Key changes to law on Scottish claims

  • From 28 November 2016, all Scottish personal injury claims not exceeding £25,000 will need to comply with a new compulsory pre-action protocol
  • The changes will bring benefits for all parties to a claim, by helping to facilitate fair, just and timely settlements
  • Breaching the protocol can result in significant detriment when either making or defending a claim, so it is important that you discuss the upcoming changes with your customers

The Scottish Pre-Action Protocol (SPAP) for personal injury claims will become compulsory for all claims not exceeding £25,000 falling on or after 28 November 2016. This replaces the current Scottish Voluntary Pre-Action Protocol (SVPAP) and includes a number of important changes to the voluntary regime.

Included in the changes are powers for the courts to penalise parties that fail to comply with the protocol. It is therefore important to make your customers aware of the SPAP process, and explain the actions they need to take to comply with the new rules on handling personal injury claims.

Key changes

Since 2006, solicitors and insurers in Scotland have been encouraged to use SVPAP for personal injury claims with an anticipated value of less than £10,000.

From 28 November 2016, it will become compulsory to follow a prescribed pre-action protocol, with a number of key changes to the previous voluntary regime:

  • SPAP must be used for any claims with a likely value of £25,000 or less – an increase from the previous £10,000
  • It is a compulsory protocol, and therefore must be adhered to throughout the life of proceedings
  • SPAP has a heightened focus on pre-action conduct, such as the disclosure of information relevant to disputes (for example: accident books, training records and risk assessments)
  •  The courts are given increased powers to penalise non-compliance with SPAP, including halting proceedings until parties comply, making awards of expenses, and altering awards of expenses upon final settlement or judgment
  • Any admission of liability is binding, save for instances where fraud has occurred
  • Introduction of the need to issue a ‘Reasoned Response’ to offers of settlement
  • Introduction of a ‘Stocktaking Period’, which affords the defence 14 days to consider a ‘Reasoned Response’ and take further action to avoid court proceedings
  • Shift in cost structure

Stages of SPAP

The new protocol includes nine stages from notification to final settlement, with corresponding timescales.

  • Stage 1: Pursuer issues claim form
  • Stage 2: Defender acknowledges claim form – 21 days from claim form receipt
  • Stage 3: Defender investigates claim and issues a response – 12 weeks from claim form receipt
  • Stage 4 (a): Defender denies liability, or alleges contributory negligence that the pursuer denies – protocol is complete and the pursuer may bring court proceedings
  • Stage 4 (b): Defender admits liability – protocol continues to apply
  • Stage 5: Pursuer issues a ‘Statement of Valuation’ of the claim with supporting evidence – no set timescale, but must be ‘as soon as possible’ following receipt of all relevant information
  • Stage 6: Defender’s offer of settlement – 5 weeks from receipt of statement of valuation
  • Stage 7: Pursuer issues ‘Reasoned Response’ to settlement offer – 14 days from receipt of offer
  • Stage 8: Stocktaking period – pursuer must not raise court proceeding until at least 14 days after receipt of Reasoned Response
  • Stage 9: Payment – 5 weeks from offer of settlement’s acceptance

Tips for ensuring compliance with SPAP

By encouraging your customers to take the following steps, you can help them to avoid prejudicing their position or suffering any detriment during a claim:

  • Notify Zurich as soon as possible of any incidents, allegations or claim forms received
  • Promptly collect and provide us with all material that could assist our enquiries, including accident reports, witness details, CCTV footage, training records and any other potentially relevant information

What other information might we require?

This will depend on the nature of the claim. For example, for a manual handling claim, we would require: an accident report, risk assessment, weight of the item being lifted, any re-assessment carried out post-accident, training records, training material delivered and evidence of the availability of any mechanical or further human assistance.

For a motor claim, we would require some of the following: the written version of events from the driver, a diagram of the incident from the driver, photographs of location/vehicle(s), details of any witnesses, police details, incident locus, area of vehicle damage and a motor engineer’s report.

You should encourage your customers to let us know if any potentially relevant information is not available for any reason. This will allow us to take the appropriate steps and manage expectations on their behalf.

The consequences of failing to comply with SPAP

SPAP is intended to eliminate the need for court proceedings and reduce the length and complexity of any proceedings that might arise. Pursuers or defenders who breach the protocol terms and its timescales risk being penalised should a claim come before the courts.

There could also be other consequences of non-compliance:

  • An opportunity to use the Protocol framework to manage the claim, to minimise cost and reduce the lifecycle of the claim, could be lost
  • The stricter timescale could give solicitors the right to issue court proceedings and claim for increased costs
  • If we do not provide ALL the necessary evidence/documentation to support a denial of liability at the point of denial, this could also give solicitors the right to begin court proceedings and increase costs

By working with us and promptly obtaining and providing the relevant information that will allow us to effectively investigate liability within the strict timescales, your customers can help us to lower the overall claims costs and reduce unwarranted litigation.

Should you have any questions about these changes, or need to notify us of an incident, please contact our Scottish Claims Team on 0141 204 700 or speak with your Risk and Insurance Consultant.