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

• (c) after Form G9 (form of notice of opposition to motion or minute)⁴⁴, insert Form G9A (form of opposition to motion by email) set out in Schedule 2 to this Act of Sederunt;

• (d) after Form G13 (form of citation of witness or haver)⁴⁵, insert Form G13A (form of citation of juror) set out in Schedule 2 to this Act of Sederunt;

• (e) for Form PI1 (form of initial writ in a personal injuries action)⁴⁶, substitute Form PI1 set out in Schedule 2 to this Act of Sederunt;

• (f) for Form PI4 (form of interlocutor granting authority to raise action based on alleged clinical negligence as an ordinary cause)⁴⁷, substitute Form PI4 (form of interlocutor appointing the cause to Chapter 36A) set out in Schedule 2 to this Act of Sederunt;

• (g) in Form PI5 (form of timetable)⁴⁸, in paragraph 9, for “pre-proof minute” substitute “pre-trial minute”;

• (h) for Form PI7 (minute of pre-proof conference)⁴⁹, substitute Form PI7 (form of minute of pre-trial meeting) set out in Schedule 2 to this Act of Sederunt;

• (i) after Form PI7, insert Forms PI8 (form of oath for jurors) and PI9 (form of affirmation for jurors) set out in Schedule 2 to this Act of Sederunt.

Amendment of the Summary Cause Rules 2002: remits

9

• (1) The Summary Cause Rules 2002⁵⁰ are amended in accordance with this paragraph.

• (2) For rule 16.2 (remit between procedures), substitute—

(16.2) (1) If the sheriff makes a direction that an action is to be treated as an ordinary cause, the sheriff must, at the time of making that direction— (a) direct the pursuer to lodge an initial writ and intimate it to every other party, within 14days of the date of this direction; (b) direct the defender to lodge defences within 28days of the date of the direction; and (c) fix a date and time for an Options Hearing and that date is to be the first suitable court day occurring not sooner than ten weeks, or such lesser period as the sheriff considers appropriate, after the last date for lodging the initial writ. (2) Where a direction is made under paragraph(1) in relation to a personal injuries action within the meaning of Chapter 34 (action of damages for, or arising from, personal injuries)— (a) the action is to proceed as a personal injuries action within the meaning of Part A1 of Chapter 36 of the Ordinary Cause Rules 1993 in Schedule 1 to the 1907 Act and in particular— (i) the initial writ is to be lodged in the form specified by rule 36.B1 (form of initial writ); (ii) the defences are to be lodged in accordance with rule 9.6 (defences) as modified by rule 36.E1(5) (no note of pleas-in-law); (b) paragraph (1)(c) does not apply. (16.2A) (1) This rule applies where a party applies for an action to be treated as an ordinary cause and transferred to the all-Scotland sheriff court. (2) Where the sheriff— (a) directs that the action is to be treated as an ordinary cause; and (b) certifies that the importance or difficulty of the proceedings makes it appropriate to transfer the action to the all-Scotland sheriff court, the sheriff must make an order transferring the action to that court. (3) In this rule— (a) “all-Scotland sheriff court” means the sheriff court specified in the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015⁵¹ so far as the court is constituted by a sheriff sitting in the exercise of the sheriff’s all-Scotland jurisdiction for the purpose of dealing with civil proceedings of a type specified in that Order; (b) the reference to a sheriff’s all-Scotland jurisdiction is to be construed in accordance with section 42(3) of the Courts Reform (Scotland) Act 2014. (16.2B) —If the sheriff directs that an ordinary cause or small claim is to be treated as an action under these Rules— (a) in the case of an ordinary cause, the initial writ is to be deemed to be a summary cause summons; (b) the sheriff must specify the next step of procedure to be followed in the action.

• (3) In rule16.3 (remit from Court of Session), for “section14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (remit of cases from the Court of Session)” substitute “section 93 of the Courts Reform (Scotland) Act 2014 (remit of cases from the Court of Session)”.

Saving: remits

10

• (1) Paragraphs 3(2), 7(5) and 9(3) do not apply to an action raised before 22nd September 2015.

• (2) Paragraphs 3(4) and (5) and 7(4) do not apply to an action where before 22nd September 2015 the sheriff has—

• (a) granted a motion to remit the cause to the Court of Session; or

• (b) remitted a cause to the Court of Session of the sheriff’s own accord.

Saving: personal injury

11

• (1) Paragraph 6 does not apply to an action raised before 22nd September 2015.

• (2) Paragraphs 8(3), (8), (9), (10), (11)(a), (12), (13), (14) and (16)(a), (e), (f), (g) and (h) do not apply to an action raised before 22nd September 2015.

• (3) Despite subparagraph (2), the sheriff may direct that paragraph 8(14) and (16)(a) applies to an action raised before 22nd September 2015 if—

• (a) the sheriff, having considered the likely complexity of the action, is satisfied that the efficient determination of the action would be served if the action were appointed to the procedure in Chapter 36A of the Ordinary Cause Rules 1993 (as inserted by paragraph 8(14) of this Act of Sederunt); and

• (b) every party to the action consents to the making of that direction.

SCHEDULE 1

SCHEDULE 2

Signed

C J M Sutherland — Lord Justice Clerk — I.P.D. — 2nd June 2015

Explanatory note

(This note is not part of the Act of Sederunt)

EXPLANATORY NOTE

This Act of Sederunt amends the Rules of the Court of Session 1994, the Ordinary Cause Rules 1993 and the Summary Cause Rules 2002 in respect of the transfer and remit of civil proceedings and personal injury actions. It makes provision in consequence of the coming into force of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”), as well as containing other amendments in relation to personal injury actions.

Remits and transfers

Paragraph 3 amends Chapter 32 (transmission and remit of causes) of the Rules of the Court of Session 1994. It specifies the procedure to be followed when a sheriff makes a request to remit proceedings to the Court of Session under section 92(4) of the 2014 Act (new rules 32.2A and 32.2B). It also amends the procedure to be followed when proceedings are remitted to the Court of Session (substituted rules 32.4 to 32.6). Consequential amendments are also made to rule 32.1 to update references to section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (“the 1985 Act”).

Paragraph 7 amends Chapter 26 (transfer and remit of causes) of the Ordinary Cause Rules 1993. In particular, it specifies the procedure to be followed after a summary cause is remitted to be an ordinary cause and transferred to the all-Scotland sheriff court (new rule 26.1A). It also substitutes provisions specifying the procedure to be followed when different types of application are made to the sheriff to remit proceedings to the Court of Session (substituted rule 26.2 and new rules 26.2A and 26.2B). A consequential amendment is also made to rule 26.3 to update references to section 14 of the 1985 Act.

Paragraph 9 amends Chapter 16 (transfer and remit of causes) of the Summary Cause Rules 2002. In particular, it clarifies the procedure to be followed when a sheriff remits a summary cause to be an ordinary cause, including special provision for personal injury actions (substituted rule 16.2), or remits an ordinary cause or small claim to be a summary cause (new rule 16.2B). It also specifies the procedure to be followed where a summary cause is remitted to be an ordinary cause and transferred to the all-Scotland sheriff court (new rule 16.2A). A consequential amendment is also made to rule 16.3 to update references to section 14 of the 1985 Act.

Paragraph 10 contains saving provisions. Paragraph 10(1) provides that paragraphs 3(2), 7(5) and 9(3) do not apply to an action raised before 22nd September 2015, because section 14 of the 1985 Act continues to apply to those actions. Paragraph 10(2) provides that, where a motion to remit to the Court of Session has been granted before 22nd September 2015 (or the sheriff remits a cause of the sheriff’s own accord), paragraphs 3(4) and (5) and 7(4) do not apply. Accordingly, the existing procedural requirements for remits will continue to apply in those circumstances.

Personal injury actions

Paragraph 4 amends Chapter 39 (applications for new trial or to enter jury verdicts) of the Rules of the Court of Session 1994 to allow applications to be made to the Court of Session for a new trial under section 69 of the 2014 Act, or to enter a jury verdict under section 71, following a jury trial in the sheriff court. Consequential amendments are made to Forms 39.3 and 39.4. These amendments are transitory in nature: they will cease to have effect when the Sheriff Appeal Court assumes its civil jurisdiction and competence in accordance with paragraph 5, as applications under sections 69 and 71 of the 2014 Act will then be dealt with in that Court.

Paragraph 6(2) amends Chapter 42A (case management of certain personal injuries actions) of the Rules of the Court of Session 1994 regarding the form of initial writ to be used in certain cases, the matters to be covered by parties in the written statements lodged under rule 42A.3 and the matters to be considered by the Lord Ordinary before sending an action to proof or jury trial under rule 42A.4. Provision is also included to (i) widen the powers of the Lord Ordinary under that Chapter as regards the fixing of procedural hearings and the making of orders to secure the efficient determination of actions, and (ii) confirm that any pre-trial meeting held under Chapter 42A must be attended by parties in person or by means of video-conference facilities. Paragraph 6(3) makes related amendments to Chapter 43 (actions of damages for, or arising from, personal injuries).

Paragraph 8 amends the Ordinary Cause Rules so as to make provision relating to jury trials, and allowing the lodging of motions by email, in the types of civil proceedings specified in the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015, made under section 41 of the 2014 Act (power to confer all-Scotland jurisdiction for specified cases). Paragraph 8 also inserts a new Chapter 36A allowing for the case management of certain personal injuries actions (similar to the provisions of Chapter 42A of the Rules of the Court of Session as amended by paragraph 6(2) of this Act of Sederunt). In addition, in personal injuries actions subject to personal injuries procedure (within the meaning of Part A1 of Chapter 36), pre-proof conferences are renamed pre-trial meetings. Where a pre-trial meeting is held under Chapter 36 (actions of damages), or Chapter 36A, adjusted rule 36.K1, and rule 36A.10(2), provide that parties must attend in person or by means of video-conference facilities. In consequence of these changes, paragraph 8(16) amends the Forms in Appendix 1 of the Ordinary Cause Rules: Form PI5 is amended, new versions of Forms G1, PI1, PI4 and PI7 are substituted, and new Forms G6A, G9A, G13A, PI8 and PI9 are inserted.

Paragraph 11 contains saving provisions. Paragraph 11(1) provides that paragraph 6 does not apply to actions raised before 22nd September 2015, and so Chapters 42A and 43 of the Rules of the Court of Session as they applied immediately before 22nd September 2015 continue to apply to those actions.

Paragraph 11(2) contains saving provisions for the Ordinary Cause Rules, providing that paragraphs 8(3), (8), (9), (10), (11)(a), (12), (13), (14) and 16(a), (e), (f), (g) and (h) of this Act of Sederunt do not apply to an action raised before 22nd September 2015. As a result, rules 3.1, 36.C1, 36.E1, 36.F1, 36.G1(1A)(h), 36.K1 and Part IVA of Chapter 36 (and associated Forms) of the Ordinary Cause Rules as they applied immediately before 22nd September 2015 continue to apply to those actions. Paragraph 11(3) provides, however that the sheriff may direct that the amendments in paragraph 8(14) and (16)(a) are to apply to actions raised before 22nd September 2015. If the sheriff makes such a direction, the new Chapter 36A procedure can apply. The sheriff must be satisfied that the efficient determination of the action would be served if the action were appointed to the procedure in Chapter 36A, and that every party to the action consents, before making the direction.

Footnotes

Editorial notes