Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 178
PD2457/12	OPINION OF LORD JONES in the cause FIONA SMITH Pursuer; against GREATER GLASGOW & CLYDE NHS HEALTH BOARD Defender: ________________

Pursuer: Bain QC; Digby Brown LLP

Defender: Springham; NHS Scotland Central Legal Office

23 October 2013

Introduction

[1] This is a personal injuries action, proceeding in accordance with the terms of chapter 43 of the Rules of the Court of Session 1994 ("the rules"). A four-day proof was set down on 21 March 2013 to commence on 29 October of this year. On 23 October I was addressed by parties in respect of a number of applications, of which the only one I need discuss in this opinion was enrolled on behalf of the defenders and was in the following terms: "to allow the List of Witnesses for the defenders to be received although late".

[2] In support of that motion, Miss Springham referred me to the case of Quigley v Hart Builders (Edinburgh) Limited [2006] CSOH 118 ("Quigley"), a chapter 43 action, in which, as here, no list of witnesses for the pursuer had been lodged in accordance with the timetable. On the first day of a four-day proof, counsel for the pursuer moved the Lord Ordinary to allow a list of witnesses to be lodged late. His lordship granted the motion under reference to Practice Note 8 of 1994, about which I shall say more later in this opinion.

[3] In response, Miss Bain QC contended that, having regard to the terms of rule 43.8, it was incumbent on the defenders to apply for a variation of the timetable, and to show special cause as to why their list of witnesses should be received late. I was informed that the last date for lodging such lists, specified in the timetable that was originally issued, was 3 September. The timetable was varied by interlocutor dated 27 August, on the unopposed motion of the pursuer and on special cause shown, by extending the period for lodging lists of witnesses to 1 October. The pursuer had lodged two witness lists, the first on 23 September and the second on 30 September.

[4] In the result, I refused the defenders' motion, and I refused leave to reclaim. I advised parties that I would issue an opinion, giving my reasons.

Discussion
Background to the introduction of chapter 43
[4] Chapter 43 in its present form was introduced into the rules by Act of Sederunt, (Rules of the Court of Session Amendment No. 2), (Personal Injuries Actions) 2002, SSI 2002 No. 570, in implementation of the recommendations of the Working Party on Court of Session Procedure, of which I was a member, and which reported in 1998. A monitoring exercise had established that the majority of ordinary actions raised in the Court of Session were for damages in respect of personal injuries or death; that 98.2% of such actions settled without proof; and that a third of these settlements occurred in the last week before proof. In light of that information, the working party focused its attention on personal injuries actions. In a section of the report entitled "Deficiencies of the Present System" it highlighted "the inconvenience caused by the large number of cases which settle on the day of the proof or during the preceding week", which it elaborated in the following passage:

"Substantial numbers of witnesses are compelled to attend court unnecessarily, or are subjected to the inconvenience of being cited and then told that they need not attend. In the case of professional witnesses, substantial fees may be incurred in relation to cases which never start. At present a large number of people are assembled at the court on a Tuesday morning during term, and the scene can give the appearance of a great deal of confusion. A considerable amount of court time is wasted. Judges are frequently left with no way of knowing which cases, if any, they will require to deal with, while simultaneously counsel, and others involved in the lower part of the allocated list, who have a case to try, often have to pace the Hall. The confusion and associated delay can lead to cases extending into an additional expensive day. The necessity of calling a much larger number of cases than can be heard leads on occasions to the inevitable result that cases which do require proof have to be sent away. Attention has also been drawn to the fact that pursuers may feel under last minute pressure to accept sums less than the full value of their claims, particularly in view of their fear of the sanction of a crippling award of expenses. The mere fact that there is a risk that, if the case is not called and no settlement is reached, there will be further extensive delay may create pressure to settle, particularly for a pursuer. It does seem quite inappropriate for so many actions to be settled in a pressure situation in Parliament Hall which may, to the litigant experiencing his first Tuesday morning there, appear chaotic." (Chapter 2)

[5] In putting forward its proposals for reform of the existing system, the working party's aim was "to reduce the number of late settlements", and it made "three positive recommendations": that an automatic timetable should be issued for personal injury actions; that both (or all) parties should be obliged to lodge in process justified valuations of the claim at an early stage in the proceedings; and that parties should be required to meet to discuss settlement at a defined stage in the procedure and lodge a minute of the meeting, recording the points on which agreement had or had not been reached. (Lord Coulsfield's summary of the report) The purpose of the timetable, to which parties would be required to adhere during the course of the action, was to shift the focus of their preparations from the date of the proof or jury trial to the date of the mandatory pre-trial meeting. The timetable was designed to ensure that parties were as fully informed about the merits and quantum of a personal injury action by the date of the meeting as they had previously been by the date of the evidential hearing. The new scheme was introduced in the working party's report in this way:

"Since the fundamental objective of the proposals is a change of attitude or mindset among those involved in such routine cases which will move the point at which concentration and effort are directed from the trial or proof to an earlier stage, complementary amendments to current procedure would be necessary to ensure the required change in approach."

[6] Drawing on the Cullen Review, published in 1995, in which Lord Cullen had identified a "culture of a casual approach to timetabling" among court practitioners, which relied on "an opponent's forbearance in, for example, consenting to late lodging of documents", the working party expressed the view that such culture "should be discouraged." Among the complementary amendments referred to by the working party, therefore, was the introduction of a requirement that the timetable could be varied only by the court, and only on "special cause shown". As it is explained in the evaluation of the working of the chapter 43 rules, carried out by the University of Edinburgh, and published by the Scottish Executive in 2007, "In so far as a 'culture of mutual indulgence' between practitioners prevails, this provides the Court with an opportunity to address it."

[7] In June 2000, copies of the working party's report, Lord Coulsfield's summary, and a draft Act of Sederunt which was intended to form the basis of new rules were circulated to interested parties on behalf of the Lord President, who invited comment on them. The draft contained separate rules for applications for variation of the timetable (draft rule 43.10) and applications to sist (draft rule 43.11). These draft rules were in similar terms to what is now rule 43.8, which makes provision for both variation and sist. In particular, each of the draft rules provided that the application "shall be granted only on special cause shown". Among those who commented on the draft rules were the Faculty of Advocates, the Law Society, the WS Society, a number of solicitors' firms, a senator, and a sheriff. The only comment on the proposed requirement that the timetable may be varied or the action sisted only on special cause shown came from the WS Society, who suggested that "the word 'special' ought to be deleted as the judges can be trusted to deal with any application appropriately."

[8] It is relevant to notice that draft rule 43.10 provided that an application for variation "shall be enrolled before the relevant time has expired". There is no such provision in the new rules as enacted.

Chapter 43 as enacted

[9] The new scheme provides for simplified pleadings, the allocation of a diet of proof on the lodging of defences, and a timetable appointing dates by which various steps in process are to be taken. In order to clear the way for these innovations, a number of existing rules are disapplied, by the terms of rule 43.1(3). Among those are rules 4.9(2) and 36.3. The terms of rule 4.9(2) can best be understood in the context of rule 4.9(1). These rules provide as follows:

"4.9.-(1) Where the court pronounces an interlocutor ordering or allowing a document to be lodged in process, it shall specify a time within which the document shall be lodged.

(2) The time for lodging a document referred to in paragraph (1) may be prorogated by the court on an application by motion enrolled before the time for lodging has expired.

36.3.-(1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless

(a) by consent of parties; or

(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit."

[10] To understand why rule 4.9(2) was disapplied, it is necessary to have regard to certain parts of rule 43.6, which is entitled "Allocation of diets and timetables" and which, so far as is relevant in this case, provides as follows:

"43.6.-(1) The Keeper of the Rolls shall, on the lodging of defences or, where there is more than one defender the first lodging of defences-

(a) allocate a diet of proof for the action;

(b) issue a timetable stating the date mentioned in sub-paragraph (a) and calculated by reference to periods specified from time to time by the Lord President, in accordance with which-

...

(vii) the parties shall each lodge in process a list of witnesses together with any productions upon which they wish to rely;

...

(2) A timetable issued under paragraph (1) ... shall be treated for all purposes as an interlocutor of the court signed by the Lord Ordinary; and so far as the timetable order is inconsistent with any provision in these rules which relates to a matter to which the timetable relates, the timetable shall prevail.

(3) Where a party fails to comply with any requirement of a timetable other than that referred to in paragraph (7)[which makes separate provision for failure to lodge a record timeously], the Keeper of the Rolls may put the cause out to be heard on the By Order roll.

...

(8) A production which is not lodged in accordance with paragraph (1)(b)(vii) shall not be used or put in evidence at a proof unless-

(a) by consent of parties; or

(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit."

[11] If parties realise that they will be unable to lodge one or more productions on which they wish to rely, by the date specified in the timetable, they may wish to avoid the case being put out by order, for particular reasons that I shall explain in due course. Chapter 43 makes provision as to how that might be accomplished. Rule 43.8, provides, among other things, as follows:

"43.8.-(1) The action may be sisted or the timetable issued under rule 43.6 may be varied by the court on an application by any party to the action by motion.

(2) An application under paragraph (1)

(a) shall be placed before the Lord Ordinary; and

(b) shall be granted only on special cause shown."

[12] It is clear, in my view, that those parts of rule 43.8 which I have quoted were intended to operate as the discouragement to the "culture of a casual approach to timetabling" which was recommended by the working party. But the provisions of rule 4.9 presented a problem that had to be addressed. The timetable is to be treated for all purposes as an interlocutor of the court signed by the Lord Ordinary. (Rule 43.6(2)) The requirement to lodge productions by a specified date is contained within that interlocutor. It would have been at least arguable, therefore, that, when the timetable was issued, the court was pronouncing an interlocutor of a type meeting the description contained in rule 4.9(1), because it was ordering or allowing documents to be lodged in process within a specified time. If that were correct, a party knowing that it would not meet the timetable deadline could invoke the provisions of rule 4.9(2) to seek relief, without having to show special cause. I do not suggest that the court could not have resolved the apparent conflict between rule 4.9(2) and rule 43.8, in such a way as to preserve the integrity of the chapter 43 scheme, but, with rule 4.9(2) disapplied in chapter 43 actions, it would not be called upon to do so.

[13] Further, in my judgment, having regard to the terms of rule 43.8 (which does not expressly require a motion for variation to be enrolled before the relevant time has expired) read in light of the terms of draft rule 43.10 (which did) and of the disapplied rule 4.9(2) (which, in effect, would have) it is clear that an application for variation of the timetable can competently be made after the due date, as well as before.

[14] I have offered my views on the chapter 43 requirements as to the lodging of documents in some detail, because counsel for the defenders sought assistance for her argument from the terms of rule 43.6(8), which I have set out in paragraph [10] of this opinion.

[15] Rule 43.6(8) is a re-draft of rule 36.3(2). Its inclusion in the chapter 43 rules makes it clear beyond argument that what is effectively rule 36.3(2) relief is available to parties in a chapter 43 action, notwithstanding the terms of rule 43.6(1)(b)(vii) (timetable date for lodging). It is equally clear, in my opinion, that the rule should be read sympathetically with rule 43.6(1)(b)(vii), and with rule 43.8 (variation of timetable).

[16] In my view, is not difficult to understand why rule 43.6(8) was included in the scheme. It is a common feature of personal injury actions that things change. A pursuer's medical condition may deteriorate, for example, and so give rise to the need for further reports. In these circumstances, it is intelligible that parties may have lodged all of "the productions upon which they wish to rely" by the due date for lodging, and so have complied fully with the requirements of rule 43.6(1)(b)(vii) as at that date. Where there has been a change of circumstances, such as I describe, after the due date, it may be thought that it would be inappropriate to require parties to seek a variation of the timetable. In the circumstances contemplated in my example, by the stage of a rule 43.8 application, and assuming that rule 43.6(1)(b)(vii) has been complied with, the court's deference to the consent of parties is less of a threat to the operation of the scheme. If there is no consent, the party applying for relief still has to show cause, and may have to meet conditions so as to avoid prejudice to the other side.

[17] There may be circumstances other than those that I have suggested in which the court would grant rule 43.6(8) relief. Where it appears to the court, however, that a party making application in terms of rule 43.6(8) is, in effect, seeking a variation of the timetable, I would not expect that party to succeed in the attempt.

[18] In this case, as I have noted, the defenders had lodged no witness list by the due date. To have allowed their list of witnesses to be received late would, in effect, have varied the timetable. Chapter 43 gives the court no power to do so, except as provided for by rule 43.8. In my opinion, therefore, there is nothing in the terms of rule 43.6(8) which assists the defenders in this case.

[19] During the course of the discussion on 23 October, I informed Miss Springham that I was prepared to treat her motion as if it were an application for variation of the timetable, but she advised me that she was unable to show the necessary special cause. I took the view, therefore, that I should refuse her application. I also refused her motion to grant leave to reclaim, because to do so would have meant discharging the proof, to the prejudice of the pursuer, who had complied with the terms of the timetable in circumstances in which I considered that there was no good reason, let alone special cause, for the defenders having failed to do so.

Quigley

[20] I have noted that counsel for the defenders submitted that I should allow her motion by following the approach adopted by the Lord Ordinary in Quigley. I regret to say that I am not at one with the Lord Ordinary on much of his reasoning in that case.

[21] In his opinion, under the heading "Procedural difficulties" the Lord Ordinary said this:

"[5] Rule 43.6(3) provides that, where parties fail to comply with any requirement of the timetable, the Keeper of the Rolls may (and, in the case of a failure to lodge a Record, must) put the cause out to be heard on the By Order Roll. [By Act of Sederunt, (Rules of the Court of Session Amendment No. 4), (Personal Injuries Actions etc.) 2007, SSI 2007 No. 282, the requirement that the Keeper must put the case out by order in the event of a failure to lodge a record was removed, and he or she was given a discretionary power to do so.] It is the common experience of Outer House judges to deal with such matters on a routine basis. Rule 43.6(8) provides specifically for the case where a party has not lodged productions in accordance with the timetable. It provides that a production not lodged in accordance with the timetable 'shall not be used or put in evidence at a proof unless' by consent of the parties or '(b) with the leave of the Court on cause shown and on such conditions, if any, as to expenses or otherwise as the Court thinks fit'. There is, however, no comparable provision in Rule 43.6 to deal with the case where a party has failed to lodge in process by the required time his list of witnesses. The notes to the Rule in the Parliament House Book at 43.6.7 suggests that it may be difficult to imply in relation to witnesses a similar restriction as is expressly made in respect of productions. But the note does not propose a solution. It simply points out that the action will, nonetheless, be subject to a particular Practice Note, the relevant one being No.8 of 1994 (rather than No.4 as suggested in the Note)."

[22] The practice note is in these terms:

"Exchange of Lists of Witnesses

1. Subject to the provisions in R.C.S. 1994, Chapter 43, Part V (optional procedure in certain actions of damages) and Chapter 47 (commercial actions), not later than 28 days before the diet fixed for a proof or jury trial, each party shall-

(a) give written intimation to every other party of a list containing the name, occupation (if known) and address of each person whom he intends to call as a witness; and

(b) lodge a copy of that list in process.

2. A party who seeks to call as a witness a person not on his list intimated under paragraph (1) may do so subject to such conditions, if any, as the court thinks fit.

3. This Practice Note comes into force on 5th September 1994.

28th June 1994"

[23] Having set out the terms of the practice note, the Lord Ordinary continued as follows:

"[6] The argument has been made, on a number of occasions, that the power to impose conditions under paragraph 2 of that Practice Note is limited to the case where a party, having intimated a list of witnesses, seeks to call an additional witness not named on the list. In other words, it has no application where no list at all has been intimated. In such a case, it is argued, a party is entitled to call any witness he chooses. It has also been argued that the restriction in paragraph 2 of the Practice Note applies only to witness lists intimated under paragraph 1 thereof, and can have no application to a witness list which ought to have been lodged in process under the timetable issued by the Keeper of the Rolls in terms of Rule 43.6. On this argument, again, the Court has no power either to refuse permission to a party to call a witness not on a witness list or to impose any conditions on the calling of such a witness. A third argument, less extreme than the other two, is sometimes made to the effect that, in terms of the Practice Note, the Court may impose conditions on the calling of a witness not on a list, but may not prevent such a witness being called. In my opinion, none of these arguments has any merit. In terms of the Practice Note, a restriction on the right to call a witness who is not named on the list of witnesses lodged in accordance with that Practice Note must carry with it, as a matter of clear implication, a restriction on the right to call a witness if no list at all has been lodged. Further, it seems to me that the framers of the new Rule 43 must have had in mind the existence of that Practice Note. They cannot have intended uno flatu to impose a requirement for a witness list to be lodged and, at the same time, to remove any sanction for failure to comply with it. Nor can the power of the Court to impose conditions sensibly be viewed as consistent with the Court having no power to prevent a witness being called if, for example, there are no conditions which would sufficiently protect the other party from the prejudice potentially arising therefrom. I consider that the Practice Note has to be read as applying to the requirements of Rule 43.6 with such modifications as are necessary. In other words, a party seeking to call a witness not named on a list of witnesses lodged in Court in accordance with Rule 43.6 requires the leave of the Court, and the Court may refuse leave or grant it on such terms as it considers fit.

[7] The preferable course, if a party has not lodged a list of witnesses within the time laid down in the timetable issued under Rule 43.6, is for that party to apply to the Court at the earliest opportunity for his list of witnesses to be received though late. Such an application, if made promptly, is likely to be granted, since the likelihood of prejudice having arisen will be small - though an explanation for the failure and an offer of expenses will be expected and, if the fault is that of the agent, the Court may wish to be satisfied that the expenses of the application are not passed on to the client. If the application is made near to the date fixed for the proof, the Court may be more likely to impose conditions on the calling of particular witnesses, to alleviate so far as possible the risk of prejudice. It will only be in the exceptional case that a party will need to resort to Practice Note 8 of 1994."

[24] I have a number of observations to make about these views. I can express them most intelligibly by beginning with the Lord Ordinary's statement that

"the framers of the new Rule 43 must have had in mind the existence of that Practice Note. They cannot have intended uno flatu to impose a requirement for a witness list to be lodged and, at the same time, to remove any sanction for failure to comply with it."

[25] When the new scheme was originally put forward for the working party's consideration, it was proposed that a failure to meet the deadline for lodging productions and a list of witnesses should trigger automatic decree against the party in default. A majority of members considered that to be too severe a sanction but, in its report, the working party said this:

"There are bound to be cases of dilatory agents or counsel. There are also bound to be cases in which some more or less definite advantage for a party can be seen in delay. Much thought was, therefore, given to proposals for different sorts of sanction, particularly with view to ensuring that the new stages of procedure which are recommended are treated as real and are not seen as merely other formalities which have to be worked through. The ideas discussed included penal awards of expenses, awards of interest at a penal rate and prepayment and forfeiture of court fees on a significant scale. ... In the end, ... the Working Party felt unable to go beyond recommending that the progress of cases should be monitored, so that any failure to lodge a step in process at the right time should be immediately noticed and should lead to the party or parties having to appear to explain the failure. Any such failures should be taken into account in any questions of expenses. There are two stages of the scheme at which a more stringent sanction should be available, although it would be hoped it would be very rarely used. Firstly, in any case where any document or material is lodged late, or a date in the timetable is not adhered to, the court should have power to award expenses up to the expenses of process to date against the party in default. Secondly, in the event of failure by either party to lodge their valuation at the due date, the court should have power at a By Order hearing to dismiss the action or grant decree for the amount of the pursuer's valuation, as the case may be."

[26] It is against that background that rules 43.6(3) and (7) provide that, where a party fails to comply with any requirement of the timetable, the Keeper of the Rolls may put the cause out to be heard on the by order roll. Rule 43.7 provides as follows:

"43.7.-(1) Where the Keeper of the Rolls puts a case out to be heard on the By Order roll under paragraphs (3) or (7) of rule 43.6 or paragraph (3) of rule 43.10 [where there has been a failure timeously to lodge a joint minute of a pre-trial meeting] he shall-

(a) put the cause out to be heard not less than seven days after the date of the notice referred to in sub-paragraph (b) on the By Order roll; and

(b) give notice to the parties to the action-

(i) of the date of the hearing of the cause on the By Order roll; and

(ii) requiring the party in default to lodge in process a written explanation as to why the timetable has not been complied with and to intimate a copy to all other parties, not less than two clear working days before the date of the hearing.

(2) At a hearing on the By Order roll under any of the provisions mentioned in the foregoing paragraph, the Lord Ordinary-

(a) shall consider any explanation provided by the party in default;

(b) may award expenses against that party; and

(c) may make any other appropriate order, including decree of dismissal.

(3) Expenses awarded under paragraph (2)(b) shall not exceed the expenses of the process before the date of the hearing on the By Order roll."

[27] Having regard to those provisions, and with respect to the Lord Ordinary in Quigley, it is incorrect to say that the chapter 43 rules have "remove(d) any sanction for failure to comply with" the timetable requirement to lodge a list of witnesses by the specified date. Indeed, the court's power to apply sanctions goes further than the working party proposed. For example, decree of dismissal may be pronounced where there has been a failure to meet any timetable deadline, not only, as recommended, failure to lodge a valuation by the due date. The Lord Ordinary's rationale for applying the provisions of the practice note to the requirements of rule 43.6(1)(b)(vii), therefore, falls away.

[28] In any event, according to its terms, paragraph (2) of the practice note makes provision in respect of the calling of "a person not on (a party's) list intimated under paragraph (1)". It makes no provision in respect of the intimation and lodging of a paragraph (1) list itself, where that has not been done timeously. In my judgment, paragraph (2) of the practice note can have no application in the context of a chapter 43 action, to allow a rule 43.6(1)(b)(vii) list to be received late.

[29] It follows from my reasoning so far that I respectfully disagree with the Lord Ordinary that it is open to a party who has not timeously lodged a list of witnesses in chapter 43 proceedings to apply to the court for a list to be received late. For the reasons given in paragraph [13] of this opinion, it is competent, in my opinion, to seek a variation of the timetable after the due date for compliance has passed. That can be done even where the case has been put out by order. The motion would be placed before the court and, if it were satisfied that, having regard to the whole circumstances, special cause had been shown for variation of the timetable at that stage, it would be within the court's discretion to allow the timetable to be varied and to discharge the by order roll hearing.

[30] It is appropriate to observe that the pursuer's motion in Quigley, to allow his list of witnesses to be lodged, came on the first day of the proof. Although the motion was opposed, there is no mention in the Lord Ordinary's opinion of his attention having been directed either to rule 43.7(2) (sanctions at by order roll hearing) or 43.8(2)(b) (variation only on special cause shown).

[31] So far, I have been considering the procedural consequences of a failure to lodge a list of witnesses by the due date. It may happen that, a list of witnesses having been timeously lodged, a change of circumstances such as I have mentioned in paragraph [16] gives rise to the need to call a witness not on a party's list. In my opinion, the court has jurisdiction at common law to take such steps as are necessary in the interests of justice to avoid prejudice to either party by the exercise of its power to adjourn, discharge, and award expenses, as appropriate.

[32] I am conscious that I have not dealt with the question whether a party, who has lodged no witness list, may nonetheless call witnesses at the evidential hearing. That is because I was not called upon to decide that issue. In ordinary course, however, the problem is unlikely to arise, because it is expected that the Keeper will have put the case out for a hearing on the by order roll, at which the court can exercise any of the wide powers available to it in terms of rule 43.7(2).