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An Update From North of the Border: Pursuers’ Offers Arrive in Scotland on 3 April 2017 - Douglas McGregor, Brodies LLP

30/03/17. Parties litigating regularly in England & Wales will be very familiar with the ability of both claimants and defendants to seek to protect their respective positions by use of a Part 36 offer. A change in the Scottish rules of court will introduce “pursuers’ offers” from 3 April. What will that mean for defenders and insurers in Scottish claims?

The current position

In Scotland, a defender is already able to lodge a formal offer, known as a tender, at any stage in a court action. The tender offers to settle the claim for a given sum of money together with expenses. If the offer is not accepted and the pursuer gets an award from the court equal to or lower than the sum offered then the defender is entitled to seek an award of expenses (costs) against the pursuer from the date the offer was made. Until now no similar system has existed allowing pursuers to make this kind of formal offer.

Introduction of pursuers’ offers

The position will change on 3 April 2017. From that date pursuers in court proceedings both in the Court of Session and in higher value proceedings in the sheriff court (where the sum sued for is over £5,000) will be able to make a “pursuer’s offer”. As a result, both pursuers and defenders will be able to make formal judicial offers in the court proceedings in an attempt to protect their respective positions and encourage settlement.

A pursuer’s offer will be lodged with the court in a formal document. It will offer to accept a definite sum inclusive of interest, plus expenses, to settle the claim. A defender must then choose whether or not to accept the offer, similar to a claimant Part 36 offer in England & Wales.

Pursuers are likely to seek to take advantage of the new rules following their introduction at the beginning of April, so it is worth considering the detail...

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