Calum Sweeney: Guiding spirit – the ongoing influence of the protocol at the All Scotland Personal Injury Court
In the almost 30 years since the introduction of protocols for personal injury claims, voluntary then compulsory, pursuers and defenders alike have often accused each other of failing to act “within the spirit” of the applicable protocol. The well-worn issue was raised again in two recently published – on 27 July - decisions from the All-Scotland sheriff Personal Injury Court (ASPIC), both of which came before sheriff Campbell.
The sheriff’s judgement in McInnes v EUI Limited  SC EDIN 19 does not detail the circumstances giving rise to the court action in the first place, but merely concerns the action’s procedural history in order to consider the issue of expenses. The court action had been raised close to the triennium before being immediately sisted in order that negotiations could take place in line with the terms of the Compulsory Pre-Action Protocol (CPAP).
Upon receipt of the pursuer’s statement of valuation of claim and supporting vouching, the defender had made an offer of settlement which was quickly rejected. The defender requested a “reasoned response” from the pursuer, as required in terms of Paragraphs 27-29 of the CPAP, however, in rejecting the offer the pursuer merely directed the defender to “the Judicial College Guidelines Chapter 7(B)(c)(i)… together with our statement of valuation of claim”. No further basis for the rejection was given.
This, the defender submitted, was contrary to the requirement to provide a “reasoned response”, which they argued had to be “meaningful” and one which would enable the parties to enter into dialogue. The pursuer’s response, they argued, failed to identify or discuss the various heads of claim beyond solatium and did not form the basis for meaningful discussion. They submitted that, in essence, the pursuer was bound by the CPAP to provide an explanation of her position; had she done so, the matter may have settled without the need for further court procedure.
The court agreed. A mere reference to the chapter of the Judicial College Guidelines alone did not amount, in the eyes of the sheriff, to much more than a starting point. The pursuer ought to have given an indication as to why a higher offer than the one she was rejecting was merited. The purpose of the requirement for a reasoned response was obvious; promoting clarity of parties’ respective positions, and facilitating dialogue with a view to settlement. The pursuer’s response achieved neither of those aims. The sheriff awarded expenses to the pursuer albeit modified to the CPAP scale, and granted the expenses of the hearing to the defender.
Sheriff Campbell’s obvious preference for clear communication between parties to a personal injury litigation was further evident in Napier v AXA Insurance UK PLC  SC EDIN 20. This action concerned a late 2018 road traffic accident where, through reasons of delay in obtaining medical evidence partially caused by the Covid-19 pandemic, proceedings were not raised until late 2021.
Liability had been admitted within a matter of weeks of the accident, shortly after intimation of the claim by the pursuer. The action was immediately sisted, having been raised to beat the expiry of the triennium, in order that parties could attempt to resolve matters in line with their obligations in terms of the CPAP.
The pursuer’s position, in essence, was that she was not in a position to fully value her claim until September 2022, having at that point reached a baseline in her recovery. It had emerged, but only after the instruction of initial medical reports, that her issues were neurological as well as orthopaedic in nature. The pursuer instructed a total of four medical reports outlining the effects of her injuries, all of which were obtained between July 2019 and March 2022.
There was a factual dispute between the parties as to whether or not one of the reports was intimated to the defender prior to proceedings being raised, however, it was accepted that at least three of the four reports were not disclosed until September 2022. Settlement of the action was agreed within a matter of weeks following disclosure of the reports, by way of a Minute of Tender and Minute of Acceptance thereof. The defender opposed the acceptance of the Tender in order to seek a modification of the pursuer’s expenses, to the tune of at least 50 per cent, criticising the pursuer’s conduct during the court action.
Sheriff Campbell described the history of the case as “lamentable”. Whilst he acknowledged the impact of the pandemic on the ability of agents to obtain expert medical reports, he nonetheless stressed the importance of parties’ duties to adhere to the CPAP, and in particular that the court considers timely disclosure of expert reports as a “cornerstone” of personal injuries procedure. He felt that the pursuer had failed to present compelling reasons for their failures in this regard, particularly where there was well over a year between the defender’s admission of liability and the onset of the pandemic. The pursuer, in the court’s view, ought to have at least put the defenders on notice with regards any potential complexities and, indeed, possible delays. In all the circumstances, the court felt that a 50% modification of the pursuer’s expenses was appropriate.
It appears that the personal injury sheriffs are keen on encouraging clear and productive discourse between parties to a personal injury action. This in itself is not new, but these recent decisions reflect the trend towards the courts considering open dialogue as a minimum requirement. Whereas the personal injury protocol was previously a voluntary one, it has been compulsory and enshrined in legislation since 2016, and has in any event always sought to encourage early and full disclosure of information which might lead to settlement of a claim at an early stage. Practitioners should note – pursuers and defenders’ agents alike – that there can and will be consequences in expenses arising from any hint of a lack of candour, or even where the court considers that the spirit of the protocol has not been followed.
Calum Sweeney is an associate at BTO LLP