Family actions: be prepared
The sometimes overlooked family action procedure rules that now require parties to take certain steps before a case comes to court, on pain of sanctions
Further to the recommendations of the Gill review, court structures are likely to change to improve efficiency. Already, procedural rules relating to family actions designed to promote the efficient and economic progress of litigation are in force.
Chapter 33AA, entitled “Expeditious Resolution of Certain Causes” applies to all family actions lodged on or after 3 June 2013, which are proceeding to proof or proof before answer in relation to s 11 orders.
At the options hearing (or at a procedural hearing if the action is proceeding in accordance with the additional procedure), the sheriff shall fix a date for a case management hearing, which must take place not less than 14 days and not more than 28 days after the interlocutor appointing the cause to a proof or proof before answer.
The rules require that parties shall hold a pre-hearing conference at which parties must:
(a) discuss settlement of the action;
(b) agree as far as possible matters which are not in dispute between them;
(c) discuss the information referred to in rule 33AA.4(1), consisting of 10 topics upon which the sheriff requires to be addressed at the case management hearing.
Also, in advance of the case management hearing the pursuer shall lodge with the court a joint minute of the pre-hearing conference. It is important to note that the sheriff can impose penalties upon agents who are unable to provide the sheriff with the requisite information at the case management hearing. If acting for the pursuer, the action could be dismissed for failure to comply with the rules. If acting for either pursuer or defender, the sheriff has the power to make an award of expenses against the agent or the client, in terms of rule 33AA.4(4)(c).
Agents must provide to the sheriff sufficient information to enable him or her to ascertain:
(1) the nature of the issues in dispute, including any questions of admissibility of evidence or any other legal issues;
(2) the state of the pleadings and whether amendment will be required;
(3) the state of preparation of the parties;
(4) the scope for agreement of facts, questions of law and matters of evidence;
(5) the scope for use of affidavits and other documents in place of oral evidence;
(6) the scope for joint instruction of a single expert;
(7) the number and availability of witnesses;
(8) the nature of productions;
(9) whether sanction is sought for the employment of counsel;
(10) the reasonable estimate of time needed by each party for examination in chief, cross examination and submissions.
Assuming that the sheriff is satisfied with the input received from agents in relation to the above matters, the sheriff will then assign a diet of proof.
This may make it less likely that defenders could frustrate the process, because the threat of a possible award of expenses will, in theory at least, loom large.
In practical terms, focus may be placed upon parties reaching agreement in relation to reports such as school reports or medical reports.
Agents should consider whether affidavits could usefully be employed, even if those affidavits do not prevent the witness in question being called to give evidence should the other side wish to cross examine them. The witness could be called on to adopt the terms of his or her affidavit by way of examination in chief, and then be cross examined (and re-examined) in the usual way if necessary.
Peripheral witnesses will be discouraged. Managing client expectations will be necessary to minimise the amount of court time spent on the evidence of witnesses whose evidence does not actually contribute much to the resolution of the issues in dispute.
Agents will be expected to explain which productions are anticipated, and the purpose of those productions. Where motions for specification of documents are lodged, it would be helpful for agents to try to identify the particular documents in which disclosure is actually required. It is likely that the sheriff is going to want to focus on the necessity of recovery of the documents concerned, again with a view to focusing on the determination of the issues in dispute.
Rule 33AA.4(4) gives the sheriff additional powers to make such orders as thought fit to ensure compliance with that rule, and the expeditious resolution of the issues in dispute. Such orders could include orders restricting the issues to be canvassed at proof, excluding specified documents, reports and/or witnesses from the diet of proof, and the assignation of other hearings, including hearings on expenses.
It is anticipated that agents will be encouraged or even directed to provide written submissions at the conclusion of the evidence at proof or proof before answer.
Given the likely greater scrutiny of preparations and possible consequences for non-compliance, Chapter 33AA is worthy of a re-read.
Amanda Masson, partner, Harper Macleod LLP
The author thanks Sheriff Andrew Mackie for his encouragement in writing this article