A new compulsory pre-action protocol is being introduced for accidents occurring on or after 28 November 2016 with a value of up to £25,000. There has been a voluntary pre-action protocol since 2006 in personal injury cases, but the new rules mean that the protocol will be an integral, mandatory part of personal injury procedure in the Sheriff Court, Scotland’s County Court.

The new protocol will only apply where the index accident occurred on or after 28 November 2016, and excludes clinical or professional negligence and disease claims.

The aim of the new rules are to encourage early settlement of disputes, as well as to inspire good practice regarding early and full disclosure of issues communication between the parties. Claimants are expected not to litigate until the protocol has been completed (without the resolution of the dispute between the parties) or the defender breaches the protocol, although there will be an allowance made for cases approaching time bar.

What is required?

The protocol itself can be boiled down to a series of stages placing the onus on either party to the proceedings to communicate something to the other. The stages and timetables are:

  • Stage 1 – Pursuer issues claim form
  • Stage 2 – Defender acknowledges claim form
    • Must happen within 21 days of receipt.
  • Stage 3 – Defender investigates claim and issues response
    • Maximum three months after receipt of the claim form.

If the defender denies liability at this stage, or alleges contributory negligence to which the pursuer does not agree, the protocol is complete and the pursuer is free to raise proceedings. If liability is admitted, the protocol continues to apply:

  • Stage 5 – Pursuer issues statement of valuation of claim
    • There is no timetable for this, other than that it must be issued ‘as soon as possible’ following receipt of all other relevant information.
  • Stage 6 – Offer of settlement
    • Must be made within five weeks from the date of receipt of the statement of valuation of claim.
  • Stage 7 – Pursuer’s ‘reasoned response’ to offer
    • Must be made within 14 days of receipt of the offer.
  • Stage 8 – Stocktaking period
    • The pursuer must not raise proceedings until at least 14 days after the defender receives their reasoned response.
  • Stage 9 – Payment
    • Payment must be made within five weeks of settlement.

What happens in the event of a breach?

The main difference between the old, voluntary scheme and the new protocol is of course that the new protocol is compulsory. In other words, there are consequences for failure to comply with the rules. Where litigation follows a protocol breach the sheriff is empowered to:

  • sist (stay) the action to allow any party to comply with the requirements of the protocol;
  • make an award of expenses (costs) against the party in breach;
  • modify an award of expenses on settlement or judgement; or
  • make an award regarding the interest payable on any award of damages.

The sheriff may do so where they consider that a party has:

  • failed, without ‘just cause’, to comply with the requirements of the protocol; or
  • unreasonably failed to accept an offer in settlement which was:
    • made in accordance with the Protocol; and
    • lodged as a tender (Part 36) after the raising of proceedings but before defences are lodged.

What does all this mean?

It is perhaps unlikely that many cases will be brought under the new protocol until 2017 at the earliest, but now is the time to start preparing. At its simplest, the new pre-action protocol is about ensuring that certain steps are taken at certain times, so it is important that everyone involved is aware of the timetable. The need for an immediate tender (Part 36) if pre-litigation behaviour is to be challenged ensures that time pressure continues once negotiations break down.

The protocol, however, is about more than just deadlines. The sheriff is empowered to analyse the substance of the parties’ actions and is not restricted to determining whether the correct boxes have been ticked. For example, a stage 7 pursuer’s response rejecting an offer which, although delivered on time, does not provide sufficient reasons for refusal may constitute a breach. On the other hand, an honest mistake about the timetable by a party which has otherwise been engaging positively with the protocol may be excused.

Unfortunately, the rules as drafted contain a number of vague provisions. It is unclear what is meant by ‘just cause’ in respect of a failure to comply with the protocol. The vagueness of terms such as ‘reasonable’ and ‘as soon as possible’ are of course understandable, but we anticipate many interpretation arguments in Sheriff Courts across Scotland.

Are there some missed opportunities? We are disappointed by the absence of an equivalent to a binding pre-litigation Part 36, and the acceptance that the protocol is complete if primary liability is admitted but contributory negligence remains an issue.

Ultimately the compulsory protocol is a response to the long held criticism of its voluntary predecessor’s lack of sanction for breach. The insurance & risk team at Brodies led the way in persuading the Scottish courts to consider pre-action behaviour and there is now a body of case law supporting the need for parties to engage in constructive discussion. The introduction of the compulsory protocol will give much needed teeth to pre-litigation rules, and is to be welcomed.