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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Broadfoot & Anor v. Forth Valley Acute Hospitals [2003] ScotCS 184 (03 July 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/184.html
Cite as: [2003] ScotCS 184
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Broadfoot & Anor v. Forth Valley Acute Hospitals [2003] ScotCS 184 (03 July 2003)
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OUTER HOUSE, COURT OF SESSION |
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A1231/02
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OPINION OF T. G. COUTTS, Q.C. SITTING AS A TEMPORARY JUDGE in the cause SUSAN BROADFOOT, CURATOR BONIS OF DYLAN BROADFOOT Pursuer; against FORTH VALLEY ACUTE HOSPITALS NHS TRUST Defenders:
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Pursuer: Absent; Waterman's Solicitors
Defenders: Crawford, R. F. Macdonald
3 July 2003
[1] This action was signetted on 6 May 2003. It is an action involving personal injuries and so required to be raised under the new provisions of Rule of Court 43 and following. Defences were lodged on 16 June 2003. The case concerns a question of liability for allegedly negligent procedure at the birth of the ward Dylan Broadfoot and the damage he has sustained as a result of injuries at birth. There is a defence on the merits. [2] On 16 June 2003 the defenders enrolled a motion as undernoted:"On behalf of the defenders and in terms of Rule of Court 43.5 to withdraw the action from following the procedures in R.C. 43.1 et seq. and to be appointed to proceed as an ordinary action under explanation that this is a complicated matter of medical negligence which will require detailed pleadings both as regard to liability and quantum. A number of experts will require to be instructed both with regards to liability and quantum, the latter raising difficult issues in particular relating to wage loss and services."
Rule of Court 43.5 reads:
"43.5 - (1) Any party to an action may, within 28 days of the lodging of defences, by motion apply to have the action withdrawn from the procedure in this Chapter and to be appointed to proceed as an ordinary action.
(2) No motion under paragraph (1) shall be granted unless the court is satisfied that there are exceptional reasons for not following the procedure in this Chapter.
(3) In determining whether there are exceptional reasons justifying the granting of a motion made under paragraph (1), the Lord Ordinary shall have regard to -
(a) the likely need for detailed pleadings;
(b) the length of time required for preparation of the action; and
(c) any other relevant circumstances."
In the practice notes attached to that rule it is observed that the motion to dispense with the timetable is not to be granted unless there are exceptional reasons.
[3] Since it did not appear on the face of the motion that the narration in it included all the factors in sub-paragraph 3 the motion was starred. [4] Counsel for the defenders, the motion being unopposed, expanded further on the reasons for appointing the cause to proceed as an ordinary action. [5] In order to enable the administration of the new rules to proceed without the unnecessary expense of requiring the attendance of counsel to expound upon the alleged exceptional reasons such a motion should detail specifically all the items under sub-head 3. Normally on consideration of that motion and of the summons and defences a Lord Ordinary should be able to determine the matter without requiring the attendance of counsel. However particular care should be taken to provide as much information as can conveniently be given in the motion enrolled. Since there is no exception made in the rules for any particular type of personal injury action it cannot be assumed that merely because an action involves professional negligence that it will automatically be appointed to proceed as an ordinary action. A full explanation requires to be given. In the present case that explanation having been given on the motion roll I appointed the cause to proceed as an ordinary action.