[2017] SC EDIN 41




In the cause













Edinburgh, 4 July 2017



[1]        This case came before me at a continued Rule 18.3 hearing. It was common ground that the pleadings should be amended in terms of the minute and answers, both as adjusted, and that a new three day diet of proof should be fixed. In addition, a motion was made at the bar to vary the timetable to allow the defender’s third inventory of productions to be received. That was unopposed, and I shall allow it. The matter of contention was expenses.


Submissions for Pursuer

[2]        The defender should be found liable to the pursuer in the expenses occasioned by the amendment procedure and the discharge of the previous proof diet.

[3]        It was accepted that there had been an unacceptable delay in disclosing the pursuer’s GP records which had been recovered by mandate. An additional complication was that at the point of disclosure, neither the pursuer nor the defender’s agents had realised that the records available at that time were not up to date as the pursuer had, at some stage, changed GP.

[4]        Nevertheless, the issue of delay in disclosure should not be permitted to distract the court from the key question which was: what was the reason for the minute of amendment and the subsequent discharge of the proof?

[5]        The pursuer’s position was that the defender’s agents had not turned their minds to the issue of quantum early enough.

[6]        The normal rule was that the proposer of an amendment bore the expenses thereof. To part from that approach, the court would need to be satisfied that it was just and equitable to do so: OCR 18.

[7]        It was clear from the procedural history of the case that irrespective of any delay in disclosing the GP records, the defender was always going to amend given the date of the appointment for the pursuer to be seen by the defender’s nominated medical expert.

[8]        The pursuer’s expert reports were disclosed on 2 October 2016. In terms of the original court timetable, adjustment was due to end on 2 December; and the defender’s statement of valuation was due on 30 December.

[9]        On 6 December, the timetable was varied on the defender’s motion, the final date for adjustments being changed to 13 January 2017.

[10]      The first request to have the pursuer medically examined was not made until 14 December 2016 with a proposed examination date of 25 January 2017.

[11]      Thus, amendment was always going to be needed, particularly if the content of the medical report required to be averred.

[12]      It was clear that some of the averments in the minute of amendment derived from the medical report. Furthermore, it appeared that there was a second report which had not been disclosed and which gave rise to averments about pre-existing osteo-arthritis. No further records had been available between the preparation of the defender’s first medical report in February and the second one in April.

[13]      It was up to the defender to get on and carry out the appropriate investigations. It had taken them from October until February to do so. It was accepted that the original delay in disclosing the medical records was substantial but those advising the defender should have turned their minds to the issue of quantum earlier than they did. The records had been recovered by mandate and the delay in disclosing them had been due to the Christmas period and the volume of work.

[14]      When the defender did serve the order for recovery of up to date records on the pursuer’s GP on 13 April, it was disclosed 5 days later that there had been a change in GP. The records were eventually recovered from the new surgery by 5 June. The short point was that the defender’s agents could have acted more swiftly.

[15]      As already noted, the amendment clearly adopted parts of the defender’s expert’s report. The records were available by 15 February; and the report was available by 27 February.

[16]      By 22 February, the defender knew that the records were not up to date but a motion for recovery of the more recent GP records was not enrolled until 6 April. There was a question about the reason for that delay.

[17]      Had the request for the pursuer’s medical records to be disclosed and arrangements made to have her medically examined been made earlier, then even with the delay in disclosing the records, all of that could have been done prior to the varied adjustment period ending.

[18]      All of that suggested that the delay in disclosing the records was even less of a reason for the defender needing to have to amend. In these circumstances, the normal rule should be followed.

[19]      It was understood that the reasons canvassed for the discharge proof were to allow the up-to-date records to be received; to allow for possible adjustment based on the content of those; and the absence of the pursuer’s cardiology report.

[20]      The need for the latter to be commissioned had arisen in response to an averment arising from the amendment procedure.

[21]      There was no obligation on the pursuer’s agents to investigate the cardiology issue unless and until it was averred by the defender.

[22]      In these circumstances, the defender should be found liable to the pursuer in the expenses occasioned by the discharge of the proof.


Submissions for Defender

[23]      The pursuer should be found liable to the defender in the expenses occasioned by both the amendment procedure and the discharge of the proof.

[24]      The core issue was the failure by the pursuer’s agents to disclose the GP records which had been recovered under mandate.

[25]      The action was raised in September 2016. The initial focus was on the question of liability. In particular, there was a live issue about the precise locus. That was not confirmed until 1 December when it was clarified that it was in a different place from that which was originally averred.

[26]      At that stage, adjustment was due to end on 13 January. On 14 December, the defender’s medical expert was instructed. Enquiries were made about the medical records on 15 December and again on 8 and 9 February. On the latter date, the pursuer’s agents said that they would provide the hospital records and that the GP records would follow. They were received on 16 February. They were sent on to the defender’s expert. It was only then that it became apparent that they only covered the period up to 2014.

[27]      Clarification was sought about this and on 18 April, the defender’s agents were told that the pursuer had changed GP. The defender’s agents sought details of the pursuer’s current GP and a mandate for recovery of her medical records since 2014.

[28]      On 27 April, the pursuer’s agents confirmed that a mandate had been forwarded to the new GP. The defender’s agents pressed for an update on 2 May and raised the issue about a possible difficulty with the proof diet being retained.

[29]      On 11 May, the GP records were sought again. By that time, consideration was being given to recovery by specification.

[30]      So at that stage, the defender’s agents were still in the intolerable position of trying to recover the pursuer’s records.

[31]      One reason for the discharge of the proof was to allow the updated records to be lodged. The failure in that respect was not the defender’s. In addition, the question of the pursuer’s cardiac problems and other morbidities had now emerged. These had not been mentioned in the medical reports.

[32]      Had the whole medical records been available earlier, the need for the minute of amendment would have been avoided and the diet of proof would have been retained. That was the defender’s motion on the last occasion.




[33]      I have pieced together, as best I can based on the respective submissions and information from the court process, the following timetable of events.


March 26 - date of accident


September 6 - action raised

October 2 - pursuer’s expert reports disclosed

October 7 - defences lodged; timetable issued [adjustment due to end 2 December; defender’s statement of valuation due 30 December]

December 1 – correct locus confirmed

December 6 - timetable varied on the defender’s motion [adjustment to end 13 January 2017]

December 14 - request to have the pursuer medically examined [proposed examination date 25 January]

December 15 - enquiry made of pursuer’s agents about medical records

February 8 – reminder re. medical records

February 9 - further enquiry re. medical records

February 15 - GP records originally recovered by mandate disclosed

February 22 - defender’s agents realise that records disclosed to them are not up to date

February 27 - defender’s first expert report available

April 6 - defender’s agents seek order for recovery of the more recent GP records

April 13 - defender serves specification on pursuer’s GP

April 18 - defender’s agents told that the pursuer had changed GP

April 19 - defender’s agents seek details of the pursuer’s current GP and a mandate for recovery of records

April 27 - pursuer’s agents confirm that a mandate had been forwarded to the new GP

May 2 - defender’s agents press for an update and raise the issue about a possible difficulty with the proof diet being retained.

May 11 – further request for GP records

June 5 – up to date GP records recovered from the new surgery



[34]      The procedure in this court is built around the timetable. The ethos which that is supposed to engender has been discussed elsewhere and I will not repeat it, save to say that once proceedings are commenced, parties are supposed to act in such a way as to enable them to comply with the timetable. But there is another aspect to this: parties are also expected to co-operate with their opposite numbers so that, so far as possible, the action can move forward smoothly. I should emphasise that in my opinion, that expectation is not a recent innovation. Co-operation with one’s opponent in so far as that does not compromise a client’s interests is part and parcel of the professional obligations of agents and counsel as members of the legal profession and as officers of court. That obligation existed long before the inception of this court.

[35]      Turning specifically to the question of disclosure of medical records, the starting point is that in virtually every case in this court (except, perhaps those involving very minor injuries) pursuers’ agents must know that at some stage in the case defenders’ agents will wish access to some or all of the pursuer’s medical records, usually with a view to commissioning a medico-legal report.

[36]      Often, pursuers’ agents will have taken steps either before or at the commencement of the case to recover the records, either by specification or mandate.

[37]      If records have been recovered under specification, in my view the principles enunciated above mean that on request, these documents should be disclosed to other parties. The matter is, in any event, regulated by the Ordinary Cause Rules (“OCR”) which places certain obligations on the party who has made the recovery, namely to

a.   report the fact of recovery to the other parties: OCR 28.3(4)(a) [and to the Court];

b.   lodge the recovered document in process or give the other party the opportunity to borrow, inspect or copy any document recovered: OCR 28.3(5).

[38]      These are important provisions because if they are not followed, neither the court nor the other parties know if or when the commission and diligence has been executed; nor whether any documentary evidence - which by definition has at least potential relevance to the proceedings - has been recovered.

[39]      It is also clear from the terms of the OCR that these steps are meant to be taken promptly. Put simply, where one party recovers documents under the optional procedure, the other party is entitled to know that almost straightaway; and if access to the documents thus recovered is not to be afforded to the other party by these being lodged in process, the other party must be afforded the opportunity to see them within 14 days.

[40]      All of the foregoing appears to me to be entirely consistent with the principles which I have already alluded to. If a recovering party does not comply with the requirements of OCR 28.3, then that party is in default and is exposed to risk of a motion for decree. Even if the court was not inclined to grant such a motion, the failure to comply with the terms of OCR 28.3 appears to me to expose the recalcitrant party to expenses in the event that, for example, the other party has to proceed with their own motion for commission and diligence to recover the same material.

[41]      Although not regulated by a rule of court, it appears to me that the same principles apply broadly to medical records which have been recovered by mandate. In my view, a party who has recovered such material in the context of a case in this court and who is faced with a request for access to it is not entitled to deny access or unreasonably delay in making it available. Again, in that situation, if the party seeking access to the material is faced with refusal or delay to disclose it, and is accordingly forced to proceed with a motion for commission and diligence, a question may arise as to where the expenses of that exercise should fall.  

[42]      Turning to the circumstances of this case, it appears to me that some criticism can be levelled at both parties, thus:

a.   despite being asked to provide the exact locus of the pursuer’s accident, that did not happen until well into the adjustment period and was, at least in part, why the original timetable had to be varied: defender’s motion, 7/1 of process;

b.   the foregoing was significant because the locus was wrongly averred in the initial writ: “western footpath”; cf record: “eastern footpath”;

c.   of course that did not prevent the defender from commencing investigations into quantum;

d.   there was an inexcusable - and in my view not properly explained - failure to respond to the defender’s agents’ request for access to records which had been recovered under mandate, which in my view breached the pursuer’s agents’ professional obligations to their opponents and to the court;

e.   the pursuer’s agents plainly had not had proper regard to the content of the GP records which they had recovered, otherwise they would have realised that they were incomplete;

f.    it is not entirely clear to me whether the GP records which had been recovered under mandate were disclosed to the defender’s agents or instead were sent straight by the pursuer’s agents to the defender’s expert, but if it was the former, they too should have realised that the records were incomplete.

[43]      The further complication was that neither side seems to have learned until late on that the pursuer had changed GP practice. That led to further delay at a stage when the retention of the proof was probably still achievable. And when the up to date GP records were recovered, they appear to have been the source of information about the pursuer’s other health problems which in turn generated a new line of enquiry particularly in relation to her cardiology history.

[44]      None of the foregoing is very satisfactory but although I am critical of the pursuer’s agents’ failure to disclose the early GP records more quickly than they did, it was not suggested that they knew that the pursuer had changed GP practice; and I do not think that I can assume that they ought to have known that.

[45]      Nevertheless, if the earlier records had been disclosed more quickly, then it seems likely that the issue about their incompleteness and consequent discovery of the change in GP practice would likewise have taken place more quickly. But on the other hand, the defender’s agents were slow off the mark in commencing the medical investigations and there were steps open to them to push matters along in the face of any intransigence: see paragraphs [40] - [41] above.

[46]      Accordingly, I shall pronounce an interlocutor varying the timetable by changing the last date for the lodging of productions to the date hereof; permitting amendment of the pleadings in terms of the minute and answers, both as adjusted; ordaining the defender to lodge a certified amended record within 14 days; and fixing a new three day diet of proof. In relation to expenses, I have concluded that the fair result is to find no expenses due to or by either party in the expenses occasioned by the amendment procedure and by the discharge of the proof diet.



[47]      While I am grateful to both counsel for their comprehensive but concise submissions, I take this opportunity to mention again matter of practice and alluded to before: Devine v Laurie, [2016] SC EDIN 83, paragraph [57]. Where an issue is to be ventilated before the court which either concerns or requires a consideration of the procedural history of the case, an appropriate timeline should be prepared, discussed between parties and, so far as possible, agreed in advance of any hearing. This is particularly important where ‘what happened’ is a matter not of court record (e.g. something recorded in an interlocutor) but has taken place between parties, and is therefore beyond the direct knowledge of the court.

[48]      Such a timeline is of immense assistance to the court in understanding ‘what happened and when’ - and has the added benefit of shortening hearings as the timeline then does not need to be read out and laboriously recorded by the presiding Sheriff. Accordingly, agents’ assistance in approaching matters in this way would be much appreciated.