Personal Injuries Actions Flashcards
Where are the PI rules?
Chapter 36 OCR - PI Rules are in this chapter
PI Forms - blank version of the forms are at the back of the rules
They are adopted from Court of Session Chapter 43 procedure for personal injuries actions
When were PI actions reformed?
Lord Gill was asked to conduct a review of Scotlands civil courts in 2007 and Report was published in 2009
Changes took effect on 22 September 2015 - these are not limited to PI actions.
The most significant changes are:
- new exclusive competence of £100,000 in all sheriff courts, increased from £5,000
- An all-Scotland jurisdiction conferred on Edinburgh Sheriff Court in personal injuries cases which has the Ability to hold civil juries
- Case management of certain personal injuries actions (not dealt with in this podcast)
What is the ASPIC?
Section 41 of the Courts Reform (Scotland) Act 2014 Act allows sheriff courts with an all-Scotland jurisdiction to be established
The All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 sets out the new jurisdiction which, from 22 September 2015, Edinburgh Sheriff Court will have. The PI court will have jurisdiction in:
- Personal injury cases whose value exceeds £5,000
- Workplace-related personal injury cases whose value exceeds £1,000
- Workplace-related personal injury cases worth under £1,000which are remitted to the all-Scotland court by the sheriff
What are the main differences for PI cases?
In the initial writ there are no pleas-in-law
Instead you should use the last statement in claim to state the propositions you want to make: State legal propositions in final statement of claim.
Specify that it is a personal injuries action
Statement of claim rather than condescendence
The instance of craves do not differ but it says Personal Injuries Act at the top.
How is the initial writ set out?
In statement of claim one should be:
Pursuer’s name, designation, date of birth and national insurance number (to allow for easy recovery of medical and wage records for the pursuer and to allow the defender to apply for a certification of recoverable benefit from the compensation recovery unit).
Statement of claim 2: Defender’s name and designation
Statement of claim 3: Jurisdiction - e.g. This court has jurisdiction because the harmful event occurred in Edinburgh. There is no need to include the old averment that parties have not agreed to prorogate etc.
Statement of claim 4: Factual circumstances of the delictual act. Requires concise statements of the facts needed to state the case.
Statement of claim 5: Loss, injury and damage including medical practitioners attended and brief info of diagnosis and medical treatment - names and address of all medical practitioners should be provided, e.g. Name of GP, name of hospital, pysiotherapy etc. This is to enable recovery of medical documents by way of specification of documents.
Statement of claim 6: Legal basis and propositions - the common law or statutory basis of the case and any legal propositions that you might have.
What is a PI action (case law)?
Tudhope v Findlay Park 2004 S.L.T. 783
Lady Cameron took the view that an action of negligence against solicitors for missing a timebar in a personal injuries case was not a personal injuries action. This was in opposition to lady paton.
Susan Broadfoot v Forth Valley Acute Hospitals NHS Trust, Scottish Courts website, 3 July 2003
The court remitted a clinical negligence case involving injury to a child a birth to the ordinary rule. The court commented that to avoid the expense of parties argued with motion to remit then if full grounds for motion provided, may be granted without appearance of counsel.
The court also said that it could not be assumed that merely because a case was professional negligence that it would be appointed to the ordinary roll.
This occurred before introduction of ch 42A in the court of session.
Both Court of Session cases
How do the pleadings work differently?
An example of how the pleadings work differently in practice can be seen here:
Thomas Clifton v Hays Plc and Scottish & Newcastle, Scottish Courts website, 7 January 2004
Court of Session case
Defenders are entitled, when presented with a summons, to be able to ascertain without undue difficulty the nature of the case against them
The pursuer was employed and sustained an injury at work when he opened trailer and an unsecured kegg hit him. When he moved for a proof to be fixed the defenders challenged his pleadings on the basis that he did not aver who owned the trailer, who had control over it, who was responsible for the keg being fixed and nor who had control over the forklift used to lift the kegs at the time of the accident.
Counsel for the second defender submitted that pursuer had not set out facts necessary to make his claim. In particular, there were no averments that there was some defect in the state of the premises or that the second defenders were in control of the keg or trailer.
Lady smith agreed with those submissions and said there had been a fundamental misapprehension by the defenders legal advisors to the extent that the rules under chapter 43 somehow excused them from making proper enquiries and investigation prior to the raising of an action.
She said that she did not understanding anything in the rules as detracting from the principal that the defenders are entitled when presenting with summons to be able to ascertain without undue difficulty the nature of the case against them.
Higgins v DHL International (UK) Ltd 2003 S.L.T. 1301
Court of Session case
Defender argued that there was special cause which meant a jury trial was unsuited to this procedure. Lady Paton (obiter) said that it was accepted that the new rules sought to introduce a new pleading culture. It was accepted that as a direct result of the rules, concise pleadings, may now satisfy the rules and be deemed suitable for proof. Nevertheless the rules require averments of those rules necessary to satisfy the claim.
While it was true that the new rules invited a new approach and more relaxed approach to pleadings, it seemed Inappropriate and unfair that a pursuer should be able to lead evidence at large before the jury, about matters which might or might not be relevant, without at least some warning being given to both the defenders and the judge by way of brief factual averments
Stewart v Matalan Retail Limited [2006] CSOH 167
Where there are no averments supporting a whole line of evidence the court may uphold this on the basis that there is no record.
In this case a woman was injured when she tripped over a child in a shop. Evidence was led at proof that there had been announcements made for customers to mind their children.
There had also been previous similar incidents.
The case was assigned for proof as there was facts necessary to form a claim. But lord took a strict view of the pleadings and upheld objections to the evidence which arose by surprise.
Court of Session case
Objections to evidence which arose by surprise upheld
How are defences framed?
Follow the layout of the initial writ - avoid formulaic reading.
No pleas-in law in defences.
Alexander v Metbro Limited 2004 S.L.T. 963.
Defenders included pleads in law despite protestations. The case called before lady paton to determine the competency of defences with pleas in law - these were found incompetent.
Court of Session case
She suggested that a brief and simple summary of the defender’s legal propositions in the final paragraph of the defences was possible.
How do clinical negligence cases differ?
This can be factually or legally more complicated.
Rule 36.C1 OCR - at time of warranting - allows pursuer to apply for action to proceed under ch 36A
Rule 36.F1 - within 28 days of lodging defences (alternative option) any party may apply for the case to be withdrawn from the personal injury procedure and apply for procedure in ch 36A instead.
In this situation the party enrolling the motion must satisfy the sheriff that there are Exceptional circumstances for doing so and the Sheriff will have regard to likey need for detailed pleadings, length of time required for preparation and any other relevant circumstances.
What is case management?
OCR 36A.1 provides that case management applies to clinical negligence cases or cases appointed to chapter 36A due to their likely complexity.
Based on chapter 42A of the Court of Session which have largely been viewed as a success.
Main differences are that:
- initial writ must be in form G1, with condescendences and pleas-in-law like an ordinary action
- open record must be lodged within 14 days after defences are lodged
- 8 week period of adjustment
- closed record must be lodged after the expiry of the period for adjustment
- procedural hearing is fixed
- written statements of proposals for further procedure in advance of procedural hearing
- address issues for proof; names, addresses and likely duration of witnesses; progress on exchanging expert reports and witness statements; and likely duration of proof
- pre proof timetable produced with deadlines for lodging valuations, witness lists, productions and a pre-trial minute.
What is the timetable for PI cases?
Form PI5 (similar to Form G5 timetables issued by sheriff clerk) the main difference is short period for preparation of proof and difficulty in having it altered.
Rule 36.G1 - proof can be fixed no later than 9 months from the lodging of defences
Failure to adhere to the timetable may result in the court fixing a hearing for parties to explain themselves
What is the further procedure instead of an options hearing?
Instead of an options hearing the pursuer must enrol motion for further procedure under Rule 36.G1(5).
Hamilton v Seamark Systems 2004 S.C. 543
The pursuer had an accident at work and statutory cases were pled (regulations) no further averments or failure in duties were given. The defenders wanted a debate to the relevancy. The court held that there may be Debates in exceptional cases for example where there was a fundamental relevancy point which may dispose of the action. In most cases however questions of law should be resolved after the proof.
Lady paton opined that there was little difference between a proof and a proof before answer under the new rules.
Jamieson v Jamieson 1952 S.C. (HL) 50
The ordinary test of relevancy of pleading applied as set out in this case. That an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer’s averments are proved.
Collins v Scottish Homes 2006 S.L.T. 769
More recently, lord brackdale applied this test and excluded certain averments before allowing the case to proceed to proof.
All Court of Session cases
Can the timetable be varied?
In some cases the parties may not be able to meet the deadlines in the timetables
Rule 36.H1 OCR allow sheriff to vary the timetable on petition by a party on cause shown.
Examples – terminal illness for acceleration of timetable, or if about to go under significant surgery for extension which may improve prognosis and affect the value of the claim.
How is evidence recovered?
Rule 36.D1 OCR - provide that the initial writ can be accompanied by a specification of documents in Form PI2 for standard documents: GP records Hospital records Occupational health records Wage slips Accident reports Risk assessments
If this specification is lodged with the initial writ then it should be granted automatically. The granting of a specification of docs at the stage of warranting the initial writ does not preclude either party from later moving for a specification.
What are statements of valuations of claim?
A major innovation of the personal injuries procedure is that each party must lodge this indicating what their quantification was if this is granted.
Rule 36.J1 OCR provides for statements of valuation of claim to be lodged by each party.
They must be Lodged with supporting documents
Not good practice to leave certain heads of claim blank and effort should be made on information available and if necessary it can be revisited at a later date since the valuation is not binding on later parties but can help to provide fair notice of the claim made.
Easdon v A Clarke & Company [2006] CSOH 12 – held: while clear that these statements are not part of the pleadings, he saw no good reason why regard may not be had to valuations in questions of fair notice given in details of the claims made.
Rule 36.J1(5) – where pursuer has failed to lodge statement of valuation of claim, the Sheriff may dismiss the action or grant decree for sum specified in pursuer’s valuation if the defender has failed.
