New rules for personal injury actions in the sheriff court

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