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Until now Scotland has operated a voluntary personal injury pre-action protocol that had as its purpose the early settlement of personal injury actions.  The voluntary protocol was designed specifically to assist with cases where the value of the claim is less than £10,000.

As of 28th November 2016 a Personal Injury Pre-Action Protocol will become compulsory but it will not be retrospective. Only claims relating to accidents post 28th November 2016 will require to proceed in terms of the protocol.

The new protocol has the same aims as its predecessor but will apply to all cases where the value of the claim is anticipated to be less than £25,000, exclusive of interest and expenses. The protocol does not apply to actions arising as a result of clinical/professional negligence or for disease claims, such as asbestos related illnesses.

The protocol sets out 9 stages and prescribed forms to be used. These stages are largely a reflection of the current voluntary protocol and use the same timescales for progressing claims.

One of the main changes from the voluntary protocol is that if a court action is raised without the new, compulsory protocol having been followed, the Court can make adverse orders against the party who failed to comply. These sanctions include making an award of expenses against the breaching party, modifying the expenses awarded, making awards relating to the interest payable or sisting/freezing the court action so that the protocol can be complied with.

Another feature of the new protocol is that the sum that has to be paid towards the legal costs incurred by the successful party is to increase. For instance, under the current, voluntary protocol the legal expenses recovered in a claim settling with a compensation payment of £25,000 would be £3,372. Under the new scheme it will be £4,255.20 (figures inclusive of VAT). This will result in a more realistic approach to recovering legal costs.

The introduction of the new protocol can be seen in light of other changes affecting how claims are dealt with, particularly the new all Scotland Personal Injury Court in Edinburgh and proposed changes to how expenses are dealt with in Court Actions. Once the changes have bedded in, it is hoped that more claims can be resolved quickly, fairly and without recourse to the courts.

If you require any advice in connection with a personal injury suffered within the last 3 years please contact a member of our dispute resolution team.

Deborah Edon, Associate

Chambers UK 2018

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