Co-operation makes it happen

A recent decision reinforces that the All Scotland Personal Injury Court will be slow to depart from the strict timetabling requirements of the court rules. To ensure that timescales are met, parties are expected to co-operate. This co-operation extends not only to the prompt notification of documentation recovered by court order, but also a requirement to provide medical records recovered by way of mandate, if called upon to do so by another party to the action.

Jean Robertson v Edinburgh City Council

In this case, there was a dispute about costs arising from an amendment to the pleadings and the resulting discharge of a hearing. The costs would ordinarily be awarded against the party initiating the amendment and moving for the discharge, in this case the defenders. However, the defenders had been unable to obtain medical records to enable them to instruct their own medico-legal report.

The pursuer’s solicitors delayed for two months in providing GP records. At that stage, it was established that the records had been recovered by way of mandate two years previously and were now incomplete. The defenders then had to seek a court order, thereafter, to recover the pursuer’s complete and up-to-date GP records.

The defenders argued that this delay had the knock-on effect of delaying their own medico-legal report, necessitating the amendment procedure and discharge of the hearing.

The Sheriff departed from the usual rule and– declined to award costs to the pursuer. He did not go as far as to award the costs to the defenders; they, had been “slow off the mark” in initiating investigations and, had failed to bring the matter to the attention of the court. The Sheriff reminded parties that, when recovering documentation, the court rules require parties to report that recovery to the other parties immediately, so that they may borrow, inspect or copy them. Although required by the rules, it is not always adhered to.

The Sheriff also said that, although records recovered by mandate (as was the situation here) were not included in the court rule about recovery, similar duties existed in relation to providing access; parties recovering medical records by way of mandate would not be entitled to deny access or unreasonably delay making them available once requested. Again, this is not a practice that is universally adhered to at present.

Practical Impact

In light of the tight timetable in the All Scotland Personal Injury Court, the Sheriff reiterated the requirement for co-operation amongst practitioners. He highlighted that this is not a recent innovation, but an obligation that existed long before the inception of the All Scotland Personal Injury Court. Those acting on behalf of defenders and the wider insurance industry, will be hopeful that the Sheriff’s comments, restating the requirement for co-operation and prompt disclosure will assist with the smooth running of cases, within the court-imposed timetables. Hopefully, this will, in turn, lead to prompt disposals of matters, and minimise unnecessary costs on both sides of a dispute.