The Scottish Civil Justice Commission has approved new pre-action protocols for disease and clinical negligence cases. While the text of the protocols is still to be confirmed, this is a step towards the extension of the existing pre-action protocols for personal injury cases and a new, mandatory process for disease and clinical negligence.

What is the current position?

Compulsory pre-action protocols were introduced in Scotland in personal injury cases for incidents occurring on or after November 2016 some years ago and these have become an established feature of Scots personal injury claims procedure. Clinical negligence and disease cases, however, as well as those arising from alleged professional negligence, have hitherto been excluded from the compulsory pre-action protocols.

Under the existing rules, clinical negligence and disease cases are defined as follows:-

  • 'Clinical negligence' is defined as a breach of a duty of care by a health care professional in connection with that person’s diagnosis or the care and treatment of any person, by act or omission, whilst the health care professional was acting in his professional capacity; and
  • 'Disease' is defined as 'any illness, physical or psychological; and any disorder, ailment, affliction, complaint, malady or derangement, other than a physical or psychological injury solely caused by an accident or other similar single event'.

Although clinical negligence and disease cases are currently excluded from the compulsory pre-action protocols, voluntary pre-action protocols exist and there has been a degree of expectation that parties would comply with the pre-action protocols even where these have not been mandatory. This helps to further the aims of the protocol to assist parties to avoid the need for, or reduce the length and complexity of, civil proceedings.

What is changing?

It has now been announced that the compulsory pre-action protocols for clinical negligence and disease claims have been approved by the Scottish Civil Justice Council ("SCJC"). The introduction of pre-action protocols for these cases was noted as a key priority for the SCJC in its annual programme for 2021/2022 and the announcement that these protocols have now been approved represents a progression towards achieving this priority.

The content of the protocols is yet to be published. For now, the new pre-action protocols have been remitted to the SCJC Costs and Funding Committee to oversee the development of suitable fee structures and a working group has been set up to assist in developing the underpinning policy for the fees regime.

What will the impact be?

Although to date there has been a tendency towards voluntary compliance with the protocols, the introduction of compulsory protocols will mean that parties must be careful to ensure that appropriate pre-action steps are taken in line with the protocols. Failure to comply risks the court deciding to sist (stay) proceedings or apply cost penalties to any party who has breached the protocol. The introduction of the pre-action protocols for cases involving clinical negligence or disease will provide greater certainty regarding the pre-litigation procedure for these types of claims. This is a development to watch in 2022.

Should you have any concerns or questions about how compliance with the Protocols will impact future litigation, please contact our Litigation team or your usual Brodies contact.


Emma Barnett

Trainee Solicitor