Sheriff Courts (Scotland) Act 1907

[F1 PART AI S SPECIAL PROCEDURE FOR ACTIONS FOR, OR ARISING FROM, PERSONAL INJURIES

Textual Amendments

F1 Sch. 1 Ch. 36 Pt. A1 inserted (2.11.2009) by Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009 (S.S.I. 2009/285), paras. 1(1), 2(6) (with para. 3)

Application and interpretation S

Application and interpretation of this Part S

36.A1. (1) This Part applies to a personal injuries action.

(2) In this Part—

• “personal injuries action” means an action of damages for, or arising from, personal injuries or death of a person from personal injuries; and

• “personal injuries procedure” means the procedure established by rules 36.G1 to 36.L1.

(3) In the definition of “personal injuries action”, “personal injuries” includes any disease or impairment, whether physical or mental.

Raising a personal injuries action S

Form of initial writ S

36.B1. (1) Subject to rule 36.C1, the initial writ in a personal injuries action shall be in Form PI1 and there shall be annexed to it a brief statement containing—

(a) averments in numbered paragraphs relating only to those facts necessary to establish the claim;

(b) the names of every medical practitioner from whom, and every hospital or other institution in which, the pursuer or, in an action in respect of the death of a person, the deceased received treatment for the personal injuries.

(2) An initial writ may include—

(a) warrants for intimation so far as permitted under these Rules, and

(b) a specification of documents in Form PI2.

Actions based on clinical negligence S

[F2 36.C1. (1) This rule applies to a personal injuries action based on alleged clinical negligence.

(2) Where a pursuer intends to make an application under paragraph (3) to have the cause appointed to the procedure in Chapter 36A (case management of certain personal injuries actions), the pursuer must—

(a) present the initial writ for warranting in Form G1 (form of initial writ); and

(b) include in the initial writ a draft interlocutor in Form PI4 (form of interlocutor appointing the cause to the procedure in Chapter 36A).

(3) At the same time as an initial writ which includes a draft interlocutor in Form PI4 is presented for warranting, the pursuer must lodge a written application in the form of a letter addressed to the sheriff clerk to have the cause appointed to the procedure in Chapter 36A.

(4) On the making of an application under paragraph (3), the initial writ will be placed before a sheriff in chambers and in the absence of the parties.

(5) On consideration of the initial writ in accordance with paragraph (4), the sheriff may—

(a) after considering the likely complexity of the action and being satisfied that the efficient determination of the action would be served by doing so, appoint the cause to the procedure in Chapter 36A by signing the draft interlocutor in the initial writ; or

(b) fix a hearing.

(6) The sheriff clerk must notify the parties of the date and time of any hearing under paragraph (5)(b).

(7) At a hearing under paragraph (5)(b), the sheriff may—

(a) refuse the application; or

(b) after considering the likely complexity of the action and being satisfied that the efficient determination of the action would be served by doing so, appoint the cause to the procedure in Chapter 36A by signing the draft interlocutor in the initial writ.

(8) Where the sheriff appoints the cause to the procedure in Chapter 36A under paragraph (5)(a) or (7)(b)—

(a) the sheriff or, as the case may be, the sheriff clerk must sign a warrant in accordance with rule 5.1 (signature of warrants);

(b) the cause will proceed in accordance with Chapter 36A rather than in accordance with personal injuries procedure.

(9) In this rule—

• “clinical negligence” means a breach of duty of care by a health care professional in connection with that person’s diagnosis or the care and treatment of any person, by act or omission, while the health care professional was acting in a professional capacity;

• “health care professional” includes—

  (a)

  a registered medical practitioner;

  (b)

  a registered nurse; or

  (c)

  any other member of a profession regulated by a body mentioned in section 25(3) (the Professional Standards Authority for Health and Social Care) of the National Health Service Reform and Health Care Professions Act 2002.]

Textual Amendments

F2 Sch. 1 rule 36.C1 substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(8) (with para. 11(2)(3))

Inspection and recovery of documents S

36.D1. (1) This rule applies where the initial writ in a personal injuries action contains a specification of documents by virtue of rule 36.B1(2)(b).

(2) On the granting of a warrant for citation, an order granting commission and diligence for the production and recovery of the documents mentioned in the specification shall be deemed to have been granted and the sheriff clerk shall certify Form PI2 to that effect by attaching thereto a docquet in Form PI3.

(3) An order which is deemed to have been made under paragraph (2) shall be treated for all purposes as an interlocutor granting commission and diligence signed by the sheriff.

(4) The pursuer may serve an order under paragraph (2) and the provisions of Chapter 28 (recovery of evidence) shall thereafter apply, subject to any necessary modifications, as if the order were an order obtained on an application under rule 28.2 (applications for commission and diligence for recovery of documents etc.).

(5) Nothing in this rule shall affect the right of a party to apply under rule 28.2 for a commission and diligence for recovery of documents or for an order under section 1 of the Administration of Justice (Scotland) Act 1972 in respect of any document or other property whether or not mentioned in the specification annexed to the initial writ.

Personal injuries action: application of other rules and withdrawal from personal injuries procedure S

Application of other rules S

[F3 36.E1. (1) A defended personal injuries action will, instead of proceeding in accordance with Chapter 9 (standard procedure in defended causes), proceed in accordance with personal injuries procedure.

(2) But paragraph (1) does not apply to a personal injuries action following its appointment to the procedure in Chapter 36A under rule 36.C1, 36.F1 or 36A.1.

(3) Paragraphs (4) to (17) apply to a personal injuries action proceeding in accordance with personal injuries procedure but cease to apply when an action is appointed to the procedure in Chapter 36A.

(4) Despite paragraph (1), the following rules of Chapter 9 apply—

(a) rule 9.1 (notice of intention to defend);

(b) rule 9.3 (return of initial writ);

(c) rule 9.5 (process folder);

(d) rule 9.6 (defences); and

(e) rule 9.7 (implied admissions).

(5) But the defences will not include a note of pleas-in-law.

(6) In the application of rule 18.3(1) (applications to amend), a minute of amendment lodged in process must include, where appropriate, confirmation as to whether any warrants are sought under rule 36.B1(2)(a) (warrants for intimation) or whether a specification of documents is sought under rule 36.B1(2)(b) (specification of documents).

(7) In the application of rule 18.5(1)(a) (service of amended pleadings), the sheriff must order any timetable issued in terms of rule 36.G1 to be served together with a copy of the initial writ or record.

(8) Rule 18.5(3) (fixing of hearing following service of amended pleadings and lodging of notice of intention to defend) does not apply.

(9) In the application of rule 19.1 (counterclaims) a counterclaim may also include—

(a) warrants for intimation so far as permitted under these Rules; and

(b) a specification of documents in Form PI2.

(10) In rule 19.4 (disposal of counterclaims), paragraph (b) does not apply.

(11) In the application of rule 20.4(3) (service on third party), any timetable already issued in terms of rule 36.G1 must also be served with a third party notice.

(12) In the application of rule 20.6 (procedure following answers)—

(a) paragraphs (1) and (2) do not apply; and

(b) where a third party lodges answers, any timetable already issued under rule 36.G1 applies to the third party.

(13) Chapters 22 (preliminary pleas) and 28A (pre-proof hearing) do not apply.

(14) Rule 29.11 does not apply.

(15) References elsewhere in these Rules to the condescendence of an initial writ or to the articles of the condescendence are to be construed as references to the statement required under rule 36.B1(1) and the numbered paragraphs of that statement.

(16) References elsewhere in these Rules to pleas-in-law, an open record, a closed record or a record for an Options Hearing are to be ignored.

(17) References elsewhere in these Rules to any action carried out before or after the closing of the record are to be construed as references to that action being carried out before, or as the case may be, after, the date fixed for completion of adjustment under rule 36.G1(1A)(c).]

Textual Amendments

F3 Sch. 1 rule 36.E1 substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(9) (with para. 11(2)(3))

Disapplication of personal injuries procedure S

36.F1. (1) Any party to a personal injuries action proceeding in accordance with personal injuries procedure may, within 28 days of the lodging of defences (or, where there is more than one defender the first lodging of defences), by motion apply to have the action withdrawn from personal injuries procedure and [F4 appointed to the procedure in Chapter 36A].

(2) No motion under paragraph (1) shall be granted unless the sheriff is satisfied that there are exceptional reasons for not following personal injuries procedure.

(3) In determining whether there are exceptional reasons justifying the granting of a motion made under paragraph (1), the sheriff shall have regard to—

(a) the likely need for detailed pleadings;

(b) the length of time required for preparation of the action; and

(c) any other relevant circumstances.

[F5 (4) Where the sheriff appoints the cause to the procedure in Chapter 36A under paragraph (1)—

(a) the pursuer must within 14 days lodge a revised initial writ in Form G1 (form of initial writ);

(b) the defender must adjust the defences so as to comply with rule 9.6(2) (defences); and

(c) the cause will proceed in accordance with Chapter 36A, rather than in accordance with personal injuries procedure.]

Textual Amendments

F4 Words in Sch. 1 rule 36.F1(1) substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(10)(a) (with para. 11(2)(3))

F5 Sch. 1 rule 36.F1(4) substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(10)(b) (with para. 11(2)(3))

Personal injuries procedure S

Allocation of diets and timetables S

36.G1. [F6 (1) The sheriff clerk shall, on the lodging of defences in the action or, where there is more than one defender, the first lodging of defences—

(a) allocate a diet of proof of the action, which shall be no earlier than 4 months (unless the sheriff on cause shown directs an earlier diet to be fixed) and no later than 9 months from the date of the first lodging of defences; and

(b) issue a timetable stating—

(i) the date of the diet mentioned in subparagraph (a); and

(ii) the dates no later than which the procedural steps mentioned in paragraph (1A) are to take place.

(1A) Those procedural steps are—

(a) application for a third party notice under rule 20.1;

(b) the pursuer [F7 serving] a commission for recovery of documents under rule 36.D1;

(c) the parties adjusting their pleadings;

(d) the pursuer lodging a statement of valuation of claim in process;

(e) the pursuer lodging a record;

(f) the defender (and any third party to the action) lodging a statement of valuation of claim in process;

(g) the parties each lodging in process a list of witnesses together with any productions upon which they wish to rely; and

(h) the pursuer lodging in process the minute of the [F8 pre-trial meeting].

(1B) The dates mentioned in paragraph (1)(b)(ii) are to be calculated by reference to periods specified in Appendix 3, which, with the exception of the period specified in rule 36.K1(2), the sheriff principal may vary for his sheriffdom or for any court within his sheriffdom.]

(2) A timetable issued under paragraph (1)(b) shall be in Form PI5 and shall be treated for all purposes as an interlocutor signed by the sheriff; and so far as the timetable 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 F9 ... rule 36.K1(3), the sheriff clerk may fix a date and time for the parties to be heard by the sheriff.

(4) The pursuer shall lodge a certified copy of the record, which shall consist of the pleadings of the parties, in process by the date specified in the timetable and shall at the same time send one copy to the defender and any other parties.

(5) The pursuer shall, on lodging the certified copy of the record as required by paragraph (4), apply by motion to the sheriff, craving the court—

(a) to allow to parties a preliminary proof on specified matters;

(b) to allow a proof; or

[F10 (ba) to allow a jury trial;]

(c) to make some other specified order.

[F11 (6) The motion lodged under paragraph (5) must specify the anticipated length of the preliminary proof, proof, or jury trial, as the case may be.]

(7) In the event that any party proposes to crave the court to make any order other than an order allowing a proof under paragraph (5)(b) [F12 or a jury trial under paragraph (5)(ba)], that party shall, on making or opposing (as the case may be) the pursuer’s motion, specify the order to be sought and give full notice in the motion or the notice of opposition thereto of the grounds thereof.

F13 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F14 (8A) A party who seeks to rely on the evidence of a person not on his or her list lodged in accordance with paragraph (1A)(g) must, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence whether it is to be given orally or not; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(8B) The list of witnesses intimated in accordance with paragraph (1A)(g) must include the name, occupation (where known) and address of each intended witness and indicate whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.]

(9) A production which is not lodged in accordance with [F15 paragraph (1A)(g)] shall not be used or put in evidence at proof unless—

(a) by consent of parties; or

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

(10) In a cause which is one of a number of causes arising out of the same cause of action, the sheriff may—

(a) on the motion of a party to that cause; and

(b) after hearing parties to all those causes,

appoint that cause or any part of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(11) In this rule, “pursuer” includes additional pursuer or minuter as the case may be.

Textual Amendments

F6 Sch. 1 rule 36.G1(1)(1A)(1B) substituted for Sch. 1 rule 36.G1(1) (29.7.2010) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (S.S.I. 2010/279), paras. 1(2), 4(3)(a) (with para. 4(8))

F7 Word in Sch. 1 rule 36.G1(1A)(b) substituted (28.11.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2011 (S.S.I. 2011/386), paras. 1(1), 4(2) (with para. 10)

F8 Words in Sch. 1 rule 36.G1(1A)(h) substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(11)(a) (with para. 11(2)(3))

F9 Words in Sch. 1 rule 36.G1(3) omitted (7.7.2014) by virtue of Act of Sederunt (Rules of the Court of Session, Ordinary Cause Rules and Summary Cause Rules Amendment) (Miscellaneous) 2014 (S.S.I. 2014/152), paras. 1(2), 3(4)(a)

F10 Sch. 1 rule 36.G1(5)(ba) inserted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(11)(b)

F11 Sch. 1 rule 36.G1(6) substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(11)(c)

F12 Words in Sch. 1 rule 36.G1(7) inserted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(11)(d)

F13 Sch. 1 rule 36.G1(8) omitted (7.7.2014) by virtue of Act of Sederunt (Rules of the Court of Session, Ordinary Cause Rules and Summary Cause Rules Amendment) (Miscellaneous) 2014 (S.S.I. 2014/152), paras. 1(2), 3(4)(b)

F14 Sch. 1 rule 36.G1(8A)(8B) inserted (29.7.2010) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (S.S.I. 2010/279), paras. 1(2), 4(3)(b) (with para. 4(8), (9))

F15 Words in sch. 1 rule 36.G1(9) substituted (29.7.2010) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (S.S.I. 2010/279), paras. 1(2), 4(3)(c) (with para. 4(8))

Applications for sist or for variation of timetable S

36.H1. (1) The action may be sisted or the timetable varied by the sheriff on an application by any party to the action by motion F16 ....

(2) An application under paragraph (1)—

(a) shall be placed before the sheriff; and

(b) shall be granted only on F17 ... cause shown.

[F18 (2A) The sheriff may, on the sheriff’s own motion, vary the timetable where satisfied that the efficient determination of the action would be served by doing so and in consequence may—

(a) discharge a diet ordered pursuant to rule 36.G1(5) or (7) (allocation of diets and timetables); or

(b) sist the action.]

(3) Any sist of an action in terms of this rule shall be for a specific period.

(4) Where the timetable issued under rule 36.G1 is varied under this rule, the sheriff clerk shall issue a revised timetable in Form PI5.

(5) A revised timetable issued under paragraph (4) shall have effect as if it were a timetable issued under rule 36.G1 and any reference in this Part to any action being taken in accordance with the timetable shall be construed as a reference to its being taken in accordance with the timetable as varied under this rule.

Textual Amendments

F16 Words in Sch. 1 rule 36.H1(1) omitted (29.7.2010) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010 (S.S.I. 2010/279), paras. 1(2), 4(4) (with para. 4(8))

F17 Word in Sch. 1 rule 36.H1(2)(b) omitted (7.7.2014) by virtue of Act of Sederunt (Rules of the Court of Session, Ordinary Cause Rules and Summary Cause Rules Amendment) (Miscellaneous) 2014 (S.S.I. 2014/152), paras. 1(2), 3(5)

F18 Sch. 1 rule 36.H1(2A) inserted (2.6.2020) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2020 (S.S.I. 2020/166), paras. 1(2), 3(3)

Statements of valuation of claim S

36.J1. (1) Each party to the action shall make a statement of valuation of claim in Form PI6.

(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.

(3) Each party shall, on lodging a statement of valuation of claim—

(a) intimate the list of documents included in the statement of valuation of claim to every other party; and

(b) lodge each of those documents.

(4) Nothing in paragraph (3) shall affect—

(a) the law relating to, or the right of a party to object to, the recovery of a document on the ground of privilege or confidentiality; or

(b) the right of a party to apply under rule 28.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972.

(5) Without prejudice to paragraph (2) of rule 36.L1, where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under rule 36.G1, the sheriff may, at any hearing under paragraph (3) of that rule—

(a) where the party in default is the pursuer, dismiss the action; or

(b) where the party in default is the defender, grant decree against the defender for an amount not exceeding the pursuer’s valuation.

Pre-trial meetings S

[F19 36.K1. (1) For the purposes of this rule, a pre-trial meeting is a meeting between the parties to—

(a) discuss settlement of the action; and

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

(2) A pre-trial meeting must—

(a) be held not later than four weeks before the date assigned for the proof or trial; and

(b) be attended by parties—

(i) in person; or

(ii) by means of video-conference facilities.

(3) Subject to any variation of the timetable in terms of rule 36.H1 (applications for sist or variation of timetable), a joint minute of a pre-trial meeting, made in Form PI7 (minute of pre-trial meeting), must be lodged in process by the pursuer not later than three weeks before the date assigned for proof or trial.

(4) Where a joint minute in Form PI7 has not been lodged in accordance with paragraph (3) and by the date specified in the timetable the sheriff clerk must fix a date and time for the parties to be heard by the sheriff.

(5) If a party is not in attendance during the pre-trial meeting, the representative of such party must have access to the party or another person who has authority to commit the party in settlement of the action.]

Textual Amendments

F19 Sch. 1 rule 36.K1 substituted (22.9.2015) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Personal Injury and Remits) 2015 (S.S.I. 2015/227), paras. 1(2), 8(12) (with para. 11(2)(3))

Incidental hearings S

36.L1. (1) Where the sheriff clerk fixes a date and time for a hearing under [F20 paragraph (3) of rule 36.G1 or paragraph (4) of rule 36.K1] he shall—

(a) fix a date not less than seven days after the date of the notice referred to in subparagraph (b);

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

(i) of the date and time of the hearing; 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 the hearing, the sheriff—

(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.]

Textual Amendments

F20 Words in Sch. 1 rule 36.L1(1) substituted (28.11.2016) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No. 2) (Miscellaneous) 2016 (S.S.I. 2016/229), paras. 1(2), 2(3)