Scott McSeveney against Aviva Insurance Ltd (Court of Session)

Factual and Procedural Background

The Plaintiff sued the Defendant (Company A) for damages of £2,500,000 for injuries sustained in a road traffic collision on 19 November 2021. Liability was admitted and the Plaintiff sustained a brain injury and significant orthopaedic injuries. The proof was set down for six days commencing 21 April 2026. The Defendant lodged a motion to dismiss the action on the basis of alleged fundamental dishonesty by the Plaintiff, seeking dismissal of the action except insofar as it related to a claim for solatium. The Defendant conceded that, if dismissal were granted in full or in part, it would not seek repayment of interim damages totalling £140,000 already paid to the Plaintiff.

Legal Issues Presented

1. Whether the court should dismiss the Plaintiff's action as an abuse of process on the basis of alleged fundamental dishonesty.
2. Whether dismissal before evidence has been led is appropriate in the circumstances of this case.
3. Whether the surveillance and other evidence of dishonesty precludes a fair trial on quantum such that dismissal is justified.

Arguments of the Parties

Defendant's Arguments

• Attorney Milligan for the Defendant submitted there was evidence that the Plaintiff had deliberately and consistently lied about the extent of his injuries, making it impossible for the Defendant to assess quantum and amounting to an abuse of process.
• The Defendant relied on contrasts between the Plaintiff's reported symptoms to medical experts and objective findings in earlier reports (Expert Spence, 11 June 2022; Expert Aveyard, 26 July 2022; Expert Mumford, 25 May 2023) and on surveillance footage from March and August 2024 showing the Plaintiff driving and carrying a heavy jerrycan unassisted.
• The Defendant pointed to additional falsehoods (denial of prior convictions and conduct in The Prison) and submitted that the Plaintiff's conduct was a persistent and flagrant fraud warranting dismissal as an abuse of process, citing London Organising Committee of the Olympic and Paralympic Games (In Liquidation) v Sinfield [2018] PIQR 8 and related authorities. The motion should be made and determined now rather than after evidence at proof.

Plaintiff's Arguments

• Plaintiff's counsel (Attorney Allardyce and Attorney Jones Whyte) emphasised that liability and a genuine brain injury were admitted and argued that dismissal would be draconian.
• The Plaintiff submitted that video evidence may have been edited in the Defendant's favour and that admissions to doctors about driving were due to the Plaintiff's concern about epilepsy since the injury. The Plaintiff maintained inability to undertake pre-accident work and reliance on a congenital hip condition affecting walking.
• The Plaintiff argued that past dishonesty or denials (including about driving and convictions) did not necessarily justify dismissal and relied on Perrin v Walsh [2025] EWHC 2536 and Taylor v Forth Valley Health Board [2025] CSOH 103 to resist dismissal.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Braid acknowledged the court's inherent power to dismiss an action that is a blatant abuse of process, but emphasised that dismissal before evidence is led is an exceptional remedy. The court accepted that mere evidence of dishonesty in aspects of the Plaintiff's life (including the drug conviction and conduct in The Prison) carried limited weight alone. However, the surveillance footage corroborated that the Plaintiff had given false accounts to expert witnesses about his capabilities (including driving and handling heavy objects), and these specific untruths undermined the reliability of evidence advanced on the Plaintiff's behalf about capability and care needs.

The court concluded that evidence built on admitted or palpable untruths would prevent a fair trial. Nevertheless, the footage did not establish that the Plaintiff was fit for work or completely without claim for loss of earnings. Given the possibility of a genuine, though apparently exaggerated, claim on quantum, the court determined that dismissal was not appropriate at this stage. The court required the Plaintiff to give expert witnesses an honest account and to allow them the opportunity to revisit previous reports in light of the surveillance material. The court considered but declined immediately to sist the action and instead refused the Defendant's motion in hoc statu while preserving the Defendant's right to renew the motion if the Plaintiff failed to candidly disclose his capabilities.

Holding and Implications

DISMISSED STATUS: REFUSED IN HOC STATU

Holding: The court refused the Defendant's motion to dismiss the action at this stage, in hoc statu, permitting the action to proceed to proof on the scheduled timetable.

Implications: The Plaintiff must candidly disclose his capabilities to expert witnesses and to the court and must permit experts to comment again with knowledge of the surveillance evidence. The Defendant may renew its motion to dismiss if the Plaintiff does not do so. The immediate practical effect is that the action continues toward proof; the opinion does not purport to establish a new general precedent beyond applying existing authorities to the facts.