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Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015

Type Scottish-Statutory-Instrument
Publication 2015-06-02
State In force
Jurisdiction Scotland
Department King's Printer for Scotland
Source legislation.gov.uk
articles Not indexed
Reform history JSON API PDF

Made: 2nd June 2015

Laid before the Scottish Parliament: 4th June 2015

Coming into force: 22nd September 2015

The Court of Session therefore makes this Act of Sederunt under the powers conferred by sections103(1)and 104(1) of the Courts Reform (Scotland) Act 2014[^f00002] and all other powers enabling it to do so.

Citation and commencement, etc.

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Amendment of the Rules of the Court of Session 1994: miscellaneous

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  • “the Act of 2014” means the Courts Reform (Scotland) Act 2014.

Amendment of the Rules of the Court of Session 1994: remits

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(32.2A) (1) A request under section 92(4) of the Act of 2014 (request for remit to the Court of Session) is made by interlocutor. (2) Within 14 days of the issuing of that interlocutor, the party seeking the remit must lodge— (a) a remit request, consisting of— (i) the whole pleadings and interlocutors in the cause; (ii) the note of the sheriff mentioned in rule 26.2A(2) of the Ordinary Cause Rules 1993 in Schedule 1 to the Sheriff Courts (Scotland) Act 1907; (b) a process in accordance with rule 4.4 (steps of process). (32.2B) (1) Where a remit request is lodged, the court is to put the request out on the By Order roll in order that the party seeking the remit and any other party to the sheriff court proceedings may make submissions about whether the proceedings should be remitted. (2) The Lord Ordinary, having heard parties, may— (a) refuse the request; or (b) make an order under section 92(5) of the Act of 2014 allowing the proceedings to be remitted. (3) The Deputy Principal Clerk must, within 4 days after the interlocutor has been pronounced under paragraph (2), send a copy of the interlocutor to the sheriff clerk of the sheriff court specified in the interlocutor.

(32.4) (1) Within 14 days after the date of receipt of the sheriff court process, the party who sought the remit must make up and lodge in the General Department a process incorporating the sheriff court process. (2) Where that party has already lodged a process under rule 32.2A(b), the party must incorporate the sheriff court process in that process within the same period. (3) When the party who sought the remit has complied with paragraph (1) or (2)— (a) that party must apply by motion for an order for such further procedure as that party thinks fit, (b) the cause is to proceed as if it had been an action in the court initiated by a summons. (4) A motion under paragraph (3)(a) is to be disposed of by the Lord Ordinary. (32.5) (1) Where the party who sought the remit fails to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), that party may apply by motion to be reponed within 7 days after the expiry of the period specified in rule 32.4(1). (2) Paragraph (3) applies where the failure mentioned in paragraph (1) is a failure to lodge a process under rule 32.4(1), or incorporate a process in accordance with rule 32.4(2). (3) The party enrolling a motion under paragraph (1) must, on enrolling that motion— (a) lodge a process in accordance with rule 32.4(1), or, as the case may be, incorporate a process under rule 32.4(2); (b) apply by motion for an order for such further procedure as that party thinks fit. (4) A motion under paragraph (1) is to be granted only on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit. (32.6) —Where the party who sought the remit has failed to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), any other party to the cause may, within 7 days after the expiry of the period specified in rule 32.4(1), comply with the requirements of those paragraphs and insist in the remit.

Amendment of the Rules of the Court of Session 1994: applications for new trial or to enter jury verdicts

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(39.1A) (1) An application under section 69(1) of the Act of 2014 (application for new trial) must be made to a procedural judge, by motion, within 7 days after the date on which the jury have returned their verdict. (2) A motion under paragraph (1) must specify the grounds on which the application is made. (3) An application under section 69(1) of the Act of 2014 may not be made unless in the case of an application specifying the ground in— (a) section 69(2)(a) of the Act of 2014 (misdirection by sheriff), the procedure in rule36B.8 of the Ordinary Cause Rules (exceptions to sheriff’s charge) has been complied with; (b) section 69(2)(b) of the Act of 2014 (undue admission or rejection of evidence), objection was taken to the admission or rejection of evidence at the trial and recorded in the notes of evidence under the direction of the sheriff presiding at the trial; or (c) section 69(2)(c) of the Act of 2014 (verdict contrary to evidence), it sets out in brief specific numbered propositions the reasons the verdict is said to be contrary to the evidence. (4) On enrolling a motion for a new trial, the party enrolling it must lodge— (a) a print of the whole pleadings and interlocutors in the cause incorporating the issues and counter-issues; (b) the verdict of the jury; and (c) any exception and the determination on it of the sheriff presiding at the trial. (5) In this rule— - “the Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907.

(aa) the lodging of any appendices to the documents mentioned in rule 39.1A(4) or, as the case may be, the giving of notice that the applicant does not intend to lodge any appendices;

(39.9A) (1) An application under section 71(2) of the Act of 2014 (verdict subject to opinion of the Court) must be made by motion to a procedural judge. (2) On enrolling a motion under paragraph (1), the party enrolling it must lodge in process four copies of— (a) a print of the whole pleadings and interlocutors in the cause incorporating the issues and counter–issues; (b) any exception taken during the trial and the determination on it of the sheriff presiding at the trial; and (c) the verdict of the jury, and send one copy of it to every other party. (3) Unless the procedural judge otherwise directs, it will not be necessary for the purposes of such a motion to print the notes of evidence, but the notes of the sheriff presiding at the trial may be produced at any time if required. (4) In the case of complexity or difficulty, the procedural judge may appoint an application referred to in paragraph (1) to the Summar Roll for hearing.

Transitory provision: applications for new trial or to enter jury verdicts

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Paragraph 4 has effect in relation to any application made under section 69 or 71 of the Courts Reform (Scotland) Act 2014 before 1st January 2016.

Amendment of the Rules of the Court of Session 1994: personal injury

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(42A.3) (1) The pursuer must, no later than 7 days before the hearing on the By Order (Adjustment) Roll— (a) send a copy of the closed record to the defender and to every other party; and (b) lodge three copies of the closed record in process. (2) A closed record is to consist of the pleadings of the parties and the interlocutors pronounced in the action. (3) At the same time as lodging the record each party must lodge in process and send to every other party a written statement containing proposals for further procedure which must state— (a) whether the party is seeking to have the action appointed to debate or to have the action sent to proof; (b) where it is sought to have the action appointed to debate— (i) the legal argument on which any preliminary plea should be sustained or repelled; and (ii) the principal authorities (including statutory provisions) on which the argument is founded; (c) where it is sought to have the action appointed to proof— (i) the issues for proof; (ii) the names, occupations (where known) and addresses of the witnesses who are intended to be called to give evidence, including the matters to which each witness is expected to speak and the time estimated for each witness; (iii) whether any such witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004 and whether any child witness notice under section 12(2) of that Act or any vulnerable witness application under section 12(6) of that Act has been, or is to be, lodged in respect of that witness; (iv) the progress made in preparing and exchanging the reports of any skilled persons; (v) the progress made in obtaining and exchanging records, particularly medical records; (vi) the progress made in taking and exchanging witness statements; (vii) the time estimated for proof and how that estimate was arrived at; (viii) any other progress that has been made, is to be made, or could be made in advance of the proof; (ix) whether an application has been or is to be made under rule 37.1 (applications for jury trial).

(42A.4) (1) At the hearing on the By Order (Adjustment) Roll the Lord Ordinary, after considering the written statements lodged by the parties under rule 42A.3(3) and hearing from the parties, is to determine whether the action should be appointed to debate or sent to proof on the whole or any part of the action. (2) Before determining whether the action should be appointed to debate the Lord Ordinary is to hear from the parties with a view to ascertaining whether agreement can be reached on the points of law in contention. (3) Where the action is appointed to debate, the Lord Ordinary may order that written arguments on any question of law are to be submitted. (4) Before determining whether the action should be sent to proof, the Lord Ordinary is to hear from parties with a view to ascertaining— (a) the matters in dispute between the parties; (b) the readiness of parties to proceed to proof; and (c) without prejudice to the generality of subparagraphs (a) and (b)— (i) whether reports of skilled persons have been exchanged; (ii) the nature and extent of the dispute between skilled persons; (iii) whether there are facts that can be agreed between parties, upon which skilled persons can comment; (iv) the extent to which agreement can be reached between the parties on the relevant literature upon which skilled persons intend to rely; (v) whether there has been a meeting between skilled persons; or whether such a meeting would be useful; (vi) whether a proof on a particular issue would allow scope for the matter to be resolved; (vii) whether witness statements have been exchanged; (viii) whether any party is experiencing difficulties in obtaining precognition facilities; (ix) whether all relevant records have been recovered and whether there is an agreed bundle of medical records; (x) whether there is a relevant case that is supported by evidence of skilled persons; (xi) if there is no evidence of skilled persons to support a relevant case, whether such evidence is necessary; (xii) whether there is a relevant defence to any or all of the cases supported by evidence of skilled persons; (xiii) if there is no evidence of skilled persons to support a relevant defence, whether such evidence is necessary; (xiv) whether causation of some or all of the injuries is the main area of dispute and, if so, what the position of the respective skilled persons is; (xv) whether valuations have been, or could be, exchanged; (xvi) if valuations have been exchanged showing a significant disparity, whether parties should be asked to provide an explanation for such disparity; (xvii) whether a joint minute has been considered; (xviii) whether any of the heads of damage can be agreed; (ixx) whether any orders would facilitate the resolution of the case or the narrowing of the scope of the dispute; (xx) whether a pre-trial meeting should be fixed; (xxi) whether amendment, other than updating, is anticipated; and (xxii) the time required for proof. (5) Where the action is sent to proof the Lord Ordinary must— (a) fix a date for the hearing of the proof; (b) fix a pre-proof timetable in accordance with rule 42A.5. (6) The Lord Ordinary may fix a further hearing on the By Order (Adjustment) Roll— (a) on the motion of any party; (b) on the Lord Ordinary’s own initiative. (7) A further hearing under paragraph (6) may be fixed— (a) at the hearing on the By Order (Adjustment) Roll or at any time thereafter; (b) whether or not the action has been appointed to debate or sent to proof.

(2) Rule 43.10(1), (2)(b) and (5) applies to a pre-trial meeting held under this Chapter as it applies to a pre-trial meeting held under Chapter 43.

(42A.6) (1) Following the fixing of a hearing under rule 42A.4(6) or 42A.5(4)(a), or the variation of the pre-proof timetable under rule 42A.5(4)(b), the Lord Ordinary may make such orders as the Lord Ordinary thinks necessary to secure the efficient determination of the action. (2) In particular, the Lord Ordinary may make orders to resolve any matters arising or outstanding from the written statements lodged by parties under rule 42A.3(3) or the pre-proof timetable fixed under rule 42A.4(5)(b).

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