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Napier v AXA Insurance UK Plc [10.02.23]

This article was co-authored by Kirsty MacIver, Trainee Solicitor, Edinburgh. 

Following from the recent decision of McInnes v EUI Limited [21.07.23], the All Scotland Court doubles down on its censure of conduct failing to adhere to the spirit of the rules.


The action arose from a road traffic accident on 4 November 2018. The pursuer intimated the claim to the defender on 6 November 2018 who admitted liability on 22 November 2018. The pursuer then raised proceedings on 27 October 2021. The action was sisted (paused) in January 2022 for six months before settlement was agreed in November 2022 when the pursuer accepted the defender’s tender (Part 36 offer).

The pursuer’s motion for expenses of the action on the judicial scale was opposed by the defender.

The pursuer’s submission to the court was that they were only able to value their claim in September 2022 when the pursuer made a baseline recovery and so the action could not have settled at an earlier date. The defender argued the pursuer’s failure to disclose medical reports prevented them from taking a view on the pursuer’s injuries or instructing their own experts. The action was sisted to allow the pursuer to comply with their Personal Injuries Pre-Action Protocol obligations to obtain medical evidence. The defender accepted that the pursuer required to raise proceedings to avoid limitation but argued that they should not bear the cost of this.

The pursuer experienced delays pre-pandemic instructing and obtaining medical reports. There was then a further delay before these were disclosed to the defender. In particular, the defender was unaware there was a possibility the pursuer had sustained a neurological injury until the disclosure of the pursuer’s expert report which was received by the pursuer in January 2021 but not disclosed to the defender until January 2022.

Whilst the sheriff accepted that the COVID-19 pandemic caused some delays in the case, he was critical of the pursuer’s agents’ delay in disclosing expert reports. The sheriff made clear that the court expects timely disclosure of expert reports which are fundamental to the personal injuries procedure.

The sheriff was not satisfied with the pursuer’s agents’ management of the case and considered that the defender was unjustly deprived the opportunity of exploring settlement prior to the raising of proceedings.

The sheriff awarded the pursuer expenses to the date of tender on the judicial scale, modified by 50% to reflect the court’s dissatisfaction with the pursuer’s conduct.


The Personal Injuries Pre-Action Protocol is compulsory in Scotland for claims under £25,000 and provides that medical reports are to be instructed by the pursuer at the earliest opportunity but no later than five weeks from the date the defender admits liability. Further, any medical report which the purser intends to rely on must be disclosed to the other party within five weeks of its receipt.

This case serves as a reminder of the court’s expectation of the early instruction and disclosure of medical reports in support of personal injury claims. Where there has been a failure to do so, this can have significant cost implications on parties as the court may modify expenses as it did here.

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