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Cite as: [2003] ScotCS 269

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Tudhope v. Park (t/a Park Hutchison, Solicitors [2003] ScotCS 269 (30 October 2003)

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the cause

JOHN TUDHOPE

Pursuer;

against

FINLAY PARK, trading as PARK HUTCHISON, SOLICITORS

Defenders:

________________

Pursuer: Stevenson, Solicitor-Advocate; Thompsons

Defender: No appearance

30 October 2003

New personal injuries rules: alleged professional negligence
[1] The point at issue is whether the pursuer's summons should be in the new abbreviated form for personal injuries actions provided by Chapter 43 as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002; or whether it should be in the form appropriate for an ordinary action.

[2] In his summons, the pursuer alleges professional negligence on the part of his solicitor in failing to advise him of the effect of section 17 of the Prescription and Limitation (Scotland) Act 1973 until 2002, by which time his claim for vibration-induced white finger had become time-barred. The summons has been drafted in the abbreviated form prescribed by the new personal injuries rules. The summons was not accepted by the General Department, on the view that the claim was not a personal injuries action in terms of the new Chapter 43, and that the pursuer should proceed by way of an ordinary action. The case was put out for argument in the Civil Vacation Court on 18 September 2003.

[3] As Lord Osborne observed in Mackenzie v Digby Brown & Co., 1992 S.L.T. 891, in the context of an earlier rule of court 89A(1) concerning interim damages in "any action of damages for personal injuries":

"... The basis of the action is the defenders' fault in respect that they allowed the three year limitation period applicable to the pursuer's claim for reparation against his employers to expire without raising on his behalf an action of damages for personal injuries against those employers. In other words, in my opinion, the essence of the pursuer's case is that the defenders, by their fault, allowed a valuable right possessed by him to be lost by the passage of time. In the present action, the pursuer's damages will require to be assessed in relation to the value of the right which the pursuer has lost, not simply upon the basis of the injuries which he has sustained. Thus it appears to me that the ... words ["In any action of damages for personal injuries"] according to their natural meaning simply do not apply to the present action ..."

[4] Lord Osborne found support for his conclusion in the language used in Rule 89A(1)(c), which provided that the court must be satisfied that there would be no substantial finding of contributory negligence on the part of the pursuer before making an interim award. He observed that it was difficult to give any content to the reference to contributory negligence where the action concerned damages for professional negligence.

[5] Prima facie, the conclusion reached in Mackenzie v Digby Brown & Co. seems equally applicable in the present case. The Report and Supplementary Report of the Coulsfield Working Party, whose recommendations resulted in the new rules in Chapter 43, refer to "routine" personal injuries actions such as road traffic accidents, and employers' liability cases, and not to actions for alleged professional negligence. Also the form of summons and statement of value of claim prescribed by the new rules (Forms 43.2-A and 43.9) are directed to standard claims for damages for personal injuries suffered as a result of accidents, not to actions for professional negligence. Valuing the loss of a claim which has become time-barred is a different exercise from valuing the personal injuries themselves, as was illustrated in the recent unreported decision Pearson v Imray, April 25, 2003. Further, the relevant Practice Note No.2 of 2003 (14 March 2003) "Personal injuries actions" advises practitioners that "It is not intended that actions of defamation or any actions which are not, in ordinary parlance, concerned with personal injuries [italics added] should be covered by these rules". Finally, the abbreviated pleadings envisaged by the new rules seem unsuited to the subtleties and complexities of a claim for alleged professional negligence.

[6] Nevertheless Mr. Stevenson, Solicitor-Advocate and member of both the Coulsfield Working Party and the Court of Session Rules Council, presented arguments to the contrary:-

[7] Firstly, rule 43.1(1) made the new rules applicable to a "personal injuries action". "Personal injuries action" was defined in rule 43.1(2) as meaning "an action of damages for, or arising from [italics added], personal injuries or death of a person from personal injuries". The pursuer's action clearly arose from his personal injuries, his vibration-induced white finger. But for these personal injuries, he would have no claim. Obviously Chapter 43 did not extend to actions concerning alleged professional negligence which did not arise from personal injuries or death. Such actions should proceed by way of an ordinary action. But in a case such as the present, Chapter 43 applied. Lord Osborne had been construing an earlier rule of court which simply referred to "any action of damages for personal injuries". It was accepted that such a definition could not cover the present case. But the definition in rule 43.1 was wider, and covered the present case.

[8] It was further submitted that the working party's aim, after considerable debate, had been to include all actions of damages for, or arising from, personal injuries or death. Thus actions founded upon alleged medical negligence, or seeking damages for injury to mental health, should be initiated under the new abbreviated procedure. There was provision in rule 43.5 for a party to apply to have the action withdrawn from Chapter 43 procedure and to proceed as an ordinary action. Thus where a party took the view that a case of, say, alleged medical negligence was unsuited to the new procedure, the appropriate motion could be enrolled and (subject to satisfying the court in terms of rule 43.5(2) and (3)), the action would be transferred to ordinary procedure, with more detailed pleadings including precise averments of duties said to have been breached. The same approach would be open to the parties in the present case: but because the case satisfied the definition of "personal injuries action" in rule 43.1(2), the pursuer had no option but to commence the action under the new abbreviated procedure.

Opinion
[9] The definition of a personal injuries action contained in new rule 43.1(2) is significantly broader than the definition in the earlier rules considered in Mackenzie v Digby Brown & Co., 1992 S.L.T. 891. Rule 43.1(2) expressly includes any action of damages "arising from personal injuries or death of a person from personal injuries" [italics added]. The present action for professional negligence does, in my view, "arise from personal injuries", in that the fundamental or primary cause underlying the litigation is the personal injury suffered by the pursuer in the form of vibration-induced white finger. Moreover the present action could be viewed as being "concerned with personal injuries" in terms of the Practice Note No.2 of 2003. Further, I accept that the wording and illustrations contained in the Report and Supplementary Report of the Coulsfield Working Party, and in Forms 43.2-A and 43.9 of the new rules of court, cannot impose implied limitations upon the plain meaning of rule 43.1(2).

[10] While it might be thought that an action such as the present one is manifestly unsuited to the abbreviated pleadings and procedures laid down by the new rules, I accept that the express wording of rule 43.1(2) demonstrates an intention to embrace every action which could possibly qualify in terms of the new definition of a personal injuries action. Once the action has been raised, either party may, within 28 days of the lodging of defences, apply to the court to allow the action to proceed as an ordinary action in terms of rule 43.5. In view of the nature of the present action, such an application seems inevitable, but meantime, the summons must comply with the new Chapter 43.

Conclusion
[11] I am persuaded that the present action falls within the new personal injuries rules and that the summons should be in the abbreviated form prescribed by Chapter 43 as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Personal Injuries Actions) 2002.