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

CHAPTER 43ACTIONS OF DAMAGES

PART IINTIMATION TO CONNECTED PERSONS IN CERTAIN ACTIONS OF DAMAGES

Application and interpretation of this Part

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

(a)by the executor of the deceased, in respect of the injuries from which the deceased died; or

(b)by any relative of the deceased, 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;

“relative” has the meaning assigned to it in Schedule 1 to the Damages (Scotland) Act 1976(1).

Averments in actions to which this Part applies

43.2.  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 warrant 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 the sum of £200 each.

Warrants for intimation

43.3.—(1) Where the pursuer makes averments under rule 43.2(b) (existence of connected persons), he shall insert a warrant for intimation in the summons in the following terms:— “Warrant to intimate (name and address) as a person who is believed to have title to sue the defender in an action in respect of the personal injuries from which the late (name and last place of residence) died [or the death of the late (name and last place of residence)].”.

(2) A notice of intimation in Form 43.3 shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (1).

Applications to dispense with intimation

43.4.—(1) Where the pursuer makes averments under rule 43.2(c) (dispensing with intimation to connected persons), he shall apply by motion for an order to dispense with intimation.

(2) In determining a motion under paragraph (1), the court shall have regard to–

(a)the desirability of avoiding 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 court is not satisfied that intimation to a connected person should be dispensed with, it may–

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

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

(c)order that such advertisement be made in such manner, in such place and at such times as it may specify in the interlocutor.

Subsequent disclosure of connected persons

43.5.  Where the name or whereabouts of a person, in respect of whom the court has dispensed with intimation on a ground specified in rule 43.2(c) (dispensing with intimation to connected persons), subsequently becomes known to the pursuer while the action is depending before the court, the pursuer shall apply by motion under rule 13.8(1) (warrants after signeting) for a warrant for intimation to such a person; and such intimation shall be made in accordance with rule 43.3(2).

Connected persons entering process

43.6.—(1) A connected person may apply to the court by minute in the process of the action craving leave to be sisted as an additional pursuer to the action.

(2) Such a minute shall also–

(a)crave leave of the court to adopt the existing grounds of action and to amend the conclusions, condescendence and pleas-in-law; or

(b)set out separate conclusions, a statements of facts and appropriate pleas-in-law.

(3) Before lodging such a minute in process, the minuter shall intimate to every party a copy of the minute and the date on which it will be lodged.

(4) Any party may lodge answers to such a minute in process within 14 days after the minute has been lodged.

Failure to enter process

43.7.  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 brings 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 IIINTERIM PAYMENTS OF DAMAGES

Application and interpretation of this Part

43.8.—(1) This Part applies to an action of damages for personal injuries or the death of a person from personal injuries.

(2) In this Part—

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

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

Applications for interim payment of damages

43.9.—(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 give written intimation of a motion under paragraph (1) to every other party not less than 14 days before the date on which the motion is enrolled.

(3) On a motion under paragraph (1), the court 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 it thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the court, 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 court thinks fit.

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

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

(b)a public authority; or

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

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

(7) Subject to Part IV (management of money payable to children), any interim payment shall be made to the pursuer unless the court 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.

Adjustment on final decree

43.10.  Where a defender has made an interim payment ordered under rule 43.9(3), the court may make such order, when final decree is pronounced, with respect to the interim payment as it 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 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 IIIPROVISIONAL DAMAGES FOR PERSONAL INJURIES

Application and interpretation of this Part

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

(2) In this part–

“the Act of 1982” means the Administration of Justice Act 1982(2);

“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.

Applications for provisional damages

43.12.  Any application under section 12(2)(a) of the Act of 1982 for provisional damages for personal injuries shall be made by including in the summons–

(a)a conclusion in form 43.12;

(b)averments in the condescendence supporting the conclusion, 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

43.13.—(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 and shall include–

(a)a conclusion in Form 43.13–A;

(b)averments in the statement of facts supporting that conclusion; 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) A notice of intimation in Form 43.13–B shall be attached to the copy of the minute served on a warrant granted on a motion under paragraph (2).

(4) 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.

PART IVMANAGEMENT OF MONEY PAYABLE TO CHILDREN

Interpretation of this Part

43.14.  In this Part “child” means a person under the age of 16 years.

Orders for payment and management of money

43.15.—(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 child, the court may make such order regarding the payment and management of that sum for the benefit of the child as it thinks fit.

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

Methods of management

43.16.  Without prejudice to the generality of rule 43.15(1), in making an order under that rule the court may–

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

(b)order the money to be paid to–

(i)the Accountant of Court, or

(ii)a guardian of the child,

as trustee, to be applied, invested or otherwise dealt with and administered, under the direction of the court, for the benefit of the child;

(c)order the money to be paid to the sheriff clerk of the sheriff court district in which the child rresides to be dealt with in accordance with Part IV of Chapter 36 of the Ordinary Cause Rules 1933(3) (management of damages payable to persons under legal disability); or

(d)order the money to be paid directly to the child.

Subsequent orders

43.17.—(1) Where the court has made an order under rule 43.15, any person having an interest may apply to the court for an appointment or order under rule 43.16, 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 43.16(b) may be made by any person having an interest by minute in the process of the cause to which the application relates.

PART VOPTIONAL 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(4).

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.