If you have suffered an injury as a result of an accident that was not your fault, many people assume that the first step is going to court.
In reality, most personal injury claims in Scotland are dealt with long before court proceedings are raised.
For many claims, the process begins under the Compulsory Pre-Action Protocol (CPAP). Introduced in 2016, the protocol is designed to encourage the early exchange of information, allow insurers to investigate claims and, where appropriate, achieve settlement without the need for litigation.
What Is the Compulsory Pre-Action Protocol?
The Compulsory Pre-Action Protocol applies to many personal injury claims valued at up to £25,000. It was introduced to promote the early and fair resolution of claims and to avoid unnecessary court proceedings wherever possible.
The protocol encourages:
- Early notification of claims.
- Prompt investigation by insurers.
- Early disclosure of relevant information.
- Meaningful discussions about settlement.
- Resolution of claims without litigation where possible.
While the protocol is intended to reduce the need for court action, it does not prevent claims from being litigated where settlement cannot be achieved.
Which Claims Are Covered by the Protocol?
The protocol generally applies where:
- The personal injury claim is valued at £25,000 or less.
- The injured person is represented by a solicitor.
- The claim is not a clinical negligence claim, professional negligence claim or disease claim.
Many road traffic accidents, workplace accidents and public liability claims will therefore begin under the protocol.
How Does the Process Work?
1. A Claim Is Submitted
The process begins with the injured person’s solicitor sending a formal claim form to the person, business or insurer responsible for the claim.
This will normally include:
- Details of the accident.
- Information about how the accident occurred.
- The injuries sustained.
- Details of any financial losses being claimed.
2. The Claim Is Acknowledged
The defender or insurer should acknowledge receipt of the claim within 21 days.
3. Liability Is Investigated
The defender then has up to three months to investigate the circumstances of the accident and decide whether liability is admitted or denied.
During this period, insurers may:
- Obtain witness statements.
- Review accident reports.
- Examine CCTV footage.
- Consider medical evidence.
- Assess any allegations made by the claimant.
4. A Liability Decision Is Made
At the conclusion of their investigation, the defender must indicate whether liability is:
- Admitted;
- Denied; or
- Admitted only in part.
If liability is denied, reasons should be provided.
5. Medical Evidence Is Obtained
Even where liability is admitted, the claim cannot usually be settled immediately.
Medical evidence is often required to establish:
- The nature of the injury.
- The severity of the injury.
- The likely recovery period.
- Whether any future symptoms are expected.
A medical report will typically form one of the most important pieces of evidence in a personal injury claim.
6. Settlement Discussions Take Place
Once medical evidence has been obtained and all losses have been calculated, negotiations can begin.
Many claims settle during this stage without the need for court proceedings.
When Does a Claim Proceed to Court?
Although the protocol encourages early settlement, court proceedings may still be necessary in a number of situations.
For example:
- Liability is denied.
- The parties cannot agree the value of the claim.
- An insurer fails to engage with the protocol.
- A dispute arises regarding contributory negligence.
- Limitation deadlines are approaching.
- Settlement negotiations break down.
Where litigation becomes necessary, the work carried out during the protocol stage often helps narrow the issues that require to be determined by the court.
Does Every Personal Injury Claim Go to Court?
No.
The vast majority of personal injury claims are resolved without the need for a court hearing.
The purpose of the protocol is to encourage parties to investigate claims early, exchange information and explore settlement before litigation becomes necessary.
However, where a claim cannot be resolved fairly through negotiation, court proceedings remain available to protect the injured person’s position and ensure disputes can be determined by an independent judge.
How Jackson Boyd Can Help
Our specialist personal injury lawyers represent clients across Scotland in road traffic accident, employer liability and public liability claims. Learn more about our Personal Injury Services.
