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Cite as: [2004] ScotCS 148

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Zimmerman v. Armstrong [2004] ScotCS 148 (22 June 2004)

OUTER HOUSE, COURT OF SESSION

PD21/03

OPINION OF LADY PATON

in the cause

RICHARD ZIMMERMAN

Pursuer;

against

KEVIN ARMSTRONG

Defender:

________________

Pursuer: Bennett, Advocate; Henderson Boyd Jackson, W.S.

Defender: No appearance

22 June 2004

New personal injuries rules: pre-trial meeting
[1] The pursuer was injured on 16 May 2000 when a van reversed into his motorcycle. He brought an action for damages in the Court of Session.

[2] The action was raised after 1 April 2003. New rules of court accordingly apply, namely Chapter 43 of the Rules of the Court of Session, as substituted by the Act of Sederunt (Rules of the Court of Session Amendment No.2) (Personal Injuries Actions) 2002, S.S.I. 2002 No.570.

[3] In terms of the rules, a proof date was fixed for 22 June 2004, and a timetable was issued to the parties. The parties duly complied with the timetable. The pursuer's statement of value of claim was lodged in process by 6 August 2003; the record (in which the defender admitted liability for the collision) was lodged by 21 August 2003; and the defender's statement of valuation of claim was lodged by 1 October 2003.

[4] The next step for the parties was to hold a pre-trial meeting in terms of rule 43.10. That rule provides:

"Pre-trial meetings

43.10-(1) For the purposes of this rule, a pre-trial meeting is a meeting between the parties, which shall be held not later than four weeks before the date assigned for the proof or trial to discuss -

(a) settlement of the action; and

(b) to agree, so far as is possible, the matters which are not in dispute between them.

(2) A joint minute of a pre-trial meeting, made in Form 43.10, shall be lodged in process by the pursuer not less than three weeks before the date assigned for the proof or trial.

(3) Where a joint minute in Form 43.10 has not been lodged in accordance with paragraph (2) and by the date specified in the timetable order the Keeper of the Rolls shall put the case out to be heard on the By Order roll.

(4) During the pre-trial meeting, the representative of each party to the action shall have access to the party or another person who has authority to commit the party in settlement of the action."

[5] In the present case, the pre-trial meeting took place on 26 May 2004. The meeting was attended by legal representatives for the pursuer and for the defender. There were constructive discussions. Certain heads of claim, namely solatium and services, were agreed in principle. Considerable progress was made in respect of other matters such as loss of earnings. However the need to make certain further investigations resulted in a failure to lodge the pre-trial joint minute timeously by 1 June 2004. The case was accordingly put out By Order on 11 June 2004.

[6] Having heard counsel for the pursuer, I allowed the pre-trial joint minute to be lodged late.

[7] I take this opportunity to make some general observations about the timing of pre-trial meetings.

[8] The wording of rule 43.10(1) may appear to suggest that pre-trial meetings are expected to be held about five or six weeks before the proof or jury trial. However in my view, a pre-trial meeting should be arranged as soon as convenient following upon the lodging of the defender's statement of valuation of claim.

[9] There are many advantages in holding the pre-trial meeting sooner rather than later. For example: -

[10] It may be easier to co-ordinate a date for the meeting, as those involved will have more time available.

[11] The meeting may bring to light a need to amend the pleadings, or to lodge further productions, or to cite further witnesses. Appropriate steps can be taken in advance of the proof date, with a view to preserving the diet.

[12] The meeting may disclose difficulties which cannot be resolved by the proof date. The necessary motions for a discharge of the proof can be enrolled well in advance of the diet, thus contributing to the best use of court time.

[13] If the meeting reveals that it may be possible to reach agreement on certain important points, subject to some further investigations or discussions, those matters can be dealt with in time. The pre-trial minute may then be lodged by the due date, and a By Order appearance avoided.

[14] Finally, the meeting may bring about an early settlement, resulting in considerable savings in time and expense for both parties and the court.

[15] It will be seen therefore that, in general, it is advantageous to hold the pre-trial meeting as soon as possible following upon the lodging of the defender's statement of valuation of claim.

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