November date for mandatory damages pre-action protocol

New court rules introducing a compulsory pre-action protocol for personal injury claims before court proceedings are raised, will come into force in Scotland in November.

Claims of damages up to the value of £25,000 in local sheriff courts and the all-Scotland Personal Injury Court will require to go through certain steps to attempt to achieve a settlement. Parties who fail to comply may have expenses awarded against them.

The protocol, which comes into force for accidents or other circumstances giving rise to a claim on or after 28 November 2016, aims to encourage the fair, just and timely settlement of claims for damages so that only those cases which cannot be agreed between parties will be lodged in court.

Under the Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016, a new chapter will be introduced into both the Ordinary Cause Rules (Chapter 3A) and the Summary Cause Rules (Chapter 4A) with an appendix setting out the steps which must be followed.

The requirements begin with the issuing of a claim form. If the defender chooses not to make a settlement offer, the claimant is entitled to raise court proceedings. If an offer is made, the claimant must either accept or issue a reasoned response explaining why it has been rejected. A stocktaking period of 14 days then follows to allow any final settlement negotiations to be pursued.

The protocol is modelled very closely on the existing Law Society of Scotland voluntary protocol which was introduced to encourage the early resolution of personal injury claims. However there are important differences, including an express power allowing the courts to make an award of expenses against a party who has failed to comply with the protocol, or unreasonably failed to accept a settlement offer made under the protocol which is lodged as a tender following the commencement of proceedings.

Expenses to be paid to the claimant in the event of settlement in respect of liability for solicitors’ fees and reimbursement of other reasonably incurred outlays are also set out.

The Scottish Civil Courts Review 2009 recommended the introduction of a compulsory protocol, and the Courts Reform (Scotland) Act 2014 gave the Court of Session power to make the necessary rules.

Consideration is being given to developing additional compulsory protocols in specific areas, for example clinical negligence, for which a pre-action protocol is being developed by the Scottish Civil Justice Council's Personal Injury Committee with a view to coming into force during 2017.

Click here to view the new rules.