Understanding the Compulsory Pre-Action Protocol (“CPAP”) for Personal Injury Claims

"Personal Injury" is defined as an injury or illness that has been caused (or made worse) by someone else's negligence. An injury sustained in these circumstances may attract a claim for financial compensation from those responsible (usually via an insurance company).

The most common types of personal injury are:

• Road traffic accidents
• Accidents at work
• Accidents in public places (slips and trips) and
• Occupational illnesses and diseases 

A piece of legislation called "The Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016" introduced a new chapter into the standard court rules, which, in turn, introduced a mandatory body of rules called the Compulsory Pre-Action Protocol (CPAP) that must be followed for certain types of personal injury claims that can be pursued in Scotland.

Before the introduction of the Compulsory Pre-Action Protocol (CPAP) in November 2016, there was a similar system in place called the Voluntary Pre-Action Protocol (VPAP). As the name suggests, this protocol was voluntary and offered no recourse if one party refused to use the VPAP process. There were no penalties for failing to comply with VPAP provisions. VPAP was also limited to claims up to the value of £10,000.00.

The CPAP is aimed to encourage fair, timely, and just settlement before court proceedings are raised, and in cases which do not settle, they aim to narrow the scope of the dispute raised in litigation. The aim of CPAP is similar to the pre-existing Law Society VPAP, which also encouraged early resolution of personal injury claims. However, the 2016 Protocol introduced an express power allowing the courts to make an award of expenses against a party who has failed to comply with the Protocol or has unreasonably refused to accept a settlement offer made under the protocol which is formally lodged in court (known as a "Tender") following the commencement of proceedings.

The introduction of the 2016 Protocol requires parties to a prospective action of damages for personal injury to comply with the CPAP prior to the commencement of proceedings. The Protocol can be found in Appendix 4 of the Ordinary Cause Rules and Appendix 1B of the Summary Cause Rules.

The CPAP applies to personal injury claims up to the value of £25,000.00 and where the accident or circumstance giving rise to a claim for damages occurred on or after 28 November 2016. The CPAP process encourages early and full disclosure of information pertaining to the dispute and aids investigation into the circumstances surrounding the dispute. Claims arising from Disease, Clinical Negligence or Professional Negligence are exempt from the CPAP. 

1. The Claim Form
   • Any new claim must be intimated by way of a claim form. The claimant must set out a summary of the facts, any allegations of negligence, breach of statutory or common law duties, an indication of the injuries suffered, and any financial losses suffered.
2. Acknowledgement of the Claim Form
   • The defender must acknowledge the claim form within 21 days.
3. Investigation
   • The defender has 3 months to investigate the claim and advise whether liability is admitted or denied. If liability is denied, the defender must give reasons, which may include an alternative version of events which they choose to rely on. The defender must also disclose any documents which they intend to rely on to justify that position.
4. Disclosure of documents and reports following admission of liability
   • After liability is admitted, parties must exchange documentation which supports the claim. This usually takes the form of medical reports.Where the defender admits liability to make reparation under the Protocol but alleges contributory negligence, the defender must give reasons supporting those allegations and disclose the documents which are relevant and proportionate to the issue of contributory negligence. The claimant must respond to the allegation of contributory negligence before proceedings are raised.
5. Issuing of Statement of Valuation
   • The claimant must send a Statement of Valuation of Claim to the defender (in the same form as Form P16 in Appendix 1 of the Ordinary Cause Rules), together with supporting documents. This sets out what level of damages the claimant says are due with full supporting documentation.
6. Offer of settlement
   • No later than 5 weeks after receiving the Statement of Valuation, the defender should advance their offer to settle, including expenses.
7. Claimant's response to the offer of settlement
   • If a settlement offer is made, the claimant must either accept the offer or issue a reasoned response and/or counter-offer within 14 days of receipt of the offer. Alternatively, they may request additional information within the same 14-day period if it is required to enable a proper assessment of the offer.
8. Stocktaking period
   • The claimant must not raise proceedings until at least 14 days after the defender receives the claimant's reasoned response (even in cases where the settlement offer is rejected outright). This period allows parties to take stock of their respective positions and to pursue further settlement negotiations if desired.
9. Payment
   • Damages and Protocol expenses must be paid within 5 weeks of settlement (with interest payable thereafter at the judicial rate). 

In the event that any of the CPAP stages are not adhered to, then the claim can proceed to litigation. The claimant may also wish to proceed to litigation if the case is about to time bar. The time bar in these cases is the third anniversary of the date of the accident unless the claimant is under 16 years of age). In that case, proceedings should be raised to protect the claimant's position and then sisted (paused) to allow for CPAP stages to be followed thereafter.

The CPAP process has successfully streamlined the progression of personal injury claims in Scotland.

Our dedicated team of Personalised Injury experts are here to offer personalised guidance tailored to your unique circumstances and practical solutions every step of the way. We take the time to understand your needs and work closely with you to achieve your desired outcomes. Contact us today at 0141 221 1919 and trust us to support you throughout your legal journey.