Damages procedure cuts delay, says report
18 Jun 07
"Chapter 43" Court of Session procedure saves time rather than cost, research finds
The streamlined procedure for personal injuries actions under chapter 43 of the Court of Session Rules has led to a marked reduction in delay, though not necessarily any cost savings, according to new research.
A Scottish Executive-commissioned report, based on research into damages actions since the new procedure was introduced in 2003, has found that chapter 43 actions took an average 67 weeks from initiation to final disposal, compared with 116 weeks for actions remitted to ordinary procedure - not counting those actions still not concluded.
Under chapter 43, the court controls the pace of proceedings by imposing case flow management. The research suggests that because this requires more and earlier procedural inputs, this may have increased costs, particularly through fees to expert witnesses and counsel.
Pursuers' and defenders' representatives were divided over the use of abbreviated pleadings and the curtailment of the right to procedural hearings on pleadings, with pursuers' solicitors welcoming the changes but defenders' agents voicing strong reservations. Both sides however welcomed the pre-trial meeting as a forum for negotiating a settlement.
The report records calls for more flexibility in some aspects of the procedure, which might help keep some actions within chapter 43 that are currently being transferred into ordinary procedure. Practitioners would also like to see more court control over those actions which are transferred: recent experience in England and Wales suggests that cost efficiencies can be achieved through management of complex cases.
A users' group comprising judges, legal representatives and court staff is commended for its "responsive and participative approach to the management of the implementation process from the outset". "In an area of practice marked by strong adversarialism", the report states, "the group has been committed to making the procedure work. It is a model to be emulated."
The report, the research for which was carried out by Elaine Samuel of the University of Edinburgh school of social and political studies, can be viewed at
http://www.scotland.gov.uk/Publications/2007/03/30091751/0 .