Highly exaggerated brain injury claim allowed to proceed after pursuer given chance to disclose true extent of injuries

About this case:

• Citation:
  [2026] CSOH 18
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Braid

Scott McSeveney raised a claim against Aviva Insurance Ltd alleging that he could not be left on his own following the accident and had become severely disabled. While liability was admitted on the part of the defender’s insured, the defender moved to dismiss the action on the grounds of the pursuer’s fundamental dishonesty, failing which to dismiss it except as relating to a claim for solatium.

The case was heard by Lord Braid in the Outer House of the Court of Session, with Allardyce, advocate, appearing for the pursuer and Milligan KC for the defender.

Persistent and flagrant fraud

On 19 November 2021, a car driven by the defender’s insured collided with the pursuer’s motorcycle. Liability was admitted, as was the fact that the pursuer had suffered a brain injury and significant orthopaedic injuries, and interim damages of £140,000 had been paid to the pursuer before the defender sought the action’s dismissal. Senior counsel for the defender advised that they would not seek to recover the interim damages in the event of the motion for dismissal being granted.

A medico-legal report obtained in June 2022 from a consultant in orthopaedics and trauma, Mr Spence, predicted the pursuer’s complete recovery within two to three years. In May 2023 a consultant psychiatrist, Dr Mumford, reported no sensory abnormality and normal muscular tone “with full power in all muscle groups and normal coordination”. However, the pursuer had told several expert witnesses that he was severely disabled to the extent that he was unable to make a cup of tea for himself, despite having been observed pouring boiling water into a cup with little difficulty.

Surveillance footage from March and August 2024 further showed the pursuer driving two different vehicles and carrying heavy containers unassisted. In April 2025 he was sentenced to 8 years’ imprisonment for the importation of cannabis, that offence being committed before his accident, and prison records showed he had continued to exaggerate his symptoms in prison including claiming to require a stick to walk when he plainly did not.

It was submitted for the defender that it was impossible for them to assess the true extent of the pursuer’s injuries against the background of his dishonesty. His conduct amounted to a persistent and flagrant fraud designed to frustrate a trial on the only remaining live issue of quantum. Opposing the motion, the pursuer’s counsel submitted that it had already been accepted that he had a legitimate claim and dismissal would be a draconian remedy.

Palpable untruths

In his decision, Lord Braid observed that dismissal could only be granted in highly exceptional circumstances, saying: “Pursuance of an entirely fraudulent claim might be one circumstance where the court would take that exceptional step. I consider that the task of persuading the court that dismissal is appropriate where the pursuer has an admittedly genuine claim is still more difficult. Nonetheless, I also accept that the court has the inherent power to bring to an end an action which is blatantly an abuse of process, and in circumstances where the pursuer’s behaviour makes it impossible for there to be a fair hearing at proof.”

He added: “It is not sufficient for a defender to show merely that the pursuer has been dishonest in relation to some aspect of his claim or in the general conduct of his life; for present purposes I therefore attach little weight to the pursuer’s conviction of a drugs-related offence, or his (somewhat pointless) denial of the fact of his conviction and imprisonment; or his denial of a criminal record; or, for that matter, his conduct in prison.”

Considering the conduct of the pursuer in this case, Lord Braid said: “There is material, in the form of the surveillance footage, which does confirm that he has lied to expert witnesses, both his own and the defender’s, about his current capabilities, at least to the extent that he is not only unable to drive but barely even able to get into a car, when that is patently untrue, as he has now admitted through his counsel. Judging by the manner in which he was seen to handle a nearly-full jerrycan of liquid, it also appears that his claims of being unable to handle a boiling kettle, or to undertake other tasks, or to be left alone in the house, are also untrue.”

He concluded: “I do not consider that there can be a fair trial where evidence advanced on the pursuer’s behalf is based on admitted or palpable untruths; to advance a case on that basis would indeed be an abuse of process. That said, I acknowledge that it cannot be inferred from the footage, or at the least the footage that I have seen, that the pursuer is fit for work, and I cannot discount the possibility that he does have a valid claim for loss of earnings. However it is essential that he give those witnesses instructed to offer opinion evidence an honest account of what he is, and is not, able to do; and at the very least they must be offered the opportunity to comment on their previous reports and offer revised opinions in the knowledge of what the footage shows.”

Lord Braid therefore refused the defender’s motion in hoc statu, leaving it open for them to renew the motion in the event that the pursuer did not candidly disclose his capabilities to expert witnesses and to the court going forward.