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A guide to making a No Win No Fee scottish personal injury claim

How is personal injury law different in Scotland? Will Claimants get more compensation claiming under Scots Law?

In most cases, a person who has sustained injury as the result of an accident can only bring a personal injury claim for compensation in the country in which the accident occurred. The claim will then be dealt with according to that country's laws and procedures.

This principle holds true for accidents which occurred in a particular part of the United Kingdom. So, for example, someone injured in an accident in Scotland usually has to claim compensation according to Scots Law. Decisions of Courts in England and Wales may, however, still be considered in a Scottish Court's ruling.

Personal Injury Solicitors in Scotland

Quittance's network of solicitors handle claims across Scotland, including :

Find more information about injury claims in other areas of Scotland.

Scots Law and English Law

The Treaty of Union of 1707 guaranteed the independence of the Scottish legal system. The result of this is that Scots law and procedure differs in a number of ways from English law.

Although some of these differences disappeared with the passage of time, the law-making powers of the Scottish Parliament make it likely that the number of differences will increase as time passes.

An example of this is that Scotland has had a lower legal alcohol limit for driving than the rest of the UK since 2014, and the age of legal capacity (the age at which a person can enter into a legal agreement ot contact) is 16, rather than 18 in England and Wales in most cases.

Accident claims in Scotland

In general, the same laws apply to both Scotland and England insofar as accident claims are concerned. However, there are differences between the two legal systems that can affect a person's right to claim compensation.

For example, compensation can be claimed in Scotland, but not in England, for pleural plaques caused by workplace exposure to asbestos.

There can also be differences in the amount of compensation payable. So, for example, the family of a person fatally injured in an accident is likely to receive a higher amount of compensation if the accident occurred in Scotland rather than in England.

There are many procedural differences between the two jurisdictions, both at the pre-action and Court stages of a claim.

For instance, there are statutory pre-action protocols for managing personal injury claims in England. In Scotland, however, the pre-action protocols are voluntary and only apply if both the Claimant and Defendant agree that they should.

Costs and expenses

The differences between the two legal systems extend to a Claimant's entitlement to have his or her costs (known as expenses in Scotland) paid by the Defendant.

The amount of costs and compensation which a Claimant is entitled to receive also varies between Scotland and England.

Choice of jurisdiction

In some circumstances, a person who is injured in, for example, a workplace accident may be able to choose where to bring his or her claim. This type of situation can arise where, for instance, an accident occurs in one jurisdiction but the Claimant's employer's place of business is in another jurisdiction.

Recent changes to injury law in Scotland

Recent legislation and ministerial orders surrounding personal injury claims have been introduced in Scotland.

Prior to the changes in late 2015, all claims were processed through either the Edinburgh-based Court of Session or the 49 Sheriff Courts situated in towns and cities throughout Scotland.

Claims with value below £5,000 (including personal injury) were raised in the Sheriff Court (although there was no upper limit for claims) and claims of a significant level were generally raised in the Court of Session.

However, following a review in 2009 by Scotland's former senior judge, Lord Gill, new rules governing personal injury claims have been created. In addition there is a new court in which those claims may be brought.

The new Sheriff Personal Injury Court (SPIC)

The SPIC opened on 22 September 2015 to deal solely with personal injury claims.  Based in Edinburgh it has jurisdiction over the whole of Scotland for damages arising from personal injuries or the death of a person in which:

  • The sum sought exceeds £5,000 or;
  • The proceedings concern a work accident claim for payment of a sum exceeding £1,000 or;
  • It is a workplace-related personal injury claim worth less than £1,000 but is sent to the SPIC from an order of a Sheriff in another Sheriff Court.

Claimants (Pursuers in Scots law) whose claims meet these criteria can either bring their claim to the new SPIC or to their local Sheriff Court.

Claims for less than £5,000 will be dealt with by the local Sheriff Court.

All claims below £100,000 must be brought to a Sheriff Court, at least initially, since the Court of Session will now only hear claims which exceed this amount.

Sheriff Court Rules and Procedure

As well as a new court, there are new rules for personal injuries claims, which affect the Sheriff Courts and the SPIC.

The key elements are as follows:

  • Court applications (motions) can be made by email in the SPIC.
  • Juries will determine personal injury claims in the SPIC

Certain injury claims - including clinical negligence claims, claims for catastrophic injuries and other complex cases must follow the new Sheriff Court Case Management Procedure:

  • The parties will have a period of time to set out their written cases before a compulsory procedural hearing is fixed. This hearing is to allow the Sheriff to determine any further procedure in the case.
  • It is expected that the parties will have engaged in a considerable amount of preparation and engagement with one another in advance of the hearing.
  • At least 7 days prior to the procedural hearing, parties must lodge written statements setting out proposals for further procedure. If they are seeking trial (proof), as well as the statement of the matters in dispute, they must also set out certain information including details of witnesses, witness statements, expert reports, medical records and evidence, and the estimated duration of the proof.

Once the proof is allowed, the Sheriff will issue a timetable, setting dates for a hearing, valuations, witness lists and productions, a pre-trial meeting (PTM) and a further pre-proof hearing.

PTMs must be attended by parties in person or via video conference.

For less complex cases the standard personal injury procedure is similar to that of the rules of the Court of Session. The key features are:

  • An automatic timetable
  • Setting a date for a ?Proof Diet' (trial window) within nine months of defences being filed
  • Simplified pleadings
  • An exchange of schedules and counter-schedules of damages 
  • a pre-trial meeting (PTM) either in person or by telephone

The Court of Session

Where claims are above £100,000 these can either be brought to the Court of Session - the Scottish equivalent of the High Court - or the Sheriff Court.

A request for a case where the claim is lower than £100,000 to be remitted to the Court of Session may be made by any party.

If the Sheriff considers the importance or difficulty of proceedings make it appropriate to do so, he may allow the request.

Once the request is lodged with the Court of Session there will be a hearing before a judge who will decide whether the case can be remitted.

The decision of the Sheriff and the Judge can be appealed.

Settling out of Court

In Scotland, an offer to settle may be made by way of a ?Tender' - similar to a Part 36 offer in England and Wales.

However, unlike in England, a Tender cannot be made until proceedings have been raised (issued). 

The Pursuer is allowed a ?reasonable' period of time for acceptance. This differs from England where a Claimant has 21 days to respond to a Part 36 offer.

A Tender can be withdrawn at any time prior to acceptance without the leave of the court.

Time limits for claims

As in England and Wales, the time limit for personal injury claims in Scotland is 3 years. This means that court proceedings must be issued within 3 years of the Pursuer first being aware that he has sustained injury or illness.

Specialist knowledge

In order to secure the best possible result for a Claimant, his or her solicitor needs not only to be a claims expert but also to be expert in the law and procedures of the country where the claim is being brought. In addition, that solicitor may need the right of appearance in the Courts of that country.

A solicitor who practises in England does not automatically have the right to represent a person in the Scottish Courts, and vice versa.Claims which are made in Scotland ought therefore to be brought and handled by specialist claims solicitors who practise in Scotland.

Next steps

If you are considering claiming for an injury that occurred in Scotland or if you live in Scotland and your injury occurred in an other jurisdiction (including England and Wales), Quittance can help.

For more information about the claims process, or to start your claim, contact Quittance's specialist team on 0800 612 7456.

Alternatively, you can arrange a callback here, to set up a free consultation to discuss your options at a more convenient time.