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DWF successfully challenges premature litigation

28 February 2021
DWF counter fraud team share details of their recent success and savings for their client Royal and Sun Alliance PLC (RSA).

Details of claim 

  • DWF handled the claim pre litigation. 
  • The claim was intimated under the Compulsory Pre Action Protocol.  Liability was admitted subject to causation due to low speed impact concerns.  The admission stated that the liability admission was binding.  
  • The pursuer responded to the low speed impact concerns by releasing engineering evidence which indicated significant damage.  
  • The engineering evidence revealed that there had been a delay in inspection of the vehicle. The defender sought an explanation for the delay.
  • The pursuer provided no response pre litigation despite repeated requests.
  • Medical evidence was disclosed 38 weeks after our admission of liability and settlement proposals sought however no explanation was provided at that time in relation to the delay in inspection.
  • Proceedings were raised just one day after medical evidence was released.
  • Under the Compulsory Pre-Action Protocol, the defender should have been allowed 5 weeks from the date of receipt of medical evidence to make an offer of settlement.

The Court Action

  • Once proceedings were raised, a response was provided but 10 months had passed since the first request was made.
  • A tender (Part 36 Offer) was lodged.   The pursuer wished to accept the tender but we were not prepared to allow the pursuer to benefit from being awarded litigated expenses.
  • Our position was that the matter was prematurely litigated and offered the pursuer expenses based on the Compulsory Pre Action Protocol scale. 
  • The pursuer was not in agreement which resulted in two court hearings where we had to argue why expenses should be restricted.
  • We argued that the pursuer failed to enter into the spirit of the Pre-Action Protocol.  We demonstrated their continued pattern of non-engagement by lodging a timeline showing the repeated requests pre litigation for further information which were ignored.  
  • The pursuer argued that as our admission of liability had a condition attached, namely the causation dispute, then it was not a truly binding admission of liability and they were entitled to raise proceedings when they did. 

The Decision

  • Sheriff McCartney was persuaded by our arguments and our references to relevant case law - "To my mind, the question of the extent of any injury and/or damage falls within the category of quantification rather than liability, and accordingly, given the pursuers only provided medical evidence on 19 February 2020, the action was raised prematurely"
  • Sheriff McCartney provided a written opinion which confirmed it was clear that a binding liability admission had been made, the causation argument is separate to that and therefore the pursuer's argument that they were entitled to litigate failed.  
  • The Sheriff granted expenses to the pursuer restricted to Pre-Action Protocol level and granted expenses in our favour for the two hearings. This resulted in a significant saving to our clients in terms of expenses

This decision provides some clarity on the interpretation of the Compulsory Protocol Rules.

Should you or your team require further information on the case or require any training for your team please do not hesitate to get in touch with Jill Sinclair.

Further Reading