A Procedural Warning

On 5 November 2014 Lord Boyd issued his Opinion in the case of Robert Moran v Freyssinet Limited (2014 CSOH 173).  The Opinion set out his written reasons for refusing the Defenders’ Motion in a Personal Injuries Action to vary the Timetable to allow the Defenders to lodge a Statement of Valuation.  He had granted the Pursuer’s Motion for Decree restricted to £30,000 (the sum sued for in the Summons).

The claim involved exposure to vibratory equipment.  The Pursuer averred various breaches of duty on the part of the Defenders.  He said that as a result of the breaches he had developed HAVS in the course of his employment.

The circumstances into the granting of the Decree revolved around the Timetable issued under the relevant Rule of Court, RC 43.6.

The Action had been served on the Defenders on 11 February 2014, skeletal Defences were lodged and the Action was sisted on the Defenders’ Motion for three months to allow for investigation.  The timetable was varied with the relevant dates being:-

  • Defenders’ Valuation by 2 October
  • Productions and Witnesses by 16 October
  • Pre-Trial Minute by 23 October
  • Proof remaining at 04 November

The Defenders lodged a Minute of Amendment on 3 October adding a time-bar plea and the Pursuer lodged Answers.  On 22 October the Pursuer’s Solicitors enrolled a Motion to vary the Timetable in respect of the Pre-Trial Minute.  The date was duly varied to 30 October and a Minute was lodged on 28 October.

The Defenders moved to allow the Record to be amended in terms of the Minute and Answers and to discharge the Proof due on 4 November. On 30 October to the Amendment was allowed but discharge of the Proof refused.

When the case called on 4 November the Defenders had not lodged any Productions or intimated a List of Witnesses.  The Defenders moved Lord Boyd to allow the Timetable to be amended to allow late lodging of their Statement of Valuation.

The Pursuer moved for Summary Decree and to limit the Proof to quantum and time-bar.  Counsel referred to the Defenders not having lodged a Statement of Valuation in terms of the relevant Rule and to the possible sanctions which included in terms of RC 43.9 granting Decree for a sum not exceeding the Pursuer’s Valuation.  In this particular case the Valuation exceeded the sum sued for so Counsel moved that Decree be granted, limited to the sum sued for, which was £30,000.

The Defenders’ position, as explained by Counsel, was that the Valuation due by 2 October had been overlooked by the Agent.  It had been prepared with a nil valuation (on the basis there was no liability or the claim was time-barred).  A later Valuation provided by Counsel previously instructed had been prepared but, in the course of Submissions, the Defenders’ Counsel presented a fresh Valuation based on the Pursuer’s Medical Report which was a Production.

Counsel argued that the lack of a Valuation should have been dealt with at a By Order Hearing on the basis the relevant Rule of Court provided that if a party failed to comply with any requirement of the Timetable the Keeper may put the case out to be heard on the By Order Roll.  If that had been done the Defenders would have been alerted and could have remedied the situation.  He submitted that as the start of a Proof was not a By Order Hearing, the Court had no power to grant Decree under the relevant Rule of Court.

So far as Summary Decree was concerned, it couldn’t be said there was no defence and the Defenders were therefore entitled to put the Pursuer to proof of his averments.

Lord Boyd said he was not satisfied that the Defenders had shown sufficient cause.  He recognised that occasionally things can be overlooked and this had been appreciated by the Court in a Practice Note reducing the obligation to show “special cause” in seeking to vary the Timetable to “cause” by removing the word “special”.

Lord Boyd said that in this particular case not only was the failure to lodge a Valuation repeated  but that failure should have been clear to the Defenders when preparing for the Pre-Trial Meeting ie, prior to the lodging of a Pre-Trial Minute.  To try and lodge a Valuation at Proof was of no benefit.  He said “Once the Pre-Trial Meeting has been held, the Statement of Valuation has little or no function.”

He then went on to consider the sanctions and in particular whether the Proof should be allowed to continue in the absence of a Valuation without any sanction being imposed.  He took the view the failure to lodge the Valuation was “particularly serious”.  He summed up the overall position by saying:

“The Statement of Valuation is the cornerstone of the Chapter 43 Procedure.  Its absence means that the Pre-Trial Meeting cannot address quantum.  The opportunity to agree quantum, or at least to narrow down the issue, has been lost.  The Pursuer has had to bring witnesses to Court when that may not have been necessary.  The Court is potentially inconvenienced by having to listen to more evidence than it might have been required had the parties agreed quantum.”

Lord Boyd accepted that the granting of Decree was the “ultimate sanction” and should be rarely used.  He again commented that it should have been obvious at the Pre-Trial Meeting itself that there was no Defenders’ Valuation.  He queried whether either Counsel should have signed the Pre-Trial Minute in these circumstances.  The Defences were basically skeleton.  They did not allow the Defenders to put any alternative version of events to the Pursuer.  They couldn’t lead any evidence to attempt to establish a contrary position.  Had it been appropriate, he would have been inclined to grant a Motion for Summary Decree which had been the Pursuer’s Counsel’s alternative.

However, he said that a combination of the failure to lodge the Statement of Valuation, the Defenders’ conduct of the case and the skeleton Defences meant he considered the only appropriate sanction was to grant Decree restricted to the sum sued for, as per the Summons.

This case is a graphic warning of what can happen if a party does not adhere to the Personal Injuries Timetable.  Arguably, the circumstances as set out in this case are extreme but in the event of a failure to adhere to the Timetable, the relevant party should at the very least attempt to deal immediately with any such failure.

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