Court finds 8 month delay in pursuer accepting a tender unreasonable

A Court of Session judgment has been published this week where the court held that an 8 month delay in the pursuer accepting a tender was unreasonable and the defender was awarded expenses from the date of the tender.

In the case of Peter Gasper v The Partners of Tain & Fearn Medical Practice and others, the pursuer had raised court action for £2 million in a clinical negligence claim relating to his cancer treatment.

The case called before Lord Braid on the issue of expenses only. The pursuer had twice rejected a tender for £30,000. No new medical evidence on causation was obtained by the pursuer during the 8 month period which could have explained the delay.

The court noted that the defender's agent had proactively chased the pursuer's agent for a response to the tender.

Lord Braid set out in the judgment that when the considering if the delay was unreasonable the court would look at 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 pursuer could consider the tender and the stage of proceedings the action had reached when the tender was accepted.

The court held that all of the above factors in this particular case pointed to the delay being unreasonable.

Although this case relates to a clinical negligence claim, it provides helpful insight into how the courts are interpreting QOCS more broadly.

It is worth noting that the defender's expenses were subject to the QOCS cap of 75% of the amount of damages awarded. That being said, the defender was not liable for the pursuer's expenses in the last 8 months of the action either which could amount to a considerable sum.

This case highlights the advantage that can be gained by lodging a tender early, in the right circumstances, and proactively progressing cases to achieve lowest overall indemnity spend.

The full judgement can be accessed here