Division D: Pre action Protocol in Personal Injury Cases
1. Purpose of the voluntary protocol
1.1 The Voluntary Protocol has been kept deliberately simple to promote ease of use & general acceptability
1.2 The aims of the Voluntary Protocol are:-
§ To put parties in a position where they may be able to settle
cases fairly and early without litigation;
§ To ensure the early provision of reliable information reasonably
required to enter into meaningful discussions re liability and
§ To enable appropriate offers to be made either before or after
1.3 It also sets out good practice making it easier for the parties to obtain and rely upon information required.
1.4 The Voluntary protocol encourages the joint exploration of rehabilitation at an early stage, in appropriate cases, without prejudice to liability.
1.5 The standards within the Voluntary Protocol are to be regarded as the normal, reasonable approach to pre-action conduct in relation to Voluntary Protocol cases.
2. A voluntary pre-action protocol in Scotland
2.1 Unlike England, there is no statutory basis for a Pre-Action Protocol. The Protocol will therefor require to be entered into voluntarily on an individual case by case basis by mutual agreement. It will be for the pursuer's Agent to intimate the claim in the general format of a Specimen Letters A1 or 2 which will invite the defender or Insurer to agree on a case by case basis that conduct of the pre-action negotiations is to be undertaken in terms of the Voluntary Protocol. When a defender or Insurer accepts, a letter in the general format of specimen letter B will be sent within 21 days of receipt of the letter of claim. Thereafter the claim will proceed in terms of the Voluntary Protocol in respect of the negotiations, disclosure, repudiation of liability, settlement and calculation of fees
2.2 The Agent may wish to notify the Insurer as soon as they know a claim is likely to be made but before they are able to send a detailed Letter of Claim, particularly for instance, when the Insurer has no or limited knowledge of the incident giving rise to the claim or where the claimant is incurring significant expenditure as a result of the accident which he/she hopes the Insurer might pay for, in whole or in part. If the pursuer's agent chooses to do this, it will not start the timetable for responding.
2.3 The Voluntary Protocol if entered into will apply in all cases which include a claim for personal injury (excepting Clinical Negligence and Disease and Illness cases) and will apply not merely to the personal injury element of a claim but also to other heads of loss and damage. It is primarily designed for road traffic, tripping and slipping and accident at work cases where the value of the claim is up to £10,000. The Protocol is voluntary and there is nothing to prevent parties by mutual agreement dealing with any claim of a higher value under the Protocol.
2.4 Where proceedings are raised in a Voluntary Protocol case, whether for the payment of damages or for the recovery of evidence and other orders under the Administration of Justice (Scotland) Act 1972, without prejudice to any existing rule of law, it shall be open to any party to lodge Voluntary Protocol communications for the sole purpose of assisting the court in any determination of expenses.
3. Letter of claim
3.1 The Agent shall send to the proposed defender (or to his Insurer if known) a letter of claim as soon as sufficient information is available to substantiate a claim and before issues of quantum are addressed in detail. The letter should ask for details of the Insurer if not known and the letter should request that a copy should be sent by the proposed defender to the Insurer where appropriate. If the Insurer is known, a copy shall be sent directly to the Insurer.
3.2 The letter shall contain a clear summary of the facts on which the claim is based, including allegations of negligence, breaches of common law or statutory duty, together with an indication of the nature of any injuries suffered and of any financial loss incurred, so far as known. In all cases the letter should provide the name and address of the hospital where treatment has been obtained and where appropriate, the name and address of the claimant's own motor Insurer.
3.3 Agents are recommended to use a standard format for such a letter, specimen letter A1 or A2: this can be amended to suit the particular case.
3.4 Sufficient information should be given in order to enable the Insurer to commence investigations and at least put a broad valuation on the "risk".
3.5 The Insurer should acknowledge the letter of claim within 21 days of the date of receipt of the letter. The Insurer should advise in a letter in the terms of Specimen B whether it is agreed that the case is suitable for the Voluntary Protocol. If there has been no reply by the defender or Insurer within 21 days, the claimant will be entitled to issue proceedings.
3.6 Where liability is admitted, the Insurer will be bound by this admission for all Protocol claims with a personal injury value, as laid down in 2.3, of less than £10,000. The exception to this will be when, subsequently, there is evidence that the claim is fraudulent.
3.7 The Insurer will have a maximum of three months from the date of specimen letter B to investigate the merits of the claim. Not later than the end of that period, the Insurer shall reply, stating whether liability is admitted or denied and giving reasons for their denial of liability, including any alternative version of events relied upon and all available documents supporting their position.
3.8 The aim of early disclosure of documents by the Insurer is to promote an early exchange of relevant information to help in clarifying or resolving the issues in dispute. If the Insurer denies liability, in whole or in part, they will at the same time as giving their decision on liability, disclose any documents which are relevant and proportionate to the issues in question, with reference to those identified in the letter of claim.
3.9 Attached at Appendix A are specimen, but not exhaustive, lists of documents likely to be material in different types of claim. Where the pursuer's agents investigation of the case is well advanced, the letter of claim should indicate which classes of documents are considered relevant for early disclosure. Where this is not practical, these should be identified as soon as practical but disclosure will not affect the timetable.
3.10 Where the Insurer admits primary liability but alleges contributory negligence by the pursuer, the Insurer should give reasons supporting these allegations and disclose those documents from Appendix A which are relevant and proportionate to the issues in dispute. The pursuer's Agent should respond to the allegation of contributory negligence before proceedings are issued.
3.11 A medical report will be instructed at the earliest opportunity but no later than 5 weeks from the date the Insurer admits, in whole or part, liability unless there is a valid reason for not obtaining a report at this stage. In those circumstances, the pursuer's agents will advise accordingly and agree an amended timetable with the Insurers or withdraw the case from the protocol. Any medical report obtained and on which the pursuer intends to rely will be disclosed to the other party within 5 weeks from the date of its receipt. By mutual consent, the Insurers may ask the examiner, via the pursuer's agent, supplementary questions.
3.12 The pursuer's agent will normally instruct a medical report, will organise access to all relevant medical records, and will send a letter of instruction to a medical expert in general terms of specimen letter C. Where it has been agreed that the Insurer will obtain the medical report, the pursuer's agent will agree to disclosure of all medical records relevant to the accident. Pre-accident medical records will be disclosed only with the specific agreement of the pursuer's agent and if relevant to the claim. Any medical report on which the Insurer intends to rely will be disclosed to the pursuer's agent within 5 weeks of receipt.
3.13 The pursuer's agents will send to the Insurer a Statement of Valuation of Claim (the Statement of Valuation) with supporting documents, where the Insurer has admitted liability. The pursuer's agents are recommended to use a standard format for the Statement of Valuation. An example is at specimen D. Form 439 in the Rules of Court of Session. This can be amended to suit the particular case.
4.1 Where the Insurer admits liability in whole or in part, before proceedings are issued, any medical reports supporting documentary evidence and Statement of Valuation obtained under this Voluntary Protocol on which a party relies, should be disclosed to the other party. The pursuer's agent should delay issuing proceedings for 5 weeks from the date the Insurer receives the Statement of Valuation to enable the parties to consider whether the claim is capable of settlement.
4.2 Where a Statement of Valuation with supporting documents has been disclosed under 3.12, the Insurer shall offer to settle the claim based on his reasonable valuation of it within 5 weeks of receipt of such disclosure, serving a counter-schedule of valuation if they dispute the pursuer's agent's valuation.
4.3 The pursuer's Agent will advise Insurers whether or not their offer is to be accepted or rejected, prior to the raising of proceedings and in any event within 5 weeks of receipt.
4.4 Where a Voluntary Protocol case settles, cheques for both damages and agreed expenses must be paid within 5 weeks of the settlement. The date of settlement will be the date when the insurer receives notification of settlement. Thereafter, interest will be payable on both damages and expenses due and payable in accordance with the agreed settlement terms at the prevailing judicial rate from the date of settlement until payment is made in full.