EXECUTIVE SUMMARY
PART I INTRODUCTION
CHAPTER 1 THE RESEARCH IN CONTEXT
1.1 Personal injury actions comprised 50% of all actions initiated in the Court of Session and 66% of all actions initiated in the General Department of the Court of Session in 2002, (the last year for which Civil Judicial Statistics were published).
1.2 Delay in concluding personal injury actions has been an object of concern for at least 25 years. An optional procedure was introduced into the Court of Session in 1985, with a view to hastening the progress of cases to proof by simplifying pleadings and expediting the resolution of disputed issues. Initially, the new procedure was adopted in almost one third of personal injury actions raised in the Court of Session, but had fallen to no more than 3% by 2002.
1.3 The Lord President appointed a Working Party on Court of Session Procedure under the chairmanship of Lord Coulsfield in October 1997, with the remit to consider whether a simplified procedure could be devised that would eliminate unnecessary delay and unnecessary expense in routine, mainly personal injury, actions. The Working Party took a systems-based approach to the phenomenon of late settlement and sought to identify what encouraged delay and discouraged early settlement. Since many actions settled just prior to proof, the programme of procedural reform proposed by the Working Party sought to reproduce critical features of that stage, but at an earlier date.
1.4 A new procedure for personal injury actions, Chapter 43 of the Rules of the Court of Session, was introduced in April 2003 and implements the recommendations of the Working Party. Chapter 43
contains provisions that are intended to simplify procedure and new provisions that are intended to expedite settlement discussions. It also provides for a timetable to which parties must adhere, as well as new powers vested in the court to ensure compliance with that timetable and other Chapter 43 requirements. Crucially, the procedural reforms take the pace of proceedings out of the control of parties and vest it in the court. Chapter 43 does so by introducing case flow management into the Court of Session: by generating a procedural timetable with which parties must comply and by providing the court with powers to oversee compliance with the timetable that it has generated.
1.5 The introduction of Chapter 43 was accompanied by the establishment of a Personal Injuries User Group ( PIUG) in the Court of Session to monitor and oversee the implementation of the new procedure. Under the chair of The Hon. Lady Paton, the PIUG has met on a quarterly basis since the New Rules were first introduced. Members include pursuers' and defenders' agents, solicitor-advocates and advocates, as well as representatives of the Scottish Executive, the Scottish Court Service, the Scottish Legal Aid Board and Court of Session staff. Through the PIUG, key stakeholders in Scottish personal injury litigation have been responsible for monitoring the new procedure. They have engaged in an on-going discussion as to the impact of Chapter 43 provisions, suggesting where improvements or clarifications may be needed and participating in amending them.
CHAPTER 2 RESEARCH AIMS AND METHODS
2.1 The University of Edinburgh was commissioned by the Scottish Executive Justice Department on behalf of the Scottish Court Service to evaluate and monitor the impact of these reforms on the Court of Session and its users, and to make recommendations for further review and amendment.
2.2 The evaluative component of the research compared personal injury actions raised following the introduction of the new procedure with actions raised prior to it, and asked whether they were:
- Quicker to conclude?
- More likely to settle in advance of the day of proof/trial, or in the days preceding it?
- Likely to make fewer calls on court resources?
2.3 The monitoring component of the research examined how the reforms had been implemented and assessed the capacity of key procedural reforms to realise the objectives of the reforms. These included:
- The generation of a timetable, as well as powers to ensure compliance with the timetable
- The introduction of simplified pleadings
- The withdrawal of an automatic right to a legal debate (hearing on the Procedure Roll)
- The automatic recovery of certain documents, such as those relating to wages and medical treatment
- The allocation of a proof diet following lodging of defences
- The requirement for pursuers and defenders to lodge Statements of Valuation, together with supporting documentation, at an early procedural stage
- The imposition of a time-limit on any sist of the action
- The requirement to hold a Pre-trial Meeting and to lodge a joint minute recording that meeting
- Provisions to transfer more complex actions to the Ordinary Roll
2.4 The research on which this report is based also considered the introduction of Chapter 43 for its broader impact on the civil justice system.
2.5 The research was undertaken between December 2004 and April 2006 and involved: the collection of Court of Session case management system ( CMS) data; interviews with court users and other stakeholders in personal injury litigation; and a written consultation exercise with judges.
2.6 The impact of Chapter 43 on delay was evaluated by comparing a sample of personal injury actions raised prior to the introduction of Chapter 43 with a sample of personal injury actions raised following its introduction. Altogether 451 cases were selected in the pre-implementation sample, comprising all personal injury actions raised in the Court of Session in January 2002 (217) and May 2002 (212), as well as clinical negligence actions raised in February, March and April 2002 (22). Altogether 425 cases were selected in the post-implementation sample, comprising all personal injury actions raised in the Court of Session in May 2003 (127), September 2003 (141) and January 2004 (157). Data collection commenced in January 2005 and continued until April 2006 so as to allow as many actions as possible in both the pre-implementation and post-implementation samples to reach a conclusion and to be disposed of by the court by way of a final interlocutor.
2.7 The impact of Chapter 43 on bringing forward settlement was evaluated by collecting information from three sources of administrative data: data collected from CMS for the post-implementation sample, data collected by the personal injury clerk from pda forms (introduced for intimating notice of settlement to the Court), and information posted on the walls of Parliament House.
2.8 Chapter 43 provisions were monitored by interviews, which were conducted at three stages of the research. Altogether 51 interviews were conducted with 57 court users and other stakeholders.
2.9 A short consultation exercise was also conducted with Lords Ordinary, to which eight responded
PART II EVALUATING CHAPTER 43: QUANTITATIVE ANALYSES
CHAPTER 3 USE AND USERS OF CHAPTER 43
3.1 As of 30 November 2006, 7,585 personal injury actions had been initiated in the Court of Session since the introduction of Chapter 43 in April 2003, an average of 172 per month. The monthly rate of new personal injury actions has increased steadily from 68 in April 2003 to an average of 198 per month in the first 11 months of 2006.
3.2 Prior to the introduction of Chapter 43, personal injury actions initiated in the Court of Session steadily rose from 156 per month in 1996 to reach a peak of 247 per month in 2001. Though confidence in Chapter 43 is demonstrated by increased uptake, the volume of personal injury actions raised in the Court of Session has still not returned to the monthly average reached prior to the introduction of Chapter 43 in 2001 and presently rests approximately 20% below that peak (198 new personal injury actions per month in 2006 compared with 247 in 2001).
3.3 Chapter 43 does not appear to have made an impact on the type of personal injury action raised in the Court of Session. Following the introduction of Chapter 43, work related cases were approximately 40% of all personal injury actions initiated in the Court of Session, asbestos related cases: 13%, 'other' cases: 14%, road traffic cases: 20%, vibration/white finger: 7% and clinical negligence actions approximately 5%. Only asbestos related actions, at 6% of all personal injury actions in the pre-implementation sample, have substantially increased their share of personal injury actions raised in the Court of Session in the years following the introduction of Chapter 43. Between September and November 2006, for example, asbestos related actions comprised 15% of all personal injury actions raised in the Court of Session.
3.4 Personal injury actions in the Court of Session were more likely to be defended following the introduction of Chapter 43, rising from 86% in the pre-implementation sample to 94% in the post-implementation sample. Though few in number, the proportion of clinical negligence actions that were defended rose from 47% to 92% following the introduction of Chapter 43.
3.5 In the 30 months following the introduction of Chapter 43, only 7% of personal injury actions were remitted out of the new procedure and transferred to the Ordinary Roll. Approximately one half of them were clinical negligence actions and a third was 'Other' actions.
3.6 Personal injury actions signeted to the Court of Session are concentrated in the hands of a small number of pursuer firms and an even smaller number of defender firms. Concentration of pursuer work was slightly lower in the post-implementation sample, with 11 firms responsible for raising 85% of personal injury actions signeted to the Court of Session compared with 7 firms responsible for raising a similar share (83%) prior to the introduction of Chapter 43.
3.7 In the post-implementation sample, more than one defender was involved in a quarter of all defended personal injury actions, but in nearly two-thirds of defended asbestos-related actions. Concentration of defender work appeared slightly higher in the period following the introduction of Chapter 43, with five firms involved in defending 78% of all personal injury actions raised in the Court of Session.
3.8 The small number of firms using the Court of Session and their continuity over time is probably more noteworthy than any changes identified since the introduction of the Chapter 43. Very few pursuer firms take on any defender work and very few defender firms take on pursuer work. The lines between them are firmly drawn, and this is a phenomenon of long standing.
CHAPTER 4 ADDRESSING DELAY: THE PROGRESS OF PERSONAL INJURY ACTIONS THROUGH THE COURT OF SESSION
4.1. The impact of Chapter 43 on delay was examined by comparing the progress of two samples of defended personal injury actions as they proceeded through the Court of Session: one sample selected from all personal injury actions raised prior to the introduction of Chapter 43, in January and May 2002 (the pre-implementation sample), and the second selected from all actions raised following the introduction of Chapter 43, in May and September 2003 and in January 2004 (the post-implementation sample). To ensure comparability, the post-implementation sample included actions that were raised under Chapter 43 but eventually transferred to the Ordinary Roll, as well as actions that proceeded to their conclusion under Chapter 43. However, actions proceeding under Chapter 43 and actions transferred to the Ordinary Roll in the post-implementation sample were also monitored independently so as to assess the impact of Chapter 43 on actions that remained under it.
4.2 As of the date of the final data collection (7 April 2006), 88% of the pre-implementation sample of defended actions and 90% of the post-implementation sample had either been disposed of by the court by way of a final interlocutor, 1 or settlement had been intimated to the court.
4.3 When the post-implementation sample was last inspected in April 2006 for the progress of actions through procedure, 90% of defended actions raised and proceeding under Chapter 43 had been disposed of by way of a final interlocutor, compared with only 28% of actions that had been raised under Chapter 43 but were transferred to the Ordinary Roll. A further 7% of defended actions remaining under Chapter 43 had intimated settlement to the court compared with 3% of actions transferred to the Ordinary Roll. Hence, as of the date of the final data collection, 97% of actions that proceeded under Chapter 43 had either been disposed of by the court or had intimated settlement, compared with only 31% of actions that were raised under Chapter 43 but had transferred to the Ordinary Roll.
4.4 From signeting to final disposal (or to the date of the final data collection for those actions not yet disposed of), the mean (or 'average') and median 2 length of proceedings in the post-implementation sample of defended actions was 75 (mean) and 71 (median) weeks, compared with 103 (mean) and 90 (median) weeks in the pre-implementation sample. Since 16% of the post-implementation sample and 13% of the pre-implementation sample had yet to be finally disposed of, the mean (or 'average') in both samples will continue to rise as more actions are disposed of. The median in both samples will remain unchanged, however, since more than 50% of all cases in the sample were already disposed of.
4.5 There was a difference of only 2 weeks among the fastest percentiles in the pre- and post- implementation samples: 20% of all defended actions were disposed of within 44 weeks of signeting in the post-implementation sample, compared with 46 weeks in the pre-implementation sample.
Thereafter, however, differences between the two samples increase incrementally: 50% of all actions in the post-implementation sample were disposed of within 71 weeks, compared with 90 weeks in the pre- implementation sample; 70% of all actions in the post-implementation sample were disposed of within 93 weeks compared with 129 weeks in the pre-implementation sample; and 90% of all actions in the post-implementation sample were disposed of within 130 weeks compared with 203 weeks in the pre-implementation sample.
4.6 In the post-implementation sample, the mean and median duration of proceedings from signeting to final disposal (or to the last date of data collection for those not yet disposed of) amongst actions proceeding under Chapter 43 weeks was 71 (mean) and 67 (median) weeks, compared with 118 (mean) and 116 (median) weeks for actions that were raised under Chapter 43 but remitted to the Ordinary Roll following defences. The mean is likely to rise slightly for actions proceeding under Chapter 43 since 10% of actions had yet to be finally disposed of, while the median will remain unchanged since more than 50% of actions were already disposed of. Both the mean and median are likely to rise substantially for actions remitted to the Ordinary Roll, however, since only 28% had been disposed of by way of a final interlocutor as of the final data inspection.
4.7 From defences to final disposal (or to the last date of data collection for those actions not yet disposed of), the mean and median length of proceedings in the post-implementation sample of defended actions was 66 (mean) and 62 (median) weeks respectively, compared with 90 (mean) and 81 (median) weeks in the pre-implementation sample. The mean is likely to rise slightly in both samples since 16% of the post-implementation sample and 13% of the pre-implementation sample had yet to be finally disposed of. The median in both samples will remain unchanged.
4.8 In the post-implementation sample, the mean and median duration of proceedings from defences to final disposal (or to the last date of data collection for those not yet disposed of) amongst actions proceeding under Chapter 43 weeks was 62 (mean) and 60 (median) weeks, compared with 105 (mean) and 108 (median) weeks for actions remitted to the Ordinary Roll. The mean is likely to increase slightly amongst actions proceeding under Chapter 43 since 10% of actions were not yet disposed of, while the median will remain unchanged. Both the mean and median are likely to rise substantially for actions remitted to the Ordinary Roll, since only 28% had been disposed of by way of a final interlocutor as of the date of the final data inspection.
4.9 The most marked impact of Chapter 43 on the case trajectories of personal injury actions was found at the procedural stage between lodging defences and the interlocutor to allow further procedure (a few days after lodging the record). Actions in the post-implementation sample took on average only 15 weeks from defences to the interlocutor allowing further procedure, compared with 40 weeks in the pre-implementation sample - a difference of almost 6 months. When the post-implementation sample was examined for actions proceeding under Chapter 43 and those transferred to the Ordinary Roll, actions proceeding under Chapter 43 took on average only 13 weeks from defences to the interlocutor allowing further procedure, compared with 52 weeks for actions raised under Chapter 43 but remitted to the Ordinary Roll. In the post-implementation period, therefore, Chapter 43 was responsible for reducing the period between defences and the interlocutor to allow further procedure by over 9 months.
4.10 In the pre-implementation sample, the period between lodging defences and the date set for the first proof diet was on average 130 weeks (30 months). For actions raised and proceeding under Chapter 43 in the post-implementation sample, this was reduced to an average of 59 weeks (just under 14 months).
4.11 In the post-implementation sample, more procedural stages were completed by actions on the way to their final disposal than in the pre-implementation sample. Only 7% of defended actions in the post-implementation sample were finally disposed of before the record was lodged, compared with 28% in the pre-implementation sample. Chapter 43 appears to act as a driver, moving actions through more procedural stages as it moves them more quickly through to their final disposal. Defences were lodged in 94% of the post-implementation sample compared with 86% of the pre-implementation sample, and the record was lodged in 82% of the post-implementation sample compared with 60% of the pre-implementation sample. Specific provisions were implicated in these findings. The time-limited sist and provisions to withdraw from Chapter 43 were implicated in the increased proportion of defences lodged. Provisions to put cases out on the By Order roll for failure to lodge the record timeously were implicated in the increased proportion of records lodged.
CHAPTER 5 BRINGING FORWARD THE DAY OF SETTLEMENT
5.1 The impact of Chapter 43 on bringing forward the day of settlement could not be accurately assessed by comparing the pre-and post-implementation samples. Two essential pieces of information were required: the date to which an action is assigned to a proof diet or jury trial and the date on which settlement is intimated to the Court. These data were not consistently available for both the pre-and post-implementation samples. The research therefore took several different approaches to circumvent the absence of data. All findings point in the same direction and indicate Chapter 43's success in bringing forward the day of settlement.
5.2 The relationship of proof diets to final disposal (rather than intimation of settlement) was first examined. In the post-implementation sample, cases took on average 11 weeks from the time that settlement was intimated to the court to be finally disposed of by the court. On average, actions were disposed of by the court 14 weeks after the proof diet was due to take place in the pre-implementation sample, compared with two weeks prior to the proof diet in the post-implementation sample. While the analysis does not provide a precise picture of "settlement" in relation to proof in the pre and post-implementation eras, (particularly since the date of the proof diet was recorded in CMS for only a minority of pre-implementation actions), the proportion of actions disposed of by the court some weeks prior to the proof diet in the post-implementation sample strongly suggests that an even greater proportion of actions must have settled in the weeks prior to the proof diet. Actions disposed of in the post-implementation sample were calculated to be intimating settlement to the court, on average, 13 weeks before the proof diet. Final disposal of ongoing actions in the post-implementation sample, however, will slightly lower the average.
5.3 In the period following the implementation of Chapter 43, the Court of Session introduced practices that afforded opportunities for more accurate monitoring of settlement patterns, such as pda forms and consistent recording of intimations of settlement. In the post-implementation sample, 69% of all intimations of settlement were lodged in court more than 7 days prior to the diet of proof, with 24% lodged between 15 and 28 days prior to the first proof diet, (that is, in the weeks following the period when most Pre-trial Meetings are assumed to have taken place), 36% more than 28 days before the proof diet and 9% between 8 and 14 days prior to proof. 21 % of intimations were made 5 or less days prior to proof, with 6% of actions settling on the day of proof, 5% on the day prior to proof and 10% on the preceding Friday. This is a conservative - and least optimal - estimate since intimations of settlement were not systematically recorded on the Court Management System until well into the research period. Hence, early intimations of settlement of cases in the sample are likely to have been omitted from CMS.
5.4 As of December 2004, the Court of Session has been consistently recording the date of intimation of settlement to the Court on CMS. 80% of all intimations of settlement were made to the court more than 7 days prior to the diet of proof, with 20% lodged between 15 and 28 days prior to proof. 52% of all notifications of settlement were intimated to the court more than 28 days before the proof diet and 37% more than 56 days. 11 % of intimations were less than 4 days prior to the proof diet, comprising 2% on the day of proof, 4% on the day before, and 5% on the preceding Friday. The data are likely to have underestimated the proportion of last-minute settlements since verbal intimations of settlement - typically on the day of proof - were not recorded on CMS.
5.5 Observation in Parliament House suggests that anywhere between 1% and 10% of personal injury actions proceeding under Chapter 43 settle on the day of proof/jury trial, depending on the week in question. So, for example, there may be greater impetus to clear up cases before Tuesday in those summer weeks when the Court is still in session. Depending on the week, between 13% and 23% of all actions assigned to a proof diet or jury trial had not settled by the previous Thursday evening. Looked at from an alternative perspective, between 77% and 87% of personal injury actions proceeding under Chapter 43 had settled by the time the Proof Roll was posted on the notice-board of Parliament House on the Thursday evening prior to proof/jury trial.
5.6 Finally, further information was collected by the General Department of the Court of Session and analysed by the researcher during the 12 weeks of the Summer Term 2006. This was undertaken with a view to monitoring patterns of settlement in the post-implementation era with greater precision. This exercise produced robust findings. Of the 736 personal injury actions proceeding under Chapter 43 that had been allocated to a proof or jury trial during these 12 weeks, 2% were discharged for a new diet, 2% were discharged for a sist (actions related to pleural plaques), 74% had intimated settlement more than 4 days prior to proof (by the Thursday night), 12% had intimated settlement between 1 and 4 days prior to proof (on the Friday or Monday), and 7% settled on the day of proof/jury trial. A further 18 actions (2.5% of 736) actually ran. Of those actions assigned a proof hearing or jury trial during the 12 weeks of the Summer Term and which settled, 79% intimated settlement more than 4 days before proof, 13% intimated settlement between 1 and 4 days prior to proof, and 8% settled on the day of proof.
5.7 Of the 209 actions (personal injury and non-personal injury) that proceeded on the Ordinary Roll and were set for proof/jury trial during the Summer Term 2006, none were discharged, 52% intimated settlement more than 4 days prior to proof (by the Thursday night), 20% intimated settlement between the Friday and Monday prior to proof, and 19% settled on the day of proof/jury trial. A further 19 actions (9%) actually ran. While actions proceeding under Chapter 43 and on the Ordinary Roll are likely to be dissimilar in many respects, these findings point to the impact of Chapter 43, and particularly Pre-trial Meetings, on reducing the frequency of last minute settlements. Indeed, these figures are likely to underestimate the impact of the Pre-trial Meeting since there were reports that Pre-trial Meetings were frequently being adopted on a voluntary basis in ordinary procedure actions to address concerns over late settlement.
5.8 Work and asbestos related actions were more prone to last minute settlement than other actions, with 22% and 24% of actions intimating settlement less than five days prior to the proof diet, compared with 14% road traffic and 12% vibration/white finger actions. Since these figures are based on a very small number of cases, however, some caution should be exercised, particularly since last minute verbal intimations of settlement were not recorded in CMS. Nevertheless, the data may point to some differences between case types with regard to the effectiveness of Chapter 43 for reducing late settlement.
CHAPTER 6 IMPACT ON COURT BUSINESS
6.1 Chapter 43 introduced several procedural innovations with implications for the business of the court. A minute of the Pre-trial Meeting, for example, was lodged in 22% of defended actions proceeding under Chapter 43. Chapter 43 also introduced mandatory and discretionary callings on the By Order roll to promote compliance with the new provisions and with the timetable. There was one appointment to the By Order roll for every six personal injury actions raised, almost all in relation to failure to lodge the record or the joint minute of the Pre-trial Meeting timeously. Approximately one fifth of the actions involved were found to have already settled. Hence, failure to notify the court of settlement rather than failure to lodge the record or minute timeously was responsible for many actions being put out on the By Order roll.
6.2 Late adjustments, which are subject to a discretionary calling on the By Order roll, were responsible for putting actions out on the By Order roll on only a few occasions. Cases in the post-implementation sample were not found to have been put out on the By Order roll for failure to comply with any other timetable requirement.
6.3 Actions were appointed to the Procedure Roll in 8% of defended actions in the pre-implementation sample, compared with only 2% in the post-implementation sample. Almost all actions in the post-implementation sample that were appointed to the Procedure Roll were transferred to the Ordinary Roll, having been raised under Chapter 43. Only 1% (3) of actions proceeding under Ch. 43 in the post-implementation sample was appointed to the Procedure Roll, compared with 14% of actions signeted under Chapter 43 but subsequently remitted to the Ordinary Roll.
6.4 Actions in the post-implementation sample went through more procedural stages on their path to final disposal than the pre-implementation sample, with defences lodged in all but 6% of actions in the post-implementation sample compared with 14% in the pre-implementation sample, and a closed record lodged in 82% of the post-implementation sample compared with 60% in the pre-implementation sample. Defended actions in the post-implementation sample were less likely to be disposed of before the record was lodged. This has implications for the business of the court, as well as for the cost of litigation.
6.5 Motions are generated in the wake of procedural innovations introduced by Chapter 43, and play their part in a strategy that is designed to vest control over the pace of proceedings in the court. Motions to withdraw from Chapter 43, to sist and to vary the timetable may be starred and call in court where material placed before the judge is insufficient to warrant granting them. Motions for discharging the proof diet call in court. 3 Motions for summary decree and for interim payment of damages always call in court. The average number of motions per defended personal injury case was found to have reduced slightly with the introduction of Chapter 43, (from 6.2 motions per case in the pre-implementation sample to 5.6 in the post-implementation sample). Starred motions, however, appeared with greater frequency: in 22% of defended actions in the pre-implementation sample but in 38% of defended actions in the post-implementation sample. Starred motions were found in a very high proportion of actions remitted to the Ordinary Roll, due to the discretionary starring of motions for applications to withdraw from Chapter 43. While more than one starred motion appeared in 5% of defended actions in the pre-implementation sample, they appeared in 13% of defended actions in the post-implementation sample.
6.6 The allocated proof diet was discharged and a second proof diet fixed in 9% of defended actions that proceeded to proof under Chapter 43 in the post-implementation sample. As of April 2006, a small proportion of second proof diets had also been discharged and a third proof diet allocated, and this is likely to increase as the most 'difficult' cases in the post-implementation sample are dealt with. Comparison with the pre-implementation sample is not possible because of missing data. Further monitoring is required in that the allocation of second and third proof diets has implications for the work of the Court and the effectiveness of Chapter 43's provisions for case flow management.
6.7 The perception of Court of Session staff was that Chapter 43 had been responsible for a shift in their workload. While less time was now being spent in court, Chapter 43 was responsible for introducing new desk-based tasks and for increasing the volume of many established desk-based tasks.
PART III MONITORING PROCEDURE: QUALITATIVE ANALYSES
CHAPTER 7 SIMPLIFYING PROCEDURE
7.1 The Working Party sought to reduce delay in personal injury actions by eliminating unnecessary diversions on the path to settlement. Abbreviated pleadings and withdrawal of automatic entitlement to the Procedure Roll are the key provisions introduced by Chapter 43 to simplify procedure for routine personal injury actions raised in the Court of Session and to eliminate unnecessary diversions. In acknowledgement that some actions are complex, and that simplified procedures may therefore be inappropriate, provisions were also introduced for withdrawing from Chapter 43. These provisions were monitored by the research and examined from the perspective of different stakeholders.
7.2 Interviews with practitioners found quite marked differences of opinion. Solicitors for pursuers mostly endorsed abbreviated pleadings for releasing them from "the slavish reliance upon written pleadings" and for providing them with some respite from an increasing demand for factual specification. They were concerned, however, that some defenders were still putting in skeletal defences and that the introduction of Chapter 43 had done little or nothing to eliminate 'formulaic responses' and 'blanket denials', which were blocking opportunities for reducing delay and reducing opportunities for obtaining summary decree. Skeletal defences also reduced the potential for pursuers to obtain interim damages, as well as having implications for case preparation. Pursuers pointed to the new Civil Procedure Rules for England & Wales which, by contrast, were designed to eliminate blanket denials by requiring defendants to set out the factual grounds or legal arguments on which their denials were based.
7.3 Almost all defenders' agents expressed strong reservations over the introduction of simplified pleadings. Defenders' agents were particularly exercised by the absence of pleas-in-law and the quality of pleading, especially in regard to their impact on the conduct of proof. This was an important consideration in decisions to transfer actions to the Ordinary Roll, for example, in medical negligence actions raising issues of professional competence.
7.4 Advocates reported that many firms, and particularly defenders' firms, were no longer instructing counsel to draft pleadings. This trend had been accelerated by the introduction of simplified pleadings: "They probably feel they are less likely to fall into a technical trap now".
7.5 Advocates expressed mixed feelings over the introduction of simplified pleadings and identified their dangers, particularly for pursuers. While lack of clarity in the pleadings and omission of legal duties were particularly unhelpful for counsel instructed by defenders, they also had implications for the smooth running of the court and for progressing the action in the interests of both parties. Counsel reported uncertainties with regard to practice: fear of not giving fair notice was co-present with fear of providing the court with too much detail. In view of what had happened to pleadings in Optional Procedure, some observed that there was an in-built pressure towards increasing elaboration in the Court of Session.
7.6 Appointment to the Procedure Roll is no longer granted automatically under Chapter 43. Parties must convince the court in writing and at a hearing on the Motion Roll that a hearing on the Procedure Roll, whether for a preliminary proof or to repel issues for jury trial, is required. It is defenders who, by opposing pursuers' applications for further procedure by proof or jury trial, normally make these applications. Questions of specification and relevancy, and opposition to issues for jury trial, were dealt with at Motion Roll hearings and without resort to the Procedure Roll, with hearings on the Motion Roll allocated an average of twenty to thirty minutes of court time.
7.7 As expected, pursuers' agents showed greater enthusiasm for these provisions. In some cases, defenders thought that the Motion Roll hearing provided some opportunity for repair to the damage caused by abbreviated pleadings. In other cases, the entitlement to be heard on the Procedure Roll under ordinary procedure was sufficient cause for defenders to make application to withdraw from Chapter 43. While some pursuers admitted to certain dangers in losing the Procedure Roll ( "what the new procedures should not be is a ticket for an irrelevant case"), they were generally of the view that the Procedure Roll was too often employed as a delaying tactic by defenders. They endorsed the robust stance that judges were taking in granting appointment to the Procedure Roll ( "relevancy points only seem to be entertained if it is a full 'knock-out' point - and this represents a distinct cultural change").
7.8 There were many reports of difficulties in putting these provisions into practice. Hearings on the Motion Roll were frequently over-running the time allocated to them and becoming 'mini-debates'. Judges were of the view that complex issues may arise with regard to further procedure that could not be dealt with at a 20-30 minute hearing on the Motion Roll. In particular, a discussion as to whether further procedure should be by way of proof or jury trial could be very time-consuming. Allocating these issues to the Motion Roll, moreover, could be disruptive to the court's programme and detrimental to the expeditious disposal of the Court's daily business. There were no conclusive findings as to the benefit of recent proposals for the arrangement of continued hearings on the motions roll. Like abbreviated pleadings, counsel expressed uncertainties as to practice at Motion Roll hearings for further procedure. They found it difficult to balance how much detail was needed with how much was expected, mainly because it was unclear as to what was expected of them.
7.9 Application to remit actions out of Chapter 43 and transfer them to the Ordinary Roll must be made within 28 days of defences. Lords Ordinary have the discretion to call unopposed motions in court or to grant them without calling. Lords Ordinary determine whether there are exceptional reasons for justifying withdrawal from Chapter 43. Practitioners reported that judges dealt fairly and strictly with applications to withdraw from Chapter 43: "I think they have shown the political will to make the Rules work". They were generally satisfied with the grounds on which motions to withdraw from the procedure were granted or refused by the bench. For their part, judges referred to the very exceptional circumstances under which they would grant motions to withdraw from the procedure.
7.10 Defenders were reported to be more likely to make application to withdraw from the new procedure in some kinds of cases, and pursuers in others. They met opposition very infrequently. Though application to withdraw was sometimes made on grounds of complexity in law, more often it was complexities with regard to quantification that required greater detail in the pleadings. While medical negligence actions comprised the bulk of actions transferred to the Ordinary Roll, most practitioners in this area were of the view that any decision to make an application for transfer should be taken on a case-by-case basis.
7.11 The time-limited sist, rather than issues of complexity, was frequently identified as the reason why agents made application to withdraw from Chapter 43, particularly for actions that were signeted prior to investigation and prior to intimation of the claim in order to beat the triennium. This included many of the clinical negligence actions that were transferred to the Ordinary Roll.
7.12 Several practitioners called for greater flexibility in the provisions to withdraw, particularly with regard to the requirement that applications to transfer out must be lodged within 28 days of defences. The need for flexibility was grounded in the very nature of personal injuries and their unpredictability. Some actions were reported to have been remitted out of Chapter 43 prematurely, while others had reportedly remained under Chapter 43 inappropriately due to the 28 day post-defences deadline. Suggestions were made as to how to introduce flexibility into the system without encouraging delaying tactics.
7.13 A number of practitioners, and particularly those involved in medical negligence actions, pointed to the waste of time and money expended in actions that, in their view, were bound for remittal. In the first place, expenses are involved in making the application to remit out of Chapter 43. Secondly, since all personal injury actions signeted to the Court of Session are raised under Chapter 43, constraints are put on the formulation of pleadings in complex medical negligence actions. Once these actions are remitted to the Ordinary Roll, it is then necessary to change the pleadings. These concerns are presently being addressed by the PIUG.
7.14 The general consensus was that while the trend was already evident, abbreviated pleadings might have contributed to an increase in the number of jury trials appointed over the past few years in that they "leave less scope for defenders to point to irrelevancies in the pleadings". Similarly, the ease with which jury trials could be sought under Chapter 43 might be responsible for the increasing propensity of pursuers to seek them: "Now that it is just a motion rather than a debate, it's worth doing". In the three years since the introduction of Chapter 43, the number of actions appointed to jury trial in the Court of Session increased by 64%, most of them actions proceeding under Chapter 43. Of the 34 actions appointed to a jury trial for Summer Term 2006, for example, 29 (85%) were personal injury actions proceeding under Chapter 43 and five (15%) were actions (personal injury and non-personal injury) proceeding under ordinary procedure. Though practitioners identified many advantages, there were certain disadvantages to opting for a jury trial, such as the loss of the early proof diet fixed by the Court under Chapter 43. Counsel also attributed to Chapter 43 a growing uncertainty as to how jury trials may best be sought; particularly with regard to just how abbreviated the pleadings should be for a jury trial to be granted.
7.15 Some practitioners attributed an increase in the continuation of proof diets to the simplification of pleadings. Defenders also argued that abbreviated pleadings put them at considerable disadvantage at proof. Judges were not convinced that abbreviated pleadings were responsible for proof diets running over their 4-day allocation. Some practitioners and one Lord Ordinary were of the view that proofs were allocated too early under Chapter 43, and before parties could know how many days were required. This was exacerbated by simplified pleadings, which did not allow defenders to assess the number of proof days needed until a much later stage in the procedure. Once allocated, practitioners did not want to lose their allocated proof diet, even if more days might be required. In any case, they usually expected actions to settle before the proof diet and were unwilling to remove the lever that triggered settlement at the earlier date.
CHAPTER 8 INNOVATING PROCEDURE
8.1 This chapter focuses on the second key component of the Working Party's strategy, namely, the introduction of new mechanisms to accelerate settlement. It examines the two main innovations that were introduced by Chapter 43, namely, provisions for lodging Statements of Valuation of the claim and for holding a Pre-trial Meeting, as opportunities for expediting settlement and for reducing delay.
8.2 The Working Party observed that most personal injury actions settled in the days immediately prior to proof and attributed last minute settlement to the late exchange of information crucial for settlement discussions. It identified the anticipated date of proof/trial as the point at which pressure
was exerted on parties to provide information on quantum. It therefore devised mechanisms that would replicate this, but at earlier stages in the procedure.
8.3 On the basis of the Working Party's recommendations, Chapter 43 introduced provisions for each party to lodge a Statement of Valuation of claim, with a list of supporting documents, soon after lodging defences. It also introduced provisions for a Pre-trial Meeting, to be held not later than four weeks before the date assigned for proof, for a joint minute recording that meeting to be lodged by the pursuer not later than three weeks before proof or trial, and for parties to lodge in process a list of witnesses and productions at least eight weeks before proof.
8.4 While Statements of Valuation were welcomed in principle, there was a high degree of dissatisfaction with them in practice. They were reported to be poor in quality, and were marked by missing information, an absence of realism and a lack of seriousness. Practitioners attributed their limited success to the ways in which the provisions were put into practice, and to the provisions themselves. They identified issues around vouching, timing and compliance.
8.5 Practitioners reported that valuations were failing to generate early tenders and to achieve early settlement because solicitors were not adequately providing them with documentary support. This was partly a matter of culture, which the new procedure had failed to change. It was also a matter of the procedure itself. Many practitioners blamed the provisions for failure to specify the documents that should be produced, and saw this to be a fundamental flaw in the Rules. Defenders were dissatisfied with provisions for the inspection and recovery of documents, and observed that it was difficult to lodge realistic valuations without seeing the records.
8.6 The timetable for lodging Statements of Valuation (presently 8 weeks following defences for pursuers and 16 weeks for defenders) was strongly criticised. Firstly, it was too early in the procedure for reports to be available. The assumption behind the New Rules was that pursuers' firm should be and would be 'front-loading'. The reality, however, was that they were not 'front-loading', and this was partly blamed on payment in Scotland for pre-litigation investigation and preparation which provided no incentive to do so (Chapter 10). It was also blamed on local agents who reportedly held on to claims right up until a few weeks before the triennium, when they would then hand them over to Edinburgh agents if they had not succeeded in settling them. This gave Edinburgh agents no time for pre-litigation preparation, even if there had been the incentive. Actions were sometimes therefore raised in the Sheriff Court because it was too difficult to accommodate to the Chapter 43 timetable. Secondly, Statements of Valuation were required too far away from the Pre-trial Meeting to offer a meaningful preamble to discussions on settlement. By the time that the Pre-trial Meeting came around, they were already stale.
8.7 Practitioners were also of the view that Statements of Valuation were not working as intended because there was a failure to apply sanctions with regard to a number of departures from the spirit and/or the letter of the Rules. Failure to apply sanctions was observed both with respect to the Statement of Valuation itself and the supporting documentation. There appeared to be no agreement, however, as to how and when sanctions should be applied.
8.8 Chapter 43 makes only a few provisions for the conduct of the Pre-trial Meeting, including provisions for lodging lists of witnesses and productions, the timing of the meeting, and the lodging of a joint minute of the meeting. Otherwise, the conduct of Pre-trial Meetings has been left largely to the discretion of practitioners.
8.9 Provisions for lodging lists of witnesses and productions were thought to be too vague by some interviewees, and several practitioners called for them to be brought forward even earlier. The timing of the Pre-trial Meeting was thought to be "about right" for most actions, but too late for actions involving multiple defenders. There was considerable debate over what should be included in the pro-forma on which the minute of the Pre-trial Meeting was lodged, and there was concern that the minute was not read by the Court, could not generate sanctions and had no real usefulness. Some of these concerns are currently being addressed by the PIUG.
8.10 Most of the practical features of the Pre-trial Meeting are left to practitioners to arrange. Some practitioners reported tensions and difficulties around the lack of guidance for Pre-Trial Meetings, while others observed that it presented few problems. Nevertheless, all agreed that no further guidance was required. However, disagreements were apparent with respect to how the Pre-trial Meeting was to mirror Tuesday morning, and particularly with respect to who should participate in the Pre-trial Meeting and what role they should play.
8.11 Pre-trial Meetings were being set up mainly by pursuers' agents and taking place primarily in the Faculty of Advocates' consultation rooms in Edinburgh. Agents were satisfied with the facilities and the neutrality that these premises offered. The most significant exception to these arrangements were for industrial disease actions, with Pre-trial Meetings frequently taking place in the Glasgow offices of one pursuers' firm and conducted without the involvement of counsel.
8.12 Both claimants and insurance company representatives were reported to be attending Pre-trial Meetings, though few appeared to be sitting in on the negotiations between counsel. Where parties were not in attendance, someone who could speak on their behalf was present and/or could be contacted by telephone. Some Pre-trial Meetings were conducted as round-table fora with agents and counsel, while others were conducted by counsel meeting together in one room and then returning to consult with agents and parties. Pursuers were likely to be represented by counsel at Pre-trial Meetings, though sometimes by solicitor-advocates. Defenders were frequently found not to instruct counsel, either where they saw no prospect of settlement or more generally where there appeared to them to be no cost-benefit to instructing counsel. On the grounds that the Pre-trial Meeting was intended to 'mirror' Tuesday morning, counsel often did not take kindly to this and there were reports of several tense stand-offs. This also had implications for the signing of the joint minute recording the Pre-trial Meeting, and bad feeling was generated around this issue.
8.13 Unlike Statements of Valuation, however, practitioners were positive as to the value of the Pre-trial Meeting, and identified it as a good medium for negotiating settlement. While joint consultations had been arranged on a voluntary basis under the old rules, they were now being arranged for actions proceeding under ordinary procedure, and more frequently than they had been in the past. This was due to the success of Pre-trial Meetings for actions proceeding under Chapter 43. Though most practitioners found some value in the Pre-trial Meeting - and many praised it highly indeed - they qualified their praise by reflecting on the circumstances under which some Pre-trial Meetings had achieved much while others had achieved little.
8.14 Though Pre-trial Meetings were expected to work by mirroring Tuesday mornings, practitioners did not believe that Pre-trial Meetings had or could replicate the morning of proof. Indeed, to the extent that Pre-trial Meetings were successful in expediting settlement, it was because practitioners took an approach that did not mirror a Tuesday morning. Successful Pre-trial Meetings were constructive, co-operative, amicable and reasonable. There was the potential and the temptation for the Pre-trial Meeting to be treated tactically, however, and this resided in the fact that, unlike Tuesday morning, proof was at least four weeks away. There was little willingness to negotiate at a Pre-trial Meeting where a tender was already on the table, and sometimes Pre-trial Meetings were reportedly doomed to fail from the very start. The Pre-trial Meeting did replicate the morning of proof, however, in one important respect: like the morning of proof, it was responsible for drawing and concerting the attention of all parties to a particular action at one particular point in time.
8.15 Successful Pre-trial Meetings required not only the willingness of parties to negotiate but also the authority of those present to engage in productive negotiations and the availability to them of information over which negotiations could be fruitfully conducted. Some agents were reported to go to great lengths in order to prepare themselves for the Pre-trial Meeting, while others were frequently unprepared. Many practitioners were of the view that Chapter 43 provisions, and particularly Statements of Valuation and the lodging of lists of witnesses and productions, had failed in their objective of providing the information that was required for productive negotiation to take place at the Pre-trial Meeting. Because there was no-one to oversee or 'case-manage' the Pre-trial Meeting, "so much depends on the parties, who represents them, and what instructions they have". As a result, practitioners identified considerable variability in the quality and effectiveness of Pre-trial Meetings.
8.16 Pre-trial Meetings were sometimes reported to be unsuccessful in expediting settlement because the issues involved were too great or too many to deal with at a single sitting. Pre-trial Meetings involving multiple defenders, (typically industrial disease cases), were frequently reported to be less successful. This was because defenders in multiple defender actions often found it difficult to co-ordinate themselves prior to the Pre-trial Meeting: "If you are going to a Pre-trial Meeting, you have to be organised and you have to have everyone on board". Pursuers argued that settlement was likely to be expedited if defenders were required to meet prior to the Pre-trial Meeting, with or without pursuers. Defenders were less sanguine. They argued that what they needed was more information on claimants' employment histories and that they should be able to request a commission, which was only currently available to pursuers.
8.17 Pre-trial Meetings appeared to work best where counsel, solicitor-advocates and agents shared a relationship of mutual understanding and trust. Poor experiences and unacceptable behaviour at one Pre-trial Meeting did not bode well for future Pre-Trial Meetings. Trust, confidence and reputation between the leading players performed a major role in the effectiveness of Pre-trial Meetings.
8.18 Patterns of participation at Pre-trial Meetings varied from case to case, and practitioners reported that this could make a considerable impact on Pre-trial Meetings. Practitioner reports were not always consistent, however, and variations often depended on their differing perspectives as agents or counsel, representing pursuers or defenders. So, for example, some practitioners reported that the presence of claimants could obstruct discussions that were conducive to settlement while the presence of defenders could play an instrumental role in reaching settlement. Some pursuers' representatives, however, observed that insurers/defenders could make an impact that was not conducive to settlement, since defenders' legal representatives tended to 'grandstand' in their presence. Counsel was frequently of the view that agents should not be present at Pre-trial Meeting negotiations since this could impede 'frank and full discussions', while many agents insisted that they should be present - not least on grounds of efficiency and effectiveness. Pursuers' agents and counsel held that Pre-trial Meetings were more effective when defenders were represented by counsel rather than agents and when counsel negotiated without the presence of their instructing agents, in front of whom they were likely to 'grandstand'.
8.19 The absence or presence of trust appeared to underlie these differing perspectives on the effectiveness of Pre-trial Meetings. In the first place, some agents appeared to distrust the 'cosiness' of the Bar and believed that it did not always promote the interests of their clients. The Bar's 'cosiness' was in contradistinction to how personal injury firms operated, with lines drawn strongly and adversarially between pursuers' and defenders' agents. At the same time, the Bar sometimes perceived the presence of agents as an intrusion on the real business of the Pre-trial Meeting. Secondly, business and professional pressures were sometimes perceived to be responsible for unsettling the accommodations that had evolved between pursuers' and defenders' agents, and between counsel for pursuers and defenders. Mutual accommodations were disrupted by insurance company representatives in the presence of defenders' agents and by instructing agents in the presence of counsel.
CHAPTER 9 MANAGING PROCEDURE
9.1 The third key component of the new procedure for personal injury actions in the Court of Session was the introduction of case flow management. This was designed to address delay in the progress of actions through the court by introducing a timetable of key events and stages in the procedure, which would be administered by the Court and overseen by Court staff and judges. This was to be applied to actions proceeding under Chapter 43, but not those remitted to the Ordinary Roll.
9.2 The most significant changes introduced by Chapter 43 were new provisions that sought to vest control over the pace of procedure in the Court. They included the introduction of a timetable, time-limited sists, and requirements to ensure that parties adhere to the timetable and its provisions. Chapter 43 also made some changes to the pre-existing Ordinary Rules timetable. These provisions apply to all personal injury actions signeted in the Court of Session up to the lodging of defences, and to all actions proceeding under Chapter 43 following the lodging of defences. Actions remitted to the Ordinary Roll following the lodging of defences are no longer subject to the Chapter 43 timetable.
9.3 With regard to changes to the pre-existing timetable, pursuers' agents called for greater flexibility in the provision whereby the instance falls if a summons has not been called within three months and a day following signeting. Practitioners articulated no problems as to the requirement to lodge the record within 10 weeks of defences, (reduced from approximately 14 weeks under ordinary procedure), even though it required changes in practice that were far more dramatic than a difference of 4 weeks might appear to indicate. The ordinary procedure timetable with regard to lodging the record had been honoured in the breach under the old rules, while compliance with the new timetable was very high under Chapter 43. While all practitioners welcomed the requirement for earlier lodging of productions and lists of witnesses, some called for even earlier lodging on the grounds that this would better prepare both parties for the Pre-trial Meeting and make the prospect of settlement more likely.
9.4 Following the lodging of defences, the Court allocates all actions proceeding under Chapter 43 to a proof diet. In the early implementation phase, this was 12 months ahead. By Summer Term 2006, however, proofs were being assigned to a diet approximately 10 months after defences. All actions are allocated a 4 day proof diet, unless parties indicate otherwise at the time. Practitioners agreed that this provision constituted the crucial driver in the new system. By taking the pace of procedure out of the control of parties and putting it under the control of the court, the assignment of all defended actions to a proof diet following defences was responsible for accelerating them through the court.
9.5 Practitioners welcomed the principle behind Court allocated proof diets in routine personal injury actions and none proposed restoring control to the parties involved. However, some practitioners, as well as judges, articulated strongly held views as to the best stage in the procedure at which to assign defended actions to a proof diet. They suggested that some time after lodging the record and allowance of further procedure was preferable, and several reasons were given. Some held that early assignment of actions to proof was responsible for some proof hearings continuing over the time allocated. The length of a proof diet could not be estimated early in the process. Once a four day proof was allocated, however, practitioners were reluctant to lose an earlier date by changing it for a later, albeit longer, diet of proof. Also, because actions are only allowed a jury trial after the record has been lodged and with a proof diet already fixed, and because the waiting time is approximately 16 months from the date on which it is assigned, some practitioners perceived that they had thereby been sent to the "back of the queue" by being required to wait for a much later jury trial.
9.6 The timetable was addressed by practitioners with regard to particular items. Significant problems were identified with regard to third party procedure, which had implications for the quality as well as the cost of 3 rd party participation in the new procedure. Likewise, anomalies were observed with regard to multiple defenders. Some practitioners were of the view that provision to apply for transfer to the Ordinary Roll was too early in the process (within 28 days of lodging defences), and suggested that it should either be moved to a later stage in the process or that some flexibility in the timetable should be provided for making later applications to transfer out. There was considerable dissatisfaction with the timetabling of Statements of Valuation: for being too early in the process and for being too far away from the Pre-trial Meeting. Some called for the earlier timetabling of lists of witnesses and productions and also Pre-trial Meetings, particularly where multiple defenders were involved.
9.7 The timetable was also addressed with regard to its overall structure. A common theme emerging in the interviews conducted with practitioners was the desire to close the gap between Statements of Valuation and the Pre-trial Meeting. Some suggested that Statements of Valuation should be lodged far later than the timetable presently required, moving backwards in time many of the provisions timetabled in relation to defences. Others were of the view that the gap should be closed by bringing forward in time those requirements that were timetabled in relation to the proof diet.
9.8 Under Chapter 43, applications to sist must be placed before Lords Ordinary. They are granted only on special cause and are time-limited by the court, usually for up to three months. Time-limited sists were introduced to allow the court to take control over the pace of procedure. Once actions are transferred out of Chapter 43, they are no longer subject to the time-limited sist. Some practitioners reported that actions were often transferred out of Chapter 43 to circumvent the time-limited sist. These included actions involving 'last-minute' claimants, defenders brought late into the action under 3 rd party procedure and applications for legal aid. Because some actions might have benefited from the discipline of the procedure had they remained under Chapter 43, some practitioners called for greater flexibility with regard to sisting so as to allow them to remain within Chapter 43. Greater flexibility would also allow for better preparation of those actions that remained within Chapter 43, particularly with regard to Statements of Valuation.
9.8 To promote compliance with the timetable, Chapter 43 requires that all motions to vary the timetable are placed before Lords Ordinary and are granted only on special cause shown. Joint, unopposed or motions 'of consent' to vary the timetable may be 'starred' at the discretion of the Court and called in court. This provides the Court with an opportunity to address the "culture of mutual indulgence" that had been observed in the Court of Session. There were demands for greater flexibility with regard to some provisions and calls for greater stringency with regard to others.
9.9 Greater flexibility to vary the timetable was called for with regard to withdrawing from Chapter 43. This would prevent appropriate actions from being remitted out and inappropriate actions from remaining under Chapter 43. There were many calls for greater flexibility for lodging late records, particularly since actions were being called on the By Order roll to explain the late lodging of records that had already been lodged, and at great expense to parties. This is being addressed by an Act of Sederunt, which was in preparation at the time of writing. Similar concerns were articulated with regard to lodging the minute of the Pre-trial Meeting, which have now been addressed. Any motion seeking to extend the date for lodging the minute of the Pre-trial Meeting by a few days, and accompanied by a reasonable explanation for the delay, is now accepted by the Court without putting it out By Order.
9.10 As well as calls for greater flexibility, there were also calls for greater stringency, particularly with regard to discharging proof diets. The number of proofs discharged in actions proceeding under Chapter 43 was a matter of some concern, particularly in view of the fact that a second proof diet was allocated approximately 12 months later and actions appeared to "go off the rails" once a proof diet was discharged. Motions to discharge the proof diet are starred and call in court, unless Lords Ordinary direct otherwise - in which case, they may remain unstarred and granted without the appearance of counsel or solicitor-advocate. Reports suggested that the circumstances under which Lords Ordinary may grant a motion 'of consent' to discharge the proof, or grant a motion that was opposed, were likely to vary.
9.11 Practitioners were in no doubt as to the effectiveness of mandatory and discretionary By Order hearings for introducing discipline into the procedure. They were of the view that By Order hearings 'worked' in the Court of Session and that 'automatic' By Orders were crucial for vesting control over the pace of procedure in the Court. Analyses of case trajectories conducted as part of this evaluation lent support to their views, particularly with regard to lodging the record. Some were troubled by the steps currently being taken to limit the mandatory requirement of By Order hearings for failure to comply with the timetable, particularly the change from mandatory to discretionary hearings for late lodging of the record. They were concerned that this may prove to be a 'slippery slope' and were fearful as to where it might lead.
9.12 Practitioners noted that other opportunities for putting procedure under the control of the Court were not being taken up. So, for example, the court rarely put a cause out By Order where it was not mandatory to do so. Practitioners also reported that the court was not granting practitioner requests for By Order hearings. Sometimes they felt as if they had reached an impasse, over which the Rules and the Court offered them no assistance. They called for the Court to take up more active case management in these circumstances. While they were satisfied with the application of case flow management techniques for dealing with most routine personal injury actions, some were convinced that there was a place and need for judicial intervention in certain cases proceeding under Chapter 43. Judicial intervention was indicated, for example, whenever the minute of the Pre-trial Meeting suggested that no progress towards settlement had been made.
9.13 A strong call for judicial intervention at earlier stages in the procedure came from practitioners involved in mesothelioma actions. They reported that these actions were particularly susceptible to blanket denials, which had continued unabated under Chapter 43, and that these were responsible for delaying settlement until the day of proof. They regretted the withdrawal of the asbestos (Lord Mackay's) court and that the minimal case management powers offered in asbestos related cases had been replaced by a 'one size fits all' procedure following the introduction of Chapter 43. Mesothelioma actions were anything but routine. At the same time, they required the speed that Chapter 43 had the capacity to provide. They argued for expanded judicial powers under Chapter 43 at an earlier stage in the procedure, akin to the Court of Session commercial court and to the case management powers provided by Civil Procedure Rules 1999 in England and Wales to actions appointed to the 'Multi Track'.
9.14 Actions transferred to the Ordinary Roll are not subject to any of the provisions of Chapter 43 once they are remitted out. Though 'joint consultations' had been held prior to the introduction of Chapter 43, practitioners reported that they were now being arranged for actions that had transferred to the Ordinary Roll, and far more frequently than prior to the introduction of Chapter 43. The case for avoiding last-minute settlement in actions remitted out of Chapter 43 was made by many practitioners who argued that they were often the very cases for which a Tuesday morning settlement was entirely inappropriate. There were also calls to reduce delay in personal injury actions remitted out of Chapter 43 to the Ordinary Roll and for many of the provisions responsible for assisting disclosure and reducing delay in actions proceeding under Chapter 43 to now be applied to remitted actions.
CHAPTER 10 IN THE PUBLIC INTEREST
10.1 The remit of the Working Party was to devise a simplified procedure that would reduce delay, bring forward settlement from the day of proof and improve efficiency in the operation of the court. The Working Party also sought to address a number of issues in the public interest, including the quality of justice for claimants, the reduction of inconvenience for witnesses and the costs associated with last-minute settlement. 4 This chapter looks at the implications of Chapter 43 for their impact in these areas. While defenders were themselves interviewed, legal representatives spoke on behalf of claimants.
10.2 The new procedure was reported to have had an appreciable impact on claimants. It gave them some sense of inclusion, compared with the overriding sense of exclusion from the procedure that prevailed in Parliament House on the morning of proof. While no hard data were available to assess whether settlements were closer to their 'just' value, the process by which settlements were achieved under Chapter 43 was welcomed for bringing it closer to normative ideas of justice. Because actions settled earlier, there was now less pressure on claimants to "bail out" at the last moment, and claimants were also more likely to come to terms with the value of their settlement. Practitioners representing claimants had a strong sense that interests of justice were better served by Chapter 43.
10.3 The New Rules were welcomed by one defender (representing a Health Board) for assisting it in putting its public service values into practice by reducing delay and expediting settlement. Insurers welcomed any reduction in delay, which they reported was in their financial interest - albeit contrary to widely held beliefs. They argued that the cost of litigation was a public interest issue since it was ultimately borne by their policy holders and the consumers of their policyholders' services. They found the New Rules too limited in their scope, however, and as representatives of large UK-wide companies frequently made comparisons with England and Wales. They referred to the substantial reduction in litigation through the introduction of pre-action protocols following the Woolf reforms. Nevertheless, they readily acknowledged that pre-litigation (extra-judicial) fees in Scotland were "a pittance" compared to England and Wales, and perceived this to be a strong incentive to litigate in Scotland. 5 A local authority officer, representing a third group of defenders, reported that the cost to local authorities of defending personal injury actions in the Court of Session far outweighed the value of actions raised there. He reported that actions were being settled by local authorities because of the costs involved, rather than the justice of the claim, and raised concerns that Chapter 43 might even be implicated in aggravating this.
10.4 Inconvenience due to last minute settlement/discharge of proof was more likely to impact on expert witnesses dealing with issues of liability than issues of quantum, since they were more likely to be called on the first day of proof or trial. Though expert witnesses sometimes found themselves under increased pressure due to Chapter 43, they did not always find this disadvantageous since it could introduce clarity into their diaries and to their professional responsibilities. It was unclear as to whether there were any changes to the charging of cancellation fees since the introduction of Chapter 43. Some expert witnesses never charged them, though some - and particularly those in private practice - reported that they did. Since many actions were cancelled at around the time of the Pre-trial Meeting, informants presumed that the frequency with which cancellations fees were charged was decreasing, as well as the amount charged. While expert witnesses expressed mixed views as to the introduction of a single joint expert report in England and Wales, they compared Scotland unfavourably with regard to the recovery of (pre-injury) medical documents.
10.5 The assumption that a reduction in delay automatically resulted in a reduction of parties' legal costs was frequently found to have been made. The assumption was based on the belief that longer cases invariably require more professional input. Whether or not Chapter 43 was responsible for making more or less inputs prior to settlement is an empirical question, however, and the research sought to provide an evidence-based answer to this question.
10.6 Quantitative and qualitative evidence suggests that while actions raised under Chapter 43 were settling earlier in time, they were settling later in the procedure. This had obvious implications for costs. Some practitioners also reported that Chapter 43 had increased the cost of litigation since it had imposed additional inputs. These included additional requirements imposed by Chapter 43, as well as mechanisms for ensuring compliance, such as By Order hearings. Among additional requirements, they reported that Statements of Valuation were expensive because experts were now being involved at an earlier stage in the process. They were also involving both solicitors and counsel. Pre-trial Meetings were reported to be particularly expensive. For defenders, a Pre-trial Meeting could involve recoverable fees of £3,000, in addition to their own costs.
10.7 Compared with the cost of running a proof diet, the Pre-trial Meeting was value for money. Compared with the cost of last-minute settlements, it also appeared to be value for money since it avoided 'disappointment' fees for counsel and cancellation fees for expert witnesses. Since both quantitative and qualitative evidence pointed to the fact that many more actions were settling far earlier in the post-implementation period, it therefore seems likely that Pre-trial Meetings did represent value for money. It only represented a saving, however, if litigation was necessary in the first place.
10.8 Defenders' agents were of the view that many of the fees generated under Chapter 43 were unnecessary. They reported that provision had been made in the fee structure for the extra work that the New Rules would require of solicitors. They noted that pursuers' agents frequently involved counsel in this work and they resented the involvement of counsel where they felt it was not necessary. They argued that the Table of Fees, together with the liability of the unsuccessful party to meet the expenses of the successful party, put claimants' solicitors under no pressure to be cost-efficient.
10.9 Pursuers' agents, on the other hand, argued that it was not a free-for-all, but that they were constrained by the Table of Fees and what would pass the Auditor of Court as a reasonable expense. They pointed out that, unlike England and Wales, claimants were not in the position to recover all of their fees in Scotland, because there was no provision in the law for the recoverability of fees and insurance premiums in Scotland. Some solicitors reported that they recovered higher fees for their own work in the Sheriff Court than in the Court of Session. Their claim was supported by one officer of court who, reporting that the cost of personal injury actions had risen noticeably under the New Rules, identified the substantial rise in outlays for counsel and experts as playing a large part in the increased cost.
10.10 Defenders were particularly exercised over the assumption made by some members of the judiciary that because delay had been reduced by Chapter 43, the cost of litigation was invariably lower. While Chapter 43's reputation as a high speed procedure achieving the satisfactory resolution of personal injury claims was acknowledged, defenders held that concomitant cost reductions were yet to be proven. To support their view, some provided information as to the high level of expenses (recoverable costs) in actions that settled at even the very earliest stages of the litigation process under Chapter 43. At the same time, they noted that the bench had refused calls for Sheriff Court expenses to be applied in some Chapter 43 actions on the grounds that since delay had been reduced in the Court of Session, litigation was unquestionably less costly than had it proceeded in the Sheriff Court.
10.11 Defenders and their accountants were beginning to examine costs systematically, though it was still too early in the life of Chapter 43 to make robust comparisons with actions raised prior to April 2003. In the early implementation phase, they were of the view that expenses under Chapter 43 appeared " disappointingly high". By late 2006, however, disappointment was giving way to some optimism. The cause for this newly found optimism was attributed by one key informant to changes in the approach of defenders since Chapter 43 was first introduced - changes that were grounded in their growing realization that adequate preparation for the Pre-trial Meeting, followed by settlement at or soon after it, was financially advantageous. A recent decision ( Harvie v. GGPHNHS Trust [March 2006]), limiting counsel's preparation fees, might also have contributed to setting some restraint on the growth of outlays.
10.12 The introduction of Chapter 43 has given strong support to the funding of personal injury litigation through Conditional Fee Agreements, which is by now the predominant system of funding pursuers' litigation in claims for damages involving personal injury. Pursuers' firms depend on speedy settlement for recouping outlays and returns on their investment. Chapter 43 provides them with the means to do so. The new procedure has therefore provided and expedited access to justice for those whose claims for damages arising from personal injury are amenable to funding via this route.
PART IV CONCLUSION
CHAPTER 11 SUMMARY AND EMERGING ISSUES
Users
11.1 There was a 50% growth of personal injury actions raised in the Court of Session between 1996 and 2001, when the number of new personal injury actions reached a monthly average of 247. Though there has been a gradual increase in the monthly average of new personal injury actions raised since the introduction of Chapter 43 in April 2003, the peaks achieved in the preceding years have still not been reached. In the first eleven months of 2006, 198 new personal injury actions were being registered on average every month, compared with 247 in 2001. While Chapter 43 appears to be popular amongst practitioners, thus far it had not been responsible for increasing personal injury business in the Court of Session over and above the years immediately preceding the introduction of Chapter 43.
Reducing delay
11.2 Chapter 43 was responsible for reducing delay in actions raised after the introduction of Chapter 43. In the post-implementation phase, the difference between actions proceeding under Chapter 43 and those that were eventually transferred to the Ordinary Roll was particularly striking. Since only one quarter of actions transferred to the Ordinary Roll had been disposed of by way of final interlocutor by the time that data collection was concluded, the extent of the difference is certain to increase - though it cannot be predicted by how much. The increased delay may or may not be justified by the complexity of actions transferred to the Ordinary Roll. Whether it can be justified partly depends on the time that actions transferred to the Ordinary Roll are taking to conclude. There should therefore be a return to the post-implementation data-set at some later date, in order to ascertain the final differences in delay between actions proceeding under Chapter 43 and those transferred to the Ordinary Roll. Certainly, any call for the case management of personal injury actions transferred to the Ordinary Roll will need to be met by firm evidence as to the case trajectories of these remitted actions.
11.3 When the pre- and post-implementation samples were compared, the most marked reduction of delay was in the stage between the lodging of defences and the record. This could only very partially be accounted for by the timetabling changes introduced by Chapter 43. It was mainly accounted for by the introduction of a mandatory By Order hearing for failure to comply with the timetable for lodging the record. The proposed move towards discretionary By Order hearings on late lodging of the record should therefore be closely monitored for its potential to increase delay.
11.4 While Chapter 43 drives actions through procedure at a faster pace, more procedural stages are passed and more procedural inputs are made on the path to settlement or final hearing. This has implications for the work of the court and the cost of litigation.
Bringing forward settlement
11.5 Chapter 43 was successful in bringing forward settlement from the day of proof or jury trial. Compared with actions proceeding under Chapter 43, actions proceeding to proof under ordinary procedure were three times as likely to settle on the day of proof. This points to the effectiveness of Chapter 43 in general, and to the Pre-trial Meeting in particular, in bringing forward the day of settlement. In some personal injury actions, remittal to the Ordinary Roll may be sought because compliance with the Chapter 43 timetable is difficult. Once a final hearing has been assigned, however, there appears to be no reason for withholding from Ordinary Roll actions those provisions that bring forward the date of settlement. Indeed, some practitioners were found to be doing this on a voluntary basis already - by arranging between themselves pre-proof meetings for Ordinary Roll actions.
11.6 Actions proceeding under ordinary procedure were also more than three times as likely as actions raised and remaining under Chapter 43 to proceed to a proof or jury trial. There may be many reasons why actions transferred to the Ordinary Roll are more likely to 'run'. However, a recent evaluation of litigation in England & Wales conducted under Civil Procedural Rules (1999) and assigned to Multi-Track, which deals with higher value and more complex actions by judicial case management, has found that very few Multi Track actions proceed to trial. With regard to complex actions, then, the decision not to implement case management in the Court of Session may carry with it some false economies.
Impact on the Court
11.7 Chapter 43 made a significant impact on court resources. While Chapter 43 has been successful in reducing the number of actions appointed to the Procedure Roll, Motion Rolls have been overstretched due to the length of hearings where appointment to the Procedure Roll is considered. Chapter 43 has also been responsible for an increase in the number of By Order hearings. Because starred motions play a crucial role in vesting control over the pace of proceedings in the court, the number of starred motions dealt with by the court has also increased considerably. Chapter 43 introduced several other innovations with implications for court resources at both desk and court level. It was also responsible for the unanticipated consequences of driving actions through more procedural stages on their way to settlement and eventual disposal by way of final interlocutor, which has implications for resources at the desk. Vesting control over the pace of procedure in the court through case-flow management does not come cheap. At the very least, it requires training, specialisation and continuity of court staff.
Simplifying procedure
11.8 Simplified procedure was introduced with a view to reducing delay and limiting gratuitous diversions on the path to settlement. Several aspects of abbreviated pleadings appeared not to help achieve these aims and strong representations were made by defenders (agents and counsel) to reinstate pleas-in-law. They argued that the absence of pleas-in-law offered few incentives for pursuers to formulate the grounds of the claim from the outset. It also offered every incentive for defenders to make application for remittal to the Ordinary Roll whenever the grounds of the claim were not explicit. For their part, pursuers expressed disappointment that Chapter 43 had taken no steps to reduce 'formulaic' responses and blanket denials, as CPR (1999) had done in England & Wales. Their continuing presence reduced opportunities for summary decree and interim damages, and frequently took actions to the door of the court.
11.9 Tensions were observed between the requirement for brevity under Chapter 43 and the felt need for elaboration. Complex questions were sometimes found to arise where only simple ones were assumed to exist - and hence provided for. So, for example, complex questions could arise at hearings on the Motion Roll for further procedure which could not be dealt with in the time allocated to each Motion Roll hearing. Consideration is presently being given to this by the PIUG. Simplified procedure frequently led to uncertainties in practice: the fear of not giving fair notice in the pleadings co-existed with the fear of providing too much detail; the uncertainty of just how abbreviated the pleadings needed to be for a jury trial to be allowed; the difficulty in assessing how much detail was needed to argue the case for further procedure under Chapter 43. It may be that this simply reflects the immaturity of the procedure in that practice has not yet accommodated itself to provision. On the other hand, it may reflect the presence of complexities that the new procedure, in its drive towards simplification, is refusing to acknowledge. If this is the explanation, it could still be a price worth paying in that simplified procedure benefits the large majority of actions. However, the way in which these tensions work themselves out over the next few years may be in need of careful monitoring, as the fate of Optional Procedure in the Court of Session testifies.
Simplified procedure and the timetable
11.10 Simplified pleadings were reportedly responsible for the much of the observed 64% increase in assignments to jury trial in the 3 years since the introduction of Chapter 43. Abbreviated pleadings left less scope for defenders to identify issues that were unsuitable for juries, while the withdrawal of defenders' automatic entitlement to a hearing on the Procedure Roll encouraged pursuers to seek jury trials more often. This incentive was tempered, however, by the loss of the early proof diet that inevitably follows assignment to a jury trial. If there is no wish to de-incentivise jury trials, then all actions could be appointed to their final hearing (whether proof diet or jury trial) after the record is lodged and application is made for further procedure. While it is likely that actions awaiting a jury trial would still wait significantly longer for a final hearing than actions awaiting a proof diet, it would avoid the prevailing perception that actions assigned to jury trial were being put to the back of the queue to start waiting all over again.
11.11 Simplified pleadings were also thought to bear some responsibility for an increase in the number of continued proof hearings. This was partly because simplified pleadings necessitated further elaboration of the grounds of the action at the proof hearing. Simplified pleadings also sometimes made it difficult to assess at the procedural stage at which actions are assigned to a proof diet, viz. after lodging defences, how many days are required. Once the record is lodged and pleadings are in their final form, however, the number of days needed may become clearer - by which time parties are unwilling to lose their place in the queue to ask for a 6 or 8-day proof. This suggests that actions should be assigned to a proof diet or jury trial after the record is lodged and application has been made for further procedure.
11.12 Application to transfer out of Chapter 43 must be sought within 28 days of lodging of defences. Some practitioners reported that this was sometimes responsible for withdrawing from Chapter 43 prematurely. It was also sometimes responsible for them remaining under Chapter 43 when it later became clear that they should have sought to transfer to the Ordinary Roll. Arguments for the need of greater flexibility in provisions to withdraw from Chapter 43 were grounded in the very nature of personal injuries, namely, their unpredictability. Several suggestions were made for introducing flexibility without encouraging delaying tactics, such as extending provisions for withdrawal from Chapter 43 up to the lodging of the record, or making provision for the late lodging of applications to withdraw on joint motion.
Simplified procedure and fitness for purpose
11.13 Though application to transfer out of Chapter 43 was often made on grounds of complexity and/or misfit with the timetable, the time-limited sist was also frequently cited. Even where actions were 'routine', practitioners sought remittal if, for example, the case had arrived on their desk just before the triennium or application was being made for legal aid. This suggests that some flexibility should be introduced with regard to the time-limited sist in order to retain those actions which, if not for the time-limited sist, might have benefited from proceeding under Chapter 43.
11.14 Because of the advantages that it confers, practitioners sometimes do not seek to transfer out of Chapter 43 even in cases possibly too complex for it. This suggests that attention now be given to providing for modified case flow management and pre-trial conferencing in actions that have been transferred to the Ordinary Roll.
Innovating procedure: Statements of Valuation of the Claim
11.15 There was widespread concern about Statements of Valuation, with problems identified around vouching, timing and compliance. The new procedure was partly blamed for its failure to specify the required documentation. The PIUG has now taken action to address some of these concerns and is drafting provisions for a prospective Act of Sederunt, which will require parties to lodge each of the documents referred to in the Statement of Valuation. Though defenders were able to access the pre-accident medical history of pursuers on special cause shown, they observed that the law in England and Wales entitled them to access these medical records without providing justification. UK-wide insurance companies sought homogeneity of practice across jurisdictions.
11.16 There was general agreement that Statements of Valuation were required too early in the procedure for key documents to be ready for inspection. The provision for early Statements of Valuation appears to be based on the assumption either that practitioners were already 'front-loading' prior to the implementation of Chapter 43 or that Chapter 43 now compelled them to 'front-load' in order to meet the timetable. This was reportedly not the case, and it was mainly attributed to the level of payment for pre-litigation investigation in Scotland which was responsible for de-incentivising 'front-loading'. If procedural requirements are dependent on pre-action behaviour, then pre-action behaviour and incentives need to be harmonised with them.
11.17 Practitioners reported many departures from the letter and spirit of the Rules with regard to Statements of Valuation - in their timing, their substance and their supporting documentation. Statements of Valuation play a crucial role in the court's strategy for reducing delay and bringing forward settlement. However, sanctions are rarely applied to these departures so that, in practice, Statements of Valuation remain in the control of parties and are rarely subjected to the scrutiny of the court. Case-flow management may require further intervention from the court at key procedural points and this is likely to be more resource intensive than originally planned for.
Innovating procedure: The Pre-trial Meeting
11.18 Similar observations were made with regard to the Pre-trial Meeting, though practitioners evaluated it overall more favourably. There was considerable debate amongst practitioners over what should be included in the pro-forma on which the joint minute of the Pre-trial Meeting was lodged. This is currently being addressed by the PIUG. Concern was also apparent that the joint minute was not being read by the Court, that its substance did not generate any sanctions and that no use was being made of it for case management. The joint minute appears to provide a golden opportunity for targeted and effective intervention in a few intractable cases that is not being taken up, and could be taken up, by the court.
11.19 The Pre-trial Meeting was intended to 'mirror' the day of proof. While the 'mirror' imagery may have helped the Working Party to formulate its strategy, it has not always proved helpful in the implementation of that strategy. Agents for pursuers and defenders, as well as counsel, have constructed their own understandings, and these have elicited the occasion for several tense stand-offs. Should the ambiguity that has arisen continue to be threatening, further clarification by the Court may be necessary.
11.20 There was general agreement that the Pre-trial Meeting replicated the morning of proof in one important respect: it was responsible for drawing and concerting the attention of all parties to a particular action at one particular point in time - and provided parties with the requirement to do so at least four weeks before proof rather than on the day. This was a necessary, though insufficient, condition for reaching settlement. Pre-trial Meetings could be unsuccessful, for example, where a tender was already on the table or where issues were too difficult and too many to deal with at one sitting. This was frequently observed to be the case in actions involving multiple defenders. Pursuers suggested that the problem might be addressed by requiring multiple defenders to meet prior to the Pre-trial Meeting in order to apportion liability. Defenders acknowledged the problem but argued that there was often insufficient information to allow effective discussions between themselves. In the place of meeting prior to the Pre-trial Meeting, they urged that defenders be allowed to request a commission to gather information about the claimant's employment history. At the very least, some initiative should be taken to ensure that defenders in actions involving multiple defenders arrive at the Pre-Trial Meeting with information on which negotiation is possible. The form that this initiative takes, however, may require further consideration and consultation.
11.21 It is instructive to note that Pre-trial Meetings were reportedly effective where mutual trust prevailed. At Pre-trial Meetings, agents not only needed to trust agents from the other side but they also needed to trust their instructed counsel. The significance of trust in this context is most likely related to the absence of judicial control at Pre-trial Meetings in particular, and throughout Chapter 43 in general. The social order that must be obtained at a Pre-trial Meeting (playing the same game and abiding by the same rules) requires some grounding. In the absence of judicial authority and control, the success of Pre-trial Meetings is conditional upon a network of reciprocal and trusting relationships. It is difficult to see how they could be effective otherwise.
Managing procedure
11.22 Chapter 43 made some changes to the existing ordinary procedure timetable. There was only one change that elicited strong calls for flexibility in its application, namely, the provision whereby the instance now falls if the summons has not called within three months and a day after signeting. 6
11.23 The most significant changes introduced by Chapter 43 into the management of procedure were new provisions that sought to vest control over the pace of procedure in the Court. They included the introduction of a timetable, time-limited sists, and provisions to ensure that parties adhere to the timetable. The timetable, which is issued after defences have been lodged, allocates all actions to a proof diet 10-12 months hence. This provision constitutes the crucial driver in the new system. While no informant suggested that control over fixing proof diets should be restored to the parties concerned, some did suggest that proofs were being fixed at an inappropriate and unhelpful time. Their arguments have already been rehearsed (see 11.10-11.11). Flexibility in the timetable was also sought for provision to withdraw from Chapter 43 (see 11.12). Many informants advised that the time-gap between lodging the Statement of Valuation and the Pre-trial Meeting required adjustment. Some advised bringing the Pre-trial Meeting forward, some suggested timetabling the Statement of Valuation closer to the Pre-trial Meeting and some suggested both. This would allow Statements of Valuation to provide a more meaningful preamble to discussions at the Pre-trial Meeting.
11.24 Concerns as to the unintended consequences of the time-limited sist have already been noted (see 11.13). Application for remittal to the Ordinary Roll was frequently made not on grounds of complexity but to avoid the time-limited sist. Paradoxically, then, provisions for greater flexibility in the application of the time-limited sist may allow more personal injury actions to remain subject to the discipline of Chapter 43. There were also demands for greater flexibility in the timetabling of applications to remit out of Chapter 43. This is likely to provide a better fit between those actions remaining under Chapter 43 and the potential of Chapter 43 procedure for expediting settlement.
11.25 There were also calls for greater stringency in the application of provisions for varying the timetable. Of particular concern was the practice of sending actions with discharged proof diets to the back of the queue by offering them a new diet some 10-12 months hence. The research found some Chapter 43 actions that were approaching their third proof diet, assigned to a date 36 months after defences were lodged. The need to put these actions "back on the rails" is apparent, and it is difficult to suggest a method for doing so that does not involve judicial intervention and case management in some shape or form. A few practitioners, as well as court staff, also warned about moving from mandatory to discretionary By Order hearings for failure to lodge the record timeously. This amendment to the New Rules is expected shortly and should be carefully monitored. Others called for the Court to respond to their requests for actions to go out on the By Order roll where they had identified failures of the other side to comply with the timetable. All of these concerns contain in them a call for greater pro-activity by the court with regard to the progress of actions through the court.
11.26 While case-flow management was sufficient in most routine personal injury actions that proceeded under Chapter 43, the need for active judicial intervention and case management in specific actions was sometimes evident. In particular, Chapter 43 makes no provisions of last resort to which practitioners can turn when case-flow management has failed them. Yet Chapter 43 already has procedures in place by which actions that fail to progress could be monitored, such as the record of pleadings, the Statement of Valuation and the joint minutes of the Pre-trial Meeting. These could be used to identify actions in need of judicial intervention. Were provisions for judicial intervention to be introduced, settlement might be expedited and the culture might undergo some changes in the 'shadow' of these provisions, rather than in their actual application. The resources required for active judicial intervention may therefore be less significant than feared.
11.27 A strong call for judicial intervention came from agents for claimants seeking damages for mesothelioma and other industrial diseases. They regretted the passing of Lord Mackay's 'asbestos' court and the replacement of its case management powers by a standardised procedure under Chapter 43. They urged for expanded judicial powers under Chapter 43, akin to the powers of the Commercial Court in the Court of Session or Multi-Track under CPR (1999) in England and Wales. They suggested, at the very least, that there should be an automatic By Order hearing whenever the minute of the Pre-trial Meeting indicated that no agreement had been reached. Should The Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill presently before the Scottish Parliament become law, then more mesothelioma victims can be expected to raise actions in their lifetime. If so, it would be disheartening to see a marked presence of mesothelioma sufferers amongst the small proportion (approximately 7%) of all Chapter 43 claimants who now negotiate settlement at the door of the court.
11.28 Once they are remitted out of Chapter 43, personal injury actions are subject to none of the provisions of Chapter 43. Yet the need to avoid last-minute settlement was as apparent amongst actions that had transferred to the Ordinary Roll as those that proceeded under Chapter 43. Indeed, for claimants seeking damages in relation to very serious injuries, the need might be even greater. Even if these actions cannot conform to the Chapter 43 timetable, there appears to be no good reason for withholding from them the benefits of those Chapter 43 provisions that were designed to bring settlement forward from the day of proof. Pre-trial Meetings and the requirement to lodge productions eight weeks prior to proof could benefit all actions that are transferred to the Ordinary Roll.
11.29 As well as bringing forward settlement, however, the need to reduce delay was also evident amongst actions remitted to the Ordinary Roll. Though complex actions are frequently in greater need of structure and guidance than routine actions, little was available for those that were transferred out of Chapter 43. As a consequence, some of the most complex personal injury actions in the Court of Session proceeded unfettered - and also unsupported - by it. This may be compared to CPR (1999), which provides a Multi Track procedure for high value, complex cases that is supported by judicial case management in addition to a Fast Track procedure for low value, routine actions that is supported primarily by case flow management.
11.30 In some cases, it may be appropriate to impose a modified Chapter 43 timetable on remitted actions. In other cases, the complexity of the action might require bespoke provisions and a bespoke timetable. At present, less than 10% of personal injury actions raised in the Court of Session are remitted out of Chapter 43 to the Ordinary Roll. The introduction of a case management conference to set a timetable and agenda for remitted actions, possibly at the point of remittal, is unlikely to be as resource intensive as many may fear. Few actions will need bespoke provisions or close case management, while many are likely to require only a modified timetable. Furthermore, the experience of judicial case management in England and Wales is instructive and suggests cost efficiencies 7. Under Civil Procedure Rules 1999, complex actions over £15,000 in value are allocated to the Multi Track stream for case management by procedural judges who tailor their directions to the case. These case management conferences are most often conducted by telephone. Under this regime, a recent study found that almost no cases in the complex Multi Track stream proceeded to trial. This is contrasted with approximately 9% of all ordinary procedure actions, (including personal injury actions remitted to the Ordinary Roll), that had been assigned to a proof diet or jury trial in the Court of Session during the Summer Term of 2006. Judicial case management may therefore represent an up-stream investment with considerable savings down-stream.
In the public interest: justice, costs and the Sheriff Court
11.31 Pursuers' agents and counsel welcomed the impact of Chapter 43 on bringing forward settlement in that it served the interests of justice of claimants. There appears to be no justification for withholding these benefits from claimants whose actions for damages are remitted to the Ordinary Roll. Indeed, the need for avoiding last-minute settlement is likely to be stronger for claimants in high value, complex cases.
11.32 Public service defenders endorsed the New Rules for reducing delay, expediting settlement and putting public service values into practice. They called for similar provisions to be put at the service of more needy claimants and more complex actions remitted to the Ordinary Roll.
11.33 Defenders in the insurance industry found Chapter 43 too limited in scope. They pointed to the reduction in litigation that had accompanied the introduction of CPR (1999) and the role of Pre-Action Protocols ( PAPs) in achieving that reduction. They acknowledged, however, that PAPs could only be introduced as part of a package of reforms. The Voluntary Pre-Action Protocol ( VPAP) that commenced in Scotland in January 2006 was an initiative in this direction, and further proposals for broadening its scope are to be expected. At present, however, VPAPs will most likely impact on personal injury claims that, if unsuccessful in achieving settlement, will be litigated in the Sheriff Court.
11.34 The impact of Chapter 43 on the cost of litigation to parties is not clear-cut. The research found that Chapter 43 was responsible for driving actions through more procedural stages prior to reaching settlement. It was also responsible for introducing costly procedures, and at an earlier stage in the proceedings. There was some agreement that the largest increases in costs under Chapter 43 have been associated with outlays for counsel and experts. Agents for defenders were under strong pressure to reduce these costs, while it was their perception that pursuers funded by Conditional Fee Agreements ( CFAs) were not. This might have been responsible for some of the variations in practice that were found between agents for pursuers and defenders, such as instructing counsel for Pre-trial Meetings. If there is a will to reduce the cost of litigation and move towards proportionality, there may be some merit in capping recoverable expenditure on outlays in low value cases by, for example, introducing a sliding scale on outlays for Pre-trial Meetings.
11.35 Because Chapter 43 was responsible for reducing delay, the assumption was frequently made that litigation under Chapter 43 was invariably cheaper. Grounded in belief rather than in hard fact, this assumption may have serious implications for controlling the cost of litigating low value actions in the Court of Session. As of late 2006, there was cause for some optimism that the cost of litigating under Chapter 43 may not exceed the cost of litigating under ordinary procedure. Until such time as hard data are available, however, the assumption that Chapter 43 invariably reduces the cost of litigating should be suspended.
11.36 There was a call to raise the privative jurisdiction of the Court of Session by many practitioners. Some defenders argued that they settled actions for low value claims in the shadow of Court of Session costs rather than on the merits - claims that they never would have settled had they been raised as actions in the Sheriff Court.
11.37 The evaluation of Chapter 43 in the Court of Session raises the question as to whether this new procedure for personal injury actions can be successfully rolled out to the Sheriff Court. If the procedure is adopted and adapted by the Sheriff Court with a view to reducing the number of personal injury actions raised in the Court of Session, it may be difficult to coax regular users of the Court of Session into the Sheriff Court of their own volition. In the first place, the Sheriff Court does not offer them jury trials (or settlement in the shadow of a jury trial). Secondly, regular users of the Court of Session are attracted to the consistency and quality of decisions in the Court of Session, as well as the authority of those decisions, (even though less than 3% of personal injury actions actually proceed to a proof hearing in the Court of Session). Thirdly, regular users of the Court of Session achieve economies of scale and scope by organising all of their activities around one court and by instructing counsel only when needed. Except for the availability of a jury trial, however, these conditions could partially be met if specialist sheriffs were appointed and a limited number of Sheriff Courts were designated for personal injury litigation at the same time as rolling out Chapter 43 to the Sheriff Court
11.38 Beyond coaxing regular users of the Court of Session into the Sheriff Court, the appointment of specialist sheriffs may be a necessary condition for the successful implementation of any adapted version of Chapter 43 in the Sheriff Court. The new procedural rules for personal injury actions require that judges make decisions on the conduct of personal injury actions such as whether there is a need for detailed pleadings, whether the timetable is appropriate for the preparation of the action or whether there are grounds for a debate. This may require specialisation and specialist knowledge of a substantive and/or procedural kind. As practitioners in general, and solicitors in particular, move towards increasing specialisation, their confidence in judges is supported by, and may depend on, moves towards increasing specialisation on the bench.
11.39 There are also some other practical and business considerations, apart from the economies of scale and scope afforded to practitioners who concentrate all of their litigation practice in the Court of Session. The viability of a successful roll-out to the Sheriff Court is raised particularly in relation to Pre-proof Meetings, which require that representatives of each party to the action shall have access to that party or to another person with the authority to commit the party in settlement of the action. This is made possible in the Court of Session by virtue of the fact that most of the main players are located in Glasgow and Edinburgh, that counsel is concentrated in Edinburgh and that the Faculty of Advocates' premises are frequently used. It is unlikely that the presence of all main players could be achieved in a Sheriff Court setting unless 'principal' solicitors were to conduct the pre-proof meetings by conference call or video link. Options Hearings under OCR (93) have not always had their desired impact in the Sheriff Court because parties are frequently represented in court by local agents who may not have the necessary authority to speak on their behalf. 8 At the same time, the success of telephone conferencing in civil litigation has been well established, both in Scotland (such as commercial procedure in Glasgow Sheriff Court) 9 and in England and Wales. It is difficult to see how the Pre-proof Meeting will meet its objective of bringing forward settlement from the day of proof in the Sheriff Court unless provisions are made for facilitating Pre-trial Meetings across a wide geographical area.
11.40 Vesting control over the pace of procedure in the Court of Session depended on additional and considerable input from court staff, frequently of a discretionary nature. This required that court staff were given the opportunity to develop expertise in the new provisions for personal injury actions and to buy into the spirit of those procedures. The roll-out of Chapter 43 to the Sheriff Court would require the involvement of court staff in similar ways, with similar resource implications for each of the Sheriff Courts. This may be an additional reason for designating specific Sheriff Courts for personal injury litigation.
11.41 The success of Chapter 43 in general, and of the Pre-trial Meeting in particular, was found to depend on the quality of relationships between the main players. Because judicial case management plays no central role in Chapter 43, trust and confidence assumed a decisive role. Case flow management requires that players play the same game and abide by the same rules, and usually without the guidance or supervision of a referee. If they do not, then both parties will invariably arrive at the door of the court, having conformed to the requirements of the procedure but having successfully negotiated their way around those provisions that might have expedited settlement. Perhaps the most interesting question to emerge from the Pre-trial Meeting is not why some are unsuccessful but why so many are successful 10. The question is particularly apposite in the social context of personal injury litigation, given the adversarial nature of legal service provision in this area of legal practice. The main players in Court of Session personal injury practice, however, are small in number and well known to each other. If members of this community are observed not to abide by the same rules or to play the same game, their moves at least become predictable. Expectations in this community of practitioners become embedded over time so that predictability, as well as conformity, contributes to the social order 11. In the Court of Session, moreover, counsel may play a role in moderating the impact of the adversarial structure of legal service provision in personal injury litigation and drawing both sides into a single community of practice, if not of interest. Whether the same conditions could obtain in the Sheriff Court is open to question. Any drive towards consistency with the Court of Session needs to be grounded in comparable social infrastructures. If they are dissimilar, then what may work in one context may not work in another. Indeed, this is one possible explanation why Glasgow Sheriff Court has adopted the judicial case management approach of commercial procedure for its pilot personal injury court, rather than the case-flow management approach of Chapter 43 that was implemented in the Court of Session for routine personal injury cases.
11.42 Chapter 43 was introduced into the Court of Session as a package of provisions to reduce delay and to bring forward settlement from the day of proof. When actions cannot accommodate to the timetable, application may be made to remit actions to the Ordinary Roll where there is neither the timetable nor the provisions that were introduced with a view to bringing forward settlement. It is not known what problems are experienced in Scottish sheriff courts: what delays are experienced in the litigation of personal injury actions; what proportion of personal injury actions settle at the door of the court; or what other problems are experienced by personal injury practitioners in the different sheriff courts in which they practice. Further information would allow a new procedure for personal injury actions in the Sheriff Court to be tailored to the needs of personal injury litigants and the court.
Implementing new procedure
11.43 The implementation of Chapter 43 was facilitated by a Personal Injury Users Group ( PIUG). Under the chair of a Lord Ordinary (The Hon. Lady Paton), its membership comprised key stakeholders in the litigation of personal injury actions in the Court of Session, including court staff. The Group adopted a responsive and participative approach to the management of the implementation process, responding not only to concerns raised by its appointed members, but also to those raised by the larger community of personal injury practitioners. This was a particularly appropriate and effective method of implementing new procedure in personal injury practice, where lines are drawn so strongly between agents representing pursuers and agents representing defenders. The implementation of new procedures often requires changes in culture as well as practice, and on many fronts. Case-flow management, in particular, requires that all practitioners - including court staff - sign up to that culture. The PIUG sought to accomplish this by giving all stake-holders in the system some investment in the new procedure. While this may not be the first time that the introduction of a new initiative has been managed in the Scottish courts in this manner 12, it represents a model for overseeing the implementation of new procedure.