Personal Injury Cases - Compulsory Pre-Action Protocol

The Compulsory Pre-Action Protocol, which came into effect at the end of 2016 now applies to all relevant accidents after 28^th November 2016; all claims with an estimated value of not more than £25,000 excluding interest and expenses (as decided by the Claimant) and all claims where the Claimant is legally represented.  

Whilst previously, there was simply a Voluntary Protocol which parties could elect to ignore, that option is now removed.   The Voluntary Protocol also allowed parties to look at the possibility of assisting together in early accident rehabilitation which did not prejudice the element of liability (the responsibility of the defending party).  That is also now removed.  

There are strict rules in relation to the protocol and both parties must these.  In particular, the Claimant cannot generally raise court proceedings unless:-  

1. The full list of Protocol stages have been followed without settlement being achieved.

2. There is a fundamental breach of the Protocol by the Defender.

3. It is necessary to raise action in order to prevent a time bar (exceeding the strict time limit to raise the claim).

4. Contributory negligence is claimed by the Defender but not accepted.

5. The Defender denies liability.   

Various stages are set out within the Protocol, starting with  “intimation of the claim” as the first stage.  The main features following thereafter are:-  

• The Defender must acknowledge the claim within 21 days of intimation.

• The Defender has 3 months from intimation of the claim to issue a decision on liability.

• If contributory negligence is alleged, the Defender must set out valid reasoning for their assertion and the Claimant is then required to confirm whether the reasoning is accepted, or not, before litigation can be raised.

• As regards medical reports from both the Claimants and Defenders, these will be released.  Similarly, wage details and other supporting documentation should be provided, together with a statement of valuation.

• Upon intimation of a statement of valuation, a Defender will be expected to put forward an offer of settlement within 5 weeks.

• Upon such an offer being submitted, the Claimant has 14 days to respond, either accepting or rejecting the offer.  A rejection must give detailed reasons for the rejection and a counter offer can also be put.

• Upon settlement being agreed, the legal fees (as provided for within the Protocol) must also be met, together with reasonable outlays.

• If matters have not been agreed, the Defender still has a further 14 days from receipt of the Claimant’s rejection to attempt further negotiation.

• If payment of the agreed settlement, plus expenses, has not been made within 5 weeks of such agreement, the Claimant is able to raise proceedings and seek interest on all such sums at the judicial rate of 8% per annum.  

Given that the structure of personal injury claims within the Scottish courts has operated successfully over many years, the introduction of this Compulsory Pre-Action Protocol is to be welcomed in hopefully achieving early settlements where these are possible.  There are definite advantages for both sides, in that clarity is now provided early on and both sides can have expectations that evidence, both on liability and in relation to medical reports, will be provided at an early stage.  

It is always important that parties know what should be disclosed and what may be withheld.  Proper guidance in this respect is key and, although the threat of litigation is always within the background, it will generally be for the Claimant to demonstrate that breaches within the Protocol are significant and therefore justifying the matter proceeding directly to court.    

Since the Protocol is still at a very embryonic stage and there will be relatively few claims which have proceeded fully through the Compulsory Pre-Action Protocol as yet, there is likely to be a more detailed review of the success of this Protocol around December 2017.   In the meantime, if you have any queries, please contact Martin Sinclair or call 01224 632464.