Personal Injury - New Court of Session Rules

As forecast by the Coulsfield Report, the new Rules will come into effect on 1 April 2003. These will radically alter the approach to personal injury actions and are very “front loaded”. Not only solicitors, but also the Scottish Legal Aid Board, will have to adjust to a rigid timetable in which the difficulty, for instance, of obtaining urgent expert reports will not be allowed for. Although many practitioners will have attended the “official” seminars conducted by Lord Coulsfield we thought it would be helpful to outline some of the most important changes.

Perhaps the Rule which we need to bring most to your attention is Rule 43.1(3) which states (inter alia):-

“THE FOLLOWING RULE(s) SHALL NOT APPLY TO AN ACTION TO WHICH THIS CHAPTER APPLIES:-

(a) RULE 4.9(2) (PROROGATING TIME OF LODGING DOCUMENTS)”

In essence the timetable will be fixed on the lodging of the (first) Defences: the Proof date will be fixed for 4 days, 12 months ahead, and a timetable will also be fixed as follows:-

1. Third Party Notices must be lodged within 28 days of Defences being lodged.

2. The Pursuers must lodge a notice of valuation of claim within eight weeks of the (first) Defences being lodged.

3. Adjustment has to be within eight weeks of the (first) Defences.

4. The Defenders must lodge a valuation of claim within sixteen weeks of the (first) Defences.

5. List of Witnesses and productions for each side must be lodged eight weeks before the Proof (or Trial).

6. A Minute recording the outcome of the pre-Proof meeting must be lodged 21 days before the Proof (or Trial).

Failure to comply at various points may result in either an award of expenses or even dismissal.

There are however compensations:-

1. The Summons will contain a Specification for recovery of Medical Records, wages records and Accident Reports (and must therefore specify all hospitals, GPs etc that the Pursuer – or deceased – has attended or consulted and the relevant employers he worked with).

2. The pleadings will be reduced to skeletal averments.

3. There will be no Procedure Rolls – such objections, if any, are expected to be dealt with on the Motion Roll.

4. There will be compulsory pre-Proof (or pre-Trial) meetings to reduce the issues between the parties at which someone with authority to settle must be present.

It is an “opt out” procedure, not an “opt in”. In other worlds all personal injury (including death) cases will follow this procedure and no Motion to “opt out” onto ordinary procedure will be granted except in exceptional circumstances and will be for a fixed period only with a revised timetable.

As you will realise, this clearly means that cases to be pursued in the Court of Session must be properly thought out and prepared before signet and service – including timebar Summonses.

In particular, we must be provided with the names and addresses of all the hospitals and doctors consulted by and the employers of the Pursuer (or deceased) and serious consideration must be given to what expert evidence will be required.

This update does not cover the whole of the procedure, however, we hope it draws to your attention the salient points that will concern you.For more information please contact Peter Watson on 0141 307 2311

Email: peterwatson@lemac.co.uk or your usual Levy & McRae contact.

This bulletin is produced for General information purposes only and should not be regarded as a substitute for specific legal advice. Readers should be aware that, while Levy & McRae take great care in publishing this material, no liability can be accepted for any loss or damage, except where the firm has been directly instructed to provide specific legal advice to a client.