Pursuers’ Offers & timing

In Anderson v Imrie & Imrie (2018) CSIH 79 the Inner House of the Court of Session (the Appeal Court) considered whether a Pursuer’s Offer could be lodged in and be effective in, the Inner House.

At first instance, the Lord Ordinary had awarded the Pursuer damages of £325,000 against the Second Defender.  That Defender then appealed and after the Appeal had been marked the Pursuer lodged a Pursuer’s Offer to settle for £300,000.

The offer wasn’t accepted, the Appeal went ahead and was unsuccessful.

Accordingly the Pursuer sought an award of expenses with a 50% uplift in Solicitors’ fees, this being in terms of Rule 34A.9.  This was on the contention that a Pursuer’s Offer had been lodged, the Second Defender had not accepted it and then a sum in excess of the Offer had been awarded by the Court thereby allowing a 50% uplift in terms of the Rule.

The Second Defender claimed that Pursuers’ Offers could only be operated in the Outer House ie, in the Court of First Instance.  The Pursuer claimed that it would be unfair if Pursuers’ Offers were not available in the Inner House.  Defenders could lodge Tenders in the Inner House.

In considering the position, the Appeal Court noted that the Rules didn’t expressly exclude Pursuers’ Offers in the Inner House but there were several indications that this was in fact the intention of the Rules.

The Court made reference to the Rule which defined a Pursuer’s Offer as seeking to “settle a claim against a Defender”.  A further Rule required such an Offer to be lodged before the Court reserved its Decision or gave its judgment or before a Jury retired to consider its verdict (in a personal injury civil jury trial case).  A further Rule provided that a Pursuer’s Offer could be accepted any time before any of these events occurred.

The Court considered that the wording used in the Rules clearly suggested that all the references were to proceedings in the Outer House ie. the Court of First Instance.  This was in line with the intention of encouraging Personal Injury Actions to settle at an early stage. 

On that basis the Court took the view that such offers weren’t available in relation to an Appeal against a decision taken in the Court of First Instance.

The Court went on to make what it described as “general observations” on the history of Pursuers’ Offers and on the consequences if they were permissible on Appeal. In summary, it pointed out that the only outcome of an appeal of this particular type “was complete success for one side or the other”.

This Opinion clarifies the position on Pursuers’ Offers in what the Court described as “all or nothing cases”. Given the similarity between the Court of Session Rules and the relevant Sheriff Court Rules on Pursuers’ Offers, it is suggested that in similar circumstances, the same will apply in any Appeal from the All Scotland Personal Injury Court to the Sheriff Appeal Court.

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