Reparation cases

In assessing reasonableness, a number of factors will be taken into account including:

• Value of the claim
• Prospects of recovery
• Attempts made to negotiate settlement of the claim without referral to court.

Evidential requirements – pursuer applications

General evidential requirements for reparation should include a statement from your client giving details of the circumstances that resulted in the injury or loss.

The statement should:

• Give a clear picture of what happened, where and when
• Include details of your client’s title to sue and describe any duties of care owed by the opponent whether in common law or by statute
• Give full details of any prior complaints about the practices or hazards that led to the injury
• Give details of the loss or injury suffered, with an estimation of the damages sought
• Give information about when your client became aware that they were justified to raise the action
• Information about the steps taken to negotiate the claim and to settle without raising court proceedings.
• Give about the prospects of recovery in the case.
• Give details of earnings before and after the accident with information about time spent off work
• Supply any information about your client’s future employability, restrictions on their domestic or social life and details of dependency on, or services received from, others.

Supporting evidence should include:

• Any photographs and sketches of the hazard.
• Any medical reports in cases involving personal injuries.
• Any expert reports that have been obtained showing liability or causation.
• All relevant ancillary documents such as wage certificates, contracts, police reports or receipts.

Evidential requirements – defender applications

We always need:

• More than a bare denial of the claims being made. Where your client is opposing an action on the grounds that there is no liability or the sum sought is excessive, each line of defence should be adequately specified.
• A statement answering the averments in detail, particularly where liability is being denied, explaining why level of damages is being challenged and setting out why your client is not covered by third-party insurance (road traffic only).
• Any available photographs or sketches.
• Supporting information if available. If not, an explanation should be given.

If your client wishes to make a counterclaim, the evidential requirements for the counterclaim will be the same as those in pursuer applications.

Additional information that should be provided for claims arising from road traffic accidents:

• Information about any police investigations and the final outcome of these
• A report from a road traffic reconstruction expert where appropriate.

Uninsured drivers

An application to defend a reparation action arising from a road traffic accident where the defender was an uninsured driver raises issues on reasonableness.  Your client was under a legal obligation to carry, at least, third-party insurance.  It may be unreasonable to support a defence at public expense in such a case.

If the Motor Insurers’ Bureau (MIB) is fully dealing with the matter, we may not consider it reasonable to provide legal aid. In addition, if your client has withheld consent to the MIB dealing with the claim, we may consider it unreasonable to fund a defence.

Where the claim against your client relates to matters outwith the MIB they need to show both a valid defence on quantum and that the value of those heads of claim justify the cost of a defence.

Where an accident has occurred at work, additional information that should be provided is:

• Details of any contractors, sub-contractors, employers or other people who gave instructions
• Precise information about the opponent’s duties and whether they arise from common law or statutory duties and how these were breached.
• Whether your client is a member of a trade union and if so, why trade union funding is not available
• An expert opinion on the cause of the accident.

In these cases, it must be shown that the opponents knew or ought to have known of the hazard at the relevant time and had failed to take steps to protect your client (or the deceased).  You should provide:

• Employment history of your client (or the deceased) including written confirmation from the Department for Work and Pensions
• Full details of the conditions in which they worked
• Information about any steps taken by the opponents to prevent hazards arising
• Details of the state of knowledge about the hazard in the industry at the material time
• Medical evidence showing a causal link between exposure to the hazard and any disease suffered
• Information about whether your client (or the deceased) was a member of a trade union and, if so, why the trade union is not funding
• Information on possible time bar issues if this may be a factor in the case.

To show the opponents knew or ought to have known of any hazard that resulted in the accident, you must provide:

• A full description of the place the accident occurred and the defect that caused the accident
• Details of the opponents responsibility for maintenance of the area where the accident occurred or had caused the defect
• Information about how long the defect had existed and whether the opponents ought to have taken steps to remedy the defect
• Details of the opponents’ duties of care and how these were breached
• An expert report on liability may be needed

Where professional negligence is being claimed an expert report on liability addressing the tests set out in the case of Hunter v. Hanley 1955 SC 200 is always needed unless the negligence is very obvious.

An expert opinion showing loss may also be necessary.  Even where negligence is obvious it may not be possible to establish that the negligence caused any loss without a report addressing this matter.

Landlords are under a common law obligation to put property let into a habitable or tenantable condition at entry and to maintain it in habitable or tenantable condition during the lease.  Most landlords are also now under the statutory implied obligation that rented houses be “fit for human habitation”.

Our evidential requirements are:

• A statement from your client providing:
• confirmation that they are the tenant of the property allegedly suffering from condensation or dampness
• details of the nature of the problem, including details of when it first arose
• details of when the landlord was told about the problem, their response and details of any steps they have taken, or propose to take, to put it right, and
• details of the orders that your client seeks.
• A report from an architect, or other suitably qualified expert speaking to the condition of the property.
• Where your client wishes to make a claim for damages for loss of, or damage to, property, vouching.
• Where your client wishes to make a claim for damages for ill health, a medical report dealing with this.
• Supporting evidence or, if not, an explanation why not.