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Where am I now? Lawlink > Law Reform Commission > Publications > Scott Schedules
Working Paper 14 (1975) - Procedure: Common Law Pleadings; Scott Schedules
Scott Schedules
Order 36 rule 1 of the English Rules of the Supreme Court (1965) provides as follows-
“1. If, in any cause or matter in the Chancery Division or Queen’s Bench Division other than a criminal proceeding by the Crown, the Court considers, upon application by any party, that having regard to the nature of the case it is desirable (whether on grounds of expedition, economy or convenience or otherwise) in the interests of one or more of the parties, the Court may, subject to any right to a trial with a jury, order that the cause or matter, or any question or issue of fact arising therein, shall be tried before an official referee, with or without assessors.”
Rule 2 of the same Order gives the Court power of its own motion to refer issue of fact, thus-
“2. In any cause or matter in the Chancery Division or Queens Bench Division, other than a criminal proceeding by the Crown the Court may, subject to any right to a trial with a jury, refer to an official referee for inquiry and report any question or issue of fact arising therein; …”
Rule 9 provides that an order under rule 1 may with the consent of the parties name the master instead of the referee and that a reference under rule 2 may be made by the judge to a master instead of to an official referee.
Since 1st January, 1972, the office of “official referees” has strictly speaking been abolished, all official referees having, under the Courts Act, 1971, been appointed as Circuit Judges. References in Order 26 to an “official referee” accordingly mean “the Circuit Judge discharging the functions of an official referee” (Courts Act, 1971, s.25 (3)).
The White Book lists the classes of cases which are “official referees’ business” as-
(1) Whole trials under rule 1.
(2) Inquiries and reports under rule 2 on questions and issues of fact.
(3) Matters referred by an order or an arbitration agreement under the Arbritration Act, 1950, s.11.1
Business before the official referees is allocated in rotation by the rota clerk. The referee thereafter gives such directions as may be necessary for the future conduct of the proceedings as if on a summons for directions. One of the features of such proceedings is an order for the preparation and completion of an Official Referee’s Schedule or “Scott Schedule” as it is popularly know (named after a former Official Referee).
The Scott Schedule may take one of a number of forms. Chitty and Jacob’s Queen Bench Forms2 sets out six forms the headings of which illustrate their nature, thus-
1157 - where questions of reasonableness and extras are raised.
1159 - where questions of omissions and extras are raised.
1161 - where defective works and counterclaim are alleged.
1163 - claim for an account of commission.
1165 - dispute account for goods sold and delivered.
1167 - husband and wife disputes as to ownership of goods.
The order in each case requires one party - that is, the party having the onus of proving the issue - to prepare the Schedule in the form attached to the order and to complete the first columns. It is then served on the party’s solicitor and the other party is required to complete the next succeeding columns. In forms 1157, 1163 and 1165 the Schedule is then complete. In forms 1159 and 1167 the first party makes further notations on the form and in 1161 gives particulars of his counter-claim. The completed forms are filed with the clerk to the official referee. The final column in each form is reserved for the use of the official referee.
In New South Wales the District Court has been using Scott type Schedules in building, engineering and other similar technical cases involving large numbers of dispute items. The procedure is that by direction of the Judges, the Registrar presiding at the call-over (which takes place some 4 to 6 weeks before hearing date) will refuse to allot a hearing date unless the Schedule has been filed. Parties aggrieved by a refusal to fix a hearing date on matters requiring a Schedule may apply to the Judge and the Judge may give directions. The Schedules are, however, so successful-
(a) in clarifying the issues;
(b) in avoiding confusion at the hearing;
(c) in achieving a settlement of many of the items in dispute (It becomes clear that the difference between parties is often not worth the expense of a contest),
that it is rare that a Judge allows such a trial to proceed without a Scott Schedule.
In the Supreme Court there were 14 “building” cases in 1973. In additional there were 48 actions listed as “breach of contract” and 165 cases not included in the 9 categories listed in the statistical analysis. We are of the opinion that if the dispute in any such case involves a number of items (say 4 or more) and the case is otherwise appropriate, it would be of benefit to the parties and to the Court to prepare and file a Scott type Schedule. Cases which we consider to be appropriate (following the English experience and practice) are cases involving such questions as-
(a) the reasonableness of amounts claimed;
(b) alleged omissions or claimed extras;
(c) alleged defective works or goods;
(d) claims for commission on goods or services;
(e) claims for goods sold and delivered or services rendered.
Common law cases set down for trial are presently being listed before a Judge for directions under Part 26. The directions Judge in “giving such directions for the conduct of the proceedings as appear best adapted for the just, quick and cheap disposal of the proceedings” may, in an appropriate case, direct the filing of a Scott type Schedule. The making of such an order however necessarily involves delay and the expense of a second appearance before the directions Judge. We are sufficiently convinced of the usefulness of the Schedule to suggest that a Practice Note should be issued requiring the preparation and filing of the Schedule before the directions hearing in all appropriate cases.
The District Court practice direction makes use of only one form (a copy of which is annexed). One form instead of six has the advantage of simplicity and since it appears to b e suitable for all cases we recommend its adoption with the minor amendments indicated, designed to make the form applicable to as wide a range of cases as possible.
We are also of the opinion that the directions Judge, as part of his directions for “the just, quick and cheap disposal of the proceedings”, should be able to refer issues and questions to the master not only as in England “for inquiry and report” but for decision. The powers of the Court exercisable by the master already include-
Schedule D.
Part 4.
General.
1. Trial (except with a jury) of proceedings, where the only matters in questions are the amount of damages and costs.
2. Trial (except with a jury) of proceedings where the only matters in question are the value of goods and costs or the amount of damages, the value of goods and costs.
4. Any matter (other than a trial) referred to a master by order of a Judge or the Court Appeal.
We see great advantage in giving the directions Judge power to refer the various factual issues which arise in a typical building (or similar) case to the master and where a decision on those issues will resolve all matters in dispute the directions Judge should be able to refer the trial to the master.
We therefore recommend-
(1) that a Practice Note be issued requiring parties to prepare and file three days before the directions hearing, a Schedule in accordance with Annexure “A” in any contract case where four or more items are in dispute involving such questions as-
(a) the reasonableness of amounts claimed;
(b) alleged omissions or claimed extras;
(c) alleged defective works or goods;
(d) claims for commission on goods or services;
(e) claims for goods sold and delivered or services rendered;
(2) that Part 4 of Schedule D to the Fourth Schedule be amended substituting for items 4-
“4. Any matter (other than a trial with a jury) referred to a master by order of a Judge or the Court of Appeal.”
FOOTNOTES
1. Annual Practice 1973 Vol. 1 p. 542.
2. 19th edn. pp. 721 - 731.
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