From 3 April 2017, new rules will be in force introducing a formal system of pursuers’ offers.
Pursuers’ offers are not new to Scotland, they appeared briefly in Court of Session procedure in September 1996, prior to their revocation just two months later in November 1996. The new Rules, introduced by the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Pursuers’ Offers) 2017 and the Act of Sederunt (Fees of Solicitors in the Court of Session and Sheriff Court Amendment) (Pursuers’ Offers) 2017 which can be found here and here respectively, will apply to causes brought under the Court of Session Rules and Sheriff Court Ordinary Cause Rules.
Pursuers’ offers will provide the defender with the opportunity to settle the case by accepting a pursuer’s offer, inclusive of interest to the date of offer and the pursuer’s expenses. Similar to the current process of a defender’s tender (or part 36 offers in England).
For a pursuer’s offer to be valid, the following must be satisfied:
- An offer can be made in any case in which the summons or initial writ include a conclusion or crave for damages which does not require the hearing of evidence.
- An offer can be made at any time before the court gives judgment or a jury retires to consider the verdict, and it may be accepted at any time before it is withdrawn.
- Acceptance will be made by lodging a minute of acceptance in process and it must be unqualified except any question of contribution, indemnity or relief.
- Where a pursuer’s offer relates to two or more defenders, the acceptance is only valid on acceptance by all defenders. Although, the court may grant decree against the accepting defender, with the consent of that defender.
Of significance, if a court is satisfied that a defender accepted an offer after the date it could reasonably have been accepted, on the pursuer’s motion the court must allow interest on the principal sum from the date of offer and find the defender liable for payment of a 50% uplift on the pursuer’s account of expenses attributable to the period following the making of the offer.
Furthermore, the rules introduce a 50% uplift on the pursuer’s account of expenses where an offer has not been withdrawn and is not accepted, and any court award is at least the same as the pursuer’s offer (excluding interest awarded for the period after the lodging of the pursuer’s offer), so long as the court is satisfied that the pursuer’s offer was a genuine attempt to settle proceedings.
It will however be open to defenders to argue that an additional uplift in the pursuer’s expenses should not apply on cause shown. Grounds for such an argument would be the absence of liability/medical reports and vouching to support the pursuer’s offer.
The rationale behind Scottish Civil Justice Council’s decision to reintroduce pursuers’ offers may be to encourage the early settlement of cases and bring the Scottish system in line with the position in England and Wales. It will also provide clarity to defenders as pursuers will have to be realistic in how they value their claims. It remains to be seen how the pursuers’ offers will be deployed in practice but the uplift in expenses for late acceptance and non-acceptance will warrant serious consideration of any offer under the rules.