Sheriff Courts (Scotland) Act 1907

CHAPTER 36 S ACTIONS OF DAMAGES

[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.

(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)

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

[F18 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

F18 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 paragraph (3) or (8) of rule 36.G1 or paragraph (3) 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.]

PART I S INTIMATION TO CONNECTED PERSONS IN CERTAIN ACTIONS OF DAMAGES

Application and interpretation of this Part S

36.1. (1) This Part applies to an action of damages in which, following the death of any person from personal injuries, damages are claimed—

(a) F19 ... in respect of the injuries from which the deceased died; or

(b) F20 ... in respect of the death of the deceased.

(2) In this Part—

• “connected person” means a person, not being a party to the action, who has title to sue the defender in respect of the personal injuries from which the deceased died or in respect of his death;

• F21 ...

Textual Amendments

F19 Words in Sch. 1 rule 36.1(1)(a) omitted (7.7.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2011 (S.S.I. 2011/289), paras. 1(2), 2(2)(a)

F20 Words in Sch. 1 rule 36.1(1)(b) omitted (7.7.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2011 (S.S.I. 2011/289), paras. 1(2), 2(2)(b)

F21 Words in Sch. 1 rule 36.1(2) omitted (7.7.2011) by virtue of Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2011 (S.S.I. 2011/289), paras. 1(2), 2(2)(c)

Averments S

36.2. In an action to which this Part applies, the pursuer shall aver in the condescendence, as the case may be—

(a) that there are no connected persons;

(b) that there are connected persons, being the persons specified in the crave for intimation;

(c) that there are connected persons in respect of whom intimation should be dispensed with on the ground that—

(i) the names or whereabouts of such persons are not known to, and cannot reasonably be ascertained by, the pursuer; or

(ii) such persons are unlikely to be awarded more than £200 each.

Warrants for intimation S

36.3. (1) Where the pursuer makes averments under rule 36.2(b) (existence of connected persons), he shall include a crave in the initial writ for intimation to any person who is believed to have title to sue the defender in an action in respect of the death of the deceased or the personal injuries from which the deceased died.

(2) A notice of intimation in Form D1 shall be attached to the copy of the initial writ where intimation is given on a warrant under paragraph (1).

Applications to dispense with intimation S

36.4. (1) Where the pursuer makes averments under rule 36.2(c) (dispensing with intimation to connected persons), he shall apply by crave in the initial writ for an order to dispense with intimation.

(2) In determining an application under paragraph (1), the sheriff shall have regard to—

(a) the desirability of avoiding a multiplicity of actions; and

(b) the expense, inconvenience or difficulty likely to be involved in taking steps to ascertain the name or whereabouts of the connected person.

(3) Where the sheriff is not satisfied that intimation to a connected person should be dispensed with, he may—

(a) order intimation to a connected person whose name and whereabouts are known;

(b) order the pursuer to take such further steps as he may specify in the interlocutor to ascertain the name or whereabouts of any connected person; and

(c) order advertisement in such manner, place and at such times as he may specify in the interlocutor.

Subsequent disclosure of connected persons S

36.5. Where the name or whereabouts of a person, in respect of whom the sheriff has dispensed with intimation on a ground specified in rule 36.2(c) (dispensing with intimation to connected persons), subsequently becomes known to the pursuer, the pursuer shall apply to the sheriff by motion for a warrant for intimation to such a person; and such intimation shall be made in accordance with rule 36.3(2).

Connected persons entering process S

36.6. (1) A connected person may apply by minute craving leave to be sisted as an additional pursuer to the action.

(2) Such a minute shall also crave leave of the sheriff to adopt the existing grounds of action, and to amend the craves, condescendence and pleas-in-law.

(3) The period within which answers to a minute under this rule may be lodged shall be 14 days from the date of intimation of the minute.

(4) [F22 Rule 14.13 (procedure following grant of minute)] shall not apply to a minute to which this rule applies.

Textual Amendments

F22 Words in sch. 1 rule 36.6(4) substituted (1.11.1996) by S.I. 1996/2445, para. 3(62)

Failure to enter process S

36.7. Where a connected person to whom intimation is made in accordance with this Part—

(a) does not apply to be sisted as an additional pursuer to the action,

(b) subsequently raises a separate action against the same defender in respect of the same personal injuries or death, and

(c) would, apart from this rule, be awarded the expenses or part of the expenses of that action,

he shall not be awarded those expenses except on cause shown.

PART II S INTERIM PAYMENTS OF DAMAGES

Application and interpretation of this Part S

36.8. (1) This Part applies to an action of damages for personal injuries or the death of a person in consequence of personal injuries.

(2) In this Part—

• “defender” includes a third party against whom the pursuer has a crave for damages;

• “personal injuries” includes any disease or impairment of a physical or mental condition.

Applications for interim payment of damages S

36.9. (1) In an action to which this Part applies, a pursuer may, at any time after defences have been lodged, apply by motion for an order for interim payment of damages to him by the defender or, where there are two or more of them, by any one or more of them.

(2) The pursuer shall intimate a motion under paragraph (1) to every other party on a period of notice of 14 days.

(3) On a motion under paragraph (1), the sheriff may, if satisfied that—

(a) the defender has admitted liability to the pursuer in the action, or

(b) if the action proceeded to proof, the pursuer would succeed in the action on the question of liability without any substantial finding of contributory negligence on his part, or on the part of any person in respect of whose injury or death the claim of the pursuer arises, and would obtain decree for damages against any defender,

ordain that defender to make an interim payment to the pursuer of such amount as the sheriff thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the sheriff, are likely to be recovered by the pursuer.

(4) Any such payment may be ordered to be made in one lump sum or otherwise as the sheriff thinks fit.

(5) No order shall be made against a defender under this rule unless it appears to the sheriff that the defender is—

(a) a person who is insured in respect of the claim of the pursuer;

(b) a public authority; F23 . . .

(c) a person whose means and resources are such as to enable him to make the interim payment. [F24 ; or

(d) the person's liability will be met by–

(i) an insurer under section 151 of the Road Traffic Act 1988 F25 ; or

(ii) an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself.]

(6) Notwithstanding the grant or refusal of a motion for an interim payment, a subsequent motion may be made where there has been a change of circumstances.

(7) Subject to Part IV (management of damages payable to persons under legal disability), an interim payment shall be made to the pursuer unless the sheriff otherwise directs.

(8) This rule shall, with the necessary modifications, apply to a counterclaim for damages for personal injuries made by a defender as it applies to an action in which the pursuer may apply for an order for interim payment of damages.

Textual Amendments

F23 Word in sch. 1 rule 36.9(5)(b) omitted (21.5.2004) by virtue of Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004 (S.S.I. 2004/197), art. 2(13)(a)

F24 Sch. 1 rule 36.9(5)(d) and word inserted (21.5.2004) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004 (S.S.I. 2004/197), art. 2(13)(b)

F25 1988 c. 52; section 151 repealed in part by the Road Traffic Act 1991 (c. 40), Schedule 8.

Adjustment on final decree S

36.10. Where a defender has made an interim payment under rule 36.9, the sheriff may, when final decree is pronounced, make such order with respect to the interim payment as he thinks fit to give effect to the final liability of that defender to the pursuer; and in particular may order—

(a) repayment by the pursuer of any sum by which the interim payment exceeds the amount which that defender is liable to pay to the pursuer; or

(b) payment by any other defender or a third party, of any part of the interim payment which the defender who made it is entitled to recover from him by way of contribution or indemnity or in respect of any remedy or relief relating to, or connected with, the claim of the pursuer.

PART III S PROVISIONAL DAMAGES FOR PERSONAL INJURIES

Application and interpretation of this Part S

36.11. (1) This Part applies to an action of damages for personal injuries.

(2) In this Part—

• “the Act of 1982” means the M1 Administration of Justice Act 1982;

• “further damages” means the damages referred to in section 12(4)(b) of the Act of 1982;

• “provisional damages” means the damages referred to in section 12(4)(a) of the Act of 1982.

Marginal Citations

M1 1982 c.53.

Applications for provisional damages S

36.12. An application under section 12(2)(a) of the Act of 1982 for provisional damages for personal injuries shall be made by including in the initial writ—

(a) a crave for provisional damages;

(b) averments in the condescendence supporting the crave, including averments—

(i) that there is a risk that, at some definite or indefinite time in the future, the pursuer will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration of his physical or mental condition; and

(ii) that the defender was, at the time of the act or omission which gave rise to the cause of action, a public authority, public corporation or insured or otherwise indemnified in respect of the claim; and

(c) an appropriate plea-in-law.

Applications for further damages S

36.13. (1) An application for further damages by a pursuer in respect of whom an order under section 12(2)(b) of the Act of 1982 has been made shall be made by minute in the process of the action to which it relates and shall include—

(a) a crave for further damages;

(b) averments in the statement of facts supporting that crave; and

(c) appropriate pleas-in-law.

(2) On lodging such a minute in process, the pursuer shall apply by motion for warrant to serve the minute on—

(a) every other party; and

(b) where such other party is insured or otherwise indemnified, his insurer or indemnifier, if known to the pursuer.

(3) Any such party, insurer or indemnifier may lodge answers to such a minute in process within 28 days after the date of service on him.

(4) Where answers have been lodged under paragraph (3), the sheriff may, on the motion of any party, make such further order as to procedure as he thinks fit.

PART IV S MANAGEMENT OF DAMAGES PAYABLE TO PERSONS UNDER LEGAL DISABILITY

Orders for payment and management of money S

36.14. (1) In an action of damages in which a sum of money becomes payable, by virtue of a decree or an extra-judicial settlement, to or for the benefit of a person under legal disability [F26 (other than a person under the age of 18 years)], the sheriff shall make such order regarding the payment and management of that sum for the benefit of that person as he thinks fit.

(2) An order under paragraph (1) shall be made on the granting of decree for payment or of absolvitor.

Textual Amendments

F26 Words in sch. 1 rule 36.14(1) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch. para. 34

Methods of management S

36.15. In making an order under rule 36.14(1), the sheriff may—

(a) appoint a judicial factor to apply, invest or otherwise deal with the money for the benefit of the person under legal disability;

(b) order the money to be paid to—

(i) the Accountant of Court, or

(ii) the guardian of the person under legal disability,

as trustee, to be applied, invested or otherwise dealt with and administered under the directions of the sheriff for the benefit of the person under legal disability;

(c) order the money to be paid to the sheriff clerk of the sheriff court district in which the person under legal disability resides, to be applied, invested or otherwise dealt with and administered, under the directions of the sheriff of that district, for the benefit of the person under legal disability; or

(d) order the money to be paid directly to the person under legal disability.

Subsequent orders S

36.16. (1) Where the sheriff has made an order under rule 36.14(1), any person having an interest may apply for an appointment or order under rule 36.15, or any other order for the payment or management of the money, by minute in the process of the cause to which the application relates.

(2) An application for directions under rule 36.15(b) or (c) may be made by any person having an interest by minute in the process of the cause to which the application relates.

Management of money paid to sheriff clerk S

36.17. (1) A receipt in Form D2 by the sheriff clerk shall be a sufficient discharge in respect of the amount paid to him under this Part.

(2) The sheriff clerk shall, at the request of any competent court, accept custody of any sum of money in an action of damages ordered to be paid to, applied, invested or otherwise dealt with by him, for the benefit of a person under legal disability.

(3) Any money paid to the sheriff clerk under this Part shall be paid out, applied, invested or otherwise dealt with by the sheriff clerk only after such intimation, service and enquiry as the sheriff may order.

(4) Any sum of money invested by the sheriff clerk under this Part shall be invested in a manner in which trustees are authorised to invest by virtue of the M2 Trustee Investments Act 1961.

Marginal Citations

M2 1961 c.62.

F27 PART IVA S PRODUCTIONS IN CERTAIN ACTIONS OF DAMAGES

Textual Amendments

F27 Sch. 1 Ch. 36 Pt. 4A omitted (22.9.2015) by virtue of 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(13) (with para. 11(2)(3))

F27 36.17A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F27 36.17B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F27 36.17C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART V S SEX DISCRIMINATION ACT 1975

Causes under section 66 of the Act of 1975 S

36.18 (1) In a cause in which a breach of statutory duty under section 66(1) of the Sex Discrimination Act 1975 (proceedings for act of discrimination) is averred, the sheriff may, of his own motion or on the motion of any party, appoint an assessor.

(2) An assessor appointed under paragraph (1) shall be a person who the sheriff considers has special qualifications to be of assistance in determining [F28 a cause] referred to in that paragraph.

(3) In a cause referred to in paragraph (1), the pursuer should send a copy of the initial writ by post by the first class recorded delivery service to the Equal Opportunities Commission.

Textual Amendments

F28 Words in Sch. 1 rule 36.18(2) substituted (1.11.1996) by S.I. 1996/2445, para. 3(63)

[F29 PART VI S MESOTHELIOMA ACTIONS: SPECIAL PROVISIONS

Textual Amendments

F29 Sch. 1 Ch. 36 Pt. 6 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(7) (with para. 3)

Mesothelioma actions: special provisions S

36.19. (1) This Part applies where liability to a relative of the pursuer may arise under [F30 section 5 of the Damages (Scotland) Act 2011 (discharge of liability to pay damages: exception for mesothelioma)].

(2) On settlement of the pursuer’s claim, the pursuer may apply by motion for all or any of the following—

(a) a sist for a specified period;

(b) discharge of any diet;

(c) where the action is one to which the personal injuries procedure in Part A1 of this Chapter applies, variation of the timetable issued under rule 36.G1.

(3) Paragraphs (4) to (7) apply where a motion under paragraph (2) has been granted.

(4) As soon as reasonably practicable after the death of the pursuer, any agent who immediately prior to the death was instructed in a cause by the deceased pursuer shall notify the court of the death.

(5) The notification under paragraph (4) shall be by letter to the sheriff clerk and shall be accompanied by a certified copy of the death certificate relative to the deceased pursuer.

(6) A relative of the deceased may apply by motion for the recall of the sist and for an order for further procedure.

(7) On expiration of the period of any sist pronounced on a motion under paragraph (2), the sheriff clerk may fix a date and time for the parties to be heard by the sheriff.]

Textual Amendments

F30 Words in Sch. 1 rule 36.19 substituted (7.7.2011) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2011 (S.S.I. 2011/289), paras. 1(2), 2(3) (with para. 2(4))