised that the offer was no longer open for acceptance and a hearing was fixed. The matter centred around a contractual dispute – had a contract been formed? The position advanced on behalf of the defenders was simple; the offer was no longer on the table. The pursuer had implicitly rejected the offer by continuing with her claim and allowing the defenders to incur significant costs. In allowing the defenders to obtain their own medical evidence, this amounted to a material change which made their late acceptance totally unsuitable and absurd in the circumstances. Finally, it was argued that any offer had to be accepted within a reasonable time and to take four months to accept an offer, particularly in the knowledge that expenses were increasing was an untenable argument.

The pursuer's position was that she was unable to make an informed decision about the offer until she had seen all of the defender's evidence, including the medical evidence. Once this was received, she accepted the offer within six weeks.

The Sheriff preferred the arguments put forward by us. He held that whilst he saw the basis for the pursuer's argument, he agreed with the defenders' submission that the offer lapsed due to a change in material circumstances.  His Lordship determined that it was possible that the offer may also have lapsed and to the pursuer's failure to accept it within a reasonable time. The Sheriff further commented that the pursuer failed to accept the offer at her own risk, she was aware that the defenders were incurring additional expense and were obtaining their own medical evidence. The Sheriff granted decree of Absolvitor (meaning that the pursuer can never raise this action again) and found the pursuer liable to the defenders for their expenses.