Where to start

Most people arrive at this with one of two questions. Do I have a claim at all, and can I afford to find out. The honest answer to the first is that it depends on facts nobody can assess from a web page, and any site that tells you otherwise is selling something. The answer to the second, in Scotland, is usually yes — the great majority of injury claims are funded so that you pay nothing unless the claim succeeds.

What we can tell you is what the framework looks like, so that you can have a sensible first conversation rather than a nervous one.

How long you have

The general rule in Scotland is three years. That period usually runs from the date of the accident, but where an injury was not immediately obvious it can run instead from the date you first knew, or could reasonably have known, that you had a significant injury caused by someone’s fault. Industrial disease and asbestos cases very often turn on that second date rather than the first.

Two Scottish differences catch people out. Where the injured person was under sixteen, the three years does not begin until their sixteenth birthday, so a child injured at eight has until they are nineteen. And the court has a discretion to allow a late claim, but it is a discretion and not a right, and it is not something to rely on.

What it costs you

In Scotland a solicitor can be paid in two quite different ways, and which one you are offered decides whether you keep all of your compensation or most of it. Almost every firm will tell you it is no win, no fee. That is true of both models and it tells you nothing. The question that matters is where the money comes from.

Where the other side pays

Scotland has a compulsory pre-action protocol for injury claims. Where it applies, the insurer pays a prescribed sum towards your solicitor’s fees and reimburses the outlays, calculated on a scale set by the court rules. If your solicitor is paid that way and takes nothing further, you keep the whole of your compensation.

The protocol has limits. It applies where the claim is reasonably estimated to be worth no more than £25,000 and you are represented by a solicitor, and it does not cover clinical negligence, professional negligence or disease claims. Nor does it apply where the accident happened before 28th November 2016. The £25,000 figure fixes the scope of the compulsory protocol rather than an absolute ceiling: under paragraph 4, if the claim grows beyond it the claimant must tell the other side, and the parties may agree to carry on following the protocol voluntarily. Where an action is raised and won, the equivalent is judicial expenses recovered from the defender, though those are taxed down and rarely cover the full cost of the work.

Where you pay a success fee

The alternative is a success fee agreement, which most of the larger Scottish injury firms use. You pay nothing if the claim fails. If it succeeds, an agreed percentage of your compensation goes to your solicitor. Since April 2020 that percentage has been capped by law on a sliding scale, and the cap includes VAT.

The bands are cumulative rather than all-or-nothing, so compensation of £200,000 attracts a maximum of £20,000 on the first hundred thousand plus £10,000 on the second, not £20,000 overall. These are ceilings, not standard rates, and a solicitor may agree less.

Two protections worth knowing about

Under a success fee agreement you cannot be charged for outlays — the medical reports, the court dues, the expert opinions — whatever the outcome. The success fee is the only thing you can be asked to pay. And where your compensation includes an amount for future losses, that part is generally kept out of the calculation, so a large future care award should not simply be swept into the percentage.

On firms advertising “100% compensation”

Some Scottish firms advertise that you keep all of your compensation. That claim can be perfectly true — it usually means the firm takes its fee only from what the other side pays. It is worth understanding rather than dismissing, and it is worth asking about. But it is not automatically the better deal. A firm that recovers less for you and takes nothing can leave you worse off than a firm that recovers more and takes twenty per cent. Compare the likely outcome, not just the headline.

What happens if you lose

Since 2021 Scotland has had what is called qualified one-way costs shifting. In plain terms, a pursuer who brings an injury claim honestly and conducts it properly will not normally be ordered to pay the other side’s expenses if the claim fails. The protection is lost where a claim is fraudulent, where conduct is manifestly unreasonable, or where the process is abused. It is a substantial protection and it is the single biggest reason most people can afford to bring a claim at all.

Where your case is heard

Injury actions in Scotland are raised in the sheriff court or in the Court of Session. There is a dedicated National Personal Injury Court in Edinburgh which can hear injury actions from anywhere in the country, and higher value or more complex cases may be raised in the Court of Session.

You will be the pursuer and the person or company you are claiming against is the defender. You raise an action rather than issue a claim. If a website is telling you about claimants, county courts or issuing proceedings, it is describing England and you should treat the rest of what it says with the same caution.

What Scotland does differently

The differences are not cosmetic, and in several respects Scotland is more favourable to injured people than England is.

The kinds of claim we see most

Road traffic claims are the largest group, and Scotland handles them very differently from England. The road traffic accident guide covers the absence of a whiplash tariff, the three year limit and the courts, and there are separate guides for passengers, uninsured and untraced drivers, motorcyclists, pedestrians and cyclists.

Industrial disease is the other large group, and it works differently again, because the exposure is usually historic and the industry that caused it was regional. The industrial disease and asbestos guide sets out where these claims come from, sector by sector, from the Clyde yards and the Lanarkshire steelworks to the coalfields, Grangemouth and the North Sea, and explains why time runs from the date you knew rather than the date you were exposed.

The thing most people are actually worried about

In our experience the question people hesitate over is not legal. It is whether making a claim will cause trouble — with an employer, with a neighbour, with a family member, or with an insurer they will have to deal with again. It is a reasonable worry and it deserves a straight answer rather than reassurance.

Claims against an employer are met by its insurer, not out of its own money, and employers are required to carry that insurance. It is unlawful to dismiss or victimise someone for bringing a legitimate claim. None of that makes the situation comfortable, and a good solicitor will tell you honestly how a particular claim is likely to feel as well as how it is likely to end.

Common questions