Jill Sinclair

DWF were instructed on behalf of RSA to defend two injury claims, arising from a road traffic accident. RSA’s insured admitted slightly touching the vehicle behind, occupied by the pursuers, while he was reversing into a parking bay.

Our pre-litigation team had various concerns with the claims presented. There was no objective evidence of injury, no damage to the insured’s vehicle and the pursuers did not report the accident, any vehicle damage, or any injuries to their insurers or GP. The claims were repudiated but the pursuers proceeded with litigation just before the triennium.

Primary liability was conceded subject to causation and both actions were conjoined. Pre-litigation concerns were reiterated in our pleadings. There were also significant inconsistencies across the evidence produced by the pursuers in support of their claims.

Sheriff Keir – a personal injury sheriff from ASPIC – presided over the case and following the proof commented:

• the pursuers’ evidence was peppered with inconsistencies and contradictions which meant they were unable to establish the collision caused their injuries
• the pursuers failed to establish a causal link between the impact and any resulting injury
• the pursuers medical expert was of limited assistance to the court as (1) he did not take cognisance of the stark contradiction between the medical records and the
• pursuer’s presentation at examination and (2) his approach to the potential mechanism of injury was too superficial.

Sheriff Keir proceeded to grant decree of absolvitor and fixed a hearing on expenses.

At the hearing on expenses, we argued to disapply QOCS in terms of sections 8(4)(a) and 8(4)(b) of the Civil Proceedings (Expenses and Group Proceedings) (Scotland) Act 2018 on the basis that both pursuers had made fraudulent representations and that they had acted in a manifestly unreasonable manner.

Our application was successful on both grounds, QOCS was disapplied and expenses were awarded against each pursuer. Sheriff Keir found that neither pursuer was credible or reliable in relation to the core issues of their claims. These were significant issues, which went far beyond the common scenario of the court having to prefer one version of events over another.

“I am satisfied on the balance of probabilities that both pursuers acted intentionally to mislead the court. The threshold for section 8(4)(a) has accordingly been met. Turning to section 8(4)(b), standing my conclusion that both pursuers were neither credible or reliable in relation to the core issues of their actions …. I am satisfied that the threshold for manifestly unreasonable conduct has also been met.”

DWF pre-litigation strategies have proved highly effective and resulted in a significant reduction in indemnity spend for our clients. This case signifies an important shift in insurance litigation in Scotland. It is one of the first decisions where the court was prepared to accept the pursuers acted fraudulently in pursuing their claims. Kirsteen Picken, senior associate worked closely with our pre-litigation team following their initial repudiation to maintain the stance throughout the litigation, ultimately being able to persuade the court the pursuers had made a “fraudulent representation” and acted in a “manifestly unreasonable manner”. This should be seen as a warning to potential fraudsters that the courts in Scotland will not tolerate behaviour of this nature.

Jill Sinclair is a partner at DWF