New rules are to be introduced with
effect from 2 November 2009 in connection with personal injury
actions which are subject to the Ordinary Cause Rules in the
sheriff court - that is, all personal injury actions which have a
value in excess of £5,000. Any new ordinary cause actions commenced
on or after 2 November 2009 in which the pursuer seeks damages for,
or arising from, personal injuries or the death of a person from
personal injuries will be subject to a new set of rules which are
to all intents and purposes identical to the rules governing
personal injury actions in the Court of Session which were
introduced into the Court of Session in April 2003 and are
generally referred to as Chapter 43 procedure in the Court of
Session. In the case of the new sheriff court procedure, the rules
governing personal injury actions are now to be found within
Chapter 36 of the Ordinary Cause Rules.
Background and introduction of the new
rules
The Chapter 43 rules were
introduced into the Court of Session in 2003 following upon
recommendations contained within a report compiled by a Committee
under the Chairmanship of Lord Coulsfield which had been asked to
look at the procedural rules in the Court of Session governing
personal injury actions with a view to simplifying the procedure
and in particular to address the problem that the majority of
personal injury actions tended to settle at the last minute, often
at the door of the court, with resulting inefficiencies in terms of
wasted expenses, and loss of court time.
Following the successful
introduction of the Chapter 43 procedure in the Court of Session,
and following consultation, the Sheriff Court Rules Council agreed
that it was appropriate to introduce similar rules in connection
with personal injury actions commenced in the sheriff court where
the value of such actions exceeded £5,000. The relevant statutory
instrument by which the new rules are introduced is the Act of
Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries
Actions) 2009.
Features of the new rules
Click here for the new sheriff court
rules.
They closely mirror the rules for
Chapter 43 procedure in the Court of Session:-
The initial writ need only contain
a brief narration of those facts necessary to establish the claim,
must identify the doctors and hospitals from whom treatment has
been received, and will not require to contain pleas-in-law. As in
the Court of Session, actions relating to clinical negligence can
be withdrawn from Chapter 36 procedure as indeed can any other
personal injury action where there are exceptional reasons for the
case being unsuitable for the new procedure.
The warranting of the initial writ
automatically entitles the pursuer to recover documents in terms of
a specification of documents which, where appropriate, will include
recovery of medical records as well as documents in the hands of
defenders relating to earnings information, occupational health
records and risk assessments.
The Chapter 36 procedure, as with
Chapter 43 procedure in the Court of Session, is timetable-driven
so that once defences are lodged in the action a timetable will be
issued which allocates a date for a proof which will be no more
than 9 months from the date upon which the defences were lodged.
That timetable will provide dates by which a third party notice
must be served, pleadings must be adjusted, statements of valuation
of claim must be lodged by both pursuer and defender, list of
witnesses and productions are to be lodged, and by which a
pre-proof conference (referred to as a pre-trial meeting in the
Court of Session context) must take place.
Comment
The introduction of the new Chapter
36 procedure into the Ordinary Cause Rules in the sheriff court is
to be welcomed. The introduction of the Chapter 43 procedure into
the Court of Session rules has significantly improved the ability
of defenders to achieve a negotiated settlement of claims at an
earlier stage and this has largely been due to the introduction of
the obligation on parties, particularly the pursuer, to produce a
valuation of his or her claim at an earlier stage in the case and
to produce documentation vouching that claim. That obligation,
coupled with the obligation on parties to hold a meeting at least 4
weeks prior to the proof diet, has undoubtedly resulted in cases
which needed to be settled being resolved earlier than had
previously been the case and settlements at the door of the court
are now the exception rather than the norm. It is to be anticipated
that the same benefits will be derived from the introduction of the
new procedural framework for personal injury actions into the
Sheriff Court Ordinary Cause Rules.
If you require further information
on the content of this bulletin please contact Gordon Keyden at gordon.keyden@simpmar.com