In this clinical negligence case, the Court of Session ruled that an eight month delay in accepting a tender was unreasonable and awarded expenses to the defender accordingly. The first time this specific issue has been considered by Scotland's highest civil court, it provides helpful guidance on both the relevant factors to consider when assessing a delay and the 75% cap rule under RCS 41B.3(2)(b).
Background
The pursuer alleged that the defenders had failed to properly investigate his symptoms of prostate cancer. He claimed that his life expectancy would have been longer had he been diagnosed earlier and sought £2 million in damages.
The defenders denied liability, their position being that the cancer had already metastasised, and so earlier diagnosis would not have affected the pursuer's life expectancy. Accordingly, any award made should reflect only that his suffering would have been alleviated sooner had he received his diagnosis earlier. The defenders’ position was backed by medical evidence.
The defenders lodged a tender of £30,000 on 11 December 2024. The tender was accepted by the pursuer on 22 August 2025, over eight months after it had been lodged.
Issues for determination
The court had to determine firstly whether the eight month delay was unreasonable in terms of the qualified one way cost shifting (“QOCS”) rules, which outline exceptions to restrictions on pursuer liability for expenses in personal injury claims. RCS 41B.2(2)(b) allows the court to make an award of expenses against the pursuer where there has been an unreasonable delay in accepting a tender.
If there was an unreasonable delay, the court then had to determine whether it had discretion to limit or modify the extent of expenses recoverable by the defenders, which has a 75% cap of the amount of damages awarded to the pursuer under RCS 41B.3(2)(b). The pursuer submitted that if the delay was unreasonable, it was not so unreasonable as to justify the maximum award of 75% of the costs incurred during that period. The defenders submitted that there was no scope to vary the cap and the court was constrained by the rule.
Decision
The decision was handed down by Lord Braid, who reiterated what factors the court will look at when considering whether a delay is unreasonable. Those being:
- The length of the delay
- The information available to the pursuer when the tender was lodged
- Whether further expert evidence was reasonably required before the tender could be considered
- The stage of proceedings when the tender was accepted
It was noted that no new medical evidence on causation had been obtained by the pursuer during the eight month period which could have explained the delay. It was also considered that the pursuer had sufficient material in the first quarter of 2025 to make an informed decision, based on the information and expert reports he had available. Consequently, the court ruled that the delay was objectively unreasonable, and the defenders’ motion for expenses from the date of the tender was granted.
The court declined to reduce or vary the 75%, noting there is nothing in the language of the rule to suggest that the court has any power to vary it to some other percentage, nor any material before the court which justified a departure from the consequences laid down in the rules.
Comment
This decision confirms that pursuers must make decisions on tenders on the basis of evidence available and without unnecessary delay. Removing the ability to argue for leniency on the 75% cap, pursuers should be mindful that QOCS will not offer protection from cost risks if matters are unreasonably protracted. Defenders should consider early tenders to achieve quicker resolution of claims, where the information and evidence available allows.
