Civil Justice Council reports on pre-action protocol feedback

A report on responses to a consultation on the use of pre-action protocols in personal injury actions has been published by the Scottish Civil Justice Council.

The consultation took place earlier this year to inform the SCJC's Personal Injury Committee's consideration of the introduction of mandatory pre-action protocols – procedures that parties should go through before court proceedings are raised, to see whether settlement can be achieved without litigation.

Lord Gill's Scottish Civil Courts Review in 2009 recommended that the protocols should be compulsory and should, in principle, apply to all categories of personal injury claim. Certain complex types of action are currently excluded from their scope.

The Courts Reform (Scotland) Act 2014 gives the Court of Session the power to introduce, by means of rules, compulsory pre-action protocols.

Voluntary protocols currently in use, developed between the Law Society of Scotland and insurers' representatives, are not followed particularly by some insurers, who believe the allowable legal fees are too high.

The Personal Injury Committee believes that the usefulness of the protocols is limited by the fact that they are not compulsory, and undertook an information and evidence gathering exercise.

A majority of respondents believe that the current protocols are not sufficiently robust and that greater sanctions are required to ensure compliance. There is also a view that they should be adapted to assist party litigants. Opinion is evenly split over whether they should apply to higher value claims for fatal or catastrophic injury; mesothelioma claims should continue under their present informal procedures or be the subject of a special protocol. A number believe that a special protocol should also be developed for medical negligence claims.

A great majority of respondents also considered that the new regime should be introduced prior to the creation of the specialist personal injury court.

The committee will look at the responses in depth and in due course make recommendations to the SCJC as to the policy which should be adopted.

The consultation responses have been published on the SCJC website.