Pre-litigation procedure for personal injury compensation claims is set to change in Scotland. A Compulsory Pre-Action Protocol is to be introduced for personal injury claims with a value of up to £25,000 for accidents occurring on or after the 28th November 2016.
The protocol will not apply to clinical negligence, professional negligence or disease claims and will also not apply if the claimant is not represented by a solicitor during the stages of the Protocol.
The aim of the Protocol is to encourage the fair and timely settlement of disputes in addition to developing good practice in disclosing information, the investigation of claims, and in narrowing issues for civil proceedings should settlement not be reached between parties.
The rules state a claimant should not proceed to litigate their claim unless all stages of the Protocol have been followed without settlement being reached or if the defender breaches the Protocol.
An exception is made for claims which are soon to be time barred. The practice in this case will be for the claimant to raise a court action and seek to sist the proceedings to enable the stages of the Protocol to take place.
The Protocol is split into nine separate stages as follows:
(1) The claimant issues a claim form to the defender;
(2) The defender must acknowledge the claim form within 21 days of receipt;
(3) The defender has a maximum of three months from receipt of the claim form to investigate liability. The defender must reply to the claimant within this period advising whether liability is admitted or denied (with reasons), including any allegation of contributory negligence. If liability is denied, or the claimant disputes any allegation of contributory negligence, the Protocol is complete and the claimant can proceed to raise proceedings;
(4) Stage four relates to the disclosure of documents and reports following an admission of liability. Medical reports are to be instructed by the claimant at the earliest opportunity but no later than 5 weeks from the admission of liability whether in whole or in part. The medical report must be disclosed within 5 weeks of receipt and this similarly applies to any medical report obtained by the defender. Parties can agree to an extension to issuing medical reports if necessary.
Where contributory negligence is alleged by the defender, the defender must give reasons and disclose documents to the claimant which are relevant and proportionate to the issue of contributory negligence;
(5) The claimant must issue a Statement of Valuation of Claim to the defender as soon as possible following receipt of all supporting documentation for the claimant’s claim. The defender can request additional information from the claimant but such a request must be made promptly following receipt of the Statement of Valuation of Claim. The claimant should provide the additional information within 14 days of receipt of the request.
(6) Stage six is the offer stage. A defender must make an offer of settlement within five weeks from the date of receipt of the Statement of Valuation of Claim and supporting evidence.
Importantly a settlement offer should only be made in the absence of medical evidence if the injuries are of a minor nature and no formal medical treatment was sought by the claimant.
For an offer to be a valid offer under the Protocol it must include an offer to pay the claimant’s expenses in accordance with the prescribed expenses provisions contained within the Protocol.
(7) This stage relates to the claimant’s response to the offer of settlement. A reasoned response to the offer, or acceptance of the offer, must be made by the claimant within 14 days of receipt of the offer.
Where an offer is accepted the defender must pay expenses to the claimant as prescribed by the Protocol along with any reasonably incurred outlays.
(8) Described as the “stocktaking period” Stage Eight provides that the claimant should not raise proceedings until at least a 14 day period has lapsed from the date the defender receives the claimant’s reasoned response to the settlement offer.
(9) The final stage is payment. Payment of the agreed settlement and expenses must be made within five weeks of settlement being agreed. Interest will be payable after the five week period at the judicial rate.
Consequences of breaching the Protocol
If a party fails, without just cause, to comply with the Protocol and subsequently proceedings are raised the Sheriff is given a range of powers. The Sheriff can sist the action to allow the Protocol to be followed, make an award of expenses against the party in breach, modify an award of expenses, or make an award regarding the interest payable on any award of damages.
The new Compulsory Pre-Action Protocol rules can be found here: https://www.legislation.gov.uk/ssi/2016/215/contents/made