Claim after a road traffic accident in Scotland — the law, the time limit and what it is worth

Home › Injury › Road traffic accidents
Personal injury

Claim after a road traffic accident in Scotland

Scotland never adopted the whiplash tariff. An injury sustained on a Scottish road is still valued on its own facts, under Scots law, by a solicitor. The time limit, the court and the rules on who pays the expenses are not the English ones either.

RFPublished by Rooney Family Law Limited, solicitors, regulated by the Law Society of Scotland · Last reviewed 14th August 2026

The short version

If another road user injured you through their fault, you claim damages from that person. In practice their motor insurer investigates, negotiates and pays, because section 143 of the Road Traffic Act 1988 makes third party insurance compulsory, and section 145(3)(a) requires that policy to cover liability for the death of, or bodily injury to, any person arising out of the use of the vehicle on a road or other public place in Great Britain. You do not need insurance of your own in order to claim, and it makes no difference whether you were driving, riding, walking or being carried.

What differs north of the border is nearly everything that comes after that sentence: how the injury is valued, how long you have to raise the action, which court hears it, and what it can cost you if you lose.

What most articles on this subject get wrong

Search results for road traffic claims are dominated by pages written for England and Wales. They describe a fixed whiplash tariff, an online portal you are expected to use without a solicitor, a set figure for a neck injury lasting a given number of months, and a child’s claim that survives until the twenty-first birthday. Not one of those is the law in Scotland.

There is no whiplash tariff in Scotland

Since 31st May 2021, most whiplash injuries in England and Wales have been valued by a fixed statutory tariff rather than on their own facts. The tariff is made under Part 1 of the Civil Liability Act 2018 and set out in the Whiplash Injury Regulations 2021.

Part 1 of that Act does not reach Scotland. Section 13(1) of the Civil Liability Act 2018 provides that the Act extends to England and Wales only, subject to the subsections that follow it, and those subsections extend nothing beyond sections 10(4)(d) and (e), 11(10), and 12 to 15. Part 1, which contains the whiplash provisions, is not among them. The 2021 Regulations carry the same England and Wales extent.

The practical consequence is substantial. A soft tissue neck or back injury sustained in a collision on a Scottish road is valued individually, on the medical evidence, as solatium for pain and suffering, together with the financial losses the injury has actually caused. No fixed scale caps it. Two people with the same diagnosis and different recoveries are not paid the same sum, because in Scotland they were never meant to be.

The same reasoning disposes of the portal. The litigant-in-person claims service built alongside the English reforms is part of the England and Wales system. Scotland has no equivalent, and a road traffic claim here is still made by a solicitor to an insurer, or raised in a Scottish court.

Three years, and not always from the crash

The limitation period is governed by section 17 of the Prescription and Limitation (Scotland) Act 1973, not by the Limitation Act 1980. An action must be commenced within three years of the date on which the injuries were sustained or, where the act or omission was a continuing one, the date it ceased, whichever is later.

Section 17(2)(b) supplies the alternative that catches people out. Where it is later, time instead runs from the date on which the pursuer became aware, or on which it would have been reasonably practicable in all the circumstances to become aware, of three things: that the injuries were serious enough to justify bringing an action, assuming liability were not disputed and the defender could pay; that the injuries were attributable in whole or in part to an act or omission; and that the defender was the person to whose act or omission they were attributable, or that person’s employer or principal. That matters after a road accident far more often than people expect, typically where a head injury or a spinal injury only declares its true severity months later.

A late action is not automatically hopeless. Section 19A allows the court to permit an action to be brought out of time if it seems equitable to do so. It is a discretion, it is not lightly exercised, and no one should plan around it.

A child’s claim ordinarily ends at age 19

Section 17(3) requires any period during which the injured person was under legal disability by reason of nonage to be disregarded. In Scotland nonage ends at sixteen: section 1(1)(b) of the Age of Legal Capacity (Scotland) Act 1991 gives a person of sixteen or over full legal capacity. Time therefore begins on the sixteenth birthday and the three years expire on the nineteenth. It is not the eighteenth birthday, and it is not the twenty-first. That is the ordinary case. The three-year period can start later under section 17(2)(b) where the relevant facts were not known.

This is the single most common error in United Kingdom-wide material read by Scottish claimants. The Motor Insurers’ Bureau tells applicants on its own eligibility page that a person injured as a minor has “until three years after your 18th birthday” to claim. That is the English answer, and applied in Scotland it is two years adrift. A young person who relies on it will find the claim has prescribed.

The compulsory pre-action protocol applies to road traffic claims

Scotland has a compulsory pre-action protocol for personal injury claims, introduced by the Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016, made on 20th July 2016 and in force from 28th November 2016. It applies where the claim is reasonably estimated at not more than £25,000 exclusive of interest and expenses, the accident happened on or after 28th November 2016, and the claimant is represented by a solicitor. The £25,000 figure fixes the scope of the compulsory protocol rather than an absolute ceiling: under paragraph 4, where the estimate rises above it the claimant must tell the defender, and the parties may agree to carry on following the protocol voluntarily.

The protocol expressly excludes claims arising from alleged clinical negligence, alleged professional negligence, and disease. Road traffic claims are excluded from none of those categories, so the great majority of them fall squarely inside it. The protocol sets out what the letter of claim must contain, the periods within which an insurer must acknowledge and investigate, and how medical evidence and valuation are to be exchanged.

It also fixes what the pursuer’s solicitor is paid on settlement: a fixed element of £546 together with a percentage of the damages agreed. That £546 was set when the protocol came into force in November 2016 and has never been uprated. Close to a decade of inflation has run against it, which is one reason some firms are more selective than they once were about small road traffic claims.

What it costs you if the claim fails

Since 30th June 2021 Scotland has had qualified one-way costs shifting on a statutory footing. Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 provides that in an action of damages for personal injuries the court must not award expenses against the pursuer, provided the pursuer conducts the proceedings in an appropriate manner.

Section 8(4) sets out when that protection is lost. It is lost where the pursuer or their legal representative makes a fraudulent representation or otherwise acts fraudulently in connection with the claim or the proceedings, behaves in a manner that is manifestly unreasonable in connection with them, or conducts the proceedings in a way the court considers an abuse of process. Further exceptions are specified by the Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021, which came into force on 30th June 2021 and applies to first instance proceedings commenced on or after that date. The most important of them in practice is a failure to beat a tender: an offer lodged in process which the pursuer declines and then fails to exceed at proof.

The protection is therefore real but conditional, and it is not the same instrument as the English one. In England and Wales qualified one-way costs shifting is a creature of the Civil Procedure Rules rather than statute, and its exceptions are drawn differently. Advice written for one jurisdiction should not be relied on in the other.

How the claim is funded is a separate question from who pays the expenses if it fails. That is dealt with on what no win, no fee actually means in Scotland.

Which court hears it

Value decides. Section 39 of the Courts Reform (Scotland) Act 2014 gives the sheriff court exclusive competence where the total value sought, exclusive of interest and expenses, does not exceed £100,000. An action worth less than that cannot be raised in the Court of Session at all. Above £100,000 the pursuer has a choice.

Scotland also has a specialist court for this work. The All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 gave a sheriff of Lothian and Borders sitting at Edinburgh Sheriff Court a territorial jurisdiction extending throughout Scotland for personal injury actions, with effect from 22nd September 2015. The Scottish Courts and Tribunals Service now calls it the National Personal Injury Court. It has specialist sheriffs and a case flow designed for this work, and in April 2025 a second courtroom was brought into use to cope with the volume. A pursuer in Wick or Stranraer may use it without leaving the sheriff court system, or may raise the action in the local sheriff court instead.

A small point that gives away an English writer

The Scottish Courts and Tribunals Service has no venue called Inverness Sheriff Court. The sheriff court at Inverness sits in the Inverness Justice Centre, which opened in March 2020 and also houses the justice of the peace court and sittings of the High Court of Justiciary. Any page that directs you to Inverness Sheriff Court was not written by anyone who practises here.

If the accident was partly your own fault

Shared blame reduces damages; it does not extinguish the claim. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides that where a person suffers damage partly through their own fault and partly through the fault of another, the claim is not defeated by reason of their own fault, and damages are reduced to the extent the court thinks just and equitable. Section 5 adapts the Act to Scotland, where the relevant concepts are solatium and patrimonial loss rather than the English categories.

In road traffic cases the recurring deductions are for a seat belt not worn, a helmet not worn by a motorcyclist, and a pedestrian who stepped out without looking. A deduction is a percentage taken off the whole award, and it is fixed by the court on the evidence rather than by any published scale.

The Highway Code figures in this argument constantly, and its status is often misdescribed. Section 38(7) of the Road Traffic Act 1988 provides that a failure to observe a provision of the Code does not of itself render a person liable to criminal proceedings, but may in any proceedings, civil or criminal, be relied upon by any party as tending to establish or negative liability. A breach of the Code is evidence. It is not, by itself, a finding of fault. The hierarchy of road users introduced at rules H1 to H3 works the same way, and it has changed how insurers argue these cases since 2022.

If the driver was uninsured, or was never traced

A claim does not die because the person who caused it had no insurance or drove away. The Motor Insurers’ Bureau operates two schemes covering Great Britain, and Scotland is inside both: the Uninsured Drivers Agreement 2015, for accidents on or after 1st August 2015, and the Untraced Drivers Agreement 2017, for accidents on or after 1st March 2017.

The traps are procedural and they are unforgiving. The uninsured scheme requires the Bureau to be brought into the action from the outset. The untraced scheme measures its own time limit by reference to the Prescription and Limitation (Scotland) Act 1973 where the accident happened in Scotland, which is precisely why the Bureau’s consumer guidance about a claimant’s eighteenth birthday is the wrong yardstick here. This is set out in full on claiming against an uninsured or untraced driver.

Claims by type of road user

Who you were on the road changes the argument, the evidence and, quite often, the insurer’s opening position. Each of the following deals with one situation properly rather than in a paragraph.

If the injury was severe, brain injury claims are handled differently again, and how much compensation could I get explains how a Scottish award is built.

Sources

This page is general information about the law of Scotland and is not advice on your circumstances. Time limits are strict and the consequences of missing one cannot be undone. Take advice on your own case.

Personal injury solicitors by location

Which sheriff court a claim would call in, and the kind of work that arises locally, differs across Scotland. See every location we cover across Scotland.