CHAPTER 3APERSONAL INJURY PRE-ACTION PROTOCOL

Application and interpretation3A.1

1

This Chapter applies to an action of damages for, or arising from, personal injuries.

2

In this Chapter “the Protocol” means the Personal Injury Pre-Action Protocol set out in Appendix 4, and references to the “aims of the Protocol”, “requirements of the Protocol” and “stages of the Protocol” are to be construed accordingly.

Requirement to comply with the Protocol3A.2

In any case where the Protocol applies, the court will normally expect parties to have complied with the requirements of the Protocol before proceedings are commenced.

Consequences of failing to comply with the Protocol3A.3

1

This rule applies where the sheriff considers that a party (“party A”)—

a

failed, without just cause, to comply with the requirements of the Protocol; or

b

unreasonably failed to accept an offer in settlement which was—

i

made in accordance with the Protocol; and

ii

lodged as a tender during the period beginning with the commencement of proceedings and ending with the lodging of defences.

2

The sheriff may, on the sheriff’s own motion, or on the motion of any party, take any steps the sheriff considers necessary to do justice between the parties, and may in particular—

a

sist the action to allow any party to comply with the requirements of the Protocol;

b

make an award of expenses against party A;

c

modify an award of expenses; or

d

make an award regarding the interest payable on any award of damages.

3

A motion made by a party under paragraph (2) must include a summary of—

a

the steps taken by parties under the Protocol with a view to settling the action; and

b

that party’s assessment of the extent to which parties have complied with the requirements of the Protocol.

4

In considering what steps (if any) to take under paragraph (2), the sheriff must take into account—

a

the nature of any breach of the requirements of the Protocol; and

b

the conduct of the parties during the stages of the Protocol.

5

In assessing the conduct of the parties, the sheriff must have regard to the extent to which that conduct is consistent with the aims of the Protocol.

6

This rule does not affect any other enactment or rule of law allowing the sheriff to make or modify awards regarding expenses and interest.