Consultation on Recommendations for No-Fault Compensation in Scotland for Injuries Resulting from Clinical Treatment

4. Problems with current system and suggested improvements

4.1 The Review Group also examined and identified problems with the current system which included:

• Length of time - many claims can take months, if not years, between initial investigation and final resolution by way of Judgement or settlement.
• Adversarial culture which can lead to:
  • Delay in disclosure of expert opinions or information - parties frequently do not 'show their hand' until the parties are well advanced into the adversarial process
  • Delay in focussing the issues - crucial issues in dispute frequently do not become focussed until late into the dispute when the facts may be clarified
  • Uncertainty of outcome - Again, parties sometimes have no idea as to the likely outcome until the adversarial process is well advanced
  • Perception of lack of openness - a perception by many claimants that there has been a lack of openness by clinicians or those representing clinicians
• Disproportionality of legal expenses - the legal expenses of investigating and pursuing the claim can be disproportionate to the value of the claim.

4.2 Potential improvements suggested in chapter 5 (Item 5.4e) of their report¹⁴ are attached as Annex B. In relation to this the Group offered:

Recommendation 10 - that consideration should be given to the Review Group's analysis of the problems in the current system, so that those who decide to litigate can benefit from them.

4.3 Please note that it is proposed that the suggested improvements will be taken forward by the Scottish Government Justice Directorate as part of a forthcoming consultation on the Courts Reform Bill later this year. In particular the Scottish Civil Courts Review¹⁵ recommended that pre-action protocols should be made compulsory and it is considered that this would assist in resolving many of the areas identified by the Review Group.

4.4 In addition, Sheriff Principal Taylor's Review of Expenses and Funding of Civil Litigation in Scotland¹⁶, which is due to report at the end the year will consider a range of issues.

Question 11: The Review Group's suggestions for improvements to the existing system are reproduced in Annex B. Do you agree with these suggestions?

Do you have any comments or concerns on the action proposed in relation to these suggestions?