Prior to 1 January 2006, there was no suggested structure for the handling of personal injury claims in Scotland. There was no protocol to give an outline of what should be done and when. Any claims that settled pre-litigation generally followed the pattern of intimating a claim and waiting for a decision from the insurer (which could take an inordinate length of time). Agents took as long as they wanted to ingather the quantum information and disclosed what they wanted to the insurer in the hope an acceptable offer would be received. There may then have followed some negotiation and hopefully, settlement, failing which litigation would ensue at some point. The timescales for resolution of a claim varied enormously depending on which insurer was involved and how efficient parties were in carrying out the claims handling process.

If a claim did settle, costs in accordance with Ch. 10 of the Law Society of Scotland’s General Table of Fees were generally paid by insurers in addition to the compensation, but it was by no means compulsory for the insurers to make any payment of pre-litigation costs.

In 2005, Ch. 10 was abolished. Around the same time, the Law Society of Scotland and the Forum of Scottish Claims Managers devised a pre-action protocol for personal injury claims. This voluntary protocol – commonly referred to as VPAP – applies to personal injury claims, valued at £10,000 or less, that settle on or after 1 January 2006 with the exception of clinical negligence, disease and illness cases.

With the advent of the Compulsory Pre-Action Protocol (CPAP) in 2016, the applicability of VPAP is fast diminishing for claims made by adults but it will, subject to the terms of VPAP, continue to apply to any accident claim that occurred prior to 28 November 2016. Claims for children arising from accidents prior to that date can therefore still be subject to VPAP, since a child’s claim will not usually time bar until their nineteenth birthday.

The aims of VPAP are:

• • to put parties in a position where they may be able to settle cases fairly and without litigation;

• • to ensure the early provision of reliable information reasonably required to enter into meaningful discussions on liability and quantum; and

• • to enable appropriate offers to be made either before or after litigation commences.