Levy & McRae CLAIMS IN SCOTLAND

Levy & McRae CLAIMS IN SCOTLAND

Contents 3 Introduction 4 Voluntary Pre-action Protocol 6 Raising a Court Action 7 Sheriff Court 9 Court of Session 10 Time Bar 11 Hearings 12 Expenses 2

Introduction Credible, reputable and successful. That's who we are and if you have been injured because of someone else's negligence, that's what you need your lawyer to be. The purpose of this guide is to provide a general overview to the procedure surrounding claims in Scotland. In Scotland, the law demands that those responsible for causing injury to others reimburse them for certain expenses, and for their pain and suffering. Claims arise in many areas: Car Accidents Medical Negligence Accidents at Work Wrongful Death Product Defects Professional Negligence Disease You must act in time to protect yourself and your family - every claim for injury must be in court usually within 3 years of the event causing injury or loss, or it will be time-barred. In aviation cases and international claims the time limits are often much shorter and can be as little as 1 or 2 years. Please do not hesitate to contact us if you feel you may have a claim. Levy & McRae 266 St Vincent Street Glasgow G2 5RL Telephone: 0141 307 2311 3

Voluntary Pre-Action Protocols Personal Injury Since 1 January 2006 Scotland has operated a Pre-Action Protocol procedure for personal injury claims. The purpose of the protocol is to give parties an opportunity to settle personal injury claims without the need for litigation/raising a court action. The protocol can be entered into voluntarily, on a case to case basis or by mutual agreement. The protocol is generally designed for cases worth up to 10,000. The main features of the protocol are as follows: Once sufficient information has been garnered letter of claim is to be sent by the pursuer to the defender or the defender s insurer. This letter should include details of the claim allowing the pursuers to carry out their own investigation and provide a broad valuation to the claim. Insurers should respond to this letter within 21 days from receipt and advise as to whether the claim will be dealt with under the protocol. Following this response, the insurer has a period of 3 months to investigate the claim and revert to the pursuer stating whether or not liability is admitted. If liability is admitted, the pursuer must submit a valuation of claim with supporting documentation. A medical report should also be instructed by the pursuer at the earliest opportunity and no later than 5 weeks after liability has been admitted. Once a settlement figure has been agreed, cheques must be passed within 5 weeks. 4

Disease Claims The protocol for disease claims came into effect on 1 June 2008. Diease is defined as follows: Any illness, physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement, other than physical or psychological injury solely caused by an accident or other similar singular event. A singular sensitising event may be considered appropriate for this Protocol Protocol for disease follows a similar format to the regular protocol, the main differences being: Once medical reports are disclosed to the insurer, the insurer is encouraged to question the claimant s expert and may, if appropriate, seek their own medical evidence. The pursuer remains entitled to raise proceedings up to one year following a repudiation of liability or rejection of a settlement offer. 5

Raising a Court Action Claims of Less than 5,000 Any claim of less than 5,000 must be raised in the Sheriff Court. If a claim is for more than 5,000 it may still be raised in the Sheriff Court as there is no upper limit for value. Claims between 3,000-5,000 will be governed by the Summary Cause Rules. Claims under 3,000 (not personal injury) will be governed by the Small Claims Rules. Claims of More than 5,000 A claim of greater than 5,000 may also be raised in the Court of Session in Edinburgh. Personal injury claims for over 5,000 raised in the Sheriff Court are governed by their own set of procedures - Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009. Commercial Claims Commercial Claims raised in the Sheriff Court and the Court of Session are governed by their own respective sets of rules. Again, if a claim is between 3,000-5,000 or less than 3,000 they will be governed by the Summary Cause of Small Claims procedure. 6

Claims in the Sheriff Court Depending on the nature and value of an action raised in the sheriff court, there are certain different procedures which must be followed. Small Claims A small claims action can be raised for any claim under 3,000 that is not a personal injury claim. The procedure is designed to be simpler and less formal than of claims of higher value. Summary Cause Summary cause procedure governs claims between 3,000 and 5,000 and is generally used for actions for am payment of money. Similar to small claims, the procedure is designed to simplify the claims process for relatively small claims. Ordinary Cause Ordinary Cause procedure governs claims for over 5,000. This is generally a more complex procedure than small claims and summary cause for more complex, higher value cases. An initial writ should be served on the defenders. The defenders will then have 21 days to lodge a Notice of Intention to Defend notifying the court that the action will be defended by them. Following this, there a period of 14 days for defences to be lodged. There will then be an 8 week period for parties to adjust their pleadings. An options hearing (court hearing to determine further procedure) will take place shortly after. 7

Personal Injury Procedure A specialised procedure for personal injury actions in the Sheriff Courts commenced in 2 November 2009. There is no upper limit for value of such a claim. An initial writ should be lodged by the pursuer containing a brief narrative of the facts of the claim. This must also identify relevant doctors and hospital. If the action is defended, a timetable will be produced by the court detailing the following: The date of the proof (trial). This must be within 9 months from defences being lodged. The dates at which a third party notice must be lodged. The last date for adjustments to pleadings. The dates for both the pursuer and defender to lodge a statement of valuation of claim. The date of the pre-proof conference a meeting between both parties prior to the proof. 8

Personal Injury Claims in the Court of Session As well as being able to raise in the Sheriff Court, a personal injury action of over 5,000 can also be raised in the Court of Session in Edinburgh. It tends to be more complex and high value cases which are raised in the Court of Session. Why Raise in the Court of Session? Highest civil court in Scotland Complexity of issues Judges specialized in personal injury The option of a jury trial Personal injury actions in the Court of Session are governed by Chapter 43 of the Court of Session Rules and came into effect on 1 April 2003. 21 days following the summons being served on the defender, the pursuer can lodge the summons for calling. Within 3 days of calling, the defender, if the action is to be defended, must enter appearance. Defences are then to be lodged within the next 7 days. Similar to Sheriff Court personal injury procedure, a strict timetable will govern the action. The timetable will include the following: The date at which a third party notice must be lodged The dates that the pursuer and defender must lodge a notice of valuation of claim The last date for adjustment to pleadings The date for a minute to be lodged recording the outcome of the preproof meeting The date for the proof 9

Time Bar There are certain time frames fixed by the Prescription and Limitation (Scotland) Act 1973. An action raised in any of the civil courts in Scotland must be warranted by the court and served on the defender within these timescales. Any action raised after the expiry of these limits (unless with agreement between the parties) will be incompetent. Personal Injury Under s.17 a Personal Injury Action must be raised within three years from the following: The date on which the injuries were sustained If the act/omission causing the injuries was continuous, the date at which this act/omission ceased The date at which the pursuer became aware of the injuries In the case of injury to a child, the three year time bar will not commence until the pursuer reaches the age of 16 Other Claims For claims not involving injury, the general time bar period is five years following the date of the agreement/incident. 10

Court Hearings Proof A proof as a hearing on the facts and evidence of a case only. It is essentially the civil equivalent of a trial. The pursuer will generally be first to call witnesses, with the defender having the opportunity to cross examine their evidence. Once the pursuer s evidence has concluded, the defender will have the opportunity to call witnesses, with the defender being able to cross examine. Both parties will then have the opportunity to make closing speeches before the Sheriff/Judge provides their decision Jury Trial A jury trial may only be requested in Court of Session actions and it is generally acknowledged that the pursuer has a right to a jury trial. However, this may be objected to by the other party, usually because the issues are too complex or inappropriate for a jury decision. Proof Before Answer This is similar to a proof in that it is a hearing on the evidence and facts. Unlike a proof, the parties may address the court on legal arguments once the evidence has concluded. Debate This is the part of an action where legal debates only take place. It can take place before a proof or afterwards if it would be impossible to answer the legal issue until after the evidence is heard. 11

EXPENSES Following a Court Action Generally, in a civil court action in Scotland, the expenses of the action can be recovered by the successful party. The level of expenses that can be received is a question for the court to decide. If there remains dispute in relation to the amount recoverable there can be a further court hearing fixed and the successful party s file taxed (audited by a law accountant). Pre-Litigation Expenses Expenses for claims settled prior to litigation are governed by the Pre-Action Protocol as follows: Claims settled after 1 January 2011: Instruction fee On settlements up to and including 1,500 358 On settlements over 1,500 783 Completion fee On settlements up to 2,500 25 % On the excess over 2,500 up to 5,000 15 % On the excess over 5,000 up to 10,000 7.5 % On the excess over 10,000 up to 20,000 5 % On the excess over 20,000 2.5% 12

Levy & McRae 266 St Vincent Street Glasgow G2 5RL Tel: 0141 307 2311 13