The Compulsory Pre-Action Protocol for Scottish Personal Injury Claims

By Heather Tierney December 11th 2017

What is the Compulsory Pre-Action Protocol?

A set of mandatory rules which should be followed during the course of a personal injury claim in Scotland prior to the raising of Court proceedings.

Which type of cases does it apply to?

All accidents occurring on or after 28 November 2016 with a value of up to £25,000 excluding clinical or professional negligence and disease claims.

What is the aim?

To encourage parties to engage with each other and attempt to resolve the claim using the protocol procedure without the need for court proceedings.

What are the timescales?

Each claim is different and dealt with on its own merits however in general terms;

  • The start of the process is when the pursuer issues a claim form to the defender
  • Defender then acknowledges the claim form within 21 days of receipt
  • Defender investigates the claim and issues a response within three months after receipt of the claim form. This means it can be around 4 months before a decision is received from the defender
  • If liability (responsibility) for the accident is admitted by the Defender, the pursuer responds by issuing a statement of valuation of claim to the Defender as soon as possible. How does that happen?
  • In order to do so the Pursuer may require to in gather medical records (which can take around 40 days) and supporting documentation before arranging a medical examination with an appropriate expert
  • The Pursuer may require to attend an examination with the expert and thereafter a report is completed
  • Once the medical evidence has been typed up and completed, it is then sent to the Pursuer for their approval
  • Once the medical evidence is approved and all documentary evidence collected, a statement of valuation of claim can then be prepared and issued to the Defender
  • An offer of settlement must be issued by the defender within 5 weeks from the date of receipt of the statement of valuation of claim
  • The pursuer’s representative will provide the pursuer with advice on the offer and discussion the options available before responding to the defender
  • The pursuer’s ‘reasoned response’ to the offer must be made within 14 days of receipt of the offer
  • There is no set timescale within which the defender must respond to a ‘reasoned response’ (or how many times the parties can go back and forth on an offer) however the protocol confirms that the pursuer must not raise court proceedings until at least 14 days after the defender receives the reasoned response
  • If settlement is agreed, payment must be made within five weeks of the settlement agreement being reached

What if the Defender denies responsibility for my accident?

If the defender denies liability or alleges that the pursuer has caused or contributed to the accident by their own actions, the pursuer is free to consider raising Court proceedings if they do not agree with the position of the defenders.

What happens if either party fails to stick to the rules?

There are consequences for failure to comply with the rules. For example where a Court action has been raised following a protocol breach the sheriff is empowered to take a range of actions including making an award of expenses (costs) against a party who is considered to be in breach. The sheriff will consider whether the party has failed without ‘just cause’ to comply with the rules or whether they have unreasonably failed to accept an offer in settlement. Essentially the sheriff can analyse the actions of parties’ prior to the raising of a court action and there are consequences for failure to engage constructively with the protocol.