1. Pre-action conduct

Claims which are worth £25,000 or less are subject to a Compulsory Pre-Action Protocol. If there is no admission of liability or if parties cannot then agree quantum court proceedings can be raised.  

There are currently no compulsory protocols for claims worth over £25,000 or for industrial disease or medical negligence claims.

2. Time-bar

Subject to certain exceptions there is a three year time-bar for personal injury claims. Time-bar is interrupted through service, not the issue, of proceedings. This can be significant if the compensator is based in a country which does not recognise postal service of court proceedings.

The court has an equitable discretion to allow claims raised out with the three year deadline per section 19A of the Prescription and Limitation (Scotland) Act 1973 with the test being the balance of prejudice to the parties.

The time-bar for a contribution from a joint wrongdoer is two years. A decree (judgment) is required to preserve the right of recovery.

3. Court system

The choice of forum is the pursuer’s. The options are:

(i) the local Sheriff Court where the accident happened or where the compensator is based;

(ii) the All-Scotland Sheriff Personal Injury Court, based in Edinburgh with specialist personal injury Sheriffs and which has jurisdiction for personal claims throughout Scotland for employer’s liability claims worth over £1,000 (or over £5,000 for other injury claims);

(iii) the Court of Session which has concurrent jurisdiction throughout Scotland for all claims worth £100,000 or more.

4. Costs

The introduction of QOCS (Qualified One-way Costs Shifting) in Scotland means that, with certain exceptions, unsuccessful pursuers are not liable to pay a defender’s expenses (costs). The use of Tenders (part 36 equivalent) continues to offer some protection.

Personal injury settlements are typically “plus expenses”. Expenses are calculated at the end of a case in reference to set rates for particular tasks. There is no negotiation on hourly rates. There is no judicial intervention on costs budgeting during a litigation and no need for advance approval of experts.

Expenses for pre-litigation settlements are determined in reference to a set scale depending on the settlement sum.

5. Pleural plaques

Claims for asbestos related pleural plaques are actionable in Scotland. This contrasts with the position in England & Wales.

Claims are settled on either a provisional or full and final basis. Full and final valuations are case specific and calculated in reference to risk of future harm, income and life expectancy.

6. Case management

Personal Injury cases proceeding in the All Scotland Sheriff Personal Injury Court or in the Court of Session are governed by a timetable. A four day proof (trial)  is scheduled for approximately nine months after the litigation commences.

Parties are required to host a Pre-Trial Meeting (or PTM) around one month prior to the proof. There is no judge or mediator present but parties are required to attend and explore settlement or at least to narrow the issues in dispute. This is as close to compulsory ADR as the rules provide.

7. Disclosure

The Compulsory  Pre-Action Protocol encourages early disclosure of documents relevant to the dispute in reference to a non-exhaustive list of example documents. What is reasonably expected to be disclosed is case-specific and depends on whether liability is contested, for example.

There is no general duty of disclosure under the personal injury court procedure in Scotland. Following a specific application, the court may order that certain documents, or categories of documents are disclosed by a party to the litigation or by a third party.

Recovering documents held by a third party outwith Scotland involves the protracted “letter of request” procedure.

8. Juries

It is generally the prerogative of the pursuer to have their personal case determined by a jury in Scotland. An application is made following the pleadings closing.  Awards of damages which attract significant sympathy tend to be higher when made be a jury.

That said, having a jury trial remains very unusual and the vast majority of personal injury cases which proceed to proof are determined by a single Sheriff (or Judge, in the Court of Session).

9. Damages

The Scottish courts will refer to the JC Guidelines and past case authorities for guidance on the level of solatium awards (general damages). English authorities are referred to as persuasive.

The are particular rules under the Damages (Scotland) Act 2011 relating to fatal claims – both for loss of income and for claims made to the family. Each qualifying family member (including grandchildren, for example) achieve an award which is determined by a judge. The regime is much more generous when compared to the bereavement awards in England & Wales.

10. Services

Services are the equivalent to the ‘care’ element of special damages. There are two types of service in terms of s.8 and s.9 of the Administration of Justice Act 1982.

Section 8 services relate to care provided to the injured person by their spouse or relative, required as a result of the injury.

Section 9 services, also known as personal services, relate to the tasks the injured person did for his or her family prior to the incident but is now prevented from doing due to injury or death.

For both types, the compensation is in reference to ‘reasonableness’ and is often inherently broad brush or sometimes, for the larger claims, in reference to notional hourly rates.

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