Kelly Brotherhood, an associate at the firm, acted for 1st Central on behalf of a customer (the defender), in a trial heard by Sheriff Wade last month.

The hybrid trial was part in-person, part virtual, with the agents and pursuer present in court, whilst the defender’s witnesses remained at home and provided evidence via video link.

Judgment was given in favour of the defender on 10 September 2020, in what was the first proof to run at Perth Sheriff Court after the lifting of lockdown.

The case arose from a collision between two cars travelling in opposite directions on a single-track road. It highlighted the importance of proper pre-proof preparation, with the pursuers “lack of candour” proving pivotal to the proof’s outcome.

The pursuer’s written case in the run-up to proof stated there was a collision on a narrow road and that the defender was at fault. On the day of the proof, the pursuer’s counsel sought to amend this, adding words on the defender’s ‘excessive speed’ and criticising his positioning on the road. The case on excessive speed was only made known to Ms Brotherhood in the week prior to the proof. The positioning point was first made on the day of the proof.

In the exercise of her discretion, Sheriff Wade refused the pursuer’s late attempt to amend her pleadings. This decision was not pivotal to the outcome on liability because the sheriff found: “There was nothing more the defender could have done to avoid the collision. He was not at fault. On the balance of probabilities, the accident was caused by the pursuer’s failure to keep far enough to the left or to use the passing place on the bend when passing the defender’s stationary vehicle.”

The pre-litigation conduct by the pursuer’s agents, in not being fully candid on their client’s position, was, though, of significance on BLM’s motion for sanction for counsel. In granting sanction for counsel, thereby increasing the costs for which the defender was awarded against the pursuer, Sheriff Wade explained that the engagement of counsel was reasonable because of “the importance of the matter to the defender, the anxiety induced by the proceedings and the exacerbation of this anxiety caused by the lack of candour on the part of the pursuer in failing to answer legitimate calls for further specification of his alleged wrongdoing.”

Ms Brotherhood said: “This was a significant win, not only due to the proof’s timing post-lockdown. The last-minute amendment from the pursuer, their lack of candour and the conduct of their agent caused significant anxiety for our client, and we took the decision to challenge this late amendment.

“Both BLM and our client were delighted this amendment was opposed successfully, which demonstrates the importance of thorough pre-proof preparation, no matter the circumstances of the trial.”