Scottish Government

CHAPTER 5 BRINGING FORWARD THE DAY OF SETTLEMENT

Research aim and evidential requirements

5.1 This section assesses the impact of Chapter 43 on bringing forward the date of settlement from the day of proof/trial, one of the main objectives of the reforms introduced by Chapter 43 and the Working Party on Court of Session Procedure chaired by Lord Coulsfield.

5.2 An accurate assessment of Chapter 43's capacity to bring forward the day of settlement requires just two items of information: the date for which a proof or trial diet is set down and the date on which settlement is intimated to the Court ⁵⁷. These data were not consistently available for the pre-and post-implementation samples. Dates of assigned proof or trial diets were recorded on CMS for only 42 finally disposed of actions in the pre-implementation sample compared with 299 actions in the post-implementation sample. The date on which settlement was intimated to the Court was only very occasionally recorded on CMS for actions in the pre-implementation sample and only consistently recorded on CMS in the post-implementation sample from December 2004 onwards ⁵⁸.

5.3 The research therefore took several different approaches to circumvent the absence of data. All of them display some weaknesses. Nevertheless, all findings point in the same direction and indicate Chapter 43's success in bringing forward the day of settlement.

Proof diets and final disposal: The pre- and post-implementation samples

5.4 Because intimation of settlement was not consistently recorded in either sample, the relationship of final disposal to the proof diet was examined in place of intimation of settlement. In the post-implementation sample, eleven weeks on average were found to elapse between intimation of settlement and disposal by way of final interlocutor ⁵⁹. The date on which the court finally disposed of actions therefore provides an estimate of when the court was notified of settlement.

From 1 ^st proof diet to court disposal: Final disposal in relation to proof diet

Actions disposed of by the court did so 14 weeks on average after the diet of proof in the pre-implementation sample compared with 2 weeks prior to the proof diet in the post-implementation sample. In the pre-implementation sample of disposed defended action , 50% (the median) were disposed of within 8 weeks following the proof diet, compared with 1 week prior in the post-implementation sample. The relationship of final disposal to 1 ^st proof diet for the two samples is displayed graphically (in weeks) below:

In the post implementation sample, for example, 10% of actions had been disposed of by the court just under 40 weeks of the diet of proof and 20% had been disposed of by the court under 26 weeks of proof. 60% of actions were finally disposed of within 3 weeks following proof. In the pre-implementation sample, 10% of actions had been disposed of by the court under 4 weeks of the diet of proof and 20% had been disposed of by the court 1 week following the date to which the diet of proof had been assigned. 60% of actions were finally disposed of not until 12 weeks following proof.

5.5 Comparisons between the two samples should still be made with care since the date of proof was identified in only 42 disposed of actions in the pre-implementation sample. These 42 cases may be unrepresentative of the pre-implementation sample, thereby rendering comparisons with the post-implementation sample invalid. The value of comparing the two samples is also in doubt since all actions in the post-implementation sample were assigned a proof diet once defences were lodged, while actions in the pre-implementation sample were only assigned a proof diet later in the procedure, when those that had not already settled were ready to go to proof. Regardless of the reliability of the pre-implementation data and the value of the comparison, however, findings with regard to the post-implementation sample are instructive as 'stand-alone' information for monitoring purposes.

5.6 While the analysis does not provide a precise picture of date of settlement in the pre- and post-implementation eras ⁶⁰, the proportion of actions disposed of by way of final interlocutor some weeks prior to the proof diet in the post-implementation sample testifies to the even greater proportion of actions that must have settled some weeks prior the proof diet. Since actions in the post-implementation sample were disposed of, on average, 11 weeks following intimation of settlement ⁶¹, and actions were disposed of, on average, 2 weeks prior to the proof diet, this means that actions in the post-implementation sample that had been finally disposed of were intimating settlement to the court, on average, 13 weeks before the proof diet. However, the small proportion of actions that were not yet finally disposed of (as of April 2006) are likely to reduce this average as they, too, are gradually disposed of by final interlocutor.

Monitoring the post-implementation sample: Intimating settlement and the proof diet

5.7 The date on which settlement was intimated to the court was more frequently recorded on CMS for the post-implementation sample, and more consistently recorded on CMS following the introduction of the pda form in December 2004. A date was recorded for 186 actions of the sample prior to the 1st proof diet and for 2 actions prior to the 2nd proof ⁶². Intimation of settlement was examined in relationship to the 1 ^st proof diet alone.

Intimation of settlement in the post-implementation sample

5.8 The above table shows that 69% of all notifications of settlement in the post-implementation sample were intimated more than 7 days prior to the diet of proof. A further 9% were intimated on the Tuesday, Wednesday or Thursday (5-7 days) prior to proof, 10% were intimated on the Friday (4 days prior to proof), 5% on the Monday (3 to 1 days prior to proof), 6% on the day of proof and 2% thereafter. 24% of all notifications were made between 15 and 28 days prior to the first proof diet, that is, in the weeks following the period when most Pre-Trial Meetings are assumed to have taken place. However, it is instructive to note that 36% of all notifications of settlement were intimated to the court more than 28 days before the proof diet.

5.9 These findings provide a conservative estimate of Chapter 43's success in bringing forward the date of settlement. Since 299 actions in the post-implementation sample had been finally disposed of by April 2006, but data were available for only 186 actions, information is missing on 113 cases. Notification of settlement is most likely to have been omitted from CMS for actions settling earlier, that is, before the pda form was first introduced in December 2004 and systematic recording of intimation of settlement commenced. The first proofs set down for actions in the post-implementation sample started as of 15 June 2004, with most actions raised in May 2003 set down for proof between June and October 2004, and many of those raised in September 2003 set down for proof in November and December 2004. Hence, the data are likely to be biased in favour of actions that intimated settlement at a later date, namely, those intimating settlement following December 2004 (when pda forms were first made available on the SCS website and intimation of settlement was consistently recorded).

Monitoring in the Court of Session: Intimating settlement and proof diet

5.10 As of December 2004, the Court of Session has been consistently recording the date on which settlement is notified on CMS. The designated personal injury clerks have been collating the information and also recording the date set down for proof amongst those actions intimating settlement. As of 12 December 2005, intimation of settlement to the court had been recorded in 1247 actions, as follows:

For each of the 1247 intimations of settlement, the number of days prior to the proof diet on which settlement was intimated was calculated:

Intimation of settlement in relation to proof diets amongst all actions notifying settlement to the Court, December 2004 - December 2005

80% of all intimations of settlement were made to the court more than 7 days prior to the diet of proof, with 20% lodged between 15 and 28 days prior to proof. 37% of all notifications of settlement were intimated to the court more than 56 days before the proof diet.

5.11 The data collected and collated for the Court and the designated personal injury clerks point in the same direction as the commissioned research.

Intimation of settlement in relation to proof diets: Research and court data

Very early intimations of settlement are underestimated in the research data. As explained above, notification of settlement was only consistently recorded on CMS as of December 2004, when many actions in the post-implementation sample would have already intimated settlement.

5.12 It is likely, however, that the data collected by the court underestimate the proportion of actions intimating settlement on the day of proof or immediately thereafter, while the research data is more accurate. This is because the Court of Session only records all pda forms that are lodged and does not record those actions that fail to 'run' to a proof diet without lodging a pda form. The Court of Session accepts verbal notification of settlement on the day of proof and requests that this is followed up by lodging a pda. However, it does not check to see whether pda forms are indeed lodged. Over the course of 2004, defences were lodged in 1878 action and approximately 150 personal injury actions per month were set down for proof/trial diet in 2005 (approximately 1800 over the year). Yet pda forms were available for only 1247 actions that were set for proof in 2005. It is highly likely that many of the missing pda forms belong to actions that were settled on the day of proof. Indeed, observation at Parliament House on Tuesday mornings suggests that more than 3% of personal injury actions set down for proof settle at the door of the court. Indeed, as the research rather the court data suggest, it is more likely to be closer to 7%.

Observation in Parliament House

5.13 A more accurate estimate of actions settling on the day of proof, or intimating settlement over the few days prior to proof, may be ascertained by visiting Parliament House on Tuesday mornings. In 2005, 90 actions were set down for proof each week, of which 80 were personal injury actions. This was reduced to 70 personal injury actions in 2006. A list is drawn up on the Thursday prior to proof of those actions that have been set down for proof the following Tuesday and have not intimated settlement as of late Thursday afternoon. This list is posted on the walls of the Court. As actions settle over the next 4 days, they are usually - though not consistently - scored off the list. From this list, it is possible to ascertain how many intimations of settlement were made prior to Thursday pm, how many settled on the Friday and Monday (4 days and 1 day) prior to proof and how many were still to be settled on Tuesday morning. Actions remaining on the list posted in the Court on Tuesday morning either settle on the day or proof or go ahead to proof or trial. The list was examined for 5 weeks in 2005 and 2006.

21 June 2005

5 July 2005

12 July 2005

28 February 2006

7 March 2006

Between 13% and 23% of actions set down for proof on the following Tuesday had not intimated settlement as of late Thursday. Between 5 and 14 actions, (7% and 18% of all personal injury actions set down for proof), were still set down for proof on the Tuesday morning, except for 5 July when only 1 action remained on the list. Except for 5 July 2005, between 4% and 10% of all personal injury actions set down for proof settled on the day. (Clearly, the prospect of holidays brings settlement forward!).

5.14 This gives some indication as to the pattern of late settlement under Chapter 43, though the need for information to be collected from the court lists more systematically and over a longer period of time was identified during the course of the research.

Monitoring settlement in the post-implementation era: Systematic data collection in the Court of Session

5.15 At the behest of the Personal Injury Users Group, the General Department undertook to identify the number of actions remaining on the proof/jury trial roll on the Thursday night prior to Tuesday proofs/jury trials during the 12 weeks of Spring Term 2006, as well as the number of actions remaining on Monday night (the day prior to proof), the number of actions settling on the day and the number of actions that 'ran', that is, in which a proof hearing or jury trial was held. It also identified which of these actions were proceeding under Chapter 43 and which were on the Ordinary Roll. (Actions on the Ordinary Roll included personal injury and non-personal injury cases). Further investigation via CMS was undertaken by the research to ascertain how many actions were assigned to a proof or jury trial diet during this period, as well as how many were discharged for a new hearing or for a sist. These two sources of statistical information were put together with a view to obtaining a more precise estimate as to the number and proportion of actions settling in the post-implementation era and their timing.

5.16 All personal injury actions proceeding under Chapter 43 that were allocated a proof hearing or jury trial in the Summer term 2006, (that is, in the twelve weeks between 25 April and 11 July 2006) and all actions (including non-personal injury cases) were examined. The table below identifies the number and proportion of actions that settled more than 4 days prior to proof (by Thursday night), between 1 and 4 days prior to proof (between Friday and Monday), and on the day of proof/jury trial. It also records the number of actions in which a proof diet or jury trial went ahead, as well as the number of proof diets that were discharged for a new diet of proof/jury trial or sist.

Proofs and jury trials assigned for Summer Term 2006: Comparing actions proceeding under Chapter 43 with actions remitted to the Ordinary Procedure

Almost three quarters (74%) of all actions proceeding under Chapter 43 settled at least 4 days prior to proof or jury trial, compared with 52% of all actions proceeding to proof or jury trial on the Ordinary Roll. 12% of all actions proceeding under Chapter 43 settle between one and four days prior to proof, compared with 20% of all actions on the Ordinary Roll. Actions settling on the day of proof comprise 7% of all actions proceeding under Chapter 43, compared with 19% on the Ordinary Roll. Of all actions allocated to a proof diet or jury trial, only 2.5% of actions proceeding under Chapter 43 actually ran, compared with 9% of actions on the Ordinary Roll. Though many of the actions proceeding to proof on the Ordinary Roll are likely to be dissimilar to actions proceeding under Chapter 43, (for example, some are not personal injury actions), these findings suggest that the Pre-trial Meeting has been instrumental in reducing the proportion of actions settling less than 4 days before proof amongst actions proceeding under Chapter 43. Indeed, this comparison between Chapter 43 and Ordinary Roll actions may underestimate the impact of the Pre-trial Meeting and other Chapter 43 procedures on bringing forward settlement since, as we shall see (Chapter 8.64 below), the reported voluntary adoption of Pre-trial Meetings for Ordinary Roll actions is likely to have also increased the proportion of ordinary procedure actions settling more than four days prior to proof. ⁶³

5.17 This monitoring information receives robust confirmation from the post-implementation settlement research findings (see 5.7-5.9 above), by examining comparable stages of settlement.

Monitoring settlement of actions proceeding under Chapter 43: A comparison of the post-implementation sample and findings relating to Summer term 2006 (Court of Session monitoring and CMS)

When actions proceeding under Chapter 43 settle, it is now possible to assert with a high degree of confidence that 79% of settlements are intimated more than 4 days prior to proof, 13% of settlements are intimated in the 4 days prior to proof (between Friday and Monday inclusive) and 8% of settlements are on the day of proof ⁶⁴. The very small differences between the two samples are probably due to bias in the post-implementation sample in favour of later settlements, but could also be due to normal and expected margins of error between two different samples of cases.

Case type and intimation of settlement

5.18 During the course of the research, the propensity of some cases to settle nearer to the proof diet than others emerged as a topic of discussion. This was in the context of an argument that some defenders were more likely to drive actions to the door of the court than others. The post-implementation sample was analysed to test this hypothesis. Intimation to the court of settlement was available for only 186 actions in the post-implementation sample, of which case type was identified in 170 actions.

Intimation of settlement 4 or less days prior to proof, by case type

Work and asbestos related actions were more prone to late settlement than others, with 22% and 24% of actions intimating settlement less than five days prior to the proof diet. ⁶⁵ 12 cases (7% of actions intimating settlement) settled on the day of proof, with 12% of work related actions intimating settlement on the day of proof ⁶⁶.

Intimation of settlement on the day of proof, by case type

5.19 Care should be exercised with regard to these findings, however, both because of the small number of cases involved and also because of recording omissions when actions intimate settlement verbally on the day of proof (see 5.4 above). Before any firm conclusions can be drawn, intimations of settlement, including verbal intimations, must be recorded on CMS over a period of time ⁶⁷. However, these findings may point to some differences between case types with regard to the effectiveness of Chapter 43 for reducing late settlement.