Sheriff Courts (Scotland) Act 1907

[F1 Raising a personal injuries action S

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)

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

36.C1. (1) An initial writ in a personal injuries action may include a draft interlocutor in Form PI4.

(2) At the same time as an initial writ which includes a draft interlocutor in Form PI4 is presented for warranting, the pursuer may lodge a written application in the form of a letter addressed to the sheriff clerk for authority to raise the action, where it is based on alleged clinical negligence, as an ordinary cause.

(3) On the making of an application under paragraph (2), the initial writ shall be placed before a sheriff in chambers and in the absence of the parties.

(4) On consideration of the initial writ in accordance with paragraph (3), the sheriff may—

(a) if he considers that there are exceptional reasons for not following personal injuries procedure such as would justify the granting of a motion under rule 36.F1, grant authority for the cause to proceed as an ordinary cause by signing the draft interlocutor in the initial writ; or

(b) fix a hearing.

(5) The sheriff clerk shall notify the parties of the date and time of any hearing under paragraph (4)(b).

(6) At a hearing under paragraph (4)(b), the sheriff may refuse the application or, if he considers that there are exceptional reasons for not following personal injuries procedure such as would justify the granting of a motion under rule 36.F1, grant authority for the cause to proceed as an ordinary cause by signing the draft interlocutor in the initial writ.

(7) Where the sheriff grants authority for the cause to proceed as an ordinary cause under paragraph (4)(a) or (6)—

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

(b) the cause shall thereafter proceed in accordance with Chapter 9 (standard procedure in defended causes) rather than in accordance with personal injuries procedure.

(8) In this rule—

• “clinical negligence” means a breach of a 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, whilst the health care professional was acting in his professional capacity; and

• “health care professional” includes a doctor, dentist, nurse, midwife, health visitor, pharmacy practitioner, registered ophthalmic practitioner, registered dispensing optician, member of Professions Allied to Medicine, member of the Allied Health Professions, a person who is a member of ambulance personnel, a member of laboratory staff or a relevant technician.

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.]