Substitute the following for Chapter 34 (Action of Damages for Personal Injury)—CHAPTER 34ACTIONS OF DAMAGES FOR, OR ARISING FROM, PERSONAL INJURIESApplication and interpretation

Application and interpretation of this Chapter34.1.(1)

This Chapter applies to a personal injuries action.

(2)

In this Chapter—

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

“personal injuries procedure” means the procedure that applies to a personal injuries action as established by rules 34.7 to 34.11;

“1982 Act” means the Administration of Justice Act 1982

1982 c.53.

(3)

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

Raising a personal injuries action

Form of summons34.2.(1)

In a personal injuries action the form of claim to be inserted in box 4 of Form 1 (summary cause summons) shall be in Form 2 (form of claim in a summons for payment of money).

(2)

The pursuer must, instead of stating the details of claim in box 7 of Form 1, attach to Form 1 a statement of claim in Form 10 (form of statement of claim in a personal injuries action), which must give the defender fair notice of the claim and include—

(a)

a concise statement of the grounds of the claim 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.

(3)

A summons may include—

(a)

an application for warrants for intimation so far as permitted under these Rules; and

(b)

a specification of documents containing such of the calls in Form 10b (form of order of court for recovery of documents etc.) as the pursuer considers appropriate.

Defender’s copy summons34.3.(1)

A copy summons shall be served on the defender—

(a)

in Form 1e where an application for a time to pay direction under the Debtors (Scotland) Act 1987

1987 c.18.

may be applied for; or

(b)

in Form 1f in every other case,

in each case, including a copy statement of claim in Form 10.

(2)

A form of response in Form 10a shall accompany the defender’s copy summons when it is served on the defender.

Response to summons34.4.(1)

If a defender intends to—

(a)

challenge the jurisdiction of the court or the competency of the action;

(b)

defend the action (whether as regards the amount claimed or otherwise); or

(c)

state a counterclaim,

the defender must complete and lodge with the sheriff clerk on or before the return day the form of response contained in the defender’s copy summons and Form 10a stating, in a manner which gives the pursuer fair notice, the grounds of fact and law on which the defender intends to resist the claim.

(2)

A counterclaim may include—

(a)

an application for warrants for intimation so far as permitted under these Rules; and

(b)

a specification of documents containing such of the calls in Form 10b as the defender considers appropriate.

(3)

The sheriff clerk must, upon receipt, intimate to the pursuer a copy of any response lodged under paragraph (1).

(4)

Within 7 days of receipt of intimation under paragraph (3), the pursuer shall return to the sheriff clerk the summons and the relevant certificate of execution of service.

Inspection and recovery of documents34.5.(1)

This rule applies where the summons or counterclaim in a personal injuries action contains a specification of documents by virtue of rule 34.2(3)(b) or rule 34.4(2)(b).

(2)

On the summons being authenticated or counterclaim received, 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 10b to that effect by attaching thereto a docquet in Form 10c (form of docquet etc.).

(3)

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

(4)

The pursuer or defender in the case of a counterclaim may serve an order under paragraph (2) and the provisions of Chapter 18 (recovery of evidence and attendance of witnesses) shall thereafter apply, subject to any necessary modifications, as if the order were an order obtained on an incidental application made under rule 18.1 (diligence for recovery of documents).

(5)

Nothing in this rule shall affect the right of a party to apply under rule 18.1 for a commission and diligence for recovery of documents or under rule 18.3 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 summons.

Personal injuries action: application of other rules

Application of other rules34.6.(1)

The following rules do not apply to a personal injuries action—

rule 4.1(2) (form of claim in a summons);

rule 4.2 (statement of claim);

rule 4.3 (defender’s copy summons);

rule 8.1 (response to summons);

rule 8.2 (procedure in defended action);

rule 8.3 (purpose of hearing);

rule 8.5 (inspection and recovery of documents);

rule 8.6 (exchange of lists of witnesses);

rule 8.13(1) (noting of evidence, etc.).

(2)

In the application of Chapter 11 (third party procedure)—

(a)

rule 11.1(2) (application for third party notice) shall not apply;

(b)

in the application of rule 11.2(1) (procedure) a copy of Form 10 and any timetable already issued in terms of rule 34.7(1)(c) shall also be served on the third party; and

(c)

where a third party lodges a form of response under rule 11.2(3), any timetable already issued under rule 34.7(1)(c) shall apply to the third party.

(3)

In respect of adjustments to the parties’ respective statements made in accordance with the timetable issued under rule 34.7(1)(c), the requirement under rule 13.1 (alteration of summons etc.) to make an incidental application in respect of such adjustments shall not apply.

(4)

In relation to an action proceeding in accordance with personal injuries procedure references elsewhere in these Rules to the statement of claim in the summons shall be construed as references to the statement required under rule 34.2(2) and the numbered paragraphs of that statement.

Personal injuries procedure

Allocation of diets and timetables34.7.(1)

The sheriff clerk shall, on the lodging of the form of response in pursuance of rule 34.4(1) or, where there is more than one defender, the first lodging of a form of response—

(a)

discharge the hearing assigned to take place on the calling date specified in the summons;

(b)

allocate a diet for 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 the form of response; and

(c)

issue a timetable stating—

(i)

the date of the diet mentioned in subparagraph (b); and

(ii)

the dates no later than which the procedural steps mentioned in paragraph (2) are to take place.

(2)

Those procedural steps are—

(a)

application for a third party notice under rule 11.1;

(b)

the pursuer serving a commission for recovery of documents under rule 34.5;

(c)

the parties adjusting their respective statements;

(d)

the pursuer lodging with the sheriff clerk a statement of valuation of claim;

(e)

the pursuer lodging with the sheriff clerk a certified adjusted statement of claim;

(f)

the defender (and any third party to the action) lodging with the sheriff clerk a certified adjusted response to statement of claim;

(g)

the defender (and any third party to the action) lodging with the sheriff clerk a statement of valuation of claim;

(h)

the parties lodging with the sheriff clerk a list of witnesses together with any productions upon which they wish to rely; and

(i)

the pursuer lodging with the sheriff clerk the minute of the pre-proof conference.

(3)

The dates mentioned in paragraph (1)(c)(ii) are to be calculated by reference to periods specified in Appendix 1A, which, with the exception of the period specified in rule 34.10(2), the sheriff principal may vary for his or her sheriffdom or for any court within his or her sheriffdom.

(4)

A timetable issued under paragraph (1)(c) shall be in Form 10d 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.

(5)

Where a party fails to comply with any requirement of a timetable other than that referred to in paragraph (10) or rule 34.10(3), the sheriff clerk may fix a date and time for the parties to be heard by the sheriff.

(6)

The relevant parties must lodge with the sheriff clerk the following documents by the date specified in the timetable and intimate that fact to the other parties at the same time—

(a)

in the case of the pursuer, a certified adjusted statement of claim; and

(b)

in the case of the defender (and any third party to the action), a certified adjusted response to statement of claim.

(7)

The pursuer shall, on lodging the certified adjusted statement of claim required by paragraph (6)(a), apply by incidental application to the sheriff, craving the court—

(a)

to allow parties a preliminary proof on specified matters;

(b)

to allow a proof; or

(c)

to make some other specified order.

(8)

The application lodged under paragraph (7) shall specify the anticipated length of the preliminary proof, or proof, as the case may be.

(9)

In the event that any party proposes to crave the court to make any order other than an order allowing a proof under paragraph (7)(b), that party shall, on making or opposing (as the case may be) the pursuer’s application, specify the order to be sought and give full notice of the grounds of their application or their grounds of opposition to such application.

(10)

Where a party fails to lodge the documents required under paragraph (6) by the date specified in the timetable issued under paragraph (1)(c), the sheriff clerk must fix a date and time for the parties to be heard by the sheriff.

(11)

A party who seeks to rely on the evidence of a person not on his or her list lodged in accordance with paragraph (2)(h) 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.

(12)

The list of witnesses intimated in accordance with paragraph (2)(h) 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 2004 Act

The Vulnerable Witnesses (Scotland) Act 2004 (asp 3).

and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.

(13)

A production which is not lodged in accordance with paragraph (2)(h) shall not be used or put in evidence at proof unless—

(a)

by consent of the 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 sheriff thinks fit.

(14)

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 application 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.

(15)

In this rule, “pursuer” includes additional pursuer or applicant as the case may be.

Applications for sist or for variation of timetable34.8.(1)

The action may be sisted or the timetable varied by the sheriff on the incidental application of any party to the action.

(2)

An application under paragraph (1)—

(a)

shall be placed before the sheriff; and

(b)

shall be granted only on special 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 34.7(1)(c) is varied under this rule, the sheriff clerk shall issue a revised timetable in Form 10d.

(5)

A revised timetable issued under paragraph (4) shall have effect as if it were a timetable issued under rule 34.7(1)(c) and any reference in this Chapter 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.

Statements of valuation of claim34.9.(1)

Each party to the action shall make a statement of valuation of claim in Form 10e.

(2)

A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged with the sheriff clerk.

(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 with the sheriff clerk.

(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 18.1 for a commission and diligence for recovery of documents or under rule 18.3 for an order under section 1 of the Administration of Justice (Scotland) Act 1972

1972 c.59. Section 1 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), sections 19, 23 and 59 and Schedule 2, paragraph 15; the Civil Jurisdiction and Judgments Act 1982 (c.27), section 28; the Drug Trafficking Offences Act 1986 (c.32), section 21(4); the Criminal Justice (Scotland) Act 1987 (c.41), section 28(4); and the Criminal Justice Act 1988 (c.33), sections 91(4) and 123 and Schedule 8, paragraph 16.

(5)

Without prejudice to rule 34.11(2), where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under rule 34.7(1)(c), the sheriff may, at any hearing under paragraph (5) 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-proof conferences34.10.(1)

For the purposes of this rule, a pre-proof conference is a conference of the parties, which shall be held not later than four weeks before the date assigned for the proof—

(a)

to discuss settlement of the action; and

(b)

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

(2)

Subject to any variation of the timetable in terms of rule 34.8, a joint minute of a pre-proof conference, made in Form 10f, shall be lodged with the sheriff clerk by the pursuer not later than three weeks before the date assigned for proof.

(3)

Where a joint minute in Form 10f has not been lodged in accordance with paragraph (2) 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.

(4)

If a party is not present during the pre-proof conference, the representative of such party shall have access to the party or another person who has authority to commit the party in settlement of the action.

Incidental hearings34.11.(1)

Where the sheriff clerk fixes a date and time for a hearing under rules 34.7(5) or (10) or rule 34.10(3), the sheriff clerk must—

(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 with the sheriff clerk 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)

must 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.

Personal injuries action: additional provisions

Intimation to connected persons in certain actions of damages34.12.(1)

This rule applies to an action of damages in which, following the death of any person from personal injuries, damages are claimed—

(a)

in respect of the injuries from which the deceased died; or

(b)

in respect of the death of the deceased.

(2)

In this rule “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 or her death.

(3)

The pursuer shall state in the summons, as the case may be—

(a)

that there are no connected persons;

(b)

that there are connected persons, being the persons specified in the application for warrant for intimation; or

(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.

(4)

Where the pursuer makes a statement in accordance with paragraph (3)(b), the summons shall include an application for warrant for intimation to any such persons.

(5)

A notice of intimation in Form 10g shall be attached to the copy of the summons, where intimation is given on a warrant under paragraph (4).

(6)

Where the pursuer makes a statement in accordance with paragraph (3)(c), the summons shall include an application for an order to dispense with intimation.

(7)

In determining an application under paragraph (6), 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.

(8)

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

(a)

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

(b)

order the pursuer to take such further steps as the sheriff 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 the sheriff may specify in the interlocutor.

(9)

Where the name or whereabouts of a person, in respect of whom the sheriff has dispensed with intimation on a ground specified in paragraph (3)(c), subsequently becomes known to the pursuer, the pursuer shall apply to the sheriff by incidental application for a warrant for intimation to such a person; and such intimation shall be made in accordance with paragraph (5).

(10)

A connected person may apply by incidental application to be sisted as an additional pursuer to the action.

(11)

An application under paragraph (10) shall also seek leave of the sheriff to adopt the existing grounds of action and to amend the summons and statement of claim.

(12)

Where an application under paragraph (10) is granted, any timetable already issued under rule 34.7(1)(c)—

(a)

shall apply to such connected person; and

(b)

must be intimated to such person by the sheriff clerk.

(13)

Where a connected person to whom intimation is made—

(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,

such person shall not be awarded those expenses except on cause shown.

Provisional damages for personal injuries34.13.(1)

In this rule—

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

1982 c.53.

; and

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

(2)

An application for an order under section 12(2)(a) of the 1982 Act (application for provisional damages) shall be made by including in the summons a claim for provisional damages in Form 10h, and where such application is made, a concise statement as to the matters referred to in paragraphs (a) and (b) of section 12(1) of that Act must be included in the statement of claim.

(3)

An application for further damages by a pursuer in respect of whom an order has been made under section 12(2)(b) of the 1982 Act (application for further damages) shall be made by lodging an incidental application with the sheriff clerk in Form 10i, which shall include—

(a)

a claim for further damages;

(b)

a concise statement of the facts supporting that claim;

(c)

an application for warrant to serve the incidental application on—

(i)

every other party; and

(ii)

where such other parties are insured or otherwise indemnified, their insurer or indemnifier, if known to the pursuer; and

(d)

a request for the sheriff to fix a hearing on the application.

(4)

A notice of intimation in Form 10j shall be attached to every copy of the incidental application served on a warrant granted under paragraph (3)(c).

(5)

At the hearing fixed under paragraph (3)(d), the sheriff may determine the application or order such further procedure as the sheriff thinks fit.

Mesothelioma actions: special provisions34.14.(1)

This rule applies where liability to a relative of the pursuer may arise under section 5 of the Damages (Scotland) Act 2011

2011 asp 7.

(discharge of liability to pay damages: exception for mesothelioma).

(2)

On settlement of the pursuer’s claim, the pursuer may apply by incidental application 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 applies, variation of the timetable issued under rule 34.7(1)(c).

(3)

Paragraphs (4) to (7) apply where an application 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 incidental application for the recall of the sist and for an order for further procedure.

(7)

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