A new compulsory pre-action protocol for dealing with personal injury claims is set to come into force at the end of this month. A voluntary protocol currently exists but under the new regime, parties will require to engage with each other and attempt to reach a resolution to the claim prior to the commencement of court proceedings.
The new protocol will apply to accidents occurring on or after 28 November 2016 and with a value of up to £25,000. There are certain exceptions, including clinical negligence, professional negligence and disease claims. It will also not apply to parties who are not represented by a solicitor during the stages of the protocol.
The aims of the protocol are to encourage the fair, just and timely settlement of disputes prior to the commencement of court proceedings and to encourage good practice with regards to disclosure of information, investigation of the claim and the narrowing of issues to be dealt with by the court in cases where settlement is not achieved under the protocol. The Claimant should not proceed to raise a court action unless all stages of the protocol have been followed without settlement being achieved or if the Defender breaches the protocol. An exception is made for claims which are due to time bar. In such cases, a court action should be raised and then sisted to allow the stages of the protocol to proceed.
The stages of the protocol can be broken down as follows:
- Stage 1 - Issuing of Claim Form: Must be done as soon as sufficient information is available to substantiate a claim.
- Stage 2 - The Defender's Acknowledgement of Claim Form: Must be done within 21 days.
- Stage 3 - The Defender's Investigation of the Claim and Issuing of Response: The Defender has a maximum of three months from receipt of the claim form to investigate the merits of the claim and state whether liability is admitted or denied.
- Stage 4 - Disclosure of Documents and Reports Following Admission of Liability: Medical reports should be instructed by the Claimant no later than five weeks from the date the Defender admits liability. Any medical report on which the Claimant intends to rely must be disclosed to the other party within five weeks from the date of its receipt. This also applies to any medical report on which the Defender intends to rely. Parties may agree an extension to this time limit if necessary.
- Stage 5 - Issuing of Statement of Valuation of Claim: Should be sent as soon as possible following receipt of all relevant information.
- Stage 6 - Offer of Settlement: Should be made within five weeks from receipt of the Statement of Valuation of Claim.
- Stage 7 - Claimant's Response to Offer of Settlement: Claimant must either accept the offer or issue a reasoned response within fourteen days of receipt of the offer.
- Stage 8 - Stocktaking Period: The Claimant must not raise court proceedings until at least fourteen days after the Defender receives the Claimant's reasoned response.
- Stage 9 - Payment: Damages and expenses must be paid within five weeks of settlement.
The Sheriff has the power to apply various sanctions where he/she considers that a party has failed, without just cause, to comply with the requirements of the protocol. In particular, he/she may (i) sist the action to allow any party to comply with the requirements of the protocol; (ii) make an award of expenses against the party who has not complied with the requirements of the protocol; (iii) modify an award of expenses; or (iv) make an award regarding the interest payable on any award of damages.
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