CPAP - Paragraph 27
"If a settlement offer is made, the claimant must either accept the offer or issue a reasoned response within 14 days of receipt of the offer. Alternatively, if the claimant considers that additional information is required to allow full and proper consideration of the settlement offer, the claimant may make a request for additional information from the defender within 14 days of the receipt of the offer."
Our case - GH v AP Feb 2024 (unreported)
- The insurers had breached CPAP by failing to acknowledge the initial claim form within 21 days and the pursuer withdrew the matter from CPAP on the basis of the breach.
- 5 days after expiry of the acknowledgement period, the insurer acknowledged the claim and made a binding admission of liability.
- During the next 18 months the pursuer was chased regularly (6 occasions in total) by the insurer, seeking disclosure of the medical report and valuation. This was eventually disclosed, and offers were invited within 14 days following the initial CPAP breach. An offer of £5,000 was made on day 13, which was not formally rejected, no reasoned response was provided in line with paragraph 27 of CPAP, and proceedings were issued.
- We lodged a tender for the pre-litigation offer and following negotiations an offer was accepted for £350 more than the pre-litigation offer.
- We argued that the pursuer's conduct was such that their expenses should be reduced as the matter had been capable of settlement within CPAP had the pursuer complied with paragraph 27.
- Sheriff Nicol in ASPIC agreed the pursuer was not entitled to judicial expenses and awarded CPAP expenses. He also made it clear that the conduct of the insurers was very much in keeping with the spirit of the protocol and criticised the pursuer's behaviour:
"The pursuer's conduct in exploiting what can only be viewed as a minor breach of the protocol is unacceptable.."
The result
So, it would seem the "spirit of the protocol" is the key consideration of the judiciary when assessing the pre-litigation behaviours of the parties. A minor breach that the insurer sought to rectify promptly, a clear audit trail showing a willingness to continue under CPAP and enter meaningful negotiations to avoid litigation was enough to challenge expenses where court proceedings were raised prematurely.
We have already referenced this decision and successfully argued for the reduction of pursuer's expenses to CPAP in several other cases where there has been a minor breach of the protocol, and the pursuers have sought to litigate without providing a reasoned response in terms of paragraph 27.
