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ASPIC finds its feet

15 April 18

The risk management article tracks practice developments to date in the All Scotland Personal Injury Court, and warns of the need for solicitors to keep abreast of what the court expects of them

by Kate Donachie

The All Scotland Personal Injury Court (ASPIC) came into being on 22 September 2015. It is beginning to develop a personality and we can now identify some general principles for good practice. The practitioner who is new to the court, or only an occasional user, would do well to heed the lessons learned by unwary others, often to their own and their client’s cost.

Early days

The early period was notable for administrative issues, particularly with regard to the processing of motions and documents lodged at court. By comparison, a strict approach was taken by the court when parties failed, or were perceived to have failed, to meet procedural requirements. In a number of cases, defenders’ motions to repone or recall a decree when a defence had not been lodged were refused and decree for the full sum claimed was granted.

The decision of CM v Aviva (December 2016) is of particular note. The defenders had failed to lodge a valuation. Their motion to allow the valuation although late was refused because the motion sheet did not provide sufficient information. A further such motion was made shortly before the proof; the sheriff refused the motion and granted decree for approximately 50% of the pursuer’s valuation as she considered that the defenders’ failure to follow the timetable had been deliberate and was inexcusable.

All change

A need for change was recognised, and on 24 April 2017 it was announced that Sheriff Kenneth McGowan would become the Administrative Sheriff and chair of the Personal Injuries User Group (PIUG). Sheriff McGowan introduced some immediate changes to both the internal organisation of the court, with more back-office staff and physical reorganisation of the civil office, and to court procedures, with short and long motion hearings. In addition, a new dedicated area on the Scottish Courts website was created so that all decisions of the ASPIC are published and easily accessible.

Sheriff McGowan also indicated his commitment to continuous improvement of the ASPIC and a desire that it was in all respects fit for purpose. He has produced a number of written decisions, which set down some general principles for cases in the ASPIC and which have resolved some frequent areas of dispute.

For example, the recovery of pre-accident medical records had been a contentious issue from the outset. In Docherty v Babcock International [2017] SC EDIN 33 Sheriff McGowan concluded that pre-accident records should be recovered wherever the information within those records is relevant to the matters in dispute between the parties. Indeed, that should be the principle underlying the recovery of any information. Sheriff McGowan also indicated in a number of decisions that there is an obligation on parties to co-operate with each other and not to be obstructive. He has applied that approach in relation to expenses (Robertson v Edinburgh City Council [2017] SC EDIN 41), and to the certification of experts (Boyle v CIS [2017] SC EDIN 36).

Sheriff McGowan has also used his written decisions to provide agents with guidance in relation to best practice in ASPIC. For example, he has asked that parties draft and attempt to agree a timeline before they come to court for any opposed motion which will require consideration of the action’s procedural history. The court’s administration too has been encouraging parties to narrow the areas of dispute before hearings, and indeed to investigate whether agreement might avoid a hearing altogether.

Civil Online

The Scottish Courts Service has recently launched its Civil Online service which applies to ASPIC cases. The service is now available to all firms.

The service is in its early days. The first phase went live in March 2017, allowing registered users to search a list of cases, view a list of documents created or lodged (it is not yet possible to view the actual documents), and see the dates and outcomes of hearings. By the beginning of 2019 it is hoped that it will be possible to lodge and obtain documents and forms electronically, the ultimate aim being to run cases in the ASPIC on an electronic basis alone.

Sanction for counsel

The involvement of counsel in ASPIC has been much debated by opposing parties. There have been a number of decisions in relation to sanction in the past six months, but as each case must be decided on its own facts, there is likely to be argument on this point for some time to come.

Mackenzie v McCormack [2017] SC EDIN 67

The sheriff refused to sanction the instruction of counsel in this case, which settled for £4,500. The pursuer had argued that a conflict between medical experts, and a claim that the pursuer was lying, rendered the case sufficiently complex to warrant such instruction. The sheriff specifically found that although the sum accepted was significant to the pursuer, it was not significant on an objective basis.

McCraken v Kazanowski [2017] SC EDIN 80

The sheriff rejected the argument that counsel was required because the defender challenged the pursuer’s credibility. The sheriff also indicated that while each case must be decided on its own merits, previous cases remained useful as a cross-check.

Burns v Hamilton & Forbes Ltd [2017] SC EDIN 72

This case related to the discovery of pleural plaques. The sheriff found that it will not always be reasonable to grant sanction for senior counsel in such cases. Here, however, the reasonableness arose from complexities peculiar to the case. That the case could have been competently conducted by junior counsel was not decisive. The sheriff also noted that complexity may not justify the use of counsel where the claim has a low value.

Brown v Aviva [2017] SAC (Civ) 34

This was not an ASPIC case, but the same principles applied. The appeal sheriff held that the original sheriff erred in failing to give adequate weight to the importance of the proceedings to the pursuer. He reversed the sheriff’s decision and found that it had been reasonable for the pursuer’s agents to instruct counsel. The sheriff had erred in only considering the actual trigger for instructing counsel, rather than considering all the relevant features of the case.

Cullen v Scan Building Services Ltd [2018] SC EDIN 15

Sanction for the instruction of counsel was refused. The case settled for £11,750. It related to an accident at work. The sheriff did not accept that there were any difficulties or complexities which rendered the instruction of counsel reasonable. He rejected the argument that counsel was required to carry out a more “sensitive” cross-examination of the pursuer’s co-workers.

Signature of pre-trial minutes

The court circulated an email on 6 October 2017 advising that pre-trial minutes must be signed by someone with rights of audience. This is because the signatory accepts responsibility to the court for the conduct and recording of the meeting, and the court cannot hold someone without rights of audience to account for any related failures. The strict wording of the rules suggest that only solicitors can sign the minute; however, Sheriff McGowan has taken a “purposive” approach and will allow the minutes to be signed by counsel.

It was initially unclear whether this meant that a solicitor or counsel must actually be present at the meeting. However, at the PIUG meeting on 5 December 2017, Sheriff McGowan indicated that it was acceptable for a paralegal (or other person without rights of audience) to attend the meeting so long as the minute was signed by a solicitor or counsel.

Litigation on expenses alone

In Tomzak v Reid [2017] SC EDIN 63 the sheriff criticised both parties for allowing a claim to litigate where the only matter in dispute was expenses. He indicated that the correct course would have been an agreement to refer the dispute to the auditor. It is not entirely clear whether or how this could be achieved. The point is currently being considered and we should have more guidance soon.

Certifying recoveries under specification

Form G11A should be sent to the other party and the court when documents are recovered under the optional procedure. Form G11B should be sent to the haver to confirm receipt of the documents. Sheriff McGowan has previously observed that the forms are not used (as indeed is often the case in the Court of Session), and that they should be; failure to use the forms would put a party in default. However, he has also separately indicated that the court would not welcome an influx of G11As, and the position appears to be that the forms should at least be sent to other parties and havers, if not also the court.

In summary

The clear message from ASPIC is that parties should co-operate with each other to effect the most efficient resolution of cases; if a party does not act in the spirit of this principle then they can expect to be sanctioned by the court. ASPIC also places significant importance on adherence to the procedural rules, and again defaulting parties could find themselves facing sanction from the court. It is important that solicitors practising in ASPIC ensure that they understand and follow the court timetable; failure to do so will not be looked on favourably by the court and could result in an adverse costs award and even decree. Care should also be taken to stay abreast of practice notes and court announcements.

Kate Donachie is an associate with Brodies LLP

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