Scott McSeveney v Aviva Insurance Ltd [2026] COSH
This case concerned a serious road traffic accident, involving a motorcycle and a car. The defender admitted liability and it was agreed that the pursuer had suffered a brain injury and orthopaedic injuries.
The defender made a motion to dismiss the action alleging that the pursuer had lied about the extent of their injuries and that this dishonesty made it impossible for the defender to assess the true extent of the injuries. They alleged that this was evidenced by marked discrepancies between the symptoms described by the pursuer, suggesting that he was severely disabled, and the findings of the medico-legal experts and video surveillance footage. The footage included the pursuer driving two different vehicles and carrying a heavy jerrycan unassisted. It was alleged that the pursuer had also lied about his criminal history. He had told medical experts that he had no criminal record but, in actual fact, he had several previous convictions. The defenders argued that his conduct amounted to fraud and that even where the pursuer may have a genuine claim, if he could be shown to be fundamentally dishonest, the court could dismiss the action as an abuse of process.
The pursuer argued that it had already been accepted that the claim was legitimate. The defender had admitted liability and that the pursuer had suffered a brain injury. They pointed to the difficulty of relying on edited video footage. The pursuer admitted that he had lied about driving but that this was because he ought not to have been driving as he suffered from epilepsy. They pointed to the severity of the injury in question and argued it did not follow from his dishonesty that the action should be dismissed.
In the decision, the court found an action should only be dismissed before evidence has been led in exceptional circumstances, for example, where a claim is entirely fraudulent. In this case, the court concluded that there was a genuine claim. The pursuer's conduct with regard to his convictions was given little weight as it is insufficient to show that he had been dishonest in some aspect of his claim or conduct of his life. However, the pursuer's conduct in relation to the surveillance footage did appear to show that many of the claims he made to medical experts were untrue.
In these circumstances, the pursuer's claim, though exaggerated, was still considered to be genuine, and the pursuer's claim was allowed to proceed. The court refused the defender's motion. This left it open to the defender to renew the motion if the pursuer did not candidly disclose his capabilities to expert witnesses and to the court going forward.
Marion Hamilton v Dryfe Vets Limited [2026] SC DUM 41
This case also concerned a road traffic accident collision involving two vehicles. The court found that the pursuer was dishonest about who was driving their vehicle and therefore dismissed the action. The matter of expenses was heard separately. The defender asked the court to make an award of expenses against the pursuer. They claimed that the pursuer made a fraudulent representation and acted manifestly unreasonably in being dishonest about who was driving the car.
In personal injury cases in Scotland, there are rules known as 'qualified one-way costs shifting' (QOCS) which limit the defender's ability to seek expenses against a pursuer. To read more about QOCS, see the Scottish Courts' Cost-Shifting Rules article here. The court will not make an award of expenses against the pursuer provided that the pursuer has conducted proceedings in an appropriate manner.
The court found that it was not sufficient for the pursuer to be unsuccessful for QOCS to be disapplied. Being disbelieved was not sufficient: a finding of fraud was necessary. The Sheriff preferred the evidence of the defender's witnesses to that of the pursuer. The court found that it had been the pursuer's daughter driving the car. However, the bar for fraud was set high in the case of Gilchrist v Chief Constable of Police Scotland 2023 SLT (Sh Ct) 119, here, and this test had not been met. It followed that, the conduct of the pursuer that did not amount to a fraudulent representation could also not amount to being manifestly unreasonable.
The defender's motion for expenses was refused. The Sheriff highlighted that but for the QOCS rules, he would have followed the usual rule of expenses following success and awarded them to the defender. This case serves as another reminder of the high bar which defenders must meet to disapply QOCS.
Conclusion
Both cases establish that dishonesty by a pursuer does not automatically determine the outcome, either in dismissing the claim or awarding expenses. They highlight the high legal test set for successfully arguing fraudulent misrepresentation. Defenders will have to consider if the core claim remains genuine or if there is deliberate deception. If defenders are prepared to make out an argument for fraudulent misrepresentation, they should ensure they have scrutinised the pursuer's case, including medical records, instructed reports, surveillance footage, and social media, to ascertain if there are consistencies or discrepancies with what is being claimed by the pursuer. If there are differences, this should be fully explored and doubts surrounding the pursuer's claim ought to be raised with them directly in advance of litigation.
