Pre-action protocols involve procedures, which take place involving both parties to the personal injury claim before court proceedings are raised, which will establish whether the settlement can be achieved without the need for litigation.
Back in 2009, Lord Gill's Scottish Civil Courts Review recommended the compulsory use of such protocols, believing they should apply to all categories of personal injury claim. This view that the protocols needed updated was evident during the SCJC's Personal Injury Committee's inaugural meeting on 10 June 2013, where they agreed the advantaged and usefulness of the pre-action protocols were limited by the fact they are not compulsory in every case. Currently, certain complex types of personal injury claim are excluded from their scope.
The consultation, which was conducted between April and June 2014 and received responses from a number of relevant overarching bodies, was set up to inform the SCJC's Personal Injury Committee. Since the Courts Reform (Scotland) Act 2014 does give the Court of Session the power to introduce compulsory pre-action protocols by means of rules, it is also hoped that the responses to the consultation will provide it with some guidance in its consideration of the relevant rules.
What is clear from the responses generally to the consultation, is that the current system is not enough, and it must be made more robust and greater sanctions should be introduced to ensure compliance - this view was supported by two thirds of the respondents, which included legal professional and legal profession representative bodies.
But opinion is split on whether they should apply to all claims - some respondents believed they should not apply to higher value claims for fatal or catastrophic injury. Furthermore, others said that the current procedure for mesothelioma claims is adequate, but if it is to change, it should only be to a new special protocol. Some respondents also believed that a special protocol is needed for medical negligence claims, too.
Other issues raised were with fees, with some suggesting there should be a "fixed fees regime", and also fixed timescales. A majority of respondents also said that pre-action protocols should reflect the needs of party litigants, and that insurers should highlight the right to independent legal advice to party litigants.
It is now for the Committee to review the responses in depth before advising the SCJC on their opinion. It remains to be seen whether any recommendations will be adopted prior to the creation of the specialist personal injury court.
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