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Update: the return of pursuers’ offers

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Zibya Bashir

Zibya Bashir gives an overview of the Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Pursuers’ Offers) 2017, which comes into force today.

In essence the new rules introduce a formal system for pursuers to put forward an offer to settle a case early. This is similar to the current system where defenders can tender an offer and brings the position in Scotland in line with that in England and Wales where it is open to either party to lodge a Part 36 offer which is then relied upon if a sum greater (or lower), than the amount offered is awarded by a court.

For a limited period of time pursuers’ offers did form part of the Rules of the Court of Session but the applicable rules were revoked in 1996 and have only now been re-introduced in their current form. The applicable Table of Solicitors Fees has also been amended (see Act of Sederunt (Fees of Solicitors in the Court of Session and Sheriff Court Amendment) (Pursuers’ Offers) 2017.

Points to note about the new rules are:-

  1. the pursuer’s offer can be made in any case in which the Initial Writ or Claim form includes a financial crave (other than where evidence has to be heard);

    1. the pursuer’s offer must be lodged in court and includes interest to the date of the offer together with the pursuers expenses;

      1. there is no pre-requisite for the pursuer to exhibit vouching before lodging an offer;

        1. the pursuer’s offer can be made at any time before the court issues its judgement (or a jury retires to consider the verdict), and may be accepted by the defender at any time before its withdrawal;

          1. if the defender wants to accept the offer they must do so by lodging a Minute of Acceptance which has to be unqualified; and

            1. where the pursuer’s offer relates to more than one defender, it is only valid if accepted by all the defenders. Where only one defender in the action wants to accept the pursuer’s offer, the pursuer can seek decree against the accepting defender subject to obtaining their consent.

              2. Sanctions apply if a defender delays unnecessarily in accepting an offer made by the pursuer or where a defender fails to accept an offer at a sum which is no greater than what is awarded by a court to the pursuer. Ultimately a defender can be found liable for payment of a 50 per cent uplift on the pursuer’s account of expenses attributable to the period following the making of the offer. It is open to a defender, on cause shown, to argue that there should be no uplift. Arguably, the absence of vouching to support the pursuer’s offer may be one such reason for the court to refuse to award an uplift on the pursuer’s expenses. It is advisable therefore, that pursuers are realistic when making an offer.

              That being said there will undoubtedly be added pressure on a defender not only to give serious consideration to an offer but to do so without delay. Arguably it is unfair to try and force a defender to settle a case early for fear of being faced with a financial penalty where there are no such similar provisions in the tender process if a pursuer fails to beat a tender or then delays in accepting a tender. It is understood, however, that changes relating to expenses and how they are dealt with are due and which, it is expected will address this inequitable position.

              For now it remains to be seen how effective the re-introduction of pursuers offers will be in achieving an early settlement.

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