Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 43
Tender Delays in Clinical
award made should re昀氀ect
Negligence Claims: Court of
Session Sets a Firm Line
by Rachel
Robertson, Solicitor & Jenny Dickson, Partner, Chair at MFMac.
ime this
speci昀椀c
the pursuer’s life expectancy. Accordingly, any
award made should re昀氀ect only that his su昀昀ering
would have been alleviated sooner had he received
his diagnosis earlier. The defenders’ position was
backed by medical evidence.
Unreasonable delays and the disapplication of
QOCS: Peter Gasper v The Partners Of Tain &
Fearns Medical Practice and another.
In this clinical negligence case, the Court of Session
ruled that an eight month delay in accepting a
tender was unreasonable and awarded expenses to
the defender accordingly. The 昀椀rst time this speci昀椀c
issue has been considered by Scotland’s highest
civil court, it provides helpful guidance on both the
relevant factors to consider when assessing a delay
and the 75% cap rule under RCS 41B.3(2)(b).
The court had to determ
The defenders lodged a tender of £30,000 on 11
December 2024. The tender was accepted by the
pursuer
on 22 August 2025, over
eight months
after cost
the
quali昀椀ed
one
way
it had been lodged.
Issues for determination
The court had to determine 昀椀rstly whether the
eight month delay was unreasonable in terms of
the quali昀椀ed one way cost shifting (“QOCS”) rules,
which outline exceptions to restrictions on pursuer
liability for expenses in personal injury claims. RCS
41B.2(2)(b) allows the court to make an award of
expenses against the pursuer where there has been
an unreasonable delay in accepting a tender.
Background
The pursuer alleged that the defenders had failed
to properly investigate his symptoms of prostate
cancer. He claimed that his life expectancy would
have been longer had he been diagnosed earlier and
sought £2 million in damages.
ot have
a昀昀ected
The defenders denied liability, their position
being that the cancer had already metastasised,
and so earlier diagnosis would not have a昀昀ected
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If there was an unreasonable delay, the court then
had to determine whether it had discretion to limit
41
APRIL 2026
FEBRUARY
s
