Reassuring clarification for potential personal injury compensation claimants

A recent legal case has provided encouraging clarification of the parameters within which it is safe for a claimant to pursue an action for personal injury compensation without the fear of failing and having to pay expenses from an opponent’s solicitors or their instructing insurers.

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (the 2018 Act) first introduced to Scottish personal injury claims the notion that a claimant who failed to win their case should not be penalised in expenses.

Up until this Act, which was introduced following the Taylor Review on Expenses, any claimant who failed to prove their case in a claim for damages was required to pay the whole costs of the opponent’s legal representatives. For a substantial proportion of the population, the risk of going to Court and failing was so onerous that it was felt reasonable, following wide discussion, to exempt injured people who failed to win their case from the prohibitive and life-changing amounts of money which they would have to pay to opponents who were invariably well-heeled insurance companies able to instruct expensive legal representation and bear the costs of a litigation which might be unsuccessful for a number of reasons – many of which might be unrelated to the merits of the claim.

In order to assuage the concerns of the insurance industry, certain caveats were introduced to protect them where a claimant behaved in a manifestly unreasonable manner or where the claimant or their solicitors behaved in a manner which was tantamount to an abuse of process.

Both these terms – “manifestly unreasonable” and “abuse of process” – had not until recently been analysed by the Scottish Courts but in the case of Helen Lennox-v-Iceland Foods Limited Sheriff Fife had the opportunity in December 2022 to provide some clarity on these matters.

The claimant, Ms. Lennox, was an 82 year old woman who fell over some baskets in a supermarket. Her claim failed after a Proof, and a motion was made for the expenses of the hearing to be paid by her, notwithstanding the general rule brought in by the 2018 Act that no award of expenses against a person bringing proceedings for a claim for damages for personal injury should be made.

Following detailed analysis of the wording of the Taylor Review and submissions which were made in light of it, together with an examination of the passage through Parliament of the Act and amendments which were introduced at that stage, Sheriff Fife was persuaded that in the circumstances of this case Ms. Lennox and her solicitors had not behaved in a manner which was manifestly unreasonable. Despite a lengthy criticism of the failure to lead evidence on particular matters raised in the written pleadings, the Court acknowledged that there might be different interpretations of the evidence and as such she had not behaved in a manner which was manifestly unreasonable.

As to the allegation that the claim amounted to an abuse of process, the Court concluded “on the evidence before the Court, this is not a case where the Pursuer had no chance, or substantially no chance, of success. There has been no abuse of process. The motion in respect of Section 8(4)(c) of the 2018 Act is refused.”

This is an encouraging clarification of the parameters within which it is safe to pursue an action for personal injury without the fear of failing and being saddled with a crippling account of expenses from an opponent’s solicitors or their instructing insurers. Thankfully, the spirit of the Taylor Review appears to have survived the attack made in this instance on the claimant and her agents. It was stressed, however, that each case will turn on its own facts, and it remains to be seen what further criticisms will be made of claimants as more cases, some of which will be unsuccessful, are moved through the Courts.

Email David Harris
Call our personal injury claims team free on 0808 560 0872
Arrange a callback by using our enquiry form

Share this page

Share this page via:
Twitter | Facebook | Email

Return to the previous page

Call free: 0808 560 0872

Share this page via:
Twitter | Facebook | Email