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New Compulsory Pre-action Protocol

26th August 2016

New regulations are coming into force which require both sides in a prospective court action for damages for personal injuries to comply with a compulsory protocol before they start a court action.

This protocol will apply to personal injury claims (with some exceptions) up to a value of £25,000 in Scottish Sheriff Courts. However, parties will only be expected to follow the protocol where the accident took place on or after 28th November 2016.

The protocol follows closely the existing Law Society voluntary protocol. There are however a number of differences. The protocol requirements begin with the issuing of a claim form and go right through to the settlement stage. If however the “liable party” decided not to make a settlement offer then the claimant may start a court action. There is a requirement on the claimant to either accept any settlement offer made or issue a reasoned response explaining why it has been rejected. The court is given additional powers to make awards of costs against a party who has failed to comply with the protocol or unreasonably failed to accept a settlement offer filed before proceedings start.

Further protocols are likely to follow as a clinical negligence pre-action protocol is likely to come into force during 2017.

If you would like more information, please contact David Forrester.

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