Summary of Opinion (Anonymized)

Factual and Procedural Background

This action was brought by the Pursuer against the First Defendant (a medical practice) and the Second Defendant (an education/health body) for alleged clinical negligence. The Pursuer claimed that the First Defendant repeatedly failed properly to examine and investigate symptoms of prostate cancer and to refer him for further investigation until the cancer was incurable. The Pursuer sued for damages in the sum of £2,000,000, alleging that an earlier diagnosis would have increased his life expectancy.

The Defendants denied liability. Their position, supported by expert medical opinion, was that even if the cancer had been diagnosed earlier it had already metastasised and the delay did not affect the Pursuer's life expectancy; accordingly, any award should reflect only earlier alleviation of suffering. The Defendants lodged a joint tender in the sum of £30,000 (net of any recovery under the Social Security (Recovery of Benefits) Act 1997) together with expenses of process to the date of the tender on 11 December 2024.

The tender was accepted by the Pursuer on 22 August 2025, more than eight months after it was lodged; the minute of acceptance was only lodged on 23 September 2025. The Pursuer seeks decree in terms of the tender and acceptance, expenses to the date of the tender and certification of skilled persons. The Defendants seek expenses of process from the date of the tender and certification of skilled persons. The only contentious issue between the parties at the hearing was whether the Pursuer's delay in accepting the tender was unreasonable such as to attract an award of expenses against the Pursuer under the qualified one-way costs shifting (QOCS) regime (Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 and Court of Session Rules, chapter 41B).

Procedural milestones and evidence relevant to this question included: the action was raised in November 2022 and governed as a chapter 42A action; the closed record was lodged in December 2024; draft expert medical reports were exchanged in January 2025; final expert reports were lodged in June/July 2025; a joint experts' meeting took place in July 2025 and a joint note became available on 13 August 2025; a proof before answer was fixed for 21 October 2025.

Legal Issues Presented

1. Whether the Pursuer's delay of more than eight months in accepting the Defendants' tender constituted "unreasonable delay" under the exceptions to the restriction on a pursuer's liability for expenses in personal injury claims (section 8 of the 2018 Act and Civil Rules 41B.2(2)(b)).
2. If there was unreasonable delay, whether the court has any residual discretion to limit or modify the extent of expenses recoverable by the Defendants beyond or otherwise than as set out in RCS 41B.3(2) (including whether the statutory 75% cap on recoverable expenses may be varied by the court).

Arguments of the Parties

Pursuer's Arguments

• The Pursuer accepted the delay required explanation but contended it was not unreasonable given the complexity of medical issues and the significant disparity between the sum sued for and the relatively low sum tendered.
• The Pursuer said his assessment of the medical evidence evolved over time; only after a joint meeting of experts in July 2025 did his expert (Attorney Clarke) depart from earlier advice sufficiently for the Pursuer to appreciate the weakness of his causation case and the reasonableness of accepting the tender.
• Even if delay were judged unreasonable, the Pursuer submitted the court should either decline to make an award against him or should not apply the maximum consequences (referencing the statutory cap of 75% of damages) and should exercise discretion to mitigate the Defendants' recovery.

Defendants' Arguments

• The Defendants argued that the Defendants had made their position on causation plain from the outset and that the Pursuer's expert opinion (as earlier expressed) never supported the causation case on a balance of probabilities.
• The Defendants submitted that the Pursuer had been in possession of all material necessary to assess the tender by the first quarter of 2025 and that no further expert evidence was reasonably required after the tender was lodged.
• The Defendants relied on the new statutory and rules framework (chapter 41B) and submitted there was no scope to vary the 75% cap; the court's discretion was constrained by the rule and the policy underpinning it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Case A v Company A [2023] SC Edin 40	Consideration of what constitutes reasonable delay in accepting a tender (authorities on common law reasonableness in the context of delay).	The court noted that that decision (where a 5 month delay was held not unreasonable on its facts) was distinguishable on its facts and that each case must be judged on its own circumstances; the court observed relevant factors and cited the case for guidance on reasonableness.
Case B v Case C 1911 SC 691	Authority for the proposition that the court may itself decide the date from which expenses recoverable under a tender should be calculated.	The court referenced the case to note that, although ordinarily an auditor determines the date from which expenses are recoverable after a tender, the court itself may decide that date if it has sufficient information; the court declined to decide the date here because full submissions were not made.
Author A, Sheriff Court Practice (4th Edition)	List of factors relevant to assessing reasonableness of delay (period of delay; information available; need for further expert evidence; stage of the action).	The court adopted and applied these factors (as part of the analytic framework) when assessing whether the Pursuer's delay was unreasonable.

Court's Reasoning and Analysis

The court's analysis proceeded from the statutory framework: section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 restricts a pursuer's liability for expenses in personal injury claims (QOCS), subject to exceptions specified by the Rules of Court. Chapter 41B of the Court of Session Rules identifies the grounds on which a defender may apply for an award of expenses against a pursuer; one such ground is "unreasonable delay on the part of the pursuer in accepting a sum offered by way of a tender lodged in process" (RCS 41B.2(2)(b)). RCS 41B.3(1) confirms the court's discretion in applications but RCS 41B.3(2) prescribes the practical limits on the amount of such expenses where the ground of delay is established.

The court identified the relevant factors to assess reasonableness (period of delay; information reasonably available to the pursuer at the time of tender; whether further expert evidence or information was reasonably required before the tender could be properly considered; and the procedural stage of the action). These factors were applied to the particular facts.

On the factual material before the court:

• The delay was more than eight months from lodging to acceptance, which the court described as "lengthy" and calling for explanation.
• By the time of the tender and certainly by March 2025, the Pursuer and his advisers were aware that causation (whether earlier diagnosis would have extended life expectancy) was a crucial issue for valuation.
• The Pursuer had in his possession an earlier draft expert report (Attorney Clarke's draft of August 2024) that was materially the same as the final report of 24 June 2025; that report used language of possibility, not probability, and did not support causation on the balance of probabilities.
• The Defendants' expert reports (January 2025 drafts and final versions) consistently took the view that causation could not be established and that delay had not affected life expectancy.
• There was no new medical evidence obtained by the Pursuer during the period of delay; nor was it shown that further enquiries were required after receipt of the tender.
• The joint experts' meeting produced a note in which Attorney Clarke expressed a view that treatment would have extended survival but would not have been curative, whereas Attorney Lester maintained life expectancy would have been no different. The court observed that the joint note, if anything, was more favourable to the Pursuer than Attorney Clarke's own written report, and thus did not justify awaiting that note before accepting the tender.
• The procedural context (chapter 42A action approaching a proof) meant parties were expected to have exchanged and tested expert evidence and to know the issues well before the proof; the tender was lodged shortly after the record was closed and the case was continuing to incur expenses in preparation for proof.

Taking those factors together, the court concluded that the Pursuer had had sufficient material in the first quarter of 2025 to make an informed decision and that the delay was objectively unreasonable. The court rejected the Pursuer's explanation that his position only crystallised after the joint experts' meeting and rejected the contention that the disparity between the sum sued for and the tendered sum made the delay reasonable in objective terms. The court also noted that, while it retained discretion not to make an award where there was unreasonable delay, the Pursuer advanced no circumstances that would justify exercising that discretion to refuse an award.

On the question of the extent of recoverable expenses, the court analysed RCS 41B.3(2). That rule provides (inter alia) that where an award is made on the ground of delay in accepting a tender, the Pursuer's liability is limited to expenses incurred after the date of the tender and, in aggregate as between multiple applicants, to 75% of the amount of damages awarded. The court held that there was no power in the rule to vary the prescribed 75% figure: the 75% cap is a policy provision designed to preserve at least 25% of damages for the pursuer and is not a percentage the court may substitute with another. The court distinguished between its inherent and rule-confirmed power to modify an award of expenses in suitable circumstances (for example to reflect poor defender conduct) and the fixed, policy-driven cap embedded in the rule.

Holding and Implications

Holding:

The court found that the Pursuer's delay of more than eight months in accepting the Defendants' tender was unreasonable and granted the Defendants' motion for expenses from the date of the tender, while limiting the Pursuer's liability in accordance with RCS 41B.3(2).

Direct consequences and practical implications:

• The court granted the Pursuer's motion for decree in terms of the tender and acceptance and for expenses to the date of the tender, and for certification of skilled persons insofar as not previously certified.
• The court granted the Defendants' motion for expenses from the date of the tender, and ordered (in terms of RCS 41B.3(2)(c)) that the Pursuer's aggregate liability, payable to both Defendants, is not to exceed 75% of the amount of damages awarded to the Pursuer; the calculation is to follow the method prescribed by the rule and any question of the precise date from which expenses are recoverable is ordinarily for the auditor unless the court is asked and provided with full information to decide it itself.
• The court declined to exercise any residual discretion to reduce or vary the statutory 75% cap: it concluded the rule does not permit the court to substitute a different percentage and there was no material before the court to justify departing from the consequences set out in RCS 41B.3.
• No broader precedent altering the statutory scheme or the 75% cap was created: the decision applied the statutory framework and Court of Session Rules to the facts of this case and affirmed that the rule-prescribed cap operates as written; the court emphasised that factual assessments of reasonableness must be made case by case.

In short: the Pursuer obtains decree in terms of the accepted tender and expenses up to the tender date; the Defendants recover expenses incurred after the tender date subject to the rule-determined cap (aggregate limitation of 75% of damages), and the court concluded the Pursuer's delay in accepting the tender was objectively unreasonable.