Personal injury sheriff finds solicitors defeated settlement possibility by failing to check fictitious heads of claim

About this case:

• Citation:
  [2026] SC EDIN 66
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Julius Komorowski

Qaisar Gundal was awarded £1,640 at the conclusion of his case against EUI Ltd for their insured’s negligent driving, which the court was advised was lower than an initial offer of settlement made by the defender that was subsequently withdrawn after the fictitious claims were presented to them. In a hearing on expenses, a question arose as to how to deal with those fictitious claims for outlays made on the pursuer’s behalf, which had later been deleted from the claim at the pursuer’s own insistence.

The case was heard in the All-Scotland Sheriff Personal Injury Court by Sheriff Julius Komorowski, with Perriam, advocate, appearing for the pursuer and Bergin, advocate, for the defender.

Duty to check

On 2 November 2023, the pursuer was involved in a road accident and contacted a claims handler the same day. The claims handler contacted a firm of solicitors, Jones Whyte, who first contacted the pursuer on 20 December 2023. A pre-litigation settlement offer was made by the defender in February 2024, which was withdrawn after a paralegal from Jones Whyte sent an email stating that they had been instructed to recover hire, storage, and recovery costs in the sum of £10,527.60.

In the initial writ, it was stated that the pursuer was issued with an invoice for a hire vehicle for 49 days hire, that he had incurred costs of £8,526 as a result, that he was impecunious at the time, that his vehicle was recovered and put in storage, and that this cost a further £2,001.60. Also provided were a hire agreement and three invoices from the same breakdown recovery service, purported to have been signed by the pursuer on 2 and 3 November 2023. That same day, the pursuer spoke with Jones Whyte by telephone disputing these costs, which led to them contacting the claims handler to seek clarification.

The pursuer deleted by adjustment the claims for recovery, storage, and replacement in July 2025, and later admitted following calls by the defender that he had not received a vehicle from a breakdown recovery service and he had continued to use his own vehicle after the accident. Counsel for the pursuer submitted that Jones Whyte acted reasonably based on what they were told by the claims handler and there was no duty to check the contents of the initial writ directly with the pursuer.

The defender opposed the pursuer’s motion for expenses and instead sought its expenses on an agent-and-client, client paying basis. In the hearing on expenses, they alleged that Jones Whyte has committed fraud, or had acted unreasonably, or had committed an abuse of process. The effect of serving the writ in its original form created the potential for the defender to offer a settlement partly calculated based on fictitious claims, leaving it liable to be the victim of fraud.

No room for mistake

In his decision, Sheriff Komorowski said of the inferences that could be made on the facts: “I think it manifest to any disinterested reader of the record that the circumstances were indicative of some kind of fraud having been attempted by or on behalf of the pursuer. I say that because this was my immediate reaction when reading it in preparation for the proof. Clearly Jones Whyte knew there might be some concern about fraud, otherwise there would be no need to check whether the defender truly believed the pursuer was being truthful or had done something untoward.”

He added: “Assuming it is correct that Jones Whyte could proceed on what the claims handler told them without verification from the client, it does not explain on what basis Jones Whyte were entitled to aver impecuniosity. It has not been said that any documentation was provided which vouched that. More significantly, Jones Whyte had their own client’s word before serving the writ that the recovery, storage and replacement costs were fictitious. Yet they proceeded to serve the writ anyway, and did not remove the fictious claims till 8 weeks later.”

Considering that the defender was not required to assume that the claims had been advanced without the pursuer’s knowledge, the sheriff said: “There was no room for an honest mistake about a car being recovered, or stored, or a replacement being provided. Instead of making clear that this had all been advanced by Jones Whyte based on what the claims handler provided, without any instruction from their client, and that the claims were deleted following their client’s personal instruction, suspicion inevitably fell upon the pursuer.”

He concluded: “I am not satisfied that Jones Whyte have acted fraudulently. I think it more likely that the writ was served by unthinkingly following through a process that had already been set in train, with a failure to think through properly the implications of what the pursuer had said and what their responsibilities as officers of the court were, rather than as part of an intention to obtain a settlement or award based on fictitious claims. But it was manifestly unreasonable to serve the writ in that form. Jones Whyte acted in defiance of their client’s instructions. They compounded that error by their delay in removing those claims and their failure to candidly explain how the fictious claims were ever included.”

Taking into account the fact that the pursuer did have a well-founded claim for compensation, Sheriff Komorowski therefore found the pursuer’s solicitors liable to the defender in the expenses of the cause as taxed on a party-and-party scale only.