The Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016 introduces a new chapter into both the Ordinary Cause Rules (Chapter 3A) and the Summary Cause Rules (Chapter 4A) requiring parties to a prospective action of damages for personal injury to comply with a compulsory protocol prior to commencing proceedings.

The Personal Injury Pre-Action Protocol (the Protocol), which is found in Appendix 4 of the Ordinary Cause Rules and Appendix 1B of the Summary Cause Rules, sets out the steps which must be followed prior to raising proceedings. 

The aims of the Protocol are to encourage the fair, just and timely settlement of disputes before court proceedings are raised, and to narrow the issues for litigation in cases which do not settle.

The Protocol will apply to personal injury claims (with some exceptions) up to the value of £25,000 in local sheriff courts and in the all-Scotland Personal Injury Court. 

Parties will only be expected to follow the Protocol in relevant cases where the accident or other circumstance giving raise to the claim for damages occurred on or after 28 November 2016.

The Protocol requirements begin with the issuing of a Claim Form and progress through to the settlement stage. If the defender chooses not to make a settlement offer, the claimant is entitled to raise court proceedings. There is a requirement on the claimant to either accept any settlement offer made or issue a reasoned response explaining why it has been rejected. A stock taking 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 voluntary Personal Injury Protocol which was introduced to encourage the early resolution of personal injury claims. 

But 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
• unreasonably failed to accept a settlement offer made under the Protocol which is lodged as a tender following the commencement of proceedings.

The new Protocol also sets out the 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.

The Scottish Civil Courts Review 2009 recommended the introduction of a compulsory protocol and the The Courts Reform (Scotland) Act 2014 gives the Court of Session power to make rules requiring parties to a prospective action to take certain steps prior to raising proceedings. 

Consideration is being given to developing additional compulsory personal injury protocols in specific areas. For example, a proposal for a clinical negligence pre-action protocol is to be considered and further developed by the Personal Injury Committee with a view to coming into force during 2017.