Coulsfield rules OK

On 2 November 2009, the Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009 brings into force new rules and procedures for ordinary cause personal injury actions in the sheriff court. This represents a long overdue move towards uniformity of rules for personal injury actions in Scotland. The new rules are based as closely as possible on Chapter 43 of the Court of Session Rules.

Cloning Coulsfield

In April 2003, following the recommendations of a working party under the chairmanship of Lord Coulsfield, new rules (Chapter 43 – the “Coulsfield Rules”) were introduced in the Court of Session setting out a simplified procedure for personal injury cases. Their objective was to eliminate unnecessary delay and expense and make the most efficient use of the time of judges and court staff.

The Coulsfield Rules introduced sweeping changes. Simplified pleadings encourage brevity and simplicity, and discourage unnecessary procedure and delay. The rules facilitate early recovery of evidence or documentation to allow full and early quantification. Progress of a case is subject to a timetable issued when defences are lodged, and treated as an interlocutor that requires parties’ strict adherence. The timetable requires exchanges of formal statements of valuation of claim. A compulsory pre-trial meeting has proved highly successful in facilitating earlier settlement of actions. Morning-of-proof settlements, once such a feature of life in Parliament House, have been dramatically reduced.

In July 2006 the Sheriff Court Rules Council issued a consultation paper on the recommendation by its Ordinary Cause Subcommittee for specific procedures for personal injury actions in the sheriff court, based on the Coulsfield Rules. This proposal recognised that as matters stood, cases which, on the face of it, were less complex and less valuable than those in the Court of Session were subject to written pleadings and procedures which were more complex and more prone to delay.

The overall response to the consultation paper favoured the adoption of one clear procedure for all personal injury claims. Representatives of both pursuers and defenders, in general, united in the view that the Coulsfield Rules had largely achieved what they set out to. The Rules Council accordingly concluded that uniform rules, covering both Court of Session and sheriff court ordinary cause personal injury actions, would be desirable for reasons of consistency, simplicity and the efficient progress of cases.

The new rules: key points

The new sheriff court rules, in essence, only differ from the Court of Session rules in two respects, namely, the interval from the lodging of defences to anticipated proof (approximately nine months in the sheriff court), and the provision of a pre-proof conference (the definition provides for telephone conferences). Key features of the rules are:

early and automatic recovery of documents;

• simplified written pleadings;
• early assignment of proof diet;
• generation of a timetable which specifies dates by which certain key actions must be taken;
• exchange between parties of calculations of quantum and basis of the claim;
• the pre-proof conference to identify the matters that remain at issue and explore the opportunities for settlement.

Simplified pleadings

For those of us trained in the art and craft of written pleadings in the sheriff court, the move towards simplified pleadings will represent the most significant change in practice. The original Coulsfield working party, and a smaller working group constituted at the request of Lord Cullen to study the question of simplified pleadings, acknowledged that in order to achieve its stated objective of brevity and clarity of pleadings, there would require to be a change in the mindset of the pleaders on both sides who are charged with drafting relevant and specific pleadings.

The hope is to avoid the verbosity which makes for unnecessarily complex pleadings in far too many cases. However, the rules of relevancy and the requirement to give reasonable notice of your case to the opponent remain. There should be early concentration between the parties on the real issues that separate them.

The form of initial writ is set out in sched 1 to the Act of Sederunt. After the craves, there are six numbered paragraphs setting out, respectively, the pursuer’s designation, defender’s designation, jurisdiction, statement of facts necessary to establish the claim, details of heads of claim (including addresses of medical practitioners and hospitals etc attended), and, finally, a statement as to whether the claim is based on fault at common law, or breach of a specific statutory duty. Facts to be pled are only those necessary to establish the claim.

The rules make no references as to the form of defences. However defences should provide fair notice of any substantive defence, for example time bar, reasonable practicability, contributory negligence, sole fault, and so on. The degree of specification required depends on the circumstances. In a case of contributory negligence or sole fault, it may be sufficient to aver that the pursuer was in breach of duty to take reasonable care for their own safety without specifying the particular duties, so long as the factual basis is clear. This is consistent with the degree of specification required from the pursuer in pleading a case at common law. Pleas in law are specifically not to be included in defences.

The timetable allows a period for both sides to adjust, prior to the pursuer lodging the record with a motion for further procedure. At that stage, there is still scope for either side to challenge the written pleadings and to raise a preliminary point which might be dealt with by means of a preliminary hearing.

If the experience of practitioners in the Court of Session is replicated in the sheriff court, the introduction of simplified pleadings should eliminate the temptation to create excessive delay through unnecessary amendment and debates, and signal an end of “pleadings game playing”, or what some regard as the rule 22 culture of debate for debate’s sake. The Court of Session experience has been that very few cases are now sent to debate.

Case management by timetable

Rather than the case periodically calling in court for direction by a sheriff on further procedure, with a proof date only assigned once all prior procedural steps are completed, the new rules provide that on the lodging of defences, the sheriff clerk allocates a diet of proof no more than nine months later. The timetable acts as a template and sets out the caseflow for each individual case. It specifies set dates or milestones for each stage of the court procedure to be complied with (see diagram).

The timetable must be strictly adhered to. It is treated for all purposes as an interlocutor signed by the sheriff. Where a party fails to lodge a record or a minute of a pre-proof conference by the dates specified, the sheriff clerk will automatically fix a hearing before the sheriff for parties to explain why the timetable has not been adhered to. If any other specified dates are not complied with, the sheriff retains discretion to fix a hearing.

Recovery of documents

To achieve early and automatic recovery of documents, a specification may accompany an initial writ when it is presented for warranting. On the granting of warrant for citation, an order granting commission and diligence in respect of the documents mentioned in the specification shall be deemed to have been granted. The style of specification is set out in Form PI2. The documents sought should be justified with reference to the pleadings. Those which can be automatically recovered (unless already recovered pre-litigation and lodged in process) include GP records, hospital records, and defenders’ documentation including wage records, accident books, and generic risk assessments.

The timetable requires that the specification is “executed” (i.e. takes place) not later than 28 days after the lodging of defences. If a party wishes to postpone that date, they should seek to sist or vary the timetable. It is always open to the defender to lodge a specification or to the pursuer to lodge further specifications at a later stage.

Sist, variation and withdrawal

Prior to the issuing of a timetable,but after the lodging of a notice of intention to defend, either party can apply to sist the cause. Once the timetable is issued, the motion by either party would be to vary individual elements. In either event, full reasons must be given for sist or variation, which must be for a specified period, and will only be granted on special cause shown. Where the timetable is varied, the sheriff clerk issues a revised timetable which then must be adhered to.

Strict adherence to the timetable, and the fact that sists or variations will not routinely be granted without good reason, highlight the importance under this procedure, so far as possible, of full case preparation prior to litigation. The procedure ought to signal an end to the practice of cases being raised and then sisted indefinitely.

In medical negligence cases there is provision to apply when the writ is presented for warranting, for the action to be raised under ordinary procedure.

Further, any party may within 28 days of the lodging of defences enrol a motion that the action be withdrawn from personal injuries procedure and proceed as an ordinary cause. No such motion will be granted unless the sheriff is satisfied there are exceptional reasons for not following personal injuries procedure.

Statements of valuation of claim

A criticism of the previous procedure is that it was often very difficult for insurers and their advisers to resolve cases without having a proper documented valuation at an early stage of proceedings. It is an essential feature of the new procedure that valuations are lodged following the closure of record, to enable each side to consider the other’s assessment and to encourage early settlement. To comply with the spirit of the rules it is essential that both sides take this process seriously.

Under the timetable, the pursuer is obliged to lodge a statement of valuation of claim not later than eight weeks after defences are lodged (also the last date for adjustment of pleadings). The defender (and any third party) is obliged to lodge their valuation not later than 12 weeks after defences are lodged. Form PI6 provides the template. The valuation should be justified with reference to reports or other documentation lodged in process.

Motions for further procedure

When the pursuer lodges the record (not later than 10 weeks after defences have been lodged), they shall enrol a motion seeking further procedure, that is, a preliminary proof on specified matters, a proof, or other specified order. The motion must specify the anticipated length of any proof. In the event that any party proposes to crave the court to make any order other than an order allowing a proof (for example for a debate on some material preliminary point of law), that party shall, on making or opposing the pursuer’s motion, specify the order to be sought and give full notice in the motion, or notice of opposition, of the grounds. It is anticipated that in most cases an interlocutor will be issued determining further procedure without the need for the case to call.

Pre-proof conferences

This is a conference of the parties, held not later than four weeks before the date assigned for the proof, for the purpose of discussing settlement of the action and agreeing, so far as is possible, the matters which are not in dispute. A formal minute of this conference must be taken (Form PI7), and lodged not later than three weeks before the proof date. Failure to do so will automatically result in a hearing being assigned for parties to explain themselves to the sheriff. Unlike the Court of Session, conferences do not require to take place in person, but can be by telephone.

The intention of this conference is to avoid last minute, door-of-court settlements. For this innovation to be as successful in sheriff court procedure as it is in the Court of Session, the mindset of the parties will play a substantial part. Ideally, conferences will be more than mere formfilling exercises. Court of Session experience shows that the conference can facilitate a full and candid exchange of views on issues such as primary liability, contributory negligence and heads of damages, as well as discussion of any witness timetabling difficulties. All relevant documents, valuations, reports and notices should be available to parties. During the conference, the representative of each party shall

have access to the party or another person who has authority to give instructions for settlement.

Despite the four-week deadline in the timetable, there is no reason why the pre-proof conference cannot take place at an earlier stage in procedure to facilitate settlement.

Summary cause procedure

At the end of the consultation process, the Rules Council considered whether the proposed rule changes should extend to summary causes (then actions less than £1,500), but concluded that for economic reasons and as very few personal injury cases were then raised as summary cause actions, this would not be necessary.

The changes to the privative limit introduced in January 2008 mean that a significant percentage of personal injury cases will fall outwith the new rules and remain subject to Chapter 34 of the Summary Cause Rules. While these rules were specifically designed for personal injury cases, there are a number of difficulties with their operation, such as the absence of any adjustment period and the inconsistent way in which calling dates are dealt with from court to court. Moreover, the “case management” approach of the current Summary Cause Rules is inconsistent with a timetable based approach. Accordingly, in pursuit of the stated objective to achieve, so far as is reasonable, uniformity of rules of procedure for personal injury actions, in September 2008 the Rules Council agreed that Coulsfield-type personal injury rules should be introduced in summary cause actions, and an Act of Sederunt is now in preparation to allow Chapter 34 to be adapted so as to follow as closely as possible the new ordinary procedure.

It is recognised that the value of a personal injury claim is not necessarily proportionate to its complexity or the amount of time spent pursuing or defending it. Personal injury actions continue to be excluded from the small claims procedure.

Culture change

Prior to the introduction of the Coulsfield Rules, personal injury actions represented approximately 70% of all litigation in the Court of Session but only 4% of litigation in the sheriff court. The ongoing review of the civil justice system in Scotland may result in a significant increase in the number of personal injury cases proceeding through the sheriff court. Personal injury can be a complex area of law, and claims can benefit from a tailored procedure distinct from that currently used in sheriff court ordinary actions.

Experience of the operation of the Coulsfield Rules in the Court of Session has been largely positive, and has demonstrated very clearly that even high value cases can be progressed without the full panoply of the traditional Scottish approach to written pleadings. Success in the sheriff court will depend to a considerable extent on practitioners being prepared to accept cultural change and alter traditional mindsets in their approach to litigation. Sheriffs will also require to recognise the central importance of simplified pleadings. The new rules require legal professionals to recognise and fulfil their professional responsibilities, not only to their clients but to the court and the court process, and thereby help create and maintain a modern, efficient and fair litigation process.