What Is The Personal Injury Claims Process In Scotland?
By John Bowes. Last Updated 3rd March 2021. The aim of this guide is to provide information on claiming compensation in Scotland. We look at victim compensation Scotland, how the law differs from that in England, and the sort of evidence that would be required when making personal injury claims in Scotland. We will guide you through the personal injury claims process in Scotland.
If you were involved in an accident in Scotland that left you suffering from an injury, whether minor or something a lot more severe, providing the incident was caused by the negligence of a third party, you could be entitled to file a personal injury claim to seek compensation for the damages and losses you suffered. To find out more about the personal injury claims process in Scotland, please read on, or if you feel you are ready to pursue your claim, please contact us on 0800 073 8804.
Select A Section
- A Guide To The Personal Injury Claims Process In Scotland
- What Is A Personal Injury Claim In Scotland?
- What Happens During Your Initial Consultation?
- Collecting Evidence For An Accident Or Injury Claim In Scotland
- Getting A Medical Examination
- Pre-Action Protocols For Scottish Personal Injury Claims
- Time Limits For Scottish Personal Injury Claims
- Criminal Injury Claims In Scotland
- Personal Injury Claims Scotland Calculator
- Special Damages Awarded For Accident And Injury Claims
- The No Win No Fee Personal Injury Claims Process In Scotland
- How To Find A Solicitor For Your Claim
- Contact Us
- Essential References
If you were injured in an accident and would like to know more regarding the personal injury claims process in Scotland, this guide offers valuable information on the differences between Scottish law and English law and the personal injury claims process in Scotland.
We cover what evidence is required to prove a claim, the difference in compensation amounts payable in Scottish personal injury claims when it comes to general and special damages, whether a claim would require that claimants would need to respect compulsory pre-action protocol Scotland how No Win No Fee agreements work in Scotland, and how a solicitor could assist you when making a compensation claim for injuries sustained in Scotland.
To speak to one of our specialist advisers about the personal injury claims process in Scotland, please call us on 0800 073 8804.
Personal injury victim compensation Scotland is conducted under Scottish law. In most instances, if you suffered an injury in Scotland, you need to make a personal injury claim for compensation under Scottish law. Scotland entered into the Treaty of Union of 1707 which guaranteed its legal independence and as such, the law in Scotland differs in various ways from the law in England.
With this said, when it comes to accident claims, the laws in Scotland and England are generally the same but there are several differences that could affect your right to seek compensation, one of which is the right to claim for asbestos-related health issues sustained in the workplace.
Differences may also exist when it comes to compensation amounts payable in successful personal injury claims in Scotland. An example is if a family member is fatally injured and you seek compensation, you could be awarded a much higher amount than you would in England.
Procedural differences in Scottish injury claims
What are the differences when claiming victim compensation Scotland? The procedural differences are notable too, such as during the pre-action protocols, or during the court stages of a claim. When it comes to pre-action protocols, these could be voluntary, whereas in England it is a statutory requirement. In Scotland, both parties must agree to pre-action protocols.
With this said, specific claims for compensation made in Scotland are subjected to Compulsory Pre-Action Protocol Scotland. As such, it is wiser to discuss a case with an experienced solicitor before pursuing a claim.
If you are claiming ‘costs’, which are referred to as ‘expenses’ in a Scottish personal injury claim, the amount you could be awarded differs to the amount you may receive in England. If you are unsure what could be included and what may not, one of our advisers would be able to clarify this for you.
It is also worth noting that if you are involved in a workplace accident in Scotland, you may have the right to choose where your case is heard. An example being if the accident happened in a specific jurisdiction but your employer’s place of business happens to be in another one.
Because of the differences between Scottish law and English law where personal injury claims are concerned, specialist knowledge is required to ensure a successful outcome, bearing in mind that a solicitor who practises law in England would not have the right to represent you in a case filed in a Scottish court. In short, you would need to seek representation from a solicitor who practises law in Scotland should your personal injury claim be disputed and reach court, which is where Legal Expert can assist you.
The first thing a solicitor would need to establish is whether you have a valid personal injury claim and who could be deemed liable for any injuries and damage you suffered. This would take place in an initial consultation when a solicitor would explain the following:
- What the process of making a personal injury claim in Scotland entails
- The level of personal injury compensation you may be awarded
- What the cost of making a claim could be
- Whether your claim would be accepted under No Win No Fee terms
- The length of time your claim might take to reach a final settlement
- Whether your claim would require compulsory pre-action protocols to be respected
- Whether it would be advisable to accept an initial offer
- To answer any queries or questions you may have regarding personal injury claims in Scotland
As with claims filed in England, you would need to produce relevant evidence to support an accident or injury claim in Scotland. This would entail gathering the following proof as soon as you can:
- Photos of where the accident happened
- Photos of the injuries and damage you suffered, preferably prior to having received treatment
- CCTV footage, if available
- Medical notes detailing the injuries you suffered. This should include minor symptoms you may be experiencing because you may find that a minor injury turns into something a lot more serious further down the line
- The incident report as detailed in an Accident Book if you sustained your injuries in the workplace
- Police report if you were involved in a road traffic accident or you were assaulted
- Witness statements
- The contact details of all witnesses
If you are unable to gather the required evidence because your injuries prevent you from doing so, you can ask a family member or trusted friend to do this on your behalf as soon as they are able to. The more evidence you can produce to support a personal injury claim in Scotland, the stronger your case would be and the more chance there would be of a solicitor agreeing to represent you on a No Win No Fee basis.
As previously touched upon, a medical report is an essential piece of evidence when it comes to making a personal injury claim in Scotland. Without a medical report, there would be no way of knowing just how serious your injuries were and how your life and well-being were negatively impacted. An initial medical report from the doctor who treated you would provide an insight into the level of damage you suffered.
As part of the claim process, one of our solicitors can arrange for you to be examined by an independent medical professional close to where you live. Their report would be invaluable when it comes to calculating the level of general damages you could be awarded in a successful accident claim in Scotland.
What are the pre-action protocols for the personal injury claims process in Scotland? Some personal injury claims in Scotland now require that parties respect compulsory pre-action protocols and failure to do so could result in sanctions being lodged against them by the courts.
Compulsory pre-action protocols in Scotland are as follows:
- They apply to accidents that happened on or after 28th November 2016
- They are only mandatory for claims that are valued at £25,000 or under
- Some claims are excluded, such as claims involving industrial disease
- The terms regarding compulsory pre-action protocols are incorporated in the rules as set out by the Sheriff Court
- Time-frames must be strictly respected
- Courts in Scotland are charged with making sure protocols are effective
- Pre-medical evidence offers to settle a personal injury claim in Scotland are discouraged
- Non-binding admissions concerning liability are not allowed
As previously touched upon, failure to respect compulsory pre-action protocols associated with personal injury claims in Scotland would result in sanctions being levied against the parties involved. This could include the following:
- Failure to comply with the terms of the protocol, or
- The claimant accepts an offer where the same amount was provided under the protocol, and where the offer has been lodged through a court prior to defences being submitted. An example being within 4 weeks of proceedings having been served
A Scottish court can apply the following sanctions if compulsory pre-action protocols Scotland are not respected:
- Stay any action so that a party is able to comply with the protocol
- Apply a costs award against the party
- Modify the costs that may be awarded
- Amend any interest that may be payable on amounts awarded in damages
Personal Injury Letter of Claim
A letter of claim must be sent to a defendant or their insurance provider, if known, as soon as there is enough information and evidence to support a personal injury claim against the party deemed liable.
The letter will ask for the insurer’s details should this not already be known. The letter will request that the ‘proposed defender’ sends a copy to their insurers. Should the insurer be known, a copy of the letter of claim would be sent to them directly.
The letter of claim contains a precise summary of the facts on which a personal injury claim is based. This would include any allegations regarding negligence, breaches of common law, or breaches of statutory duty on the part of a third party. It will include the nature and extent of any injuries suffered as well the financial losses a claimant incurred and will include details of a hospital where the injured party was treated. If appropriate, the letter of claim would also provide details of a motor insurance provider.
How long do defendants have to acknowledge receipt?
It is essential that enough information is provided to enable the defendant’s insurance provider the chance to begin their investigations and for them to value their ‘risk’. The insurance provider has twenty-one days to acknowledge receipt of the letter of claim, and they should provide information on whether the voluntary protocol would be acceptable. If the insurance provider fails to reply within the specified time, as a claimant you would be entitled to commence proceedings against them.
If liability is accepted, an insurance provider would be bound by the admission unless it is found that a claim is fraudulent and would have 3 months to investigate a claim. The insurance provider must supply the information within this time-frame as to whether liability is accepted or denied. Should responsibility on the part of a defendant be denied, the insurance provider must offer reasons for the decision and submit all relevant information to support the decision to deny liability.
There are strict time limits associated with personal injury claims in Scotland as laid out in the Prescription and Limitation (Scotland) Act. As such, you have 3 years from the date you were injured or were made aware of any injuries sustained in an accident in Scotland due to the negligence or error of a third party.
- If you are claiming personal injury compensation in Scotland on behalf of a loved one or member of your family who died, you have 3 years from the date they died.
- The 3-year time limit for personal injury claims involving children in Scotland does not begin until a child turns sixteen years of age.
- There is no time limit if a claim for compensation involves an injured party who lacks the mental capacity to file a personal injury claim in Scotland.
- There is no time limit for personal injury claims in Scotland that involve child abuse and adults who were subjected to abuse as children.
It is worth noting that some personal injury claims in Scotland may have shorter time limits associated with them and as such, it is far wiser to seek legal advice as soon as you can to prevent a case from being statute-barred.
If you were the blameless victim of a crime of violence in Scotland, you may be able to claim compensation for the injuries and damage you suffered through the Criminal Injuries Compensation Authority (CICA). However, because claiming through the CICA Scheme can be complex, it is far better to seek legal advice before submitting your application to the authority. This is where a member of our specialist team can be of assistance.
Your claim for compensation through the Scheme must meet the strict criteria for the authority to consider it. There is also a strict two-year time limit that applies and this must be respected for the authority to accept an application. There must have been a report made to the police which must be done as soon after the crime was committed against you. Without a CRN – Crime Reference Number, the authority would not consider a claim for compensation through the Scheme.
You must also have been seen to be fully cooperative with the police and the CICA throughout the process and you must not have any unspent convictions against you which includes drink driving offences that are not ‘spent’.
All personal injury claims in Scotland are valued on their own merits. As such, it is hard to put an exact figure on the amount of personal injury compensation you may be awarded, whether in an out of court settlement or through a Sheriff court. There are many online compensation calculators which could provide you with a general idea of the amount you may receive in a successful claim filed in Scotland against a party responsible.
If you would like a general idea of how much you may receive in compensation, please refer to the table below. The amounts provided are based on the Judicial College Guidelines for compensation awarded in England.
|Back - minor||Up to £2,300||A full recovery made within 3 months|
|Neck - minor||£4,080 to £7,410||Full recovery made within 1-2 years. This category also relates to exacerbation or acceleration injuries between 1 and 2 years.|
|Arm - A simple fracture||£6,190 to £18,020||An uncomplicated fracture of the forearm.|
|Shoulder - moderate||£7,410 to £11,980||Symptoms include frozen shoulder with limited movement and discomfort which could persist for up to 2 years.|
|Ankle - very severe||£46,980 to £65,420||Serious fracture with significant soft tissue damage. May be deformities or in some cases, below-knee amputation.|
|Elbow - severe||£36,770 to £51,460||An injury regarded as severely disabling.|
For a more accurate idea of how much personal injury compensation you may be awarded, we recommend you speak to one of our advisers who would advise you how much you may be able to claim in general damages and how much you could include in the way of special damages. General damages are intended to compensate claimants for the pain, suffering as well as the loss of amenity they suffered.
Special damages, however, are awarded as a way to compensate claimants for the money they had to pay out as a direct result of the injuries they suffered through no fault of their own.
As previously mentioned, special damages are awarded in successful personal injury claims in Scotland for all out of pocket expenses a claimant had to pay out as a direct result of having been injured in an accident. Special damages that may be claimed could include the following, provided there is proof of expenditure:
- Medical expenses incurred that were not covered by the National Health Service
- Travel costs associated with injuries sustained
- The cost of care, should this be necessary
- Loss of income and future income
- Home and vehicle adaptations, if these are necessary
- Other expenses linked to the injuries sustained
Many people who are injured in accidents in Scotland worry about the cost of legal representation and as such, do not seek compensation. At Legal Expert, we take on personal injury claims on a No Win No Fee basis once a solicitor is satisfied that a case against a liable party is valid and there is sufficient evidence to support a claim. No Win No Fee Agreements do not require that you pay a solicitor a retained (upfront fee) for them to begin their investigations and there would be no fees during the life of the case either, regardless of how long it takes to reach a final settlement.
The only time the ‘success fee’ becomes payable for the services a No Win No Fee lawyer provides when representing you in a personal injury claim in Scotland, is when you receive compensation and the amount due is deducted from the amount you receive, taking all the worry of paying for legal representation when you need it the most off the table.
How the personal injury claims process in Scotland can affect benefits
If you are worried that the amount of personal injury compensation you are awarded may affect any benefits you receive, it is worth noting that if you receive interim payments before a final settlement amount is reached, this could impact your right to receive benefits. If you are in receipt of specific benefits due to having been injured, the other party must repay these to the Department for Work and Pensions, which could see them deducted from the amount of compensation you are awarded. In short, this means that a claimant is not paid twice for one injury and the rule only applies where you have been awarded compensation for any loss of earnings, loss of mobility or care costs. The rule does not apply to any compensation awarded for criminal injuries.
There are various options on how you may be able to get legal representation and free legal advice when pursuing a personal injury claim in Scotland. You could choose to contact a solicitor who would request that you pay them an upfront fee before they would begin their investigations. Other routes you may consider include the following:
- Legal aid, legal assistance and advice – you could be entitled to legal aid
- A firm of solicitors may agree to a ‘speculative fee arrangement’ – should you win your personal injury claim in Scotland you would have to pay the solicitor’s fees which would be taken out of the damages you are awarded. However, if you lose your claim, you would not have to pay the solicitor’s fees, but you may be liable for the other party’s costs
- Opting to use a claims management company – this involves signing a No Win No Fee agreement but because they are not solicitors, they would not be entitled to represent you in a Scottish court. It is also worth noting that all management companies based in Scotland must be registered with the Financial Conduct Authority (FCA)
- You could have any legal expenses you incurred covered through an insurance policy which could include a house contents policy, car insurance or travel insurance
- You may be entitled to seek help through a trade union if you were injured in the workplace and you are a member of the union
- If you are injured in a road traffic accident, you may be entitled to free legal advice through the AA or RAC
However, if you are at all concerned about the cost of making a personal injury claim, you could also choose to contact a solicitor who offers claimants No Win No Fee terms which would entail signing a Conditional Fee Agreement (CFA). At Legal Expert, we can put you in touch with a solicitor who would be happy to take on your case on a No Win No Fee basis once they are satisfied your case is valid and that you have enough proof of negligence.
We hope this guide has helped you understand the personal injury claims process in Scotland. You can contact one of our advisers on 0800 073 8804 if you are ready to pursue your personal injury claim. You can also contact us in the following ways:
Email – firstname.lastname@example.org.
Using our online claims guide
If you need to find out more about compulsory pre-action protocols in Scotland, please follow the link provided below:
For more information on claiming compensation if you were injured in an accident, please follow the link provided below:
If you were assaulted in Scotland and would like to know more about claiming through the CICA scheme, please click on the link below:
How much time do you have to make an accident or injury claim in Scotland? Find out in this guide.
If you have been affected by sex-based violence or abuse in Scotland, check how to take action against your abuser.
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FAQs On The Personal Injury Claims Process In Scotland
How does the Scottish court system work?
Scotland has two civil court levels. The local Sheriff Courts are based in 39 cities and towns across Scotland. Their jurisdiction is restricted geographically. The Edinburgh based Court of Session has jurisdiction across Scotland as a whole. The ASSPIC (All-Scotland Sheriff Personal Injury Court) is based in Edinburgh but deals with personal injury cases across Scotland.
Claims valued below £100,000 are issued in a Sheriffs Court. There is not an upper limit on the value of claims these courts can hear. The Court of Session will typically hear claims with a more significant value.
The All-Scotland Sheriff Personal Injury Court can hear cases with a value over £5,000, unless it involves an accident at work claim. Claims for workplace accidents only need a value greater than £1,000.
The limitation period
The limitation period in Scotland is generally in line with the 3 year period applicable in England and Wales. However, cases in Scotland must be both logged with the court and the defendant in this three year period. In some cases the court could allow a case to continue out of time.
Written by Wood
Edited by Billing