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Scottish Civil Justice Council completes information gathering on Pre-Action Protocols in Scotland

At the end of last month, the Personal Injury Committee of the Scottish Civil Justice Council (“SCJC”) concluded an information gathering exercise to find out the views of interested parties on the current pre-action protocols operating in Scotland and whether a new regime should be introduced before the creation of the specialist personal injury court proposed under the Courts Reform (Sc) Bill, which is currently making its way through the Scottish Parliament. Among the parties approached were the Forum of Insurance Lawyers, the Association of British Insurers, the Association of Personal Injury Lawyers and the Faculty of Advocates.

There are currently several pre-action protocols in place in Scotland – for personal injury claims; professional negligence claims and disease claims. The personal injury pre-action protocol is intended largely to deal with claims up to and including £10,000, while the professional negligence protocol is designed to cover claims up to £20,000. There is also a pre-action protocol for commercial actions in the Court of Session.

At the moment, all pre-action protocols in Scotland are voluntary and the decision on whether a claim is to be dealt with under the appropriate protocol is made on a case by case basis. As the protocols are voluntary and have no statutory basis, however, failure to deal with a claim under the protocol, or a failure to adhere to the terms of the protocol, has no repercussions, which clearly reduces their effectiveness.

The Courts Reform (Sc) Bill contains measures intended to give the Court of Session power to introduce compulsory protocols.

The information gathering exercise invited answers to a number of specific questions, including:

  • How successful has the use of separate pre-action protocols for professional negligence and industrial disease claims been?

  • Should a new pre-action protocol regime be introduced in advance of the creation of the specialist personal injury court?

  • Should a pre-action protocol for medical negligence claims be developed?

The Faculty of Advocates published its response to the information gathering exercise in which it expressed the view that compulsory pre-action protocols should be introduced before the specialist personal injury court is established so that proceedings would only be raised for claims which truly required to be litigated, which would help prevent the personal injury court becoming being over-burdened and inefficient.

The Faculty of Advocates raised concerns about introducing a protocol to cover higher value cases, including fatal or catastrophic injury claims, however, warning that compliance with such a protocol was likely to “considerably front-load” the cost of those cases.

The SCJC will now consider the responses received and the analysis of responses is to be published, along with the SCJC’s conclusions, later this year.

For further information please contact Catherine Hart on 0141 228 8084.

By Catherine Hart

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.