Introduction

This Outer House decision, delivered by Lord Braid on 14 October 2025, addresses a pivotal question in the developing Scottish Qualified One-Way Costs Shifting (QOCS) regime for personal injury litigation: when does delay in accepting a tender become “unreasonable” for the purpose of the costs exception in Chapter 41B of the Rules of the Court of Session, and what is the scope of the court’s discretion once that threshold is met?

The underlying action was a high-value clinical negligence claim. The pursuer, Peter Gasper, sued the partners of Tain & Fearn Medical Practice (first defenders) and NHS Education for Scotland (second defenders) for alleged negligent failure to investigate and refer symptoms suggestive of prostate cancer, resulting in a late, incurable diagnosis. He sought £2 million. The defenders’ consistent expert position was that, even if earlier diagnosis had occurred, the cancer had already metastasised and earlier treatment would not have extended life expectancy, though symptoms might have been alleviated sooner. Reflecting that stance, the defenders lodged a joint tender of £30,000 (net of any social security recoupment under section 6 of the Social Security (Recovery of Benefits) Act 1997) on 11 December 2024. After over eight months, the pursuer accepted that tender on 22 August 2025.

The court was asked to determine the consequences for expenses. Under QOCS (section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and Chapter 41B), pursuers are generally protected from liability for defenders’ expenses, but an exception applies where there has been “unreasonable delay” in accepting a tender. The key issues were:

• Whether the pursuer’s delay in accepting the December 2024 tender was “unreasonable” for the purposes of RCS 41B.2(2)(b); and
• If so, whether the court retained any discretion to reduce the effect of the prescribed cap (75% of damages) under RCS 41B.3(2)(b) and (c), or otherwise temper the award.

Summary of the Judgment

• The court held that the pursuer’s delay of more than eight months in accepting the tender was unreasonable when judged objectively ([11]–[14]).
• Relevant factors include: length of delay; information reasonably available at the time; need (or not) for further expert evidence; and the procedural stage—particularly within the Chapter 42A personal injury timetable ([10]).
• On the facts, no materially new causation evidence emerged after the tender. The pursuer had all necessary material by early 2025 to make an informed decision. Continuing to resist the tender in the hope of a higher offer did not justify delay ([11]–[13]).
• The court rejected the contention that the low tender relative to the sum sued for could justify delay; the meaningful comparison is between the tender and the realistic valuation based on known evidence, not the initial crave ([13]).
• Once unreasonable delay is established, the consequences in RCS 41B.3(2) follow. There are no “degrees of unreasonableness” warranting partial relaxation of the rule ([17]).
• The 75% cap on the pursuer’s post‑tender expenses liability is a mandatory ceiling; the court has no discretion to vary that percentage up or down ([15]–[16]). The court’s inherent power to modify expenses remains, but it cannot be used to alter the statutory 75% cap.
• The pursuer is entitled to expenses to the date of tender; the defenders are entitled to expenses from that date, subject to the aggregate 75% of damages ceiling under RCS 41B.3(2)(b)–(c) ([18]).

Analysis

1) Precedents and Materials Cited

• Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018, section 8.
  Introduces QOCS in personal injury claims: a pursuer is not generally liable for expenses, subject to exceptions defined in the Rules of Court ([2]). The relevant exception here is unreasonable delay in accepting a tender (RCS 41B.2(2)(b)).
• Rules of the Court of Session, Chapter 41B (RCS 41B.1–41B.3).
  The rules set the framework for applications seeking expenses against pursuers in QOCS cases. RCS 41B.2(2)(b) allows an award where there has been “unreasonable delay” in accepting a tender. RCS 41B.3(2) then controls the extent of liability:
  • Liability cannot exceed expenses incurred after the tender date (41B.3(2)(a));
  • Liability is limited to an aggregate sum of 75% of damages, without offsetting expenses due to the pursuer pre‑tender (41B.3(2)(b));
  • The court “must order” the liability not to exceed that 75% sum (41B.3(2)(c));
  • Where more than one applicant is involved, the court may apportion failing agreement (41B.3(2)(d)).
• Chapter 42A Case Management.
  The decision emphasises that reasonableness falls to be assessed “through the prism” of Chapter 42A, which requires parties to identify issues early, exchange expert evidence, and be ready to address resolution paths at the case management hearing ([10]).
• Macphail, Sheriff Court Practice (4th ed), para 14.50.
  Cited for general factors informing whether delay is reasonable, feeding into the analogous analysis under the new QOCS regime ([10]).
• Anderson v Emtelle UK Ltd [2023] SC Edin 40.
  Sheriff Court authority where a 5‑month delay was found not unreasonable because of genuine difficulties securing an expert appointment/report. Lord Braid distinguished that fact pattern: here, the pursuer’s expert evidence had not evolved adversely; material was in hand early; delay was largely tactical rather than evidentially compelled ([6], [10]–[13]).
• Jack v Black 1911 SC 691 at 700.
  Noted on the question whether the court or the Auditor should determine the “date” from which expenses should run. Lord Braid observed the court can itself decide that date where apprised of the facts, and remarked there is something to be said for the court resolving both the question of unreasonableness and the closely linked reasonable consideration period to avoid anomalies ([14]).

2) The Court’s Legal Reasoning

Lord Braid’s reasoning can be grouped under four headings: the objective test for unreasonable delay; the evidential baseline and application to facts; the irrelevance of the “sum sued for” disparity; and the consequences once unreasonableness is found, including the scope of discretion and the 75% cap.

a) Objective test and relevant factors

Whether delay is “unreasonable” is a fact-sensitive, objective assessment ([9]). The court endorsed a non-exhaustive list of factors relevant to that assessment ([10]):

• The period of delay;
• Information reasonably available to the pursuer at the time of the tender;
• Whether further expert evidence/information was reasonably required before the tender could be assessed;
• The procedural stage of the action—particularly significant in Chapter 42A PI actions where parties must exchange key evidence early and be able to identify/resolve issues at a case management hearing.

b) Applying the factors to the facts

On duration, more than eight months is “lengthy” and called for justification ([11]). But the core of the analysis was evidential readiness: by the first quarter of 2025, the pursuer had the key materials necessary to form a view on causation and valuation. Specifically:

• Professor Clarke’s draft causation report (Aug 2024) and final report (24 June 2025) were materially the same and used the language of possibility, not probability, on whether earlier diagnosis would have improved life expectancy ([7], [11]–[12]).
• The defenders’ draft and final expert reports (urology and oncology) consistently said the delay did not change life expectancy ([4], [6]).
• No new medical evidence on causation was obtained by the pursuer between the tender and acceptance ([12]). The joint experts’ meeting in July/August 2025 did not weaken the pursuer’s case beyond what was already apparent; if anything, the joint note was slightly more favourable to him than Professor Clarke’s standalone report ([8], [12]).

In short, the pursuer had the necessary evidential baseline early; the Chapter 42A timetable had crystallised the issues; and the continued refusal to accept the tender was not justified by any genuine need for further material or evolving medical opinion. That the pursuer hoped for a better offer or a refreshed tender could not justify the delay ([13]).

c) Disparity between tender and sum sued for is not a justification

The court rejected reliance on the wide gulf between the £30,000 tender and the £2 million crave. That subjective disparity does not rationalise delay. The proper comparison is between the tender and the realistic value of the claim on the available evidence—expert reports and statements of valuation—not the headline sum sued for ([13]).

d) Consequences once “unreasonable delay” is established

• No “degrees” of unreasonableness. The court held that the concept does not admit of gradations for the purpose of departing from the consequences prescribed by the rules; once the threshold of unreasonableness is crossed, the structured consequences in RCS 41B.3(2) apply ([17]).
• No discretion to vary the 75% cap. The court carefully distinguished its inherent power to modify expenses from the statutory cap. While the court may, in an appropriate case, modify an expenses award to reflect conduct (e.g., defender-side behaviour), the 75% cap in RCS 41B.3(2)(b)–(c) is a policy-driven, mandatory ceiling designed to preserve at least 25% of the damages to the pursuer. The court has no discretion to alter that percentage ([15]–[16]). RCS 41B.3(2)(c) uses mandatory language: the court “must order” that the pursuer’s liability not exceed the 75% figure, regardless of the Auditor’s assessment.
• Residual discretion to refuse an award? Lord Braid observed that although the determination of an application is generally at the court’s discretion (RCS 41B.3(1)), it is “difficult to envisage” circumstances where, having found unreasonable delay, the court would nonetheless refuse to make any award against a pursuer—and none were advanced here ([9]).
• Apportionment among multiple defenders. The rules provide for apportionment where necessary (RCS 41B.3(2)(d)). Here, the defenders agreed allocation, so no order was required ([6], [18]).
• Derivation of the “date” for post‑tender expenses. Parties agreed the Auditor would determine dates in due course. Lord Braid noted the court may set the date itself where apprised of the facts (Jack v Black), and suggested there is merit in the court addressing both reasonableness and the reasonable consideration period to avoid potential anomalies ([14]).

3) Impact and Practical Significance

This is a significant Outer House decision in the maturing QOCS landscape. It offers clear guidance for practitioners on both the substance and procedure of the tender-delay exception.

• Objective, evidence-led assessment. The focus is not on the size of the crave but on the evidential picture known or reasonably knowable at the time of the tender. If expert evidence does not plausibly support a material causation advantage, protraction will likely be judged unreasonable—especially in Chapter 42A PI actions where early expert exchange is built in.
• Waiting for “a better offer” is risky. Holding out for an increased tender, without new evidential justification, will not shield a pursuer from an award of post‑tender expenses. The court expressly rejected such tactical delay.
• Hard 75% cap cannot be tailored. The 75% ceiling on post‑tender expenses liability is non-variable. The court’s inherent power to modify expenses remains available in principle (e.g., for conduct), but it cannot be used to adjust the statutory ceiling percentage.
• No “partial unreasonableness” discount. Once delay is unreasonable, the court will not create sliding-scale outcomes based on perceived degrees of culpability; the rule’s structured consequences apply.
• Procedural timing matters under Chapter 42A. Because Chapter 42A front-loads disclosure and issue refinement, a pursuer commonly should be able to take a defensible position on a tender relatively early. Delays after expert exchange and valuations will be scrutinised closely.
• Auditor v. court on the “date” question. The observation about the court itself setting the post‑tender period suggests a developing best practice: when ruling on unreasonableness, judges may increasingly fix the reasonable consideration period to avoid fragmentation between judicial and auditing decisions.
• Multi-defender coordination. Where multiple defenders lodge a joint tender, their entitlement to post‑tender expenses is subject to a single aggregate 75% cap and apportionment under RCS 41B.3(2)(d). Agreement between defenders can streamline the process, as here.

Complex Concepts Simplified

• QOCS (Qualified One-Way Costs Shifting): A regime protecting pursuers in personal injury proceedings from liability for defenders’ expenses, unless specified exceptions apply (e.g., unreasonable delay in accepting a tender). Its policy aim is to improve access to justice while deterring unreasonable litigation conduct.
• Tender: A formal, binding settlement offer lodged in process. If a pursuer ultimately recovers no more than the tendered amount and has unreasonably delayed acceptance, the defender can seek post‑tender expenses under QOCS exceptions.
• Chapter 42A (Personal Injury case management): Procedural rules obliging early exchange of expert evidence and statements of valuation, and proactive case management to identify issues, narrow disputes, and promote settlement.
• Proof before answer: A trial at which evidence is led before final legal questions are determined.
• Auditor of Court: The official who assesses (“taxes”) expenses. Ordinarily determines amounts due and, in practice, the operative dates for pre- and post‑tender expenses unless the court specifies.
• Solatium: The Scottish head of damages for pain and suffering.
• Certification of skilled persons: A court order recognising experts/specialists engaged by a party, enabling recovery of their fees as part of expenses.
• “Net of section 6” (Social Security (Recovery of Benefits) Act 1997): Damages/tender are net of any sums the defender must repay to the state for recoverable benefits paid to the pursuer, ensuring no double recovery.

Application to the Case: Key Factual Threads

• Action raised November 2022; closed record December 2024. Joint tender of £30,000 lodged 11 December 2024.
• Draft expert reports exchanged January 2025; initial statements of valuation followed. Pursuer initially valued at £189,750; first defenders at £16,500; later defenders at £17,973; pursuer later reduced to £101,520 and made a £75,000 pursuer’s offer (1 July 2025).
• Professor Clarke’s draft (Aug 2024) and final (24 June 2025) reports materially aligned, positing possibilities rather than probabilities on life expectancy improvement. Defenders’ experts maintained that delay did not affect life expectancy.
• Joint experts’ meeting 4 July 2025; joint note 13 August 2025. No new medical evidence strengthening the pursuer’s causation case emerged post‑tender.
• Delay in acceptance: tender rejected on 22 May 2025 and 1 July 2025; accepted 22 August 2025 (minute lodged 23 September 2025)—more than eight months after lodging.
• Court found delay unreasonable; awarded pursuer expenses to tender; defenders’ expenses post‑tender, subject to aggregate 75% of damages cap, with certification of skilled persons for both sides ([18]).

Practice Points for Litigators

• Audit expert causation opinions early and realistically; where reports use language of possibility rather than probability, reassess valuation promptly.
• Do not assume that waiting for a joint experts’ meeting will justify delaying acceptance, especially if draft and final positions are stable.
• Evaluate a tender against the realistic value of the claim grounded in current evidence, not against the initial crave.
• Document any genuine barriers to evaluation (e.g., unavoidable delays in obtaining essential expert evidence)—they may justify a reasonable period of non-acceptance.
• When arguing discretion, distinguish carefully between the court’s inherent power to modify expenses (still available) and the mandatory 75% cap (not variable).
• Consider inviting the court to set the effective post‑tender period when ruling on unreasonableness to avoid later anomalies at taxation.

Conclusion

Peter Gasper v Tain & Fearn Medical Practice and NHS Education for Scotland is a significant Outer House authority refining the operation of the QOCS tender-delay exception. It lays down a clear, objective framework for assessing unreasonable delay, emphasising the evidential position and Chapter 42A’s front‑loaded case management. It confirms that:

• Lengthy delay after tender acceptance opportunities will be unreasonable where the pursuer already has the material necessary to make an informed decision;
• Disparity between the tender and the sum sued for does not justify delay—reasonableness turns on the tender versus the realistic valuation based on the evidence;
• Once unreasonableness is established, the structured consequences of RCS 41B.3(2) apply: there are no “degrees” of unreasonableness; and
• The 75% cap on post‑tender expenses is a hard, non-variable ceiling, preserving at least 25% of damages to the pursuer, unaffected by the court’s general modulation powers.

The decision will guide future personal injury litigation strategy in Scotland. It encourages early and rigorous evidence-led valuation, timely responses to tenders, and careful differentiation between the court’s general discretion over expenses and the rule‑based limits the QOCS regime imposes. In balancing access to justice with proportionate litigation conduct, Lord Braid’s opinion provides both clarity and practical structure for the road ahead.