A new, compulsory Personal Injury Pre-Action Protocol will come into force on 28 November 2016. The Protocol will apply to certain claims of damages up to the value of £25,000 in local sheriff courts and in the all-Scotland Personal Injury Court. 

The Protocol sets out the steps parties will be expected to take before an action is raised in court. The aim is to encourage parties to settle disputes before raising court proceedings, and, where the Protocol does not lead to a resolution, to narrow the issues in dispute. 

The Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016 (the “Act of Sederunt”) adds a new chapter into each of the Ordinary Cause Rules (Chapter 3A), and theSummary Cause Rules (Chapter 4A), formally incorporating the new compulsory system. 

The steps that must be taken before raising proceedings are set out as follows:

  1. Claim Form – the Protocol is initiated when a Claim Form is issued, which the claimant is to issue as soon as they have enough information to substantiate a claim. The Act of Sederunt explains: “[t]he Claim Form should contain a clear summary of the facts, including allegations of negligence, breaches of common law or statutory duty and an indication of injuries suffered and financial loss incurred”, and a template is attached for reference. The Claim Form must be acknowledged by the defender within 21 days of receipt.
  2. Investigation and Response – the defender has 3 months to investigate the claim and form its response, admitting or denying liability. If denying liability, reasons must be given, and relevant documents must be disclosed, a suggested list of which is given in the Act of Sederunt.
  3. Documents – where liability is admitted but the defender argues that there was contributory negligence, documents relevant to this claim must be provided, and the claimant must respond to this claim before they can raise proceedings. Where the defender admits liability, in whole or part, the claimant must instruct a medical report within 5 weeks, which following receipt must be disclosed to the defender within 5 weeks.
  4. Statement of Valuation of Claim – the claimant must send the defender a Statement of Valuation of Claim with any relevant supporting documents.
  5. Settlement Offer – if the defender makes an offer, the claimant must either accept it, or provide a reasonable explanation as to why it has not. If an offer is not made by the defender, then the pursuer can proceed with raising the court action.
  6. Stock Taking – 14 day cool off period before the proceedings in court begin, to allow for any final settlement negotiations.

Although similar to the Law Society’s Voluntary Pre action Protocol in Personal Injury Cases, there is a key difference in relation to awarding of expenses. Under the new compulsory Protocol, the court can award expenses against a party who does not comply with the Protocol or, acting unreasonably, does not accept a settlement offer made in the Protocol process. Any potential expenses due to the claimant for solicitors’ fees and other reasonable disbursements are also accounted for in the Protocol. 

Making pre-action steps compulsory will hopefully create a less litigious environment for small personal injury claims, and save companies the cost and time of court proceedings when dealing with lower value claims. It puts in place a good foundation for a more efficient small personal injury claim system. The Court of Session also has powers to make compulsory pre-action steps under the Courts Reform (Scotland) Act 2014. It is likely that this will not be the only compulsory protocol drafted, with proposals in place for a clinical negligence pre-action protocol.