Insurer that settled car crash injury action fails to have pursuer’s expenses reduced

Susan Keenan was in the passenger seat of a car being driven by her daughter when it was struck from behind. Her action against the driver’s insurer, EUI Ltd, was settled for the sum of £43,500, an amount which had been offered to her prior to the commencement of litigation.

The case was heard in the Outer House of the Court of Session by Lord Weir.

Exaggerated her symptoms

The defenders originally made a without prejudice offer in 2015, prior to the action being raised, for the sum of £43,500. This was declined by the pursuer at the time, who went on to claim she had sustained a whiplash injury to her neck and had developed adhesive capsulitis and fibromyalgia with associated conditions. This, she claimed, resulted in her being unfit for work.

A statement of valuation of claim quantified the pursuer’s claim at £1,110,880.74. At the end of May 2020, the defenders intimated surveillance of the pursuer from various dates following the accident that was said to be inconsistent with her claims. A Minute of Tender for £43,500 was accepted by the pursuer on 20 July 2020.

Following the acceptance of the Minute of Tender, the pursuer enrolled a motion for decree in terms of the Minutes of Tender and Acceptance, together with the expenses of the action “to date”. The expenses portion of the motion was opposed by the defender, who moved for the pursuer’s expenses to be modified to nil and for an award of expenses in their favour from the date of the tender.

It was submitted for the defenders that the whole litigation was an unnecessary waste of time and expense, as the pursuer had accepted a settlement offer identical to the offer made prior to the action. It had been caused because the pursuer was dishonest in claiming to have fibromyalgia.

The defenders identified several factors from which the court could infer that the pursuer had fabricated or exaggerated her symptoms. These included the disparity between the Statement of Valuation and the amount settled for, and the reports and observations of medical witnesses instructed by both sides.

In response, counsel for the pursuer submitted that the court should not infer that it was a simple case of modest value, and it was going too far to conclude that the pursuer had been dishonest. Further, the pre-litigation offer should not be taken into account, as it was expressly withdrawn. Against the background of the surveillance, which had been ongoing long before tender, there was nothing unreasonable in raising proceedings.

Unable to reach a firm conclusion

In his opinion, Lord Weir said of the defenders’ argument that the case was unnecessary: “On the material available to me I feel unable to come to that conclusion. It is important to bear in mind that this action settled without any evidence having been led. It is not, therefore, possible to subject the material to the kind of assessment and scrutiny which would have occurred after the hearing of witness testimony.”

Regarding any dishonesty on the part of the pursuer, he said: “[A neurologist instructed by the pursuer] described the pathophysiology and aetiology of fibromyalgia as complex, involving multiple levels of the nervous system, but also cognitive and emotional components in most individuals [Lord Weir’s emphasis].”

He continued: “Given his comments on the surveillance evidence I am unable to reach a firm conclusion either that the pursuer has been dishonest about the symptoms giving rise to a diagnosis of fibromyalgia, or–to the extent that the surveillance evidence may be indicative of exaggeration of the effects of her symptoms–that the conduct of the pursuer has been conscious or deliberate, such as would justify me in subjecting the pursuer’s expenses to modification.”

Lord Weir then turned to the question of whether the fact that the settlement amount was identical to the pre-litigation offer was significant. He said of this: “If the defenders harboured significant concerns about the veracity of the pursuer’s self-reporting, it was open to them to take steps to protect their position (with or without disclosure of any surveillance evidence they held) by either a repetition of the pre-litigation offer in the defences, or a tender at a significantly earlier stage than was actually done.”

He continued: “In the circumstances I do not consider it appropriate to depart from the usual rule allowing the pursuer the expenses of process to the date of the tender.”

For these reasons, Lord Weir granted decree in terms of the Minutes of Tender and Acceptance, together with the expenses of process without modification to the pursuer.