A case for trial?

“My initial misgivings have been completely blown away. I think this is the way to do business. I think it serves everybody, I really do.”

The words are those of Sheriff Kenneth Mitchell, who with his brother sheriff Craig Scott was deputed last year by his sheriff principal, James Taylor, to pilot a case management-based procedure for selected reparation actions raised in Glasgow Sheriff Court. Usage of the procedure, which is entirely voluntary, has grown as solicitors have become more aware of how it works, and with about 90 live actions currently in progress over and above those already concluded, both sheriffs are now convinced of its benefits.

“Some solicitors have been under the misapprehension that all we are about is fast track”, says Sheriff Scott. “It’s not just a fast track procedure. The important thing to be clear about is that it’s a case management procedure and there will be some cases which justifiably need to take some time, but our belief is that in the vast majority of cases, because of the way we case manage them, the prospects for focusing on the ability to settle the case are significantly enhanced.”

A judicial precedent

The case management conference (“CMC”) procedure is not unique to the reparation court but is closely modelled on the rules already made for the Glasgow commercial court – of which Sheriff Scott also has experience. “I run this court very much along the same lines as I did the commercial court. We don’t as yet have rules for the PI court, so it’s more a case of how does the practice and procedure of the commercial court translate, and in my view it translates very well indeed.”

The notion of a court without rules may sound like a contradiction in terms, but Sheriff Mitchell emphasises the close control that is kept over the progress of actions, principally through being able to deal at every stage with the solicitor personally in charge of the case, by means of the telephone CMC. If the solicitors on each side agree that a case should run under the pilot procedure, the options hearing is discharged and the CMC cycle begins.

While the progress of an action revolves around the CMC, flexibility remains the watchword, and innovation is positively encouraged. Sheriff Mitchell again: “When we do the first CMC we make clear to solicitors the way we operate, that there are certain rules we can’t breach, but we ask if there’s anything they want to raise with us – we give them the opportunity to say, well, I wonder if we could do that, and if we can we’ll do it.”

Open exchanges

By what measure does he conclude that the procedure leads to a more effective determination of actions? “I think that because the case management conference encourages both solicitors to exchange views and discuss things between themselves prior to the case management, they are much more prepared to exchange information than they were before.”

That and because they then apply their minds properly to issues of liability and available heads of damages. In other words the CMC will help both to identify and refine the areas of dispute.

On a normal cycle CMCs will be fixed at anything from two to six week intervals, depending on the reason for continuation – which, the sheriffs believe, concentrates the minds of parties and insurers as well as their advisers, if they know that the sheriff familiar with the case will be asking pointed questions about progress at a fixed and early date. But equally the sheriffs stress that if, say, an essential medical report is not expected to be available for a few months, they are likely to accept that no further action should be taken meantime, or that a proof should be assigned sufficiently far in advance to enable the report to be procured.

Alternative methods

“Usually when responsible practitioners ask you to make no order, and tell you the reasons for it, you’re not in any doubt that it’s the right thing to do”, Sheriff Mitchell agrees. “We would tend not to sist, because that is contrary to what we hope we are about which is to move it along as fast as it can go, without making people go faster than they properly should in the interests of justice and the interests of the client.” To restart a case, all it takes is an email from the solicitor to request a further CMC – email being the normal, indeed essential, method of communication between hearings.

Even debates are largely avoided through the CMC procedure. Sheriff Mitchell relates the case of a woman who sued a plastic surgeon, being dissatisfied with his efforts. A difficult issue arose because her contract was with a company whose terms were that any dispute would be determined according to English law and in the English courts. “We discussed it in the case management conference and I said, before next time will we all apply our minds to the law. I wrote them a note setting forth the way I thought it was, for further discussion, and in the light of that they settled it.”

Equally, it may be readily apparent that a particular issue will require proof, such as the road traffic case where parties agree quantum but each maintains it was the other’s fault. In one such case, raised six weeks earlier, Sheriff Mitchell had just fixed a proof date three months ahead – which would have been sooner but for one solicitor having an operation scheduled.

Due economy

Only a proportion of the reparation actions raised in Glasgow go through the procedure. Actions craving sums under £10,000 are not eligible for the pilot. The guideline is from the sheriff principal, attempting to give his sheriffs enough to do without overloading them; but the sheriffs also believe that below that value “economic considerations have force – parties take views on things which they might not otherwise”, and the system might not be given a fair test. It does mean, however, that pilot cases may conclude sooner than lower value actions caught in the ordinary cause rules, which most practitioners appear to accept are in need of overhaul.

If under ordinary procedure the rules are stricter but in practice cases take longer, in the pilot court it is the procedure that is elastic whereas most cases are concluded without delay. Pressure on courtroom availability is such that proofs once set are not readily discharged, and the sheriffs use a combination of pre-proof hearings and backup cases (their preferences differ as to which they rely on more) to ensure that court time is not wasted.

A proper model?

With the pilot procedure following that of the commercial court, could it be the model for litigation more generally? Both sheriffs believe it has potential, while being cautious as to its possible scope. Sheriff Mitchell considers that it is not suitable where there is a party litigant. Sheriff Scott accepts that even the more complex cases might benefit:

“Certainly, in the commercial court, a number of the disputes the court was called upon to resolve involved things like significant building contract disputes as well as complex factual situations. The benefit, once again, of the case management procedure as applied to those cases was not necessarily to resolve the whole dispute, but to put everybody in a position of at least ‘seeing the wood for the trees’, clarifying what the real issues were and then moving on to proof, having tried to ring fence the various factual disputes.”

He adds: “The commercial court was never about the application of rocket science, it was about the application of common sense, and this pilot scheme is just the same.”

With Sheriff Principal Taylor sitting as a member of Lord Gill’s review of the civil courts, there is at least someone on the committee with close knowledge of the case management system who can provide input to the future shape of civil litigation.

VIEWPOINT

Reparation lawyers look to the future

Most regular users of the pilot procedure are strongly supportive.

“I and my colleagues have pretty much unqualified enthusiasm for the personal injury pilot”, says Paul Wade of Simpson & Marwick, a response echoed by others. The proactive case management by experienced sheriffs; the telephone CMCs which ensure the presence of the solicitor dealing with the case; the flexibility in deferring CMCs when there is some inevitable delay; the early proof dates and the relative certainty that diets proceed on the date appointed, are all advantages: “generally a very user friendly system”.

Peter Crooks of Bonnar & Co, Airdrie, agrees that the sheriffs have their eye on the ball more than if a case is just one on a lengthy roll.

“It’s not that the sheriff settles cases. He doesn’t. As ever it is the agents who settle cases, but the procedure means that the agents have to address the issues prior to the case conference, and be prepared to answer the sheriff’s questions.” For Bonnar, the procedure flushes out “the usual hiding places available to defenders via the pleadings system”, though he thinks the sheriffs sometimes allow more continuations than necessary.

To Fiona McKeracher of Brechin Tindal Oatts, the same sheriff seeing a case to its conclusion is a main advantage, giving more consistency, less duplication, and greater openness leading to an emphasis on reaching or exploring agreement.

Gilbert Anderson of The Anderson Partnership, current Dean of the Royal Faculty of Procurators in Glasgow, maintains there are advantages from a defender’s perspective. “As a solicitor who acts for a variety of insurers I can say without fear of contradiction that insurers are very keen to speed up dispute resolution procedures.”

For Anderson, the system works best when good pleadings in the Scottish tradition are combined with good case management. “Unlike the Court of Session, you still have full written pleadings. I can think of a number of Chapter 43 cases where it has not been easy to identify the real basis of the pursuer’s case.” Paul Wade on the other hand maintains that elaborate pleadings in the sheriff court are “no longer tenable when they have been abolished in virtually all cases in the Court of Session”.

Both however would support the adoption of the Court of Session pre-trial meeting procedure (Wade would make it discretionary). Anderson comments: “The hybrid procedure could then be rolled out for lower value cases which I suspect account for the vast majority in Glasgow.”

All agree that the procedure has the potential for wider use, within limits. Family actions might have to be treated differently as clients are more intimately involved in hearings. Peter Crooks also suggests that much depends on the personality and experience of the sheriffs. “It works fine in Glasgow, where you have the expertise available. I personally doubt it could be rolled out on a wider basis. Case management is very much a Rolls Royce system and I don’t believe there are the resources elsewhere.”

He adds: “We tend to use it for modest value cases. For bigger claims there is not much doubt that clients do better in the Court of Session.” Gilbert Anderson believes that under the current court structure the latter court is the more appropriate for “very large or complex cases” – catastrophic injuries or multi-defender disease cases, for example. Fiona McKeracher sees no reason why the pilot procedure cannot cope with most complex personal injury actions, although certain cases are still likely to be more suited to Court of Session procedure: “The pilot scheme offers flexibility and the sheriff will consider what further procedures might be appropriate in these types of cases, taking into account the usual rules of fairness.”

Pointing to the savings to clients by eliminating some of the travelling and court waiting time, she sums up: “It’s a more modern approach, making proper use of technology and should suit most types of personal injury actions.”