The Secret Insider's Guide to Insuring Your Car - click here to purchase our new book
The Secret Insider's Guide to Insuring Your Car - click here to purchase our new book

Tomczak -v- Reid [2017 SC Edin 63]

Yet another ASPIC expenses case, but a highly important one which has already thrown a complete spanner in the works for the pre-litigation settlement regime.

The case had proceeded under the Voluntary Pre-Action Protocol.  The principal sum was agreed at £4,700.00 “subject to fees and disbursements in full”.  Objection was taken by the insurers to the cost of a Police Report (£93.00) and to the amount charged by the well known psychiatric expert, Colin Rodger (£960.00).  An impasse was reached.  The pursuer raised proceedings.  A tender in the figure of £4,700.00 was lodged.  This was accepted and the case came before Sheriff McGowan on the question of expenses.  At the hearing it was pointed out the defenders had the benefit of Mr Rodgers’ report, and in fact had recommended Cognitive Behavioural Therapy following its terms.  If the defenders could escape paying expenses in this case they could simply agree a principal sum and then refuse to pay any expenses in all cases. 

The defenders pointed out that the principal sum tendered and accepted was what had been agreed pre-litigation, so there was nothing for the court to decide upon.  The pursuer had got nothing out of the litigation.  The insurers had taken this case very seriously.  Submissions were made about the necessity of a Police Report, and whether Dr Rodger was part of a medical agency. They had gone to considerable lengths into investigating the Companies House status of Insight Psychiatric Services, which they claimed was and is a medical agency.  This summary cause motion was argued by senior counsel on their behalf.   They specifically prayed in aid that this was a floodgates case. 

In the event the sheriff simply refused to engage with any of this.  Expenses were “a mere accident of process”.  Parties could have agreed a joint remit to the auditor.  The pursuer was not able to attach conditions to pre-litigation settlement where “reasonable expenses” had been offered.  The sheriff concluded by saying this kind of dispute should strongly be discouraged.  He found no expenses due to or by.

In fact, this kind of dehaut en bas hands off approach will ensure that ASPIC is inundated with cases about expenses, with no real lead having been given by anyone.  The defenders in the present case had all the benefits of the protocol regime, had settled their liability, and have now emerged without even paying a protocol settlement fee.  It was once observed that:-

“Law is where life and logic meet”

This decision has plenty of the latter but little of the former.  Of course expenses are important to the parties.   The observations of Sheriff Principal Stephens in the case Burns -v- Royal Mail Limited SF 29/12 at Paragraph 18 are  rather more to the point .Expenses are not simply “accidents of process.”  “They have a separate crave because it goes without saying that expenses are an important part of court procedure”.

It is not known if this case is being appealed.  In the meantime, my own experience is a kind of reverse floodgates situation; emboldened insurers are taking all kinds of spurious points in the belief that pursuers have no legal recourse or route to adjudication.

Watch this space.

Act now — for a no-obligation chat call us on

0800 009 6953 or send us an email

You've nothing to lose and it will cost you nothing