Abuse of CPAP - an expensive lesson for pursuers

Mariola Zdrzalka and Krzystof Zdrzalka v Sabre Insurance [09.10.18]

A recent decision of the All Scotland Personal Injury Court indicates that pursuers looking to abuse the rules of the compulsory Pre-Action Protocol for Personal Injury (CPAP), will be penalised severely. The court will consider the conduct of the parties and they have clearly grown tired of pursuer solicitors’ attempts to manufacture higher expenses through artificial means.

Background

These two cases arise from a road traffic accident resulting in injury. The pursuers were occupants of the same vehicle and made claims against the insurer (defender) of the stolen vehicle that had hit them. A non-binding admission of liability was made and the pursuers claimed this admission had breached CPAP, which entitled them to litigate. They further failed to disclose medical evidence until the defender entered proceedings.

Issues raised

1. Was a non-binding admission of liability a breach of CPAP?

The court confirmed that it did not amount to a breach. In this case there was good reason to make a non-binding admission as there were indemnity issues. The court established that there can be no criticism of a defender who wishes to make an early admission to progress settlement. Nor, however, could the pursuer be criticised for raising proceedings as a result.

2. Were the pursuers entitled to withhold medical evidence?

The pursuers’ overall approach was contrary to the aims of CPAP. Their failure to disclose medical evidence until the claim was litigated was an internal policy which received short shrift from the Sheriff. It was important to note that settlement was achieved very shortly after the evidence was disclosed. The court held that, at the very latest, the medical evidence ought to have been disclosed when proceedings were raised.

Decision

Liability had already been agreed, as had the amount of damages awarded. The only outstanding issue was that of expenses (costs). The court found the pursuers conduct was an abuse of CPAP, was unreasonable and caused premature and unnecessary litigation. As such, the court restricted the pursuer’s expenses by fifty percent and awarded the defender fifty percent of their expenses, from the date their offer was made, up to the conclusion of the case.

Comment

It is pleasing to see that the court will step in when ‘sharp’ practice becomes conduct that does not follow the spirit of the court rules, and the decision is part of a growing body of cases seeking to stamp out poor behaviour. The view from the bench was clear - solicitors should not abuse the rules contained within CPAP, nor should they withhold evidence that may lead to settlement.

Insurers have long felt, with some justification that Scottish solicitors get away with a great deal in terms of maximising expenses and embarking on unnecessary litigation. They now have reason to hope that the tide is turning. The court saw through the Pursuers’ manoeuvring, and pursuer solicitors would do well to pay heed to this expensive lesson.

Read other items in Personal Injury Brief - November 2018

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