The Code itself has no such status in Scotland, and rehabilitation has only a passing mention in the Scottish Compulsory Pre-Action Protocol Claim Form: "Our client is still suffering from the effects of his/her injury. We invite you to participate with us in addressing his/her immediate needs by use of rehabilitation" which is often disregarded, most commonly because the protocol applies to sub-25k claims.
In recent years, however, that gap has been filled by solicitors, insurers and case managers working together, in appropriate cases, to progress joint rehabilitation quickly and effectively. Most commonly this has been by "Way Forward Meetings". Readers familiar with catastrophic injury claims in England and Wales will be very familiar with the concept, but in Scotland where the traditionally adversarial approach has maintained a strong foothold, these meetings are new.
My experience has been that the key to the success of a Way Forward meeting in Scotland is:
- Solicitors on both sides who already know and trust each other (whether from prior experience or reputation)
- A straightforward position on liability, or an agreement that liability can be put to one side to focus on the claimant's needs
- A willingness to make interim payments to help gain the claimant's trust, and a correspondence willingness by the claimant to make early disclosure of medical and other records
- Proactive case management tailored to the claimant's specific requirements
- Consideration of the claimant in the wider context e.g. do the partner or family of the claimant need support?
- Early intervention, before both sides become entrenched, or the window for effective rehabilitation is lost
If these requirements are present, we have a better chance of engaging claimants in effective rehabilitation, while also gaining their trust which is so valuable in final settlement discussions. None of this is new south of the border, but it has been interesting to see how claimant solicitors respond to the concept in Scotland. Some have embraced it. Others are more sceptical. (We all know of older cases where private rehabilitation was obtained by claimant solicitors with no disclosure until eight weeks prior to trial, with a five figure sum claimed for several years of rehab. That is, hopefully, a thing of the past.)
With lengthening NHS waiting lists and the Scottish health budget under increasing pressure, there is an opportunity for joint rehabilitation to become normalised in this jurisdiction. There are also particular challenges in the more remote areas of Scotland where NHS provision may require significant travel commitments for the claimant. That is the big opportunity.
In the right cases, as we all know, Way Forward Meetings can achieve very significant benefits for all parties, improving outcomes for claimants while allowing catastrophic cases to progress to settlement more quickly. Their increasing use in Scotland is hugely welcome.
On the horizon
- Way Forward Meetings and joint rehabilitation are becoming increasingly common in Scotland
- We welcome their use and will continue to push for them in the right cases
