Controlling tendency

On 1 May 2013 new provisions were introduced to the Court of Session rules. The new Chapter 42A has been added to deal with the case management of certain personal injuries actions.

Primarily the rules seem to be aimed at the court becoming more involved in a “case management role” and to encourage front loading of certain complex cases. The purpose of the new rules seems to be to identify and seek to resolve any issues which may arise between parties at a procedural stage. Often under the existing procedure such matters only come to the court’s attention at a late stage, resulting in delays or the proof diet being discharged. This can often have significant cost implications for both parties.

The existing procedure

Most personal injury actions currently follow the Chapter 43 court procedure. This procedure was introduced in 2003 with a view to streamlining the ordinary procedure and to encourage the following:

• front loading of cases;
• automatic recovery of documents;
• abbreviated pleadings;
• the fixing of an automatic court timetable; and
• the introduction of pre-trial meetings.

The Chapter 43 procedure is sometimes departed from in certain complex personal injuries cases. This is usually due to a need for detailed pleadings on a particular issue or where the length of time required for preparation of the case does not fit within the procedure set down in Chapter 43. Such cases are remitted back to the old ordinary procedure.

Application of the new provisions

The new rules will automatically apply to any actions for clinical negligence and personal injury actions which are being dealt with under the ordinary procedure. In addition, the court has a discretionary power to appoint actions (including those raised prior to the rules coming into force) to the new procedure. The decision will be based on the “likely complexity” of an action and the court being satisfied that “the speedy and efficient determination of the action would be served by doing so”. Specific reference is made to actions relating to catastrophic injuries.

The rules do not stipulate whether parties to an action may seek to have new or existing actions remitted to the new procedure subject to the approval of the court. Conversely, they do allow any party to the action to enrol a motion asking for it to be withdrawn from the new procedure, although the court will only grant such a motion if there are “exceptional reasons” for doing so.

The new provisions

Perhaps the most significant change being introduced is that, at the stage at which the record closes, a procedural hearing will be fixed by the court. Seven days prior to the hearing, parties must submit a written statement of their proposals for further procedure.

In the case of a debate, the statement shall contain:

• the legal argument/s being made; and
• the principal authorities to be relied upon.

In the case of a proof, the statement shall contain:

• the issues for proof;
• the names of the witnesses, along with the matters to which each witness is expected to speak and the time estimated for each witness;
• the progress made in preparing and exchanging reports, medical records and witness statements;
• the estimated time required for proof;
• any other progress that has been made, is to be made or could be made in advance of the proof; and
• whether an application has been or is to be made for jury trial.

There is no requirement for a procedural hearing or written statements under the existing procedure. Also, under the existing rules witness statements are not exchanged, although that does happen in commercial actions.

Pre-proof timetable

After the procedural hearing, the court shall determine the further procedure appropriate. In the case of a proof, the court will fix a date and issue a pre-proof timetable containing dates for:

• a further procedural hearing (no later than six months before the proof);
• the lodging of a valuation by the pursuer (no later than six months before the proof);
• the lodging a valuation by the defender (no later than five months before the proof);
• the lodging of witness lists and productions (no later than four months before the proof);
• the holding a pre-trial meeting (no later than three months before the proof); and
• a further procedural hearing (no later than two months before the proof).

The new timescales are shorter than those imposed under the existing procedures. In comparison to the Chapter 43 procedure, one significant change is that under the new rules, the pre-trial meeting must be held three months prior to the proof. Under Chapter 43, the meeting must be held three weeks prior to proof. Under the ordinary rules, there is no requirement for a pre-trial meeting at all. Clearly the aim here is to encourage earlier discussion and possible resolution of cases, thus freeing up court time at an earlier stage.

Another point of comparison is that cases proceeding under the old ordinary procedure require productions to be lodged only four weeks prior to proof. The new rules require productions to be lodged four months prior to proof. Disclosure of new evidence four weeks prior to proof invariably runs the risk of proofs being jeopardised, with substantial cost implications for all parties. The new case management rules should prevent this from happening.

Comment

It remains to be seen what type of actions the Lords Ordinary will consider to be of a requisite complexity to justify appointment to the new case management procedure. Specific reference is made to catastrophic injuries cases, and it would certainly seem beneficial in those cases for there to be a more transparent court procedure requiring earlier disclosure of evidence than the current rules allow.

In practice, parties will require to identify the key issues at an earlier stage in the litigation and generally be better prepared than the current court procedures require. The rules ought to encourage transparency and co-operation between parties, with greater discussion and focus on the real issues in dispute. This can only be a good thing for all concerned, since the result will surely be the earlier resolution of such cases. There will inevitably be a period of “bedding in” for the new procedure. Once it is fully up and running, however, one would expect a more efficient and effective handling of complex personal injuries cases under the watchful eye of the court.

A link to the new provisions can be found here: www.legislation.gov.uk/ssi/2013/120/pdfs/ssi_20130120_en.pdf