Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016

Publication Date:January 01, 2016
 
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2016No. 215

Sheriff Court

Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016

20thJuly2016

22ndJuly2016

28thNovember2016

In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 1, the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council with such modifications as it thinks appropriate.

The Court of Session therefore makes this Act of Sederunt under the powers conferred by section�104(1)�of the Courts Reform (Scotland) Act 2014 2and all other powers enabling it to do so.

Citation and commencement, etc.

1.(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016.

(2) It comes into force on 28th November 2016.

(3) A certified copy is to be inserted in the Books of Sederunt.

Amendment of the Ordinary Cause Rules 1993

2.(1) The Ordinary Cause Rules 1993 3are amended in accordance with this paragraph.

(2) After Chapter 3 (commencement of causes) insert�

‘CHAPTER 3A

PERSONAL INJURY PRE-ACTION PROTOCOL

Application and interpretation

(1) This Chapter applies to an action of damages for, or arising from, personal injuries.

(2) In this Chapter �the Protocol� means the Personal Injury Pre-Action Protocol set out in Appendix 4, and references to the �aims of the Protocol�, �requirements of the Protocol� and �stages of the Protocol� are to be construed accordingly.

Requirement to comply with the Protocol

In any case where the Protocol applies, the court will normally expect parties to have complied with the requirements of the Protocol before proceedings are commenced.

Consequences of failing to comply with the Protocol

(1) This rule applies where the sheriff considers that a party (�party A�)�

(a) failed, without just cause, to comply with the requirements of the Protocol; or

(b) unreasonably failed to accept an offer in settlement which was�

(i) made in accordance with the Protocol; and

(ii) lodged as a tender during the period beginning with the commencement of proceedings and ending with the lodging of defences.

(2) The sheriff may, on the sheriff�s own motion, or on the motion of any party, take any steps the sheriff considers necessary to do justice between the parties, and may in particular�

(a) sist the action to allow any party to comply with the requirements of the Protocol;

(b) make an award of expenses against party A;

(c) modify an award of expenses; or

(d) make an award regarding the interest payable on any award of damages.

(3) A motion made by a party under paragraph�(2) must include a summary of�

(a) the steps taken by parties under the Protocol with a view to settling the action; and

(b) that party�s assessment of the extent to which parties have complied with the requirements of the Protocol.

(4) In considering what steps (if any) to take under paragraph�(2), the sheriff must take into account�

(a) the nature of any breach of the requirements of the Protocol; and

(b) the conduct of the parties during the stages of the Protocol.

(5) In assessing the conduct of the parties, the sheriff must have regard to the extent to which that conduct is consistent with the aims of the Protocol.

(6) This rule does not affect any other enactment or rule of law allowing the sheriff to make or modify awards regarding expenses and interest.’.

(3) After Appendix�3 (schedule of timetable under personal injuries procedure) insert Appendix�4 as set out in schedule�1 of this Act of Sederunt.

Amendment of the Summary Cause Rules 2002

3.(1) The Summary Cause Rules 2002 4are amended in accordance with this paragraph.

(2) After Chapter 4 (commencement of action), insert�

‘CHAPTER�4A

PERSONAL INJURY PRE-ACTION PROTOCOL

Application and interpretation

(1) This Chapter applies to an action of damages for, or arising from, personal injuries.

(2) In this Chapter �the Protocol� means the Personal Injury Pre-Action Protocol set out in Appendix 3, and references to the �aims of the Protocol�, �requirements of the Protocol� and �stages of the Protocol� are to be construed accordingly.

Requirement to comply with the Protocol

In any case where the Protocol applies, the court will normally expect parties to have complied with the requirements of the Protocol before proceedings are commenced.

Consequences of failing to comply with the Protocol

(1) This rule applies where the sheriff considers that a party (�party A�)�

(a) failed, without just cause, to comply with the requirements of the Protocol; or

(b) unreasonably failed to accept an offer in settlement which was�

(i) made in accordance with the Protocol; and

(ii) lodged as a tender during the period beginning with the commencement of proceedings and ending with the lodging of defences.

(2) The sheriff may, on the sheriff�s own motion, or on the motion of any party, take any steps the sheriff considers necessary to do justice between the parties, and may in particular�

(a) sist the action to allow any party to comply with the requirements of the Protocol;

(b) make an award of expenses against party�A;

(c) modify an award of expenses; or

(d) make an award regarding the interest payable on any award of damages.

(3) A motion made by a party under paragraph�(2) must include a summary of�

(a) the steps taken by parties under the Protocol with a view to settling the action; and

(b) that party�s assessment of the extent to which parties have complied with the requirements of the Protocol.

(4) In considering what steps (if any) to take under paragraph�(2), the sheriff must take into account�

(a) the nature of any breach of the requirements of the Protocol; and

(b) the conduct of the parties during the stages of the Protocol.

(5) In assessing the conduct of the parties, the sheriff must have regard to the extent to which that conduct is consistent with the aims of the Protocol.

(6) This rule does not affect any other enactment or rule of law allowing the sheriff to make or modify awards regarding expenses and interest.’

(3) After Appendix 1 (forms) insert Appendix 1A as set out in schedule�2 of this Act of Sederunt.

Saving

4.Paragraphs�2 and 3 do not apply to an action where the accident or other circumstance giving rise to the liability to which the action relates occurred before 28th November 2016.

20th July 2016

CJM SUTHERLAND

Lord President

I.P.D.

Edinburgh

SCHEDULE 1

Paragraph 2(3)

APPENDIX 4

THE PERSONAL INJURY PRE-ACTION PROTOCOL

Application of the Protocol

1.

This Protocol applies to claims for damages for, or arising from personal injuries, unless:

(a)

the claimant reasonably estimates that the total liability value of the claim, exclusive of interest and expenses, exceeds �25,000;

(b)

the accident or other circumstance giving rise to the liability occurred before 28th November 2016;

(c)

the claimant is not represented by a solicitor during the stages of the Protocol; or

(d)

the injuries for which damages are claimed�

(i)

arise from alleged clinical negligence;

(ii)

arise from alleged professional negligence; or

(iii)

take the form of a disease.

In this paragraph�

�clinical negligence� has the same meaning as in rule 36.C1 of the Ordinary Cause Rules 1993; and

�disease� includes�

(a)

any illness, physical or psychological; and

(b)

any disorder, ailment, affliction, complaint, malady or derangement, other than a physical or psychological injury solely caused by an accident or other similar single event.

Definitions

2.

In this Protocol:

�claimant� means the person who is seeking damages from the defender;

�defender� means the person against whom a claim is made.

�next-day postal service which records delivery� means a postal service which�

(a)

seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases; and

(b)

provides for the delivery of documents or other things by post to be recorded.

Aims of the Protocol

3.

The aims of the Protocol are to assist parties to avoid the need for, or mitigate the length and complexity of, civil proceedings by encouraging:

the fair, just and timely settlement of disputes prior to the commencement of proceedings; and

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 to be determined through litigation in cases which do not reach settlement under the Protocol.

Protocol rules

4.

Where, in the course of completing the stages of the Protocol, the claimant reasonably estimates that the total value of the claim, exclusive of interest and expenses, has increased beyond �25,000, the claimant must advise the defender that the Protocol threshold has been exceeded. Parties may agree to continue following the stages of the Protocol on a voluntary basis with a view to facilitating settlement before commencing proceedings.

5.

Anything done or required to be done by a party under this Protocol may be done by a solicitor, insurer or other representative dealing with the claim for, or on behalf of, that party.

6.

Where a party is required under this Protocol to intimate or send a document to another party, the document may be intimated or sent to the solicitor, insurer or other representative dealing with the claim for, or on behalf of, that party.

7.

Documents that require to be intimated or sent under the Protocol, should, where possible, be intimated or sent by email using an email address supplied by the claimant or defender. Alternatively, such documents are to be sent or intimated using a next-day postal service which records delivery.

8.

Where there is a number of days within which or a date by which something has to be done (including being sent or intimated), it must be done or sent so that it will be received before the end of that period or that day.

9.

The claimant is expected to refrain...

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