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Clinical negligence and complex personal injury actions – New rules for case management

New procedural rules applying to certain clinical negligence and personal injury actions in the Court of Session in Edinburgh have come into force from 1 March 2020. These alter Chapter 42A of the Court of Session Rules, which often apply to clinical negligence cases and other complex personal injury actions, including catastrophic injuries cases. Case management rules under Chapter 42A have been in force since 2013 and the new rules bring in changes in response to issues identified with the old rules.

The new rules essentially just develop the previous rules and still do not affect conduct of actions until after parties have finalised their written pleadings (the closing of the record). There are a number of significant changes but perhaps the most important change is that the newly named Case Management Hearing (which was previously known as the the By Order Adjustment Roll Hearing) is now to take place much longer after the closing of the record (not less than 16 weeks after) and that the new rules provide for a timetabled exchange of information between the closing of the record and the Case Management Hearing.

This exchange of information is subject to a demanding timetable which means that careful planning from an early stage of any action is probably going to be required to ensure compliance. For example, the new rules provide that – effectively within five weeks after the record closes – parties must exchange draft reports from expert witnesses to be relied upon (with lists of any other expert witnesses parties have instructed or intend to instruct) and draft lists of witnesses with statements from those witnesses.

The parties must then – effectively within nine weeks after the record closes – exchange draft provisional valuations with any available vouching, draft written statements containing proposals for further procedure for providing and a draft note of the issues which are in dispute between the parties and draft lists of all documentation in the possession of the parties relevant to the issues in dispute and upon which the parties intend to rely. At this stage, parties also need to provide each other with detailed information about medical records held, consider whether any of the expert witnesses should meet and request facilities for taking witness statements.

The pursuer must then – effectively within eleven weeks after the record closes – send to the defender a draft joint minute which includes all matters which are either agreed, or are considered by the pursuer capable of being agreed, a glossary of terminology (such as medical or technical terms), any heads of damage and a chronology of events, as an appendix. At this stage the pursuer must also provide draft paginated bundle of medical and other records to be relied upon. The defender then has a period to consider revisal to the draft joint minute and additions to the draft joint bundle.

The parties will still need, as they did before, to lodge written statements of proposals for further procedure before the Case Management Hearing. However, additionally at this stage, the pursuer must, after liaising with the defender, lodge in process a signed joint minute setting out the matters which have been agreed between the parties and a written statement explaining why certain matters have not been agreed by the parties. The whole procedure has therefore become much more frontloaded.

Our Legal Director, Ken Lauder, has been involved in this area of practice for most of his career and has seen many changes during that time. The introduction of the previous rules for case management was a significant change to the old regime. Before case management was brought in the rules involved much less requirement for discussion and disclosure between parties. For example, reports from expert witnesses typically did not have to be disclosed to opponents or lodged in court until four weeks before the proof (evidential hearing). This then led to parties having to seek urgent opinion from their own expert witnesses on reports just received from opponents which could, in turn, delay any negotiation between parties until very close to the proof. The new rules mean that, by the time parties reach the Case Management Hearing, never mind the proof, their state of preparation should already be at an advanced stage. Since the purpose of the Case Management Hearing is to determine whether an action should be sent to proof with reference to the matters in dispute and the readiness of the parties to proceed to proof, the new rules should make the Case Management Hearings more effective than the previous By Order Adjustment Roll Hearings.

The new court rules are introduced by Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Case Management of Certain Personal Injuries Actions) 2019 and there is also a Court of Session Practice Note No. 2 of 2019 – which replaces Practice Note No. 6 of 2017. Both have effect from 1 March 2020. Gilson Gray can be contacted for more information on the new rules.

Ken Lauder has been dealing with clinical negligence and catastrophic injury claims for many years.  He and other members of our Litigation team will work with you to achieve the best outcome for you if you have a claim.

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.

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