Fiona Smith V. Greater Glasgow And Clyde Nhs Health Board
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2013] CSOH 178 |
| Court | Court of Session |
| Published date | 20 November 2013 |
| Year | 2013 |
| Date | 20 November 2013 |
| Docket Number | PD2457/12 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 178 | |
| PD2457/12 | OPINION OF LORD JONES in the cause FIONA SMITH Pursuer; against GREATER GLASGOW & CLYDE NHS HEALTH BOARD Defender: ________________ |
Pursuer: Bain QC; Digby Brown LLP
Defender: Springham; NHS Scotland Central Legal Office
23 October 2013
Introduction
[1] This is a personal injuries action, proceeding in accordance with the terms of chapter 43 of the Rules of the Court of Session 1994 ("the rules"). A four-day proof was set down on 21 March 2013 to commence on 29 October of this year. On 23 October I was addressed by parties in respect of a number of applications, of which the only one I need discuss in this opinion was enrolled on behalf of the defenders and was in the following terms: "to allow the List of Witnesses for the defenders to be received although late".
[2] In support of that motion, Miss Springham referred me to the case of Quigley v Hart Builders (Edinburgh) Limited [2006] CSOH 118 ("Quigley"), a chapter 43 action, in which, as here, no list of witnesses for the pursuer had been lodged in accordance with the timetable. On the first day of a four-day proof, counsel for the pursuer moved the Lord Ordinary to allow a list of witnesses to be lodged late. His lordship granted the motion under reference to Practice Note 8 of 1994, about which I shall say more later in this opinion.
[3] In response, Miss Bain QC contended that, having regard to the terms of rule 43.8, it was incumbent on the defenders to apply for a variation of the timetable, and to show special cause as to why their list of witnesses should be received late. I was informed that the last date for lodging such lists, specified in the timetable that was originally issued, was 3 September. The timetable was varied by interlocutor dated 27 August, on the unopposed motion of the pursuer and on special cause shown, by extending the period for lodging lists of witnesses to 1 October. The pursuer had lodged two witness lists, the first on 23 September and the second on 30 September.
[4] In the result, I refused the defenders' motion, and I refused leave to reclaim. I advised parties that I would issue an opinion, giving my reasons.
Discussion
Background to the introduction of chapter 43
[4] Chapter 43 in its present form was introduced into the rules by Act of Sederunt, (Rules of the Court of Session Amendment No. 2), (Personal Injuries Actions) 2002, SSI 2002 No. 570, in implementation of the recommendations of the Working Party on Court of Session Procedure, of which I was a member, and which reported in 1998. A monitoring exercise had established that the majority of ordinary actions raised in the Court of Session were for damages in respect of personal injuries or death; that 98.2% of such actions settled without proof; and that a third of these settlements occurred in the last week before proof. In light of that information, the working party focused its attention on personal injuries actions. In a section of the report entitled "Deficiencies of the Present System" it highlighted "the inconvenience caused by the large number of cases which settle on the day of the proof or during the preceding week", which it elaborated in the following passage:
"Substantial numbers of witnesses are compelled to attend court unnecessarily, or are subjected to the inconvenience of being cited and then told that they need not attend. In the case of professional witnesses, substantial fees may be incurred in relation to cases which never start. At present a large number of people are assembled at the court on a Tuesday morning during term, and the scene can give the appearance of a great deal of confusion. A considerable amount of court time is wasted. Judges are frequently left with no way of knowing which cases, if any, they will require to deal with, while simultaneously counsel, and others involved in the lower part of the allocated list, who have a case to try, often have to pace the Hall. The confusion and associated delay can lead to cases extending into an additional expensive day. The necessity of calling a much larger number of cases than can be heard leads on occasions to the inevitable result that cases which do require proof have to be sent away. Attention has also been drawn to the fact that pursuers may feel under last minute pressure to accept sums less than the full value of their claims, particularly in view of their fear of the sanction of a crippling award of expenses. The mere fact that there is a risk that, if the case is not called and no settlement is reached, there will be further extensive delay may create pressure to settle, particularly for a pursuer. It does seem quite inappropriate for so many actions to be settled in a pressure situation in Parliament Hall which may, to the litigant experiencing his first Tuesday morning there, appear chaotic." (Chapter 2)
[5] In putting forward its proposals for reform of the existing system, the working party's aim was "to reduce the number of late settlements", and it made "three positive recommendations": that an automatic timetable should be issued for personal injury actions; that both (or all) parties should be obliged to lodge in process justified valuations of the claim at an early stage in the proceedings; and that parties should be required to meet to discuss settlement at a defined stage in the procedure and lodge a minute of the meeting, recording the points on which agreement had or had not been reached. (Lord Coulsfield's summary of the report) The purpose of the timetable, to which parties would be required to adhere during the course of the action, was to shift the focus of their preparations from the date of the proof or jury trial to the date of the mandatory pre-trial meeting. The timetable was designed to ensure that parties were as fully informed about the merits and quantum of a personal injury action by the date of the meeting as they had previously been by the date of the evidential hearing. The new scheme was introduced in the working party's report in this way:
"Since the fundamental objective of the proposals is a change of attitude or mindset among those involved in such routine cases which will move the point at which concentration and effort are directed from the trial or proof to an earlier stage, complementary amendments to current procedure would be necessary to ensure the required change in approach."
[6] Drawing on the Cullen Review, published in 1995, in which Lord Cullen had identified a "culture of a casual approach to timetabling" among court practitioners, which relied on "an opponent's forbearance in, for example, consenting to late lodging of documents", the working party expressed the view that such culture "should be discouraged." Among the complementary amendments referred to by the working party, therefore, was the introduction of a requirement that the timetable could be varied only by the court, and only on "special cause shown". As it is explained in the evaluation of the working of the chapter 43 rules, carried out by the University of Edinburgh, and published by the Scottish Executive in 2007, "In so far as a 'culture of mutual indulgence' between practitioners prevails, this provides the Court with an opportunity to address it."
[7] In June 2000, copies of the working party's report, Lord Coulsfield's summary, and a draft Act of Sederunt which was intended to form the basis of new rules were circulated to interested parties on behalf of the Lord President, who invited comment on them. The draft contained separate rules for applications for variation of the timetable (draft rule 43.10) and applications to sist (draft rule 43.11). These draft rules were in similar terms to what is now rule 43.8, which makes provision for both variation and sist. In particular, each of the draft rules provided that the application "shall be granted only on special cause shown". Among those who commented on the draft rules were the Faculty of Advocates, the Law Society, the WS Society, a number of solicitors' firms, a senator, and a sheriff. The only comment on the proposed requirement that the timetable may be varied or the action sisted only on special cause shown came from the WS Society, who suggested that "the word 'special' ought to be deleted as the judges can be trusted to deal with any application appropriately."
[8] It is relevant to notice that draft rule 43.10 provided that an application for variation "shall be enrolled before the relevant time has expired". There is no such provision in the new rules as enacted.
Chapter 43 as enacted
[9] The new scheme provides for simplified pleadings, the allocation of a diet of proof on the lodging of defences, and a timetable appointing dates by which various steps in process are to be taken. In order to clear the way for these innovations, a number of existing rules are disapplied, by the terms of rule 43.1(3). Among those are rules 4.9(2) and 36.3. The terms of rule 4.9(2) can best be understood in the context of rule 4.9(1). These rules provide as follows:
"4.9.-(1) Where the court pronounces an interlocutor ordering or allowing a document to be lodged in process, it shall specify a time within which the document shall be lodged.
(2) The time for lodging a document referred to in paragraph (1) may be prorogated by the court on an application by motion enrolled before the time for lodging has expired.
36.3.-(1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.
(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless
(a) by consent of parties; or
(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit."
[10] To understand why rule 4.9(2) was...
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