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Legal Claims Process in Scotland

Whether your child is injured in a road traffic accident, criminal assault or some other type of accident your solicitor should interview all witnesses and get statements from them. 

In a road traffic accident your solicitor will need to obtain information from the police although you are only entitled to obtain the names and contact details of police officers and witnesses.  Your solicitor will then arrange to meet with these police officers and witnesses and to take statements from them.  You may be able to obtain further information under the Freedom of Information Act 2004, or by paying an appropriate fee or by Court Order once a Court action is raised.

If your child’s accident happened in some other way there may be information available from the Health & Safety Executive or the local Environemental Health service.  It may be necessary to get a report from a suitably qualified person if the accident involves complex machinery.

Once these investigations are completed your solicitor will be able to advise you about the strength of your child’s claim. 

Starting Your Claim

Your solicitor will send a letter to the defender or the insurance company concerned and will set out in detail the basis of your child’s case.  There are no binding pre-action protocols in Scotland although there is a Voluntary Pre-Action Protocol which sets out the steps which both sides ought to take. 

Your solicitor will obtain copies of your child’s medical records from the General Practitioner and from any hospital attended after the accident and will thereafter obtain reports from suitable experts about the injury sustained; treatment and rehabilitation; your child’s current medical condition and any effect the injury will have in the future.

You should bear in mind that you may be asked to see different medical experts at the request of your own solicitor but also similar experts instructed by the insurance company.

You would expect that reports would be obtained from the following people –

Interim Payments

Your solicitor can claim an interim payment before the full compensation is awarded.  If you have a suitable case there is no need to wait until the case is finally concluded.  There is no limit to the amount of interim payments that can be claimed subject to the value of your case. Interim payments can be used for any purpose including:-

While most personal injury cases are concluded without you or your child having to give evidence in Court it is essential that your solicitor prepares your case with a view to issuing and concluding Court proceedings.

Your solicitor will issue proceedings by serving a document called a Summons in the Court of Session and Initial Writ in the Sheriff Court.  It is unlikely that your case will be issued in the Sheriff Court.  The defender or the solicitor for the insurers will then put forward their defence and will say whether they accept liability for the accident or not.

Personal injury cases in the Court of Session are started under the Personal Injury Action Procedure and the Court will issue a timetable designed to bring your case to an end within 12 months from the date the defences are lodged in Court. For a variety of reasons cases involving children with brain injury will not conclude within that period and may take an additional 24 months.

Both sides will produce Court documents with details of the case and the matters that are in dispute between you.  The Court will fix a date for all of the evidence to be heard and the evidence could be heard before a Judge alone or by a Judge sitting with a Jury.  Cases involving children with brain injury would not normally be heard by a Jury because they are too complex.

The Court timetable will set out the dates within which the documents on your behalf have to be lodged and the dates on which the defenders require to do the same.

If you cannot settle the case before the date of the Hearing then you and your witnesses need to attend Court and give your evidence orally, your solicitor will arrange for other witnesses who prepared the medical and other reports to attend as well.

The Judge will then decide if you are entitled to compensation and, if so, how much.  He will issue his decision in writing after he has heard all the evidence and normally within about 8 to 12 weeks of the evidence having been heard.

Author: Robert T Swanney, Partner, Digby Brown LLP

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