Capacity, Protection, and Oversight in Scottish Personal Injury Cases: A Cross-Border Comparison
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Insight Article 10 September 2025 10 September 2025
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UK & Europe
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Regulatory movement
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Healthcare
Scotland is a distinct legal jurisdiction from England & Wales. This piece examines the ongoing differences between the two systems in how they protect adults lacking capacity in personal injury claims, and how they oversee claims pursued on behalf of children.
Adults with incapacity
Generally, “incapacity” here refers to an adult’s inability to make and communicate decisions relating to their affairs because of impairment or disfunction of their mind or brain, with the inability not capable of being overcome by the reasonable efforts of others or with technological aids.
Different legislation, with different terminology, regulates matters on adults with incapacity in Scotland compared to England and Wales.
In Scotland, the Adults with Incapacity (Scotland) Act 2000 provides a system for the appointment of guardians to run, or direct, certain aspects of an incapax adult’s life. Guardians can, where their remit permits, conduct litigation on behalf of the incapax, with the guardian under a duty to act in the best interests of the incapax and subject to the oversight of the Office of Public Guardian (Scotland).
The system in England & Wales for complex personal injury litigation conducted on behalf of an incapax adult involves more people and more oversight than the equivalent Scottish system.
Under the English / Welsh Civil Procedure Rules, a “litigation friend” is needed to run litigation on behalf of an incapax adult. Under the Mental Capacity Act 2005, deputies are ordinarily appointed to attend to the financial affairs and property and, where necessary, the health and personal welfare of the incapax. Appointment of deputies is by the Court of Protection in England & Wales, which court may also become involved in matters relating to litigation raised on behalf of an incapax, including after the litigation, and which court may also make decisions and impose orders in those regards. Deputies are accountable not only to the Court of Protection but also to the Office of Public Guardian for England & Wales, in addition to deputies having to liaise with the litigation friend in the context of the litigation and always, of course, having to act in the best interests of the incapax.
No Court of Protection in Scotland, and no plans for one
One of the things that the Scottish Law Commission (“SLC”) has recently been considering is whether Scotland should have a Court of Protection. In their December 2024 Report on Damages for Personal Injury, link here, though, they concluded on that “We are not recommending the creation of some form of Court of Protection (for Scotland)”. In a letter of 15 May 2025, link here, Scottish Government gave their initial response to the December 2024 SLC report. They did not take issue with SLC making no recommendation for Scotland to have some form of Court of Protection and, overall, confirmed that they were “supportive of the general approach set out in the (SLC) report”.
So, for the foreseeable future, it appears highly unlikely that Scotland will get any form of Court of Protection and highly likely that the different systems between Scotland and England & Wales on matters relating to adults with incapacity will continue as they currently are.
Children
One of the most striking differences between Scotland and England & Wales on children is that, in law, they become adults in Scotland at age 16 but not until age 18 in England & Wales.
There are also differences between the two jurisdictions where personal injury damages claims are made on behalf of children.
Current Scottish system on personal injury claims made on behalf of children
The usual position in Scotland is that a “legal representative” raises litigation on behalf of a person under the age of 16. This legal representative can be a parent or any person with parental rights and responsibilities in respect of the child. The legal representative must conduct the litigation in the best interests of the child and is responsible for instructing any solicitors accordingly.
There is no Scottish court oversight, or approval process, of pre-litigation or litigation damages settlements agreed on behalf of children. So, if parties agree on a damages figure, there is no court involvement in assessing whether that is reasonable. Any damages, whether agreed between the parties or awarded by the court, are ordinarily paid to the legal representative via their solicitors. A “discharge” document is normally signed by the legal representative but there is no strict requirement for that.
Under section 13 of the Children (Scotland) Act 1995, a Scottish court dealing with a litigated case brought on behalf of a child has a discretionary power to make an order on the payment and management of any damages that become payable for the benefit of the child. No specific factors are listed to guide the court on whether this power should be exercised. As a discretionary power, the court does not have to exercise it.
Under section 9 of the Children (Scotland) Act 1995, where a parent or guardian, or a person on their behalf, holds property of more than £20,000 due, ultimately, to a child, they must make an application to the Accountant of Court for a direction on the administration of that. Where between £5,000 and £20,000 is held, such an application may be made, at the discretion of the person holding the property. An important point on this for defenders in Scottish claims and litigation is that, in terms of the court’s decision in I v Argyll and Clyde Health Board, Lord Carloway, Court of Session, 21 November 2002, they are not considered to “hold funds” on the child’s behalf.
Current English / Welsh system on personal injury claims made on behalf of children
In England and Wales, litigation is raised on behalf of a child by a “litigation friend”, commonly a parent or suitable equivalent.
The most significant difference between Scotland and England & Wales in this area is that, in the latter jurisdiction, both pre-litigation and litigation damages agreements in claims for children must undergo a court “approval hearing” process. So, unlike in Scotland, the court will always be involved in considering, in England or Wales, the reasonableness of any agreement on damages for a child. This process also serves to give the defendant a valid discharge from the claim assuming that the agreement is approved. When a damages settlement is approved, the court will ordinarily direct that the funds are paid into the Court Trust Fund for the child to access after they turn 18.
Possible reform of the Scottish system
The December 2024 SLC report, considered above in the context of no recommendation being made for Scotland to have any form of Court of Protection, makes four recommendations on the “management of damages awarded to children”. Significantly, however, even if all four recommendations are implemented, Scotland would still have no equivalent to the English / Welsh system of approval hearings, with, as currently, still no court involvement in any respect on pre-litigation damages agreements for children and no oversight consideration of such agreements in litigated cases, but with a duty on the court in issues around the management of damages for children in litigated cases.
In more detail, the four recommendations made, and Scottish Government’s initial responses to them, are shown in this table -
| SLC recommendation | Scottish Government initial response |
| Specific factors should be included in section 13 of the Children (Scotland) Act 1995 (considered above) that the court would have to take account of when considering whether to exercise the current discretionary power to make an order on the payment and management of any damages that become payable for the benefit of a child. These should be the same principles as the court must currently apply in issues concerning children generally, namely the welfare of the child, the “no order” principle (an order should not be made unless that would be better than no order being made), and the views of the child. | Scottish Government “broadly accepts” this recommendation. They point out, however, that a law change is imminent, later in 2025, to remove the current presumption that a child aged 12 or above is of sufficient age and maturity to form a view, to be replaced with a presumption that the child can form a view unless the contrary is shown. They make this point in the context that if the SLC-recommended law change is to be implemented then that should be done, on the “views of the child” point, in line with the new law on that issue. |
| The system under section 13 of the Children (Scotland) Act 1995 should be changed so that, in litigated claims for children, pursuers’ agents would be required to submit a form to the court outlining how funds are to be invested and protected until the child reaches age 16. In addition, a duty should be imposed on the court to inquire into the future administration of such funds and, if the court considers it necessary, to remit the case to the Accountant of Court, with the court also required, if no such remit is to be made, to explain, in writing, why. Further, a non-exhaustive list of factors should be set out for the court to take account of in these regards, including (i) the level of damages, (ii) the future care and accommodation needs of the child and (iii) whether the sum is to be placed in a trust and if so, the identity and qualifications of the trustees, together with a copy of the proposed trust deed. The duty imposed on the court on this would apply whether the damages were agreed between parties to the litigation or awarded by the court but would not extend to interim awards of damages. The court would remain empowered on a general and discretionary basis to make any order relating to the payment and management of the money for the benefit of the child as it thinks fit. | Scottish Government notes “mixed views” and “views … against” these proposals, as summarised in the SLC report. They, therefore, conclude “Before taking this recommendation forward, the Scottish Government would intend to ask for more comments from the courts, the Accountant of Court, practitioners, and bodies representing children.” |
| There should be a standalone SLC project looking into matters around “Personal Injuries, Children, and Trusts”, focusing on issues concerning personal injury trusts for children, including court powers and Accountant of Court supervision. | Scottish Government make no specific initial response to this recommendation. That was to be expected because SLC may, by and large, determine what potential law reform matters they should investigate. |
| Scottish Government should consider exercising their existing power to change the monetary limits of £20,000 and £5,000 mentioned above. | Scottish Government’s initial response is that “This is not a priority area but, consulting the Accountant of Court and others, the Scottish Government will, in due course, consider” whether this should be done. |
It is clear from Scottish Government’s initial responses that there is little to no prospect of any change in this area any time soon. It is also worth noting that the current session of the Scottish Parliament is in its final year, with an election to be held no later than 7 May 2026, following which a new Scottish Government will be formed. The matters considered in this insight are highly unlikely to be a priority for the current Scottish Government as the 2026 election approaches and it remains to be seen whether, and if so how, the Scottish Government formed after that election will progress them.
Conclusion
As shown in this insight, there are considerable differences between Scotland and England & Wales in connection with personal injury claims made on behalf of adults with incapacity and, separately, on behalf of children. In both respects, there is considerably more regulation, court involvement, and oversight of these matters in England & Wales than in Scotland. For the reasons set out in this insight, it appears that these differences will continue, at least for the foreseeable future and, likely, for some considerable time into the future.
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