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Scotland: Agreement to progress claims created to circumvent court backlogs

  • Market Insight 17 June 2020 17 June 2020
  • UK & Europe

  • Insurance & Reinsurance

We are pleased to report that Clyde & Co Scotland has been heavily involved in the creation of a Progression Agreement which can now be used by claimant firms and defender firms/insurers to assist with the progression of existing cases in litigation and prospective litigated cases held by claimant firms.

Scotland: Agreement to progress claims created to circumvent court backlogs

The Agreement has the support of the Law Society of Scotland's ("LSS") Civil Justice Committee and the Working Group comprising the LSS and the Scottish Courts and Tribunal Service. In addition, the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers have backed the move. The Agreement is complimentary to the efforts that are being made by the Scottish Courts and Tribunal Service to open up, and move forward with, the administration of existing personal injury cases.

However, it is likely to be the case that any reduction of the backlog by the Court system will take some time, and some personal injury cases may be delayed more than others. At the heart of these outstanding cases will be an injured pursuer who wishes to bring their claim to a satisfactory conclusion. The Agreement also aims to reduce pressure on the Court system.

Therefore, the Agreement can be used as a method to allow appropriate cases to progress and settle, as they would likely have done had it not been for the challenges created by the coronavirus crisis to allow cases to progress in the usual way.

How to use the Agreement

The Agreement is voluntary for those parties who do wish to utilise it, and they will agree to approach this process purposively with a view to making the arrangements work.

Provision has also been made for an escalation process involving a nominated partner in each participating firm to whom any disagreements or differences can be referred.

Those interested in utilising the Agreement should contact their Clyde & Co handler. The LSS will be maintaining a register of interested parties.

What the Agreement provides

  • Those parties who do sign up to the Agreement will be subject to a timetable (referred to as the “shadow timetable”) which will progress the claim in a manner similar to a litigated claim.

  • In all cases where the shadow timetable is issued, parties to the action will proceed in compliance with the dates set out within.

  • The relevant medical records and reports available to the Pursuer’s representatives and to be relied upon should be provided to the Defender’s representatives as early as possible, to facilitate early settlement.

  • Similarly, the Defender’s representatives will be expected to provide their evidence.

  • The parties will acknowledge that some of the information sought /requested may be unobtainable due to the outbreak of coronavirus and furloughing of employees, and that steps should be taken to delay the shadow timetable.

  • The escalation contact should be contacted in the event that one of the parties is not complying.

  • If, after escalation, an agreement cannot be reached on the progression of the timetable or actions required, the case may be withdrawn.

  • If a claim settles within the shadow timetable, then the paying party will meet the opposing party’s account of expenses in the same way and on the same basis with regard to work carried out by solicitors and which would have applied had the case been otherwise litigated.

  • If a claim does not settle prior to the Court being able to deal with the claim, the parties will enrol a joint motion to vary any court timetable issued to the extent that the steps that have been taken are removed from the formal timetable. The court timetable restricted to those steps not yet achieved.

This Agreement will also offer a method of case progression that can continue to be used in the unfortunate event of restrictions are to be re-imposed in the event of a further severe outbreak of coronavirus cases.

A copy of the Agreement is attached below.

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