There are a number of pre action-protocols in existence in Scotland but, unlike in England and Wales, they are voluntary. To what extent do the courts in Scotland have regard to the voluntary pre action protocols? And what might change under the current programme of reforms?
The status of the protocols
Questions about the status of the voluntary protocols have arisen on a number of occasions, most recently in Paul Bent v Michael Trevett. In this case, the pursuer sought damages for an injury sustained in a road traffic accident. The defender’s insurers were signatories to the voluntary pre-action personal injury protocol. The protocol requires that letters of claim should be acknowledged by insurers within 21 days, failing which the pursuer is entitled to issue proceedings. When there was no response to the pursuer's letter of claim within 21 days, proceedings were raised. The Sheriff penalised the pursuer on costs because no further warning was given before proceedings were raised.
Use of protocols to be encouraged
On appeal, the Sheriff Principal said that the court should observe the protocol and encourage its use where possible. If the court were to superimpose additional requirements, this could cause uncertainty and undermine confidence in the protocol. The normal rule is that expenses should follow success; he found the defender liable to the pursuer in the expenses of the action, modified by 15% (the pursuer had previously offered a modification of 15% to avoid a disputed hearing on expenses).
The Sheriff Principal emphasised that his comments were made in the context of an insurer who was a signatory to the protocol and reserved his opinion in relation to whether the position would be different in relation to an insurer who was not a signatory.
The Courts Reform (Scotland) Act 2014 gives the Court of Session the power to introduce compulsory pre-action protocols. Last year the Scottish Civil Justice Council undertook an information and evidence gathering exercise to assist consideration of the possible introduction of compulsory pre-action protocols. The Personal Injury Committee will consider the responses to that exercise and make recommendations to the SCJC as to the policy to be adopted, but compulsory protocols look likely. The only question is when.