Pursuer: Ms Maguire QC, Ms Lake; Balfour & Manson LLP

Defender: Mackay QC, Ms Smart; Simpson & Marwick

5 July 2013

[1] This opinion relates to an order made by me on Friday 21 June 2013 in relation to a personal damages action in which the proof was due to commence on Tuesday 25 June 2013. Since this is, as I understand it, one of the first cases in which the new Chapter 42A of the Rules of Court has been applied to an existing action, and my power to make an order thereunder was hotly contested, it is appropriate that I should explain the order which I made and the reasons for making it in writing.

[2] The pursuer is the mother of Dale Johnston, who suffered very serious injuries as a result of a car crash in 2005. Dale was then about 16 years old. She was not wearing a seatbelt.

[3] Liability is admitted. Apart from a live issue about contributory negligence (arising out of the failure to wear a seatbelt), the proof is limited to issues of quantum. The quantum issues are potentially complex and will involve a large number of expert witnesses. A proof has been fixed with an estimated duration of three weeks beginning on 25 June 2013.

[4] On Thursday 20 June 2013 the pursuer enrolled a motion seeking to dispense with the normal period for intimation and for the motion to be heard on the following day, Friday, 21 June 2013. The substantive part of the motion sought (a) an order that the defender lead at the proof on the issue of contributory negligence and (b) directions with regard to ensuring the efficient conduct of the proof. In effect, as became clear, the pursuer was asking the court to case-manage this action, albeit at a very late stage, because of late developments at the instance of the defender, namely a late Minute of Amendment raising a number of new points and a plethora of late productions and proposed additional (expert) witnesses.

[5] Ms Maguire QC, for the pursuer, made it clear at the outset that she was not insisting on her motion that the defender lead on the question of contributory negligence. Her concern was that the defender, well after the pre-trial meetings and the cut-off date for lodging productions and lists of witnesses, was now seeking to introduce new issues into the case, supported by productions and witnesses, which until now had not featured at all. In those circumstances, she submitted that case‑management was desperately needed.

[6] The history of the action is highly material to the pursuer's motion. The following is a brief summary.

[7] The action was raised on 10 January 2011. Skeletal defences were lodged initially but fairly soon thereafter these skeletal defences were expanded. In March 2011 the pursuer lodged two inventories of productions comprising reports from neuropsychologists, a speech and language therapist, a physiotherapist, a clinical psychologist and another expert, as well as a property schedule and a letter from a care provider.

[8] On the 17 March 2011 the court granted summary decree (on liability) and made an award of interim damages.

[9] The record closed in late 2011 and on 17 November 2011 a proof was fixed for 12 days commencing 25 June 2013, nearly 20 months on. By this time the defender had lodged certain productions (in June and July 2011), consisting mainly of medical and other records.

[10] Nothing happened in 2012. In January 2013 the defender lodged a further inventory of productions consisting of further medical or other records.

[11] On 6 February 2013 the pursuer made a second motion for interim damages and lodged further productions in support, including vouching for the purchase of a house, a vocational report, a pension report, and a statement of accounts. She lodged further inventories on 6 February 2013, comprising updates on neuropsychological issues, vouching for past care, and further expert reports on a number of topics, including psychology, audiology and care.

[12] On 8 February 2013, on the eve of the hearing of the motion for interim damages, the defender lodged a report with an appendix. The motion for interim damages was compromised, with the pursuer accepting the defender's offer to pay a further £50,000 on the basis that there would be an early pre-trial meeting. This was fixed for 26 March 2013.

[13] On 19 March 2013, in preparation for the pre-trial meeting, the pursuer lodged a further inventory comprising a report on management of funds and a schedule.

[14] The pre-trial meeting took place on 26 March 2013. The defender had produced no evidence in respect of the plea of contributory negligence and was called upon to produce that evidence. There was no evidence from the defender contradicting the pursuer's evidence and reports on most of the issues. No schedule of damages had been produced by the defender. The pursuer contended that this was not a proper pre-trial meeting, in that the defender did not approach it with a view to an informed discussion of the merits or quantum.

[15] After the meeting the pursuer agreed that Dale could be seen by Dr Carson (who was not in fact on the defender's list when that was later exchanged).

[16] According to the timetable, the last date for lodging productions and lists of witnesses was 30 April 2013. On that day lists of witnesses were exchanged and productions were lodged by both parties. The pursuer lodged a number of documents, including further expert reports. The defenders lodged a report by a clinical neuropsychologist, and a pensions report. There were still many issues on the pleadings in which the defenders had not lodged any expert reports or other documents.

[17] There was a further pre-trial meeting more recently. The pursuer's senior counsel considered that the case could still be finished within the allocated three weeks; but the defender's senior counsel noted on the minute of that meeting that he anticipated that the case would last longer than the three weeks allocated. His estimate was 16 days for evidence and two days for submissions (effectively five weeks rather than three).

[18] In summary, therefore:

(i) Up to this stage there had been no intimation of any intention to amend the pleadings, which had been in settled form since the record closed in late 2011.

(ii) The pursuer had lodged reports at a very early stage, and had updated them from time to time.

(iii) By contrast, although some expert reports had been lodged by the defender, on a number of matters which, on the pleadings, appeared to be contested, no documents or reports had been lodged by the defender so as to provide a basis for any informed challenge to the pursuer's case.

(iv) The pre-trial meeting, fixed early as a quid pro quo for the pursuer agreeing to accept only a relatively small amount by way of further interim damages on 8 February 2013, had proved largely abortive due to the lack of material from the defender's side.

[19] Since the cut-off date of 30 April 2013 - and with the proof fixed to commence on 25 June 2013 - the defender has intimated the following additional material:

(i) 13 May 2013: inventories of productions (given the proposed numbering 7/18-7/24) comprising a lever arch folder of published articles from medical journals concerning the manner in which the wearing of the seatbelt may restrict or prevent injury. These were to be relied upon by the defender's expert, Mr Gentleman, a medical expert on such matters, who was on the defender's list of witnesses. However, no report had by then been lodged from Mr Gentleman.

(ii) 5 June 2013:

(a) An expert report from Mr Gentleman together with his CV, and a number of police photographs of the accident scene.

(b) A supplementary witness list for the defender naming Dr Schady, a consultant neurologist.

(c) A Minute of Amendment introducing, for the first time, an unparticularised averment that Dale's life expectancy was reduced. This has subsequently been adjusted to particularise that averment as being that Dale's life expectancy is now only five years; and to add further separate averments relating to day/night care and rental accommodation.

(iii) 7 June 2013:

(a) A further supplementary list of witnesses naming Stuart Blackwood (a road traffic accident expert) and Dr Alan Carson (a neuropsychiatrist who, it was proposed, would speak to the question of life expectancy).

(b) A further inventory of productions (7/28) comprising a report from Mr Blackwood dated June 2013. No report was produced at that time from Dr Carson.

(c) A schedule of damages, giving the first notification of an argument that it would have been more appropriate to rent a house suitable for Dale rather than purchase one.

[20] In summary - and the pursuer's complaint of this was amply borne out by the facts - the defender was now, at a very late stage, seeking to introduce a significant amendment, raising new issues as to life expectancy, day/night care and accommodation, and was seeking to lodge a considerable body of further evidence and add to his lists of witnesses both in relation to existing issues and the new issues raised in the Minute of Amendment.

[21] This late flurry of activity by the defender threatened the efficient running of the proof. In those circumstances the pursuer sought the assistance of the court to make such orders as were necessary to ensure the efficient conduct of the proof.

[22] It seemed to me that the first thing to determine was whether or not the defender's Minute of Amendment and late productions and late lists of witnesses would be allowed and therefore would become part of the proof. Without knowing that, it was impossible to form any view as to whether the case could proceed or as to whether the three-week estimate would be sufficient.

[23] I invited Mr Mackay to move the Minute of Amendment and to seek leave for the new documentation and lists of witnesses to be lodged. He declined, saying he proposed to move them on the morning of the proof before the judge to whom the proof was allocated. He submitted that I had no power to make any order affecting those matters and, in short, that there was nothing I could do to assist the pursuer.

[24] In response, Ms Maguire drew my attention to the case management powers in the new Chapter 42A. She made a motion at the bar inviting me to direct, in terms of paragraph 5(2) of the Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 2013 (2013 No.120) to direct that paragraph 2 thereof, which introduced Chapter 42A, should apply to this action. Her avowed intention was to enable her thereafter to ask the Court to exercise its case-management powers either under Rule 42A .4(6) or under Rule 42A.5(4).

[25] Mr Mackay somewhat reluctantly conceded that it was competent to make an order applying Rule 42A to the action; but he submitted that there would be no purpose in my doing so; and further submitted that I should not exercise my discretion in favour of doing so at this late stage. He pointed out that the power in Rule 42A.4(6) to make "such orders as [the Lord Ordinary] thinks necessary to secure the speedy and efficient determination of the action" could only be exercised when the Court was considering appointing the action to debate or sending it to proof and for this purpose was about to fix a further hearing on the By Order (Adjustment) Roll. That was not this case. So far as concerned the power in terms of Rule 42A.5(4) to fix a procedural hearing, he submitted that it was much too late in this action to take that course.

[26] I accepted Mr Mackay's submission in respect of Rule 42A.4(6). The power there set out is, I think, one that can only be exercised at the time of deciding whether to send the case to proof or to debate. However, I saw no reason why the court should not exercise the power to fix a procedural hearing under Rule 42A.5(4) at any time where it considers "that the speedy and efficient determination of the action would be served by doing so". It will usually be better for that to be done considerably before the proof-date, but there is no reason why, in an appropriate case, it should not be exercised even at a very late stage. There is nothing in the new Rule 42A defining the powers of the court at such a procedural hearing. However, if it is to be worthwhile, and if it is to enable the court to do anything to assist the speedy and efficient determination of the action, it must give the court power to make rulings on procedural matters in advance of the proof itself.

[27] As noted above, it seemed to me that the key to making efficient progress with the proof lay in determining, in advance, whether the defender would be allowed to advance part or all of its case set out in the Minute of Amendment, as adjusted; whether the defender would be entitled to rely upon some or all of the new documentation intimated well after the last date for lodging of productions; and whether the defender would be entitled to call some or all of the witnesses identified in the further lists of witnesses intimated well after the last date for lodging such lists.

[28] Contrary to Mr Mackay's argument, I see no reason why that question should necessarily be left to the morning of the proof, or whenever else the party seeking to amend and lodge late productions and lists of witnesses chooses to move the court to allow them. On the first day of the proof, the judge hearing the proof will not have heard any evidence and will usually be in no better a position to consider questions of prejudice and the like than will a judge at a procedural hearing under Rule 42A.5(4). Certainly that seemed to me to be the position in the present case. In effect, what Ms Maguire was asking me to do was no more than might have been done when the defender moved, on the first morning of the proof, for Amendment in terms of the Minute of Amendment and Answers (all as adjusted) and for late receipt of the various documents. But it seemed to me to be more conducive to the efficient disposal of this case if these matters were resolved in advance of that first morning. In this way a better assessment can be made by the pursuer of how to lead her evidence, focusing on what matters are likely to be in dispute and where there is likely to be a substantial (as opposed to merely nominal) contradictor. In this way too, parties are in a better position to inform the judge on the morning of the proof as to whether or not the case will be able to be completed within the allotted time. Further, speaking generally (and without reference to this particular case) the last few days before a proof starts will often be a time of great anxiety for a pursuer, particularly in a personal damages action, and any uncertainty as to what issues or evidence is to be allowed in will, in my view, be likely to increase that anxiety and cause prejudice, perhaps indirectly pressuring the pursuer to accept a settlement offer which he or she would otherwise have regarded as too low.

[29] In the result, therefore, I made an order in terms of paragraph 5(2) of the Act of Sederunt applying Chapter 42A to the action. I then fixed a procedural hearing in terms of Rule 42A.5(4), and directed that the hearing before me should proceed forthwith as that procedural hearing. I then heard submissions as to whether or not I should allow the new documents and lists of witnesses to be lodged late and whether or not I should allow Amendment in terms of the Minute of Amendment and Answers (as adjusted).

[30] Dealing first with the late inventories of documents, having heard argument on both sides, I made the following orders.

(i) I allowed the defender to lodge the published articles intended to be relied upon in his evidence by Dr Gentleman, the defender's medical expert on the question of the effect of seatbelts on injuries, as well as Dr Gentleman's report and his CV. Dr Gentleman was named on the defender's original list of witnesses. He could therefore be called to give evidence, with or without a report. It is obviously convenient that there be a report to which he could speak when giving evidence - without one he could give the same evidence but more slowly, with everyone having to take notes - so there would be no purpose in excluding his report and his CV, even though late. By the same token, the articles to which he was to be asked to speak are published articles; and it is not uncommon (even though undesirable) for these to be produced at a time somewhat later than the latest time for lodging productions.

(ii) I also allowed the defender to lodge (albeit late) police photographs of the accident scene and a Police Accident Report. Both of these had been available to the pursuer for a number of years, and were documents to which witnesses on the defender's list of witnesses would speak. There could be no prejudice in these being lodged.

(iii) I refused to allow the defender to lodge the report from Mr Blackwood, an expert on the mechanical aspects of the seatbelt issue. Mr Blackwood was not on the defender's original list of witnesses. Although the pursuer had an expert, Mr Parkin, who was ready to deal with the same matters, it seemed to me that there was prejudice in allowing the defender to open up this issue so late. Until late intimation of the report, the pursuer had been entitled to assume that this aspect of the contributory negligence case for the defender was not being pursued.

[31] For the same reason, I refused to allow the defender to add Mr Blackwood to his list of witnesses. I also refused to allow them to add Mr Nisbet, a surveyor. His name was intimated only on 14 June 2013 and no report had yet been obtained from him, let alone intimated. It was intended that he should speak to questions about the size of accommodation, rental accommodation, and so on. This came far too late.

[32] I did allow the pursuer to add Dr Carson, a neuropsychiatrist. He was sought to be called in place of Mr Scheepens, who was on the original list. There was, therefore, no surprise in the defender wishing to call a neuropsychiatrist. It is regrettable that a report from Dr Carson was only made available to the pursuer on the morning of Friday, 21 June 2013, the day when I heard the pursuer's motion. Counsel for the pursuer had had no adequate opportunity of reading it. She was concerned that it went beyond standard neuropsychiatric issues and dealt also with issues such as life expectancy, seatbelt injuries, care in the home and so on. While allowing Dr Carson to be added, therefore, I made it clear that the pursuer should be entitled, if so advised after reading the report, to seek to exclude any part of his evidence which strayed into these other areas.

[33] I noted that although the defender had intimated further additional witnesses in the form of Dr Lowry (the pursuer's current GP) and Dr Schady, Mr Mackay made it clear that he did not in fact intend to call them. Accordingly it was unnecessary for me to make any order about this.

[34] Turning to the Minute of Amendment of 13 May 2013, as adjusted as recently as 13 June 2013, it seemed to me quite unfair that the defender should be entitled at this very late stage to raise the important issue of life expectancy. Mr Mackay suggested that this would only add a few minutes of evidence, but I regard that submission as unrealistic - such evidence feeds into the evidence of many other experts. It is also distressing to a pursuer to be faced with a new case of this sort - a case which if successful might undermine all her legitimate expectations about the likely level of recovery - so close to the proof. The adjustments to the Minute of Amendment also sought to raise (in para.2) a detailed case on night care in the home. This contradicted the line taken by the defender earlier in a Report from Dr Beacock. Again, it seemed to me to be quite unfair to allow this point to be raised at this stage. Para.3 of the adjusted Minute of Amendment introduced a case about rental accommodation. This was unsupported by any Report. It seemed to me that I should refuse this too as coming much too late.

[35] Lateness of itself is not, of course, necessarily a bar to the admission of documents or additional witnesses. Nor is it a bar of itself to amendment, even if the Minute of Amendment introduces wholly new issues. Prejudice must be considered. That is not only prejudice to the other parties to the litigation but prejudice to the working of the court system. I am quite satisfied that there would be prejudice to the pursuer were I to allow the late documents and witnesses which I have refused and were I to allow amendment at this stage in terms of the Minute of Amendment and Answers. That prejudice comprises not only the fact of having to deal with a number of new points at a late stage - a party should be entitled to approach the proof date knowing what the issues are and how it is placed in relation to them - but, equally importantly, the real risk that if these new matters were allowed to be introduced it would put at risk any possibility of the proof being concluded within the time allowed for it.

[36] It is, of course, for the judge hearing the proof to determine all further matters of procedure, and to hear counsel, if he so wishes, on the likelihood of finishing the case within the allotted time. Ms Maguire expressed confidence that without these new points and this new material the case could be finished in time. I cannot say. What I can say, with some degree of confidence, is that if these new materials and issues were allowed to be introduced at this stage it would be impossible to complete the proof in time. That would be serious prejudice to a pursuer who was injured a long time ago and, through her solicitors and counsel, has complied scrupulously with the procedural requirements required of her in the litigation. That scrupulous compliance contrasts with the very blatant failures of the defender to which I have referred.

[37] I was asked by Mr Mackay to grant leave to reclaim. I refused to grant leave. I clearly had power to appoint this action to Chapter 42A. That is clear from the terms of the Act of Sederunt, and is confirmed by paragraph 10 of Practice Note No.1 of 2013 as amended on 17 June 2013. There is also no doubt that I was entitled thereafter to fix a procedural hearing in terms of Rule 42A.5(4)(a). At the procedural hearing the Lord Ordinary may make such procedural decisions as are necessary or appropriate to further the speedy and efficient determination of the action. Those are discretionary matters. The only issue, in reality, is as to the exercise of that discretion. The discretion I had to exercise was, in effect, the same discretion as a judge hearing the proof would have had to exercise were the Minute of Amendment, with the late productions and the late lists of witnesses, all to be moved before him on the first day. There was nothing particularly novel in the orders I made in the present case. No issue of principle was involved. Further, to grant leave to reclaim would have imperilled the hearing of this proof on the appointed day. In those circumstances it seemed to me that it would be wrong to grant leave to reclaim; and I refused the motion.