The Glasgow Bar Association - Practice Note re Personal Injuries

SHERIFFDOM OF GLASGOW & STRATHKELVIN

PROCEDURAL GUIDANCE NOTE

PERSONAL INJURIES ACTIONS

1. The following notes are intended as guidance for practitioners in the application and interpretation of the new Ordinary Cause Rules for personal injuries actions, which were brought into force on 2 November 2009, and for the most part, are arranged by reference to the rules in the Act of Sederunt (Ordinary Cause Rules Amendments) (Personal Injuries Actions) 2009 (2009 SSI 285). The new rules are based as closely as possible upon Chapter 43 Rules for personal injuries actions in the Court of Session which have been in force since April 2003.

2. It will be understood that nothing in these notes should be taken to override the provisions of the rules themselves or the function of the courts in giving effect to them.

Rule 36.A1. Application and interpretation

3. Personal injuries actions are defined as actions of damages for, or arising from, personal injuries or death of a person from personal injuries and personal injuries are defined as including any disease or impairment, physical or mental. It is not intended that actions which are not, in ordinary parlance, concerned with personal injuries should be covered by these rules. Any such action, if raised under these rules, is likely to be appointed to proceed as an ordinary cause.

Rule 36.B1. Initial writ and pleadings

4. The original report of the Working Party (chaired by Lord Coulsfield) and the Supplementary Report that proceeded the introduction of the Chapter 43 Rules in the Court of Session concluded that "what is required in most cases in relation to liability is the briefest description of the events on which the claim is based, together with a brief indication of the ground of fault alleged and a specific reference to any statutory provision which may be founded upon". The aim was to achieve a method of pleading "which encourages brevity and simplicity and discourages technicality and artificiality". It was acknowledged that in order to achieve this there required to be a change in mindset of the pleaders on both sides who were charged with drafting relevant and specific pleadings.

5. Parties still require to give reasonable notice of their case to their opponents but there should be early concentration between the parties on the real issues that separate them. The defences should provide fair notice of any substantive defence. Neither the initial writ nor defences should contain pleas-in-law. Defenders who wish to include in their pleadings an outline of their propositions in law should do so by inserting a brief summary of those propositions in the last answer of the defences. Pleadings containing pleas-in-law should not be accepted by the sheriff clerk.

Rule 36.D1. Specification and recovery of documents

6. Specifications for recovery of medical records should not be intimated to the Lord Advocate. The specification should be sent directly to the haver. It is expected that when a specification for the recovery of documents has been granted the documents called for should be released promptly.

Rule 36.F1 Disapplication of personal injuries procedure

7. (a) Motions

In general, the rules as to motions are those which apply in ordinary actions. Motions will be placed before a sheriff and may be granted in accordance with existing practice, if sufficient information in writing is before the sheriff. It should, however, be noted that motions for a sist, for a case to be appointed to proceed as an ordinary cause, or for the alteration of a timetable are unlikely to be granted, even if made of consent, unless information to justify them in accordance with the terms of the rules is before the sheriff. Such motions will require to be heard by the sheriff if there is objection to them or if there is insufficient material placed before the sheriff to satisfy the requirements of the rules.

(b) Withdrawal from personal injuries procedure

It should be noted that a motion to withdraw an action from personal injuries procedure is to be made within 28 days of the lodging of defences. This rule is intended to be strictly observed. Further, it should be noted that it is not to be granted unless there are exceptional reasons.

Rule 36.G1 Allocation of diets and timetable

8. (a) Within 14 days of the lodging of defences and before a diet for proof is allocated the sheriff clerk will arrange for a hearing before one of the designated personal injury sheriffs the purpose of which will be to identify the likely duration of the proof and any other ancillary matters. Said hearing will be conducted by telephone conference facilities unless any party requests the sheriff clerk to have the hearing in open court. If such a request is made the hearing shall take place in open court.

(b) Timetable

This rule provides for the issue of a timetable. The rules set out specific periods to be entered in the timetable and, with the exception of the requirement to lodge a joint minute of a pre-proof conference not later than 3 weeks before the date assigned for proof, these periods may be varied by the sheriff principal for his sheriffdom or for any court within the sheriffdom. A party who is concerned that a step of procedure has not been complied with timeously, or that a party is not complying with the spirit of the procedure, and that failure is threatening to cause delay to or prejudice the settlement of the action should:

If the matter relates to a stage in the timetable, approach the sheriff clerk with a view to having a date and time fixed for the parties to be heard by the sheriff in terms of rule 36.G1(3); or

If the matter is outwith the control of the timetable, enrol a motion to bring it before the court.

The timetable provides a limited period for the service of third party notices. Parties should be aware that this period, like other periods in the timetable, is likely to be strictly insisted on. If timeous application is not made, any question of third party involvement may require to be raised in a separate action.

(d) Productions

Where any productions are sought to be lodged late, permission is likely to be granted only by the court subject to such order, in particular as to expenses, as the court may consider appropriate. Practitioners are reminded of the principles of early disclosure of evidence underlying the procedures set out in these rules with a view to facilitating early settlement. The practice whereby parties delay disclosure of expert reports until the last minute is to be discouraged. Parties will be expected to lodge in process, within a reasonable time after receipt, all expert reports on which they intend to rely, whether in relation to liability or quantum. Failure to do so without reasonable cause may have a consequence in expenses.

(e) Order for further procedure

Rule 36.G1(5) deals with the making of an order for further procedure after the lodging of a record. It should be stressed, consistently with what has already been said in regard to written pleadings, that it is anticipated that an order for inquiry will be made at this stage. If the defender does not agree with the pursuer's motion, he should oppose it. If a party seeks a debate then full notice of the grounds will require to be given in writing. Rule 22 of the Ordinary Cause Rules relating to notes of basis of preliminary pleas does not apply to personal injuries procedure. If the specification of a party's case is criticised, details of the averments which it is considered ought to be made and which have not been made should be included in the grounds for the motion or notice of opposition thereto (as the case may be) so that the opponent may have an opportunity to consider whether to meet any such objections in advance of the hearing of the motion. A motion for debate is not expected to be granted lightly. Normally any question of specification will be dealt with at the motion hearing.

Rule 36.G1(6) requires the pursuer when enrolling the motion for further procedure to specify the anticipated duration of the diet of proof. This is intended to reduce the number of proofs or other hearings which have to be continued because they do not conclude within the allotted time. The giving of a carefully considered estimate will usually be assisted by discussion between the parties. It is expected that before enrolling a motion for a diet of proof or other hearing, the solicitor for the pursuer will discuss the likely duration with the solicitor for the other party or parties. Parties are expected to keep their estimate of the duration of diets under review and, where an estimate changes, should inform the sheriff clerk as soon as practicable and, in any event, not later than 14 days before the relevant diet. In personal injuries actions the initial allocation of a proof diet under rule 36.G1(1)(a) is provisional, and the adequacy of the duration of that initial allocation requires active consideration prior to the enrolment of a motion under rule 36.G1(5).

(f) Availability of witnesses

Practitioners will be expected to check the availability of witnesses as soon as the date for the proof is allocated. Should any essential witness be unavailable on the allocated date the sheriff clerk should be contacted immediately. The purpose of the new Ordinary Cause Rules for Personal Injury Actions is to expedite procedure. That purpose will be thwarted if motions are made in close proximity to the proof to discharge the diet of proof because witnesses are unavailable. Such motions will be closely scrutinised.

Procedural Hearings

9. Where under rules 36.G1(3) or (8) or rule 36.K1(3) the sheriff clerk fixes a date and time for the parties to be heard following non-compliance with a requirement of the timetable, it is expected that the hearing will proceed (and the parties should be represented at it accordingly) even if, for example, any document not timeously lodged or any step not timeously taken has been lodged or taken (as the case may be) prior to the hearing. The object of these rules is, in part, to give the court an opportunity to consider any explanation for failure to act timeously, all with a view to establishing a culture of strict compliance with the time limits in the rules.

Rule 36.H1. Applications for sist or variation of timetable

10. It should be noted that the timetable is set from the lodging of defences. Wherever possible, an application for a sist should be made before or at the lodging of defences in order to avoid the issue of a timetable which may later require to be changed. Once a timetable has been issued a motion by either party would normally be to vary the individual elements of the timetable. It is provided in the rules that the sist will be for a specific period, and the court may be expected to take account of all the circumstances of the case in fixing the period and, wherever possible, to seek to avoid any delay to any timetable which may have been issued.

11. Parties will be expected to consider at the earliest possible stage whether they may require to make an application to the Scottish Legal Aid Board, for example for sanction for an expert witness or for work of an unusual nature. Delay in making an application for legal aid or in applying for a sist may lead to the motion being refused. Generally, it is expected that the court will require parties to adhere to guidance issued by the Scottish Legal Aid Board.

12. A variation of the timetable may be by either extension or acceleration of the time limits stated therein. If practicable, a motion for variation should be made as soon as the timetable has been issued. The motion should give full details of the grounds on which it is based and where relevant be accompanied by supporting medical evidence. Any party opposing such an application will be required to demonstrate that their opposition is well founded. When granting or refusing the motion the sheriff may be expected, subject to the rules, to give such additional directions as he or she considers appropriate.

Rule 36.J1. Statements of valuation of claim

13. The statements of valuation required by this rule are not binding upon the parties who make them. It is, however, intended that these statements should reflect a real assessment of the value of the claim and accordingly it will be open to either party to found upon the making of that party's own statement of valuation or upon that of the other party.

14. Parties' attention is drawn to the terms of rule 36.J1(5) which gives the court power to dismiss an action, or to grant decree against the defender for an amount not exceeding the amount of the pursuer's valuation, in the event of a party's failure to lodge a statement of valuation of claim in accordance with the timetable. Practitioners should note the possibility that these powers may be exercised where a document purporting to be a statement has been lodged which gives no, or inadequate, information, and where no reasonable explanation for that lack or inadequacy is given to the court. In complex cases where it is impractical to provide the information in accordance with the timetable, parties should consider enrolling a motion for variation of the same.

Rule 36.K1. Pre-Proof Conferences

15. The object of the rule is to avoid last minute, door of court, settlement negotiations. For the pre-proof conference to be of value, this must be a real conference, that is a discussion conducted by the legal advisers who are in charge of the conduct of the case, along with each of the parties or someone who has complete authority to act on behalf of a party at the time and to commit that party in settlement of the action. This conference may be in person or by telephone conference. The conference is required to be more than a mere form filling exercise. The experience of Court of Session procedure shows that such a conference can provide a forum to facilitate a full and candidate exchange of views on issues such as primary liability, contributory negligence and heads of damage as well as discussion of any witness timetabling difficulties. All relevant documents, valuations, reports and notices should be available to parties at the conference. It is understood that it is the obligation of each party to take all such steps as are necessary to comply with the letter and spirit of the rule. Similarly (except in the case of an unrepresented party) the obligation to sign the minute of the conference is placed upon the solicitor acting in the case. It should be clearly understood that in signing such a minute the signatory is accepting responsibility to the court for the conduct of the conference and the recording of what took place at it.

16. In cases involving multiple defenders and/or third parties, practitioners representing defenders and/or third parties may find it useful to have a voluntary meeting prior to the compulsory pre-proof conference with the pursuer's representatives.

5 January 2010