ROBERT MORAN AGAINST FREYSSINET LIMITED

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 76

PD253/14

 

Lady Paton

Lady Clark of Calton

Lord McGhie

OPINION OF THE COURT

delivered by LADY PATON

in the Reclaiming Motion

by

ROBERT MORAN

Pursuer and Respondent;

against

FREYSSINET LIMITED

Defenders and Reclaimers:

Act:  C Wilson;  Digby Brown LLP

Alt:  R Cleland;  Anderson Strathern LLP (for Weightmans (Scotland) LLP)

 

3 November 2015

Failure to comply with chapter 43 personal injuries actions rules
[1]        In this reclaiming motion, the defenders challenge the Lord Ordinary’s imposition of a sanction contained in chapter 43 of the Rules of the Court of Session relating to personal injuries cases.  Following upon the defenders’ failure timeously to lodge a statement of valuation of claim, Lord Boyd of Duncansby granted decree in favour of the pursuer for the sum sued for (£30,000).

Rule 43.9
[2]        Rule of Court 43.9 provides:

“ 43.9   Statements of valuation of claim

 

(1)        Each party to an action shall make a statement of valuation of claim in Form 43.9.

 

(2)        A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.

 

(3)        Each party shall, on lodging a statement of valuation of claim –

 

(a)        intimate the list of documents included in the statement of valuation of claim to every other party;  and

 

(b)        lodge each of those documents.

 

(6)        Nothing in paragraph (3) shall affect –

 

(a)        the law relating to, or the right of a party to object to the recovery of a document on the ground of, privilege or confidentiality;  or

 

(b)        the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Ac  1972.

 

(7)        Without prejudice to paragraph (2) of rule 43.7 (hearings on the By Order roll), where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under paragraph (2) of rule 43.6 (allocation of diets and timetables) the court may at a hearing of the cause on the By Order roll under paragraph (3) of that rule –

 

(a)        where the party in default is the pursuer, dismiss the action;  or

 

(b)        where the party in default is the defender, grant decree against the defender for an amount not exceeding the amount of the pursuer’s valuation.”

 

The pursuer’s action
[3]        In February 2014, the pursuer raised an action for damages against the defenders in respect of his hand arm vibration syndrome (HAVS).  In condescendence 4, he averred inter alia:

“In or around 10 May 1999, the pursuer commenced employment as a joiner with Accrete Limited.  In or around 2002/03, Accrete Limited was taken over by Makers UK Limited.  The pursuer’s employment was transferred to Makers UK Limited.  In or around June 2008, the said Makers UK Limited was bought over by the defenders.  The pursuer’s employment was transferred to the defenders in terms of the Transfer of Undertakings (Protection of Employment) Regulations 2006 …  In terms of the sale and purchase contract between inter alia the said Makers UK Limited and the defenders dated 10 October 2007, the defenders have assumed the liabilities of Makers UK Limited and Accrete Limited.  Until in or about his appointment as a project manager in or about 2006/2007, in the course of the pursuer’s employment with the defenders the pursuer required to use and operate vibratory tools and machinery … said tools emitted excessive amounts of vibration …”

 

The averments described his hours of work, the system of work, the equipment, the lack of advice about the dangers of working with vibrating tools, the lack of risk assessments, the pursuer’s condition, and the statutory regulations.

[4]        The defenders’ answers were very brief.  In answer 4, in response to the pursuer’s averments about his employment, the defenders averred:

“The circumstances of any incident condescended upon are not known and not admitted.  Quoad ultra denied.  Explained and averred that the defenders did not employ the pursuer in a position which would have exposed him to tools which would have caused the HAVS condition condescended upon.”

 

In answer 5, in response to the pursuer’s averments about his symptoms, the necessary services which he required, and his disadvantage on the labour market, the defenders averred:

“The nature and extent of any injury, loss, and damage sustained by the pursuer is not known and not admitted.  Quoad ultra denied.”

 

In answer 6, the defenders referred to the statutory regulations, beyond which no admission was made.

 

The procedural history
[5]        On 12 March 2014, the Keeper issued a timetable for the action.  The diet of proof was fixed for 4 November 2014.  The pursuer was to lodge a statement of valuation by 7 May 2014.  The defenders were to lodge a statement of valuation by 2 July 2014. 

[6]        A subsequent variation of the timetable retained the diet of proof as 4 November 2014, but altered the dates for the pursuer’s valuation to 28 August 2014, the defenders’ valuation to 2 October 2014.

[7]        On 28 August 2014, the pursuer’s valuation was lodged in the following terms:

 

LIST OF SUPPORTING DOCUMENTS

1.         Medical Report by Mr R T A Chalmers, Consultant Vascular Surgeon, dated 9 July 2012 [6/4 of process].

2.         General Practitioner Records [6/1 of process].

[8]        The defenders for their part lodged no valuation of any sort at any time prior to the proof.

[9]        In early September 2014 the pursuer lodged a notice to admit, containing 14 calls on the defenders relating inter alia to the pursuer’s employment with Accrete Limited and Makers UK Limited; the takeover by the defenders and their assumption of liabilities; the fact that while employed with the defenders and their predecessors the pursuer required to operate vibratory tools; and other related matters.  In a notice of non-admission lodged on 22 September 2013, the defenders restricted their admissions to their takeover of Makers UK Limited in June 2008;  the pursuer’s departure from the defenders’ employment in 2010;  and the defenders’ assumption of the liabilities of Accrete Limited and Makers Limited (calls 4, 6 and 7).

[10]      On 3 October 2014 the defenders lodged a minute of amendment seeking to add to answer 6 the following:

“Explained and averred that esto the pursuer was exposed to excessive vibration on the hypothesis of fact advanced by the pursuer, this action is barred by the passage of time.  Reference is made to section 17 of the Prescription and Limitation (Scotland) Act 1973.”

 

No factual averments explained why section 17 might be applicable.

[11]      On 16 October 2014 the pursuer lodged answers to the minute of amendment averring that he first became aware of his condition after consulting his general practitioner on 11 July 2011 and being referred to Ninewells Hospital.  During adjustment of the minute and answers, the pursuer further added an esto case as follows:

“Further explained and averred that in the circumstances esto the action has suffered limitation (which is denied), it is in any event equitable to allow the pursuer to bring the present action in terms of section 19A of the 1973 Act.  As hereinbefore averred, the pursuer only became aware that the problems he was suffering from with his hands were work-related after he attended his general practitioner in or about July 2011.  The pursuer would suffer significant prejudice in the event that the present proceedings were not allowed to proceed.  The pursuer would have no alternative remedy to recover damages for his condition.  The defenders still trade and have been, and remain, in a position to investigate the present claim.”

[12]      On 23 October 2014, on the pursuer’s unopposed motion, the timetable was further varied to allow the pre-trial minute to be lodged by 30 October 2014 as there had been difficulties in arranging the pre-trial meeting.

[13]      On 27 October 2014 the pre-trial meeting took place, attended by inter alios counsel for the pursuer and for the defenders.  In the pre-trial minute, the length of the proof was estimated as 4 days.  In section 3 (quantum of damages) the “not agreed” box was ticked in respect of every listed head of claim.

[14]      On 30 October 2014 (a few days before the diet of proof on Tuesday 4 November 2014), the defenders’ motion for amendment of the record in terms of the minute of amendment and answers came before Lord McEwan.  The defenders further sought a discharge of the proof on the basis that the proof would take longer than four days.  The defenders also sought a preliminary proof.  The Lord Ordinary allowed the amendment but refused to discharge the diet of proof.

 

The diet of proof
[15]      As Lord Boyd explains in paragraph [1] of his opinion, at the commencement of the 4‑day proof on 4 November 2014, counsel for the defenders moved the court to vary the timetable to allow the late lodging of the defenders’ statement of valuation.  The defenders’ valuation was what is known as a “nil” valuation:  the figures for solatium, loss of employability, and services were shown as “£0.00”.  The list of supporting documents echoed those documents listed in the pursuer’s valuation (namely, the report by Mr R T A Chalmers dated 9 July 2012 6/4 of process, and the general practitioner records 6/1 of process).  The defenders’ motion was opposed.

[16]      Subsequently, counsel for the defenders made a further motion for the late receipt of a valuation (now amended to show £5,000 for past solatium, £5,000 for future solatium, interest on past solatium as £666.67, and nil amounts for services, loss of employability, and patrimonial losses:  ie a total of £10,666.67).  The schedule of accompanying documents referred to a report by David Chalmers dated 5 July 2012.

[17]      The Lord Ordinary made avizandum overnight.  On 5 November 2014, he refused the defenders’ motion.  Counsel for the pursuer referred to rule of court 43.9(7)(b), and moved the court to grant decree for the sum concluded for (£30,000).  Having considered all the circumstances, the Lord Ordinary granted that motion.  By interlocutor dated 5 November 2014 he awarded the pursuer £30,000 and expenses. 

[18]      The defenders reclaimed.

 

Submissions for the defenders
[19]      Counsel for the defenders submitted that the reclaiming motion should be allowed, the Lord Ordinary’s interlocutor of 5 November 2014 recalled, and the action remitted to the Lord Ordinary for a proof at large.  No point was taken about competency (for example, the motion in terms of rule of court 43.9(7)(b) having been made at the proof, rather than at a by order hearing).  But the Lord Ordinary could be criticised in six respects.  (1) It was not correct to say “The opportunity to agree quantum, or at least to narrow down the issues, [had] been lost” (paragraph [35] of the opinion).  Discussions could take place without a defenders’ valuation.  (2) The pursuer’s claims (solatium, services, and loss of employability) were not particularly complex.  The proof could easily have continued without a defenders’ valuation.  Censure could have been expressed by an award of expenses.  The sanction selected was more suited to persistent and wilful non-compliance with the rules.  (3) It was wrong to suggest that there was no defence and no purpose in a proof.  For example, liability and timebar were in issue.  (4) The analysis of the timebar point (paragraph [43]) was inadequate.  Had the Lord Ordinary looked at the GP records and the hospital records, he would have seen that the pursuer’s symptoms began many years before his visit to his general practitioner in July 2011.  The fact that the defenders’ pleadings did not specifically set out past events did not mean that there was not a good limitation defence.  (5) Quite apart from liability and timebar, the Lord Ordinary’s decision prevented the defenders from challenging quantum.  Even if the pursuer had proved all his symptoms, it was open to the defenders to challenge his claim as excessive.  (6) The issue of the lack of a defenders’ valuation was not mentioned at the pre-trial meeting, nor at the hearing before Lord McEwan on Friday 31 October 2014.  At one stage in the proof, counsel for the pursuer made a motion for summary decree without the necessary 14‑day intimation, yet the Lord Ordinary appeared not to have considered the pursuer’s own failure to comply with the rules when exercising his discretion in terms of rule 43.9(7)(b).

[20]      Taking all those factors into account, it could be seen that the Lord Ordinary had strayed outside the reasonable exercise of his discretion (Thomson v Corporation of Glasgow 1962 SC (HL) 36 at page 66).  As was made clear in Battenberg v Dunfallandy House 2010 SC 507, the appeal court could exercise its own discretion when dealing with the reclaiming motion, and was not confined to the traditional review of the exercise of the Lord Ordinary’s discretion.  It was almost unheard of to grant decree for the sum sued for.  Even a draconian power had to be exercised within a reasonable range.  The Lord Ordinary should have expressed any censure by an award of expenses.  In all the circumstances, the appeal court should exercise its own discretion, allow the reclaiming motion, recall the Lord Ordinary’s interlocutor, and remit the case back to the Lord Ordinary for a proof.

 

Submissions for the pursuer
[21]      Counsel for the pursuer pointed out that the defenders had failed to satisfy rule 38.9(1), in that they had failed to lodge the statement of valuation of claim before the reclaiming motion was enrolled.  As both valuations were in the reclaiming motion appendix, it might be thought that this criticism was a technical one:  nevertheless in terms of rule 38.9(1), the reclaiming motion should be refused.

[22]      Counsel further submitted that chapter 43 was sui generis.  The Lord Ordinary’s decision was simply an exercise of rule 43.9, and was not, as in Battenberg, a decree by default.  Provided that the Lord Ordinary had not erred in the sense defined by Lord Reid in Thomson v Corporation of Glasgow 1962 SC (HL) 36 at page 66, then it mattered not that an appeal court might have exercised the discretionary power differently.  The Lord Ordinary had not erred.  He had taken all relevant considerations into account – the defenders’ conduct of the case generally, including their skeletal pleadings, lack of a list of defence witnesses, lack of productions, lack of a defenders’ valuation, attempt to discharge the proof, and the unsatisfactory nature of the defenders’ initial valuation tendered at the diet of proof.

[23]      There was no challenge to the competency of what the Lord Ordinary had done.  The only question was whether he should have selected the sanction he did.  The Lord Ordinary had looked at the overall picture.  There was no good reason for the appeal court to interfere.  Esto this court was of the view that it had to consider matters afresh, exercising its own discretion, there was no good reason why this court should exercise its discretion any differently from the Lord Ordinary.  The reclaiming motion should be refused.

 

Final reply for the defenders
[24]      In relation to rule 38.9(1), the defenders had attempted to lodge statements of valuation during the proof, but the Lord Ordinary had refused to allow them to be lodged.  If necessary, the defender prayed in aid rule 2.1 (the dispensing power).  The valuations were in the appendix.

[25]      Although failure to lodge the valuation attracted its own special sanction, sanctions including the grant of decree could be imposed in respect of other failures in the chapter 43 timetable (rules 43.6(3) and 43.7).  

 

Discussion
The purpose of the statement of valuation
[26]      In the report by Lord Coulsfield’s Working Party on Court of Session Procedure 2000 (“the Coulsfield Report”), the purpose of the statement of valuation was explained at pages 23 to 26 as follows:

“7.       VALUATION OF CLAIM

Probably the most radical and important proposal being made is that both parties should lodge statements giving their valuations of the claim.  The object is to bring forward, as far as possible, in the progress of the litigation the point which at present parties only reach, in many cases, on the brink of a proof, viz. the point at which each party can see how the other is approaching the valuation of the claim, and the material which he has to back it up …  The object of the proposal is disclosure of the parties’ positions after allowing them a limited but realistic time to prepare for such disclosure.  It is fully appreciated that for both parties time is necessary to ingather reports and other vouchers substantiating various elements of the claim, so that the claim can be properly calculated and vouched.  Hopefully the introduction of a more liberal regime in regard to recovery of documents will help to enable parties to specify their valuations of the claim at a much earlier stage.  Built into the proposed scheme are what the Working Party consider to be adequate periods of time for properly vouched valuations to be prepared and intimated.  A form of statement of valuation of claim is given at Appendix 3.

 

The principal problem is how to give this requirement real teeth …  It will … be very important to ensure that, so far as possible, the statements made in relation to the quantification of the claim are realistic, and that can only be achieved if failure to be realistic has some adverse consequences for the parties …

 

The objective of these proposals is to try to put the parties, in one respect at least, into the same position at the date of lodging of the statements as they are under the present system at the date of proof:  that is, that each party will have the other’s estimate of the claims, no doubt on a favourable view to that party, and the material on which it is based.  One of the problems in the present system is that, understandably, pressure to produce information about quantum tends to be concentrated on the date, or anticipated date, of the proof or trial.  The objective is to bring that point of concentration forward, so that legal advisers, and medical or other witnesses, would have that earlier date to work to …”

 

The timeous lodging of a valuation of claim was singled out at pages 29 to 31 of the Coulsfield Report as especially important for the success of the procedure:

“11.      SANCTIONS

One of the subjects which engaged the attention of the Working Party for long periods was that of the sanctions which might be applied to render the scheme which they propose effective …

 

It is … thought that there is considerable willingness among those practicing in the courts in cases of the sort with which these proposals are concerned to see earlier settlement as desirable and to co-operate to that end, with the minimum of interference by the court …

 

There will, however, be exceptions to the willingness to co-operate.  There are bound to be cases of dilatory agents or counsel …  In the end … the Working Party felt unable to go beyond recommending that the progress of cases should be monitored, so that any failure to lodge a step in process at the right time should be immediately noticed and should lead to the party or parties having to appear to explain the failure.  Any such failures should be taken into account in any question of expenses.  There are two stages of the scheme at which a more stringent sanction should be available, although it would be hoped it would be very rarely used.  Firstly, in any case where any document or material is lodged late, or a date in the timetable is not adhered to, the court should have power to award expenses up to the expenses of process to date against the party in default.  Secondly, in the event of failure by either party to lodge their valuation at the due date, the court should have power at a By Order hearing to dismiss the action or grant decree for the amount of the pursuer’s valuation, as the case may be.  The culture of a casual approach to timetabling, highlighted in Lord Cullen’s review, which relies on an opponent’s forbearance in, for example, consenting to late lodging of documents, should be discouraged …”

 

[27]      It can be seen therefore that the statement of valuation is indeed one of the cornerstones of the chapter 43 procedure.  The “morning of the proof” discussions and negotiations, which often result in settlement of the claim, are advanced to the dates when valuations are lodged and also to the date of the pre-trial meeting, at which practitioners are able to compare valuations and supporting materials, identify matters in contention, discuss issues and procedure, and possibly settle the claim.

[28]      In practice, following the introduction in 2003 of the chapter 43 rules, many personal injuries cases have been resolved speedily and efficiently, with a minimum of court time involved.  But a key feature of the success of chapter 43 has been the responsible approach adopted by personal injuries practitioners.  That responsible approach is fundamental to the operation of chapter 43.

 

The circumstances of this case
[29]      The present case is an example of the type of failure to comply with chapter 43 which could, if widely adopted, lead to the unworkability of the rules.

[30]      All defenders, on receipt of a chapter 43 summons, should carry out such investigations as are considered necessary, including researching the pursuer’s employment history, having the pursuer medically examined, estimating (on the assumption that the defenders might be found liable to some extent) heads of damages (such as, in this case, solatium, loss of employability, and services).  They should assess the merits and value of the claim.  Even with abbreviated pleadings, any major point such as time-bar should be clearly stated with supporting facts.  Any intention to prove that the pursuer’s estimate of quantum is overstated should be made plain by the lodging of a meaningful statement of valuation of claim, and the intimation and lodging of the documents listed in the valuation:  rule 43.9(2).  The court may take a critical view of a “nil” statement of valuation, used by some practitioners instead of “TBC” or “TBA” (to be confirmed or to be advised) which formulations were proscribed by the Practice Note No 2 of 2014.  Such valuations give neither the parties nor the court any assistance.  It must always be borne in mind that the valuation procedure is based on the hypothesis that the pursuer’s injury or condition was caused or contributed to by negligence on the part of the defenders.

[31]      Defenders should therefore work towards at least three target dates:  the date of lodging their statement of valuation of claim;  the date of the pre-trial meeting;  and the date of the proof. 

[32]      In the present case, we accept that there were difficulties for the defenders, as we understand that they were met with a lack of co-operation from the previous employers Accrete Limited and Makers UK Limited.  But those difficulties would not have prevented the defenders from arranging a medical examination of the pursuer and, once his condition had been appropriately diagnosed, preparing an estimate of the value of his claim on the assumption that they might be found liable for causing or contributing to his condition.  The statement of valuation of claim could then be completed.  Furthermore, if investigations into the pursuer’s condition led them to believe that his claim might be time-barred, then brief averments giving a factual basis for the time-bar argument could be added to the pleadings.

[33]      Against that background, we note that the Lord Ordinary considered the defenders’ conduct of the case to be poor.  The Lord Ordinary referred to the defenders’ skeletal pleadings, their failure to arrange for a medical examination of the pursuer, the lack of a list of defence witnesses, the lack of defence productions, the lack of a defenders’ statement of valuation of claim, the defenders’ limited response to the notice to admit, their attempt to discharge the diet of proof (a diet which had been fixed almost eight months in advance), and the nature of the two valuations tendered late by the defenders at the diet of proof (one being a “nil” valuation, and one containing two round figure estimates).

[34]      One of the major aims of the Coulsfield reforms, namely advancing the “morning of the proof” discussions to the pre-trial meeting (if not earlier) was frustrated by the defenders’ failure to provide their statement of valuation of claim in compliance with the timetable.  That failure contributed to the lack of meaningful discussions at the pre-trial meeting.  Ultimately, the “morning of the proof” was indeed the first time that the defenders attempted to comply with rule 43.9, and as a result the benefits of the chapter 43 procedure were lost.  Inter alia, as the Lord Ordinary pointed out in paragraph [35] of his opinion:

“ …  The opportunity to agree quantum, or at least to narrow down the issues, has been lost.  The pursuer has had to bring witnesses to court when that may not have been necessary.  And the court is potentially inconvenienced by having to listen to more evidence than might have been required had the parties agreed quantum.”

 

The Lord Ordinary took all these considerations into account, and imposed the sanction available to him under rule 43.9(7)(b) by granting decree for the sum sued for.

 

Review of the Lord Ordinary’s decision
[35]      Counsel were in dispute as to whether the Lord Ordinary’s imposition of the sanction constituted a “decree by default” such that rule 38.9 was applicable, and further whether, in reviewing his decision, this court was confined to a review of the Lord Ordinary’s exercise of his discretion by applying the principles set out by Lord Reid in Thomson v Corporation of Glasgow 1962 SC (HL) 36 at page 66 (namely, assessing whether some irrelevant factor had been taken into account, or an important relevant factor left out of account, or a decision reached which could be categorised as unreasonable or unjudicial), or whether this court was not so confined, but could exercise its own discretion in the light of all the circumstances (Battenberg v Dunfallandy House 2010 SC 507).

[36]      In our opinion, the Lord Ordinary’s interlocutor of 5 November 2014 was a decree by default.  Throughout the rules of court, various defaults are described, including failure to appear at a court hearing;  failure to lodge a document (either timeously, or at all);  and other types of failure.  Rule 43.9 expressly refers to the defenders as being “in default” by failing timeously to lodge their statement of valuation of claim.  We are therefore satisfied that rule 38.9 applies to this reclaiming motion.

[37]      Rule 38.9 provides:

“38.9 Reclaiming against decree by default

(1)        Where decree by default has been granted against a party in respect of his failure to lodge a step of process or other document, a motion for review by that party of the interlocutor granting such decree shall be refused unless the document is lodged on or before the date on which the motion is enrolled.

 

(2)        A decree by default may, if reclaimed against, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.”

 

[38]      Counsel for the pursuer placed some reliance upon sub-paragraph (1) of rule 38.9, although accepting that the point might be regarded as a technical one.  In view of the conclusions which we ultimately reach in this case (see below) we shall simply reserve our position in relation to the effect of rule 38.9(1) in this case. 

[39]      Counsel for the defenders sought to rely upon rule 38.9(2) and upon the guidance in Battenberg v Dunfallandy House 2010 SC 507.  He invited this court not to be confined to the principles governing a review of the first instance judge’s exercise of his discretion (cf Thomson v Glasgow Corporation cit sup), but rather to exercise our own discretion in assessing the overall picture, and to conclude that it was, in the circumstances, excessive and inappropriate to grant decree for the sum sued for.  Accordingly the Lord Ordinary’s decree should be recalled.

[40]      We deal first with the question whether this court is confined to a review of the Lord Ordinary’s exercise of discretion.

[41]      We note that the relevant passages in Battenberg were concerned with a default by non-appearance at a court hearing (see paragraphs [13] to [15] of Battenberg).  A significant part of the reasoning of the court was, first, that the judge at first instance may not have known of the reasons underlying the party’s non-appearance or lack of representation at the hearing (which reasons might be good and justifiable ones): paragraph [13];  and secondly, that the failure to appear or be represented might, depending on the circumstances, have been of no consequence to the progress of the case:  paragraph [14]. 

[42]      In our view those two conditions render the guidance given in Battenberg special to its facts.  Those two conditions are not reflected in a decree by default resulting from one party’s failure to lodge a document required by the rules where the parties (or their legal representatives) appeared before the first instance judge and made full submissions on that matter.  In such a case, it seems to us much less likely that the first instance judge was unaware of the reasons for, and circumstances of, the default.  Moreover if the default was of some consequence in the progress of the case, that is rather different from what occurred in Battenberg.  Thus it is our view that in a case such as this, the appellate court should be confined to the usual principles for review of an exercise of discretion as set out at page 66 of Thomson v Glasgow Corporation.

[43]      On that basis, we are not persuaded that the high test set out in Thomson has been met.  The Lord Ordinary very properly had regard to all the circumstances and the history of the case.  The whole point of chapter 43 procedure is early, full, and open disclosure by all parties, with the statement of valuation of claim being very much a “cornerstone” – and possibly, on one view, “the cornerstone” (paragraph [35] of the Lord Ordinary’s opinion) – of the procedure.

[44]      Of course it may be possible for a personal injuries action to continue without the defenders’ compliance with the chapter 43 rules:  but the benefits of the chapter 43 procedure are lost.  We consider that the Lord Ordinary was fully entitled to form the views he did.  We find the six criticisms of the Lord Ordinary, set out in paragraph [19] above, to be without merit.  Worthy of particular mention is the proposition that a Lord Ordinary should in some way make good the defenders’ failure to plead an adequate limitation case by searching through the medical records in order to ascertain whether the pursuer’s symptoms presented at an earlier date.  That submission is, in our view, wholly unacceptable.  Even with the brief pleadings expected in chapter 43 procedure, it is for the defenders in their averments to alert both the court and the pursuer to the factual basis underpinning any contention that the pursuer’s case is time-barred. 

[45]      In the result we have no hesitation in rejecting the submission that the Lord Ordinary erred in the exercise of his discretion in the sense outlined in Thomson v Glasgow Corporation cit sup.

[46]      In case we are wrong in our understanding of Battenberg, and in case we should adopt the approach that this court is not confined to a review of the exercise of the Lord Ordinary’s discretion on the principles outlined in Thomson v Glasgow Corporation cit sup, we give our own opinion in this case, exercising our discretion without constraint.

[47]      In our opinion, the defenders’ conduct in this case undermined the proper functioning of chapter 43.  There were persistent failures, suggestive of a casual approach to the rules.  We consider that this court, when applying rule 38.9 (review of a decree by default) should not simply apply the guiding principle of what would do justice between the parties in the particular circumstances of the case (cf Hyslop v Flaherty 1933 SC 588), or limit itself to searching for a substantial defence (cf McKelvie v Scottish Steel Scaffolding Co Ltd 1938 SC 278).  We consider it appropriate to have regard to the  interests of the public and court users generally, and where necessary to impose a sanction to mark the court’s disapproval of failure to comply with the rules.  In the present case it would, in our opinion, be appropriate for this court in its discretion to mark the defenders’ serious and sustained failure to comply with chapter 43 by imposing the sanction of decree for an amount not exceeding the amount of the pursuer’s valuation.  Only by the imposition of sanctions where necessary will the chapter 43 procedure continue to prove efficient and effective in the resolution of personal injuries disputes.

[48]      In assessing the amount for which decree should be granted, we see no reason to select a figure different from that selected by the Lord Ordinary.  The pursuer’s valuation in this case was almost twice the sum sued for.  Bearing in mind the breakdown of the figures contained in that valuation and all the circumstances of this case, we consider that the sanction of decree restricted to about 50 per cent of the pursuer’s valuation is broadly appropriate.  That happens to coincide with the sum sued for.  In other cases, it may be that the sum sued for would not necessarily be the appropriate amount for the decree.  Each case would depend on its facts.

 

Decision
[49]      For the reasons given above, we refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.  We continue the question of the expenses of the reclaiming motion.

 

Postscript
[50]      We were concerned to note that both the pursuer’s and the defenders’ legal representatives at the pre-trial meeting apparently signed the minute relating to the meeting without drawing attention to the defenders’ obvious failure to lodge a statement of valuation of claim.  Practitioners will no doubt wish to remind themselves of the Practice Note No 2 of 2014 and the sanctions contained in chapter 43 (rule 43.9(7)(b) being but one), and act accordingly.