Court action

The first stage of a Court action is the preparation of a Court Summons, or Writ. Your Court action can either be raised in the local Sheriff Court or in the Court of Session in Edinburgh. The latter tends to have more expertise in dealing with these cases. We generally find that there is more pressure put on the insurance companies to settle the claims if the action is raised in the Court of Session.

To start proceedings there, we need to employ a specialist legal advisor, called an Advocate — also referred to as ’Counsel’. You will often see the phrase "to take Counsel’s opinion"; this means asking an Advocate to give his advice on the claim. The Advocate prepares the Summons, setting out the claim and showing the sum being claimed. The amount shown is usually more than we actually expect to receive — in some cases three or four times greater — and the reason for this is to avoid any change in the figure sued for should your physical condition deteriorate.

When the Summons is prepared, you will be sent a copy and asked to check it. The Summons is then sent recorded delivery to your employers, or whoever is being blamed for the accident, by means of recorded delivery post. This is the start of the Court action (what is earlier referred to as raising an action).

Your employer will then pass the Summons to their insurance company’s solicitors, who will lodge defences on their behalf. These defences are meant to set out their case, and to answer each point raised in the Summons. The court will issue a timetable setting out the stages in the case, including a trial date. After the Defences are lodged a document called a Record is usually prepared. This joins the Summons and Defences in one document, each side then having the opportunity of adding more information so that all the main points of their case are set out on paper.

It is at the trial — known in Scotland as a ’Proof’ — that the judge will make his decision as to whether compensation is to be granted or not. It will be around a year after a Court Action is raised that the trial stage is reached. It is of course open at any time before the trial for an offer to be made by the other side settling the claim. This is what happens in over 90% of cases. In the Court Action you will be known as the Pursuer and the other side as the Defender.