Scottish Government

CHAPTER 6 IMPACT ON COURT BUSINESS

Introduction

6.1 The impact of Chapter 43 on court business was examined with reference to the intended and unintended consequences of Chapter 43. So, for example, Chapter 43 was designed to avoid the use of the Procedure Roll as a delaying mechanism by reducing the number of actions being appointed to the Procedure Roll. However, Chapter 43 might also have increased the use of procedure unintentionally.

6.2 Firstly, Chapter 43 introduced procedural innovations, such as the requirement for pursuers to lodge minutes of the Pre-trial meeting, and for pursers and defenders to lodge Valuations of Claims. Forms (pda) were also introduced in December 2004 for intimation of settlement to the court. These were all bound to have implications for the work of the Court. Chapter 43 might also have introduced unforeseen consequences. As the quantitative analysis of case trajectories has revealed (see Chapter 4.4), actions in post-implementation sample took more procedural steps on the path to their final disposal. Whilst driving actions more quickly through procedure, Chapter 43 is responsible for driving actions through more procedure. This is likely to have implications for the work of the court, as well as for the cost of litigation. The volume of motions lodged since the introduction of Chapter 43 was also identified as a source of some concern by the court during the course of the research, though it is not known whether this was foreseen ⁶⁸. Lastly, Chapter 43 is responsible for replacing a resource-hungry mechanism for fixing diets of proof with an automatic mechanism generated by the Court. This will reduce work for the court only so far as proof diets are not discharged and require re-allocation.

6.3 In this chapter, the impact of Chapter 43 on the business of the court is examined with reference to procedural innovations, the use of the Procedure Roll, procedural stages completed prior to final disposal, the use of motions and starred motions, as well as the propensity for proof diets fixed under Chapter 43 to be reallocated.

Procedural Innovations and the By Order Roll

6.4 Chapter 43 introduced several procedural innovations. So, for example, a minute of the Pre-Trial meeting was lodged in 19% (80) of all personal injury actions raised under Chapter 43, and in 22% (79 ⁶⁹) of defended actions proceeding under Chapter 43.

6.5 Chapter 43 also introduced mandatory and discretionary callings on the By Order roll to promote compliance with the new provisions and with the timetable (see Chapter 1.4). There were 426 personal injury actions in the post-implementation sample raised under Chapter 43, and they generated 72 callings on the By Order roll, that is, one calling for every 6 actions raised. Almost all of them were in relation to failure to lodge the record or the joint minute of the Pre-Trial meeting timeously, both of which were at the time subject to a mandatory calling on the By Order roll for failure to do so. However, approximately one fifth of all cases put out on the By Order roll were found to have already settled, so that failure to notify the court of settlement rather than failure to lodge the record or minute timeously was responsible for a sizeable proportion of actions being put out on the By Order roll.

6.6 Late adjustments, subject to a discretionary calling on the By Order roll, were responsible for putting cases on the By Order roll only on a few occasions. No cases in the post-implementation sample were found to have been put out on the By Order roll for non-compliance with any other timetable requirement, such as pursuer's and defender's lodging of the Statement of Valuation (within 8 and 16 weeks from lodging of defences respectively). This will be subject to further discussion in Chapter 9, in relation to compliance with the timetable.

Procedure Roll

6.7 The Procedure Roll has been described as a "hugely unmanaged procedural lay-by". Where parties have agreed on further procedure of consent, ordinary procedure allows pursuers to enrol a motion craving the court to appoint the cause to the Procedure Roll for consideration of all, or specified, preliminary pleas (R. 22.3(5)(a)(i)). Unlike ordinary procedure, however, Chapter 43 discourages appointment to the Procedure Roll. While it makes provision for enrolling motions to allow further procedure, parties enrolling or opposing a motion to allow a preliminary proof on specified matters, or to make some other specified order, must give full notice of their grounds (Rule 43.6(5) and (6)).

6.8 Actions were appointed to the Procedure Roll in 8% (32) of 386 defended actions in the pre-implementation sample, compared with only 2% (8) of 396 defended actions in the post-implementation sample, most of them actions that had transferred to the Ordinary Roll. Only 1% of actions (3) proceeding under Ch. 43 in the post-implementation sample were appointed to the Procedure Roll, compared with 14% of actions (5) that transferred to the Ordinary Roll. Hence, Chapter 43 has been successful in reducing the frequency of appointments to the Procedure Roll, particularly amongst actions proceeding under Chapter 43. Since most personal injury actions do proceed under Chapter 43, this has had an overall effect of reducing the volume of personal injury actions appointed to the Procedure Roll in the post-implementation to a quarter of its previous volume. However, it should be noted that the proportion of actions appointed to the Procedure Roll in the pre-implementation sample is considerably smaller than Lord Cullen's 1995 data which, based on a mix of Outer House cases, found 27% of actions appointed and 8% heard. It is not known whether this represents a real decrease or whether there were inconsistencies and omissions of recording on CMS in the pre-implementation period. Furthermore, it was difficult to ascertain whether actions appointed to the Procedure Roll were actually called, or whether hearings were discharged.

6.9 Some informants were of the view that Chapter 43 was responsible for displacing hearings from the Procedure Roll to the Motions Roll, where discussion on the grounds for enrolling or opposing motions for further procedure had been turned into "mini-debates". The time that hearings on the Motions Roll were taking could not be ascertained from the administrative data available, though judges and other court practitioners were asked for their observations. This is discussed further in Chapter 7, in relation to simplification of procedure.

Procedural stages prior to final disposal

6.10 As we have seen, (Chapter 4.52ff), actions in the post-implementation sample went through more procedural stages on the path to their final disposal than actions in the pre-implementation sample. As of April 2006, defences had been lodged in all but 6% of the post-implementation sample, compared with 14% of the pre-implementation sample, and a closed record had been lodged in 82% of the post-implementation sample compared with 60% of the pre-implementation sample.

Procedural stage reached in pre- and post-implementation samples at final disposal (or as of last data collection in cases not yet disposed of)

The time-limited sist introduced by Rule 43.8 (3) appears to have increased the likelihood of defences in the post-implementation period. The mandatory provision for putting the case out to be heard on the By Order roll for failure to lodge the record by the date specified in the timetable (Rule 43.6(3)) appears to have increased the likelihood of lodging a closed record prior to final disposal.

6.11 The impact of Chapter 43 is illuminated when concluded actions in the pre- and post-implementation samples are examined for the procedural stage at which they were disposed of by way of a final interlocutor.

Procedural stage of final disposal: Defended actions in pre-implementation and post-implementation samples

In the pre-implementation sample, 28% of defended disposed of actions were finally disposed after defences were lodged but before a closed record was lodged, compared with only 7% of defended actions in the post-implementation sample. Thus, defended actions in the pre-implementation sample were four times as likely as actions in the post-implementation sample to be disposed of before a closed record was lodged. ⁷⁰ An increase in the number of defences and closed records lodged is likely to have implications for the business of the court, as well as for the cost of litigation. This will be discussed further in Chapters 10 and 11.

Motions

6.12 Motions are generated in the wake of the procedural innovations introduced by Chapter 43. If motions are starred, then they must call in court. If they remain unstarred, then they are not called in court. The implications of starred motions for court business are more marked than unstarred motions. Starred motions, however, play a crucial role in the strategy that informed Chapter 43's design, namely, to vest control over the pace of procedure in the court.

6.13 Under Chapter 43, parties wishing to withdraw from Chapter 43 by dispensing with the timetable (Rule 43.5 (1)), to sist or to alter the timetable (Rule 43.8 (1)) must make application by motion. Even if the motion is made of consent, it will not be granted unless information is put before the judge, which justifies it (Rule 43.5 (2) and Rule 43.8(2)). Like ordinary procedure, motions raised under Chapter 43 are starred and call in court where objections are made by other parties to the cause. However, motions to withdraw from Chapter 43, to sist and to vary the timetable may also call in court where the material placed before the judge is insufficient to warrant granting them, even when they are agreed.

6.14 Under Chapter 43, there are motions that are always starred and always call in court, whatever information is put before the judge. These are motions for summary decree, for interim payment of damages (Rule 43.11), and for discharging the proof diet.

6.15 Information was available on motions and starred motions for 385 of 386 defended actions in the pre-implementation sample and for 394 of 396 defended actions in the post-implementation sample. Altogether, 2,399 motions were lodged across 385 defended actions in the pre-implementation sample (an average of 6.2 motions per case) and 2,204 motions were lodged across 394 defended cases in the post-implementation sample, (an average of 5.6 motions per case). ⁷¹

Motions lodged in defended actions

6.16 Defended actions involving 5 or more motions were higher in the pre-implementation sample (61%), compared with the post-implementation sample (53%). Put another way, the post-implementation sample was more likely to involve less than 5 motions per case (47% of defended actions), compared with the pre-implementation sample (39%). Hence, Chapter 43 was not responsible for a case-by-case increase in motions. Indeed, the average number of motions per defended personal injury case was slightly reduced (from 6.2 motions per case in the pre-implementation sample to 5.6 in the post-implementation sample).

Starred motions in defended actions

6.17 Chapter 43 does appear to be responsible, however, for a case-by-case increase in starred motions. Starred motions are heard in court on the Motions Roll and therefore make a greater impact on the business of the court than unstarred motions. Under Chapter 43, motions for applications to discharge a proof diet, to make summary decree and to award interim damages are required to be starred. Motions may also be starred for applications to withdraw from Chapter 43, to sist and to alter the timetable, though this is on the discretion of Lords Ordinary.

6.18 Of 2,379 motions lodged in the pre-implementation sample of 385 defended actions, just 119 motions were starred. Starred motions appeared in only 22% (85) of defended actions, with more than one starred motion appearing in only 5% of defended actions.

6.19 Of the 2,164 motions lodged at the post-implementation sample of 395 defended actions, however, 229 were starred. Starred motions appeared in 38% (149) of defended actions in the post-implementation sample, in 35% (123) of actions remaining under Chapter 43 and in 72% (26) of actions transferred out to the Ordinary Roll. The very high proportion of actions with starred motions amongst those that had transferred to the Ordinary Roll is partly due to the discretionary starring of motions for applications to withdraw from Chapter 43. While more than one starred motion appeared in 5% of defended actions in the pre-implementation sample, they appeared in 13% (49) of defended actions in the post-implementation sample.

Starred motions in defended actions

6.20 The average number of starred motion per defended case in the pre-implementation sample was 0.3 while the average number of starred motion per defended case in the post-implementation sample was 0.6. Hence, a starred motion was twice as like to appear in the post-implementation sample as in the pre-implementation sample.

6.21 While the introduction of Chapter 43 appears to have been responsible for a decrease in the average number of motions per action, it was also responsible for an increase in the average number of starred motions. Starred motions appeared in a greater proportion of all actions raised and they appeared with greater frequency. While this might not have been intended, it could have been expected since one of the main mechanisms by which the Court wrests control of procedure under Chapter 43 is by starring unopposed motions for calling in court.

Starred motions and case type

6.22 Starred motions were not equally distributed between all cases. In the pre-implementation sample, for example, there was one starred motion to 2.25 clinical negligence actions. At the other extreme, there was only one starred motion to 3.63 work-related and 3.71 asbestos-related actions. In the post-implementation sample, there was one starred motion to 1.41 clinical negligence actions compared with one starred motion to 2.38 asbestos actions.

Pre-implementation sample: Starred motions amongst defended actions by case type

Post-implementation sample: Starred motions amongst defended actions by case type

6.23 The increase in starred motions amongst post-implementation clinical negligence actions is not surprising since a high proportion transferred out of Chapter 43, and motions to do so are starred on a discretionary basis. However, an increase was also found in defended actions that were unlikely to withdraw from Chapter 43: from one starred motion to 2.85 defended actions in pre-implementation vibration cases rising one motion to 1.92, from one starred motion to 2.88 defended actions in pre-implementation road traffic accident cases rising to one motion to 1.62, and from one motion to 3.63 defended actions in pre-implementation work-related actions rising to one motion to 2.08. Since motions are starred under Chapter 43 for applications to discharge a proof diet, to make summary decree and to award interim damages, a rise in the ratio of starred motions to all defended cases was to be expected.

Discharging and reallocating proof diets: Actions proceeding under Chapter 43

6.24 The reallocation of proof diets has implications for the work of the court, as well as for the progress of actions and effectiveness of the timetable. It is difficult to assess whether this has increased following the introduction of Chapter 43 since information on proof diets was not consistently available on CMS (nor in process) for actions in the pre-implementation sample. Indeed, information on proof diets was available for only 60 cases in the pre-implementation sample, most of them set after April 2004. Proof diets were discharged and a second proof diet had been fixed in 10% of these 60 cases.

6.25 There is greater confidence in the reallocation rates of proof diets in the post-implementation sample data. A proof diet was allocated and recorded in 368 of 425 (87%) actions signeted in the post-implementation sample, 351 of 355 defended actions proceeding under Chapter 43 and 15 of 35 actions transferred to the Ordinary Roll. Of these, 9% (30 actions proceeding under Chapter 43 and 2 actions proceeding under the Ordinary Roll) were re-allocated a second proof diet. A 3 ^rd proof diet was allocated in 6 of the 32 actions allocated a second proof: 5 actions proceeding under Chapter 43 and 1 action under ordinary procedure. Since only half of actions transferring to the Ordinary Roll had been allocated a proof diet as of April 2006, comparisons between them and actions proceeding under Chapter 43 should be treated with caution.

6.26 However, it is of some interest that the first proof diet was discharged and a second proof diet fixed in 9% of 351 defended actions proceeding to proof under Chapter 43. The period between first and second proof diets was usually just over 12 months. As of April 2006, a small proportion of second proof diets had also been discharged. Since these were found mainly amongst actions that were still ongoing at the time of the final data collection, their number is likely to increase with time. The allocation of second and third proof diets is only becoming possible, and therefore visible, some two to three years after the introduction of Chapter 43. They should be subject to further monitoring, not only because of their implications for the work of the Court but also because of their implications for the effectiveness of the timetable and case-flow management introduced by Chapter 43.

Assessing the impact of Chapter 43

6.27 Court of Session staff were agreed that there had been a shift in the general workload since the introduction of Chapter 43. While Chapter 43 was responsible for them spending less time in court, it had increased their workload at the desk.