Act of Sederunt (Rules of the Court of Session 1994) 1994

PART V OPTIONAL PROCEDURE IN CERTAIN ACTIONS OF DAMAGES

Application and election of optional procedure

43.18.—(1) This Part applies to an action of damages for personal injuries or the death of a person in consequence of personal injuries in which the pursuer has made an election under paragraph (2).

(2) The pursuer may elect to adopt the procedure in this Part by bringing an action in Form 43.18.

Effect of election on right to jury trial

43.19.  Service of a summons in Form 43.18–

(a) shall constitute a waiver by the pursuer of his right to jury trial;

(b) shall not, subject to rule 43.22(2) (waiver by defender of right to jury trial), affect any right of a defender to apply for jury trial.

Proceedings before nominated judge

43.20.  All hearings on the Diet Roll shall be brought before a judge of the court nominated for that purpose by the Lord President or, where a nominated judge is not available, before any other judge of the court (including the vacation judge).

Defences in optional procedure action

43.21.  Defences to the action shall be in the form of brief answers to the condescendence and appropriate pleas-in-law.

Application by defender for jury trial

43.22.—(1) Where a defender intends to apply for jury trial in the action, he shall, at the same time as lodging defences, lodge a minute in process stating his intention to apply for jury trial.

(2) Where a defender does not lodge a minute under paragraph (1), he shall be taken to have waived his right to jury trial.

(3) Where a defender lodges a minute under paragraph (1)–

(a) the provisions of this Chapter and the waiver by the pursuer of his right to jury trial shall cease to have effect; and

(b) the action shall proceed as an ordinary action.

Disapplication of requirement for open record

43.23.  An open record shall not be made up in, and Chapter 22 (making up and closing records) shall not apply to, the action unless otherwise ordered by the court.

Diet Roll

43.24.—(1) Within 14 days after defences have been lodged, the action shall appear on the Diet Roll for a hearing on a specified date.

(2) The appearance of the action on the Diet Roll for a hearing on a specified date shall not affect the right of any party to apply by motion at any time under these Rules.

(3) Where an action appears on the Diet Roll, a motion (other than a motion for a commission and diligence for the recovery of medical records heard before the first hearing on the Diet Roll) which requires the attendance of counsel, or a motion mentioned in paragraph (5), shall be heard on the Diet Roll.

(4) At any hearing on the Diet Roll, the court may, at its own instance or on the motion of a party, on special cause shown where it is satisfied that the difficulty or complexity of the action makes it unsuitable for procedure under this Chapter, order that the action shall proceed as an ordinary action and ordain the pursuer to make up an open record.

(5) At any hearing on the Diet Roll, the court may, on the motion of any party–

(a) on special cause shown, allow a specified period of adjustment;

(b) on special cause shown, allow an amendment of the instance or conclusions of the summons;

(c) on special cause shown, ordain a party to give further specification of his case in his pleadings;

(d) on cause shown, grant warrant for service of a third party notice: provided that–

(i) no such warrant may be granted after the final appearance on the Diet Roll unless on special cause shown; and

(ii) rule 43.21 (defences in optional procedure action) shall, with the necessary modifications, apply to answers by a third party as it applies to a defender;

(e) remit to a man of skill.

(6) At any hearing on the Diet Roll where adjustment has not been allowed or the period for adjustment has expired, the court shall–

(a) where necessary, continue the action on the Diet Roll;

(b) on special cause shown, appoint the action to the Procedure Roll;

(c) allow a proof or proof before answer, as appropriate–

(i) on the question of liability and the question of quantum of damages;

(ii) where liability is admitted, on the question of quantum of damages;

(iii) where quantum of damages is admitted or agreed, on the question of liability; or

(iv) where there is an issue between a defender and a third party, on that issue; or

(d) make such other order, if any, as it considers necessary for the further progress of the action.

(7) Where the court allows a proof or proof before answer under paragraph 6(c)(i) or (iv), it shall determine whether–

(a) the questions of liability and quantum of damages should be heard together or separately; and

(b) any issue between a defender and a third party should be heard with or separately from any question of liability or quantum of damages.

(8) Where the court makes an order under paragraph (6)(b), it may ordain a party–

(a) to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that any preliminary plea should be sustained, and

(b) to send a copy of it to every other party concerned,

within such period as the court thinks fit.

(9) When making an order under paragraph (6)(b) or (c), the court shall determine whether a record should be made up.

(10) Where the court orders a record to be made up under paragraph (8), rule 22.3(2) and (3) (lodging, etc. of closed records) shall apply to the action as it applies to an ordinary action.

Inspection and recovery of documents in optional procedure

43.25.—(1) Without prejudice to rule 43.27 (exchange of reports skilled witnesses), within 14 days after an order has been pronounced under rule 43.24(6)(c) (allowance of proof), each party to the action shall–

(a) give written intimation to every other party of a list of the documents which are, or to the best of his knowledge have been, in his possession or control relating to the matters at issue between them;

(b) where such documents have been in his possession or control, state in that list the place where and the person with whom, to the best of his knowledge, those documents may be found; and

(c) lodge a copy of that list in process.

(2) A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list within 14 days after the receipt of the list at a time and place which is reasonable to both parties.

(3) A party inspecting documents under paragraph (2) shall have the right to obtain a copy or copies of any such document on payment of a copying fee of not more than that prescribed in Chapter I of the Table of Fees in rule 42.16.

(4) Nothing in this rule shall affect–

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

(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972(1).

Exchange of lists of witnesses in optional procedure

43.26.—(1) Within 28 days after an order has been pronounced under rule 43.24(6)(c) (allowance of proof), each party to the action shall–

(a) give written intimation to every other party of a list containing the name, occupation (if known) and address of each person whom he intends to call as a witness; and

(b) lodge a copy of that list in process.

(2) A party who seeks to call as a witness a person not on his list intimated under paragraph (1) shall, if any other party objects to such a witness being called, seek leave of the court to call that person as a witness; and such leave may be granted on such conditions, if any, as the court thinks fit.

Exchange of reports of skilled witnesses in optional procedure

43.27.—(1) Not less than 28 days before the diet of proof, a party shall–

(a) disclose to every other party in the form of a written report the substance of the evidence of any skilled person whom he intends to call as a witness; and

(b) lodge a copy of that report in process.

(2) Except on special cause shown, a party may only call as a skilled witness any person the substance of whose evidence has been disclosed in accordance with paragraph (1).

(3) Except on cause shown, the number of skilled witnesses for any party shall be limited to one medical expert and one expert of any other kind.

Evidence generally in optional procedure

43.28.  Where possible, the parties shall agree photographs, sketch plans and any statement or document not in dispute.

(1)

1972 c. 59; section 1 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 9 and Schedule 2, paragraph 15.