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The introduction of 'Pursuer’s Offers' is the latest in a number of recent changes to the Court rules.  These changes come into force on 3 April 2017 and apply to both Court of Session and Sheriff Court actions.  They follow the theme of encouraging litigants to settle cases before they reach an evidential hearing in a case.

The new rules provide that a Pursuer can formally offer to settle his case early if the Defender pays him a particular sum of money. That sum will be inclusive of interest. If a Defender wants to accept that offer, he will have to lodge a formal Minute of Acceptance with the Court and will then have to pay that sum plus the Pursuer’s recoverable legal costs incurred up to the making of the offer.

The Defender won’t be able to give a qualified or conditional acceptance. If there is more than one Defender, all will have to accept the offer for the acceptance to be effective.

To add bite to the rules and to make any Defender think seriously about a Pursuer’s Offer, a sanction applies if the Defender either delays too long before accepting the offer or if he does not accept it at all and the Pursuer is ultimately found to be due a sum at least equivalent to the value of the Pursuer’s Offer. That is, in either case, unless good cause is shown, the Pursuer will be found liable for both interest from the time the offer was made and also an additional 50% of the Pursuer’s recoverable legal costs incurred after the offer was made. Depending on the circumstances, that could amount to a hefty further bill for the Defender to pay.

The new rules can therefore be used to apply pressure to a Defender.

Looking at it from the other side of the dispute, there is already an existing system for Defenders to make formal offers to try to force a Pursuer to settle a case early. However, that Tender process does not carry the potential for the Pursuer to be found liable for these extra sums if accepting a Defender’s Tender late or if the Defender ultimately has to pay only the sum he had tendered at an earlier stage or less.

That might not seem fair.

However, there are other changes to how expenses are dealt with in the Courts in the pipeline which, once they come into force, will shift the balance again. But that, as they say, is a story for another day.

Colin Sandilands, Partner and Solicitor Advocate

Chambers UK 2018

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