The Scottish Government

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Elaine Samuel, School of Social and Political Studies, University of Edinburgh
ISBN 978 0 7559 6508 3
This document is also available in pdf format (1.5MB)

CONTENTS

ACKNOWLEDGEMENTS

EXECUTIVE SUMMARY

PART I INTRODUCTION

CHAPTER 1 THE RESEARCH IN CONTEXT
Policy Background
The Court of Session and Personal Injury Actions
The Working Party on Court of Session Procedure
Chapter 43 and its provisions
Personal Injury Users Group

CHAPTER 2 RESEARCH AIMS, DATA AND METHODS
Research Aims
Introduction
Evaluation: key objectives of procedural reform
Monitoring
Making recommendations for further review
Data and Methods
Administrative data
Reducing delay
Bringing forward settlement
Interviews with court practitioners
Consultation with Lords Ordinary

PART II EVALUATING CHAPTER 43: QUANTITATIVE ANALYSES

CHAPTER 3 USE AND USERS OF CHAPTER 43
Volume of business
Cases
Defended actions
Transfer to the Ordinary Roll
Firms: Pursuers, defenders and multiple defenders

CHAPTER 4 ADDRESSING DELAY: THE PROGRESS OF PERSONAL INJURY ACTIONS THROUGH THE COURT OF SESSION
Introduction
Comparing two samples
State of Play (7 April 2006)
Duration of proceedings
Measuring delay
From signet to final disposal
From lodging of defences to final disposal
From signeting to lodging defences
From signeting to lodging defences: The Impact of sists on the post-implementation sample
From lodging defences to interlocutor allowing further procedure
Case trajectories to first diet of proof
Procedural stages and delay

CHAPTER 5 BRINGING FORWARD THE DAY OF SETTLEMENT
Research aim and evidential requirements
Proof diets and final disposal
Monitoring the post-implementation sample
Monitoring in the Court of Session
Observation in Parliament House
Monitoring settlement in the post-implementation era:
Case type and intimation of settlement

CHAPTER 6 IMPACT ON COURT BUSINESS
Introduction
Procedural Innovations and the By Order Roll
Procedure Roll
Procedural stages prior to final disposal
Motions
Discharging and reallocating proof diets under Chapter 43
Assessing the impact of Chapter 43

PART III MONITORING PROCEDURE: QUALITATIVE ANALYSES

CHAPTER 7 SIMPLIFYING PROCEDURE
Introduction
Chapter 43
Practitioners and Abbreviated Pleadings
Appointment to the Procedure Roll
Transferring to the Ordinary Roll
Abbreviated pleadings and jury trials
Abbreviated pleadings and the on the conduct of proofs

CHAPTER 8 INNOVATING PROCEDURE
Introduction
Chapter 43
Statement of Valuation
Concept and reality
Vouching
Timing
Sanctions
The Pre-trial Meeting
Conducting Pre-trial Meetings
Lodging lists of witnesses and productions
Timing
Lodging the Joint Minute
Guidance and the Pre-trial Meeting
Arranging Pre-trial Meetings
Attending Pre-trial Meetings
Parties
Legal representatives
Evaluating the Pre-trial Meeting: Achieving goals
Mirroring Tuesday morning?
Cases and preparation
Cases and multiple defenders
Practitioners
Participants
Pursuers and defenders
Solicitors and counsel

CHAPTER 9 MANAGING PROCEDURE
Introduction
Chapter 43
Changes to the existing timetable
Taking control: Allocating proof diets
Taking control: Generating a timetable
Taking control: Time-limited sists
Taking control: Varying the timetable
Taking control: Failure to comply with the timetable
Taking control: A need for judicial case management?
Out of control: Actions transferred to the Ordinary Roll

CHAPTER 10 IN THE PUBLIC INTEREST
Introduction
Pursuers and procedural justice
Defenders and the public interest
Expert witnesses
Costs

PART IV CONCLUSION

CHAPTER 11 SUMMARY AND EMERGING ISSUES
Use and users: Chapter 43 and the Court of Session
Addressing delay
Bringing forward settlement
Impact on court business
Simplifying procedure
Innovating procedure
Managing procedure
In the public interest: justice, costs and the Sheriff Court
Implementing new procedure

BIBLIOGRAPHY

Appendix I Court of Session Chapter 43:
Appendix II Chapter 43: Flowchart of timetable
Appendix III Consultation with Lords Ordinary
Appendix IV Defended Actions: Proceedings (in weeks) by case type
Appendix V Defended Actions: Proceedings (in weeks) by state of play

The views expressed in this report are those of the researcher and
do not necessarily represent those of the Department or Scottish Ministers.

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