Moran v Freyssinet Ltd [2015] CSIH 96

In this case the Inner House of the Court of Session – the Scottish Appeal Court – upheld a decision to award a pursuer £30,000 as a consequence of the defender's solicitors' failure to adhere to the timetable issued by the Court under the personal injury chapter 43 procedure.

This procedure was introduced in 2003 to encourage expeditious progress, early settlement and better use of court resources in personal injury actions.  In an attempt to reduce the number of settlements at the "doors of Court", the procedure requires parties to adhere to a strict timetable. In this case however, in the Court's view, the defender's solicitors had demonstrated a repeated disregard for the rules, culminating in them failing to lodge their statements of valuation of claim – an important step which is intended to bring forward the point in time at which parties focus their minds of the value of the case before the full hearing or Proof (in Scotland, the word “trial” is only used to refer to criminal trials or jury cases).  As a consequence, at First Instance, judgment was granted to the pursuer for £30,000 - the entire sum sued for - as well as the costs of the action.

The defender's solicitors appealed the decision, arguing that the Judge had gone beyond the reasonable exercise of his power of discretion. However, the Inner House, were equally as uncompromising as the Judge at First Instance, noting that the defender's solicitors had adopted an entirely cavalier approach to all the steps in the timetable throughout the action.  This included only lodging skeletal pleadings, failing to lodge any productions or list witnesses and then attempting to discharge the proof. The Inner House took the view that these persistent oversights suggested a "casual" approach to the timetable, with the failure to lodge the valuation as the most serious omission. They took the view that this alone would have been enough to have persuaded them to uphold the Judge's decision.

This decision underlies the importance of parties adhering to Court rules and demonstrates that the Court can and will impose the ultimate sanctions for failure to do so.  The Courts in Scotland appear to be following the English Court’s post-Jackson hardline approach to costs budgeting and adherence to Court rules as established in the landmark case of Andrew Mitchell MP v. News Group Newspapers.

Clearly solicitors on both sides of the border can be in no doubt that a strict compliance with the rules and Court timetables is absolutely crucial and now, more than ever, will form the cornerstone of successful litigation.