How are Personal Injury claims dealt with before litigation commences?

Before claims are litigated they are dealt with under the compulsory pre-action protocol (CPAP). The compulsory pre-action protocol was introduced by the Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016.

Before the introduction of CPAP in November 2016 a similar scheme was in place, the Voluntary pre-action protocol (VPAP). However VPAP had some flaws, namely:

• It was voluntary. If one party refused to allow a case to be dealt with under it, there was nothing the other party could do.
• It was limited to claims up to a value of £10,000 (though it was possible to agree for higher value claims to be dealt with under the protocol).
• Even where parties agreed an action should be dealt with under VPAP, there was no clear penalty for failure to comply with its provisions.

CPAP v VPAP

CPAP being compulsory is one of the main differences between the two schemes. CPAP also aims to encourage:

• Fair, just and timely settlement between parties without the need for proceedings.
• Good practice as regards:
• early and full disclosure of information about the dispute;
• investigation of the circumstances surrounding the dispute; and
• the narrowing of issues which still require to go to litigation.

What kind of actions are dealt with under CPAP?

PAP applies to all personal injury actions to which the following criteria apply:

• The total liability value of the claim does not exceed £25,000.
• The accident or incident giving rise to the claim occurred on or after 28 November 2016.
• The claimant has a solicitor.
• The claim is not one of the following types:
  • a clinical negligence claim;
  • a professional negligence claim; or
  • a disease claim.

The CPAP Process

The protocol is divided into the following nine stages.

1. Issuing a claim form
2. Any new claim must be intimated by way of a claim form.
3. The claim form is set out in boxes. The claimant must give their full details, and set out the following:
   1. A clear summary of facts on which the claim is based.
   2. Any allegations of negligence, breaches of common law or statutory duties.
   3. An indication of the injuries suffered.
   4. Any financial losses suffered.
4. Acknowledgement of the claim form
5. The defender must acknowledge the claim form within 21 days.
6. Investigation and response
7. Within three months, the defender must advise the claimant whether liability is admitted.
8. If liability is denied, reasons must be given, including any alternative version of events that the defender intends to rely on.
9. Where liability is denied (in whole or in part), the defender must disclose any relevant documents which they rely on to justify that position. This obligation does not include documents that would not be recoverable in proceedings.

In what circumstances would a claim proceed to litigation?

A claimant is required to hold off raising proceedings unless any of the following applies:

• All the stages of CPAP are complete and settlement has not been achieved.
• The defender fails to comply with one of the timescales in CPAP.
• The defender admits liability, but alleges contributory negligence, and that is disputed by the claimant.
• Settlement is agreed, but the defender fails to pay the damages and expenses within five weeks of settlement.

It is necessary to raise proceedings if your case is about to time bar, which is the third anniversary of the date of the accident. In that case, proceedings should be raised but then immediately sisted (paused) to allow for the stages of the protocol to be followed.