The 'new' Chapter 42A rules, which govern certain personal injury actions in Scotland, came into force on 1 March 2020. In the midst of the current pandemic, they may have had a somewhat anticlimactic entrance but, for those involved in complex personal injury or clinical negligence actions, their impact should not be underestimated.

The key changes relate to the requirement of parties to exchange information. Once the parties' written cases have been finalised, they are contained in a document known as a Record, which is lodged in court. The timescales for exchanging information are with reference to when the Record is lodged.

Requirement to exchange witness statements

Under the new rules, parties now require exchanging witness statements within 3 weeks of the Record being lodged.

Unlike Scottish commercial actions, however, there does not appear to be a requirement to lodge the witness statements in process. The purpose of these statements is therefore unclear. A statement taken for the purposes of replacing the evidence in chief of a witness will be different to one that is merely intended to provide information as to what the witness will speak to.

Regardless of their purpose, it is a tall order to have all witness statements finalised within 3 weeks of the Record being lodged. It is common for those in the medical profession to move, not only from one medical practice or hospital to another, but also from one country to another. Tracing such witnesses, let alone obtaining a finalised statement from them can take time.

Earlier exchange of Expert reports

Draft expert reports are also to be exchanged within 3 weeks of the Record being lodged. Both parties are expected to exchange these at the same time.

Interestingly, the new rules provide that the draft documents must not be lodged in court and cannot be put in evidence at proof or otherwise used unless by consent of the parties. This could mean that draft reports cannot be put to one's own expert, if that would constitute use without consent. Similarly, if the final versions lodged bear little resemblance to the drafts exchanged, it seems there is little one can do: it cannot be used against the party or brought to the attention of the court.

Quantum investigations

The requirement to exchange draft expert reports includes those dealing with the value of the claim. Draft Statements of Valuation under the new rules require to be exchanged within 7 weeks of the Record being lodged. As such, both parties will now require investigating quantum at an earlier stage, with the associated costs of doing so, and perhaps without knowing the other party's position on liability or causation.

Joint Agreement

Within 9 weeks of the Record being lodged, under the new rules, the claimant must send to the defendant a draft joint agreement of matters they consider capable of agreement. This should include anything that is agreed in the written case, a glossary of medical terminology and a chronology of events. The defendant has 3 weeks from receiving this to revise and return it.

Usually, this type of agreement is negotiated between parties' right up to any trial/ proof. This is now expected to be finalised before a proof diet has even been fixed.

Implications

Under the new rules, we may see a desire to keep actions at the stage where parties' written cases have yet to be finalised, to enable parties to get their houses in order.

If parties wish a preliminary proof on liability or causation, consideration should be given to seeking that at the time the Record is lodged, to avoid incurring unnecessary expense. At the very least, it may pave the way for an earlier court hearing to try and restrict what will otherwise be required.

These new rules may bring forward settlement discussions as information is made available at a much earlier stage.

Whilst there remains uncertainty about how the new rules will apply in practice, one thing is for certain, parties must be prepared!