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Scott Schedules

By: Mark Tottenham BL

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When a plaintiff commences litigation, not knowing what items are likely to be in dispute, he or she needs to set out each aspect of the claim carefully in the statement of claim or the indorsement of claim (as appropriate). In the defence, the defendant cautiously sets out a blanket denial, along with specific denials and counter allegations. By the time particulars have been raised and replied to, discovery exchanged, and inspections made, the parties should have a much clearer idea of the areas of substantive dispute. Yet, it is still common practice for the parties to open the case by reference to the original pleadings, rather than to set out the actual areas of dispute in an agenda formulated for the court.

To address this, George Alexander Scott (1862-1933) developed a table now known as a ‘Scott Schedule’. Scott was appointed Official Referee of the Supreme Court of Judicature in 1920. (The Official Referee’s court in 1972 became the ‘Technology and Construction Court’ of the High Court of England and Wales.) Although his life and career do not seem to have merited much note, a clue to his approach may be seen by the fact that, prior to his appointment, he wrote some articles on the duties of auditors for the Incorporated Accountant’s Journal.

Scott Schedules are commonly used in construction cases. In their simplest form, they contain just six headings:

  1. Number of item
  2. Alleged defect (description in words)
  3. Plaintiff’s cost estimate (in figures)
  4. Defendant’s response to defect (summary of reply)
  5. Defendant’s cost estimate (if appropriate)
  6. Reserved for judge’s use

Guidance for the preparation of Scott Schedules is given in the Civil Procedure Rules of the courts of England and Wales. They are widely used in arbitration, particularly of construction disputes.

Curiously, the courts of England and Wales also provide for the use of Scott Schedules in family law cases, specifically where domestic abuse of children is alleged. As part of its case management procedure in such cases, the court should consider:

whether the key facts in dispute can be contained in a schedule or a table (known as a Scott Schedule) which sets out what the applicant complains of or alleges, what the respondent says in relation to each individual allegation or complaint; the allegations in the schedule should be focused on the factual issues to be tried; and if so, whether it is practicable for this schedule to be completed at the first hearing, with the assistance of the judge.” (Practice Direction 12J)

In Ireland, Scott Schedules are often directed at case management, or prepared at the agreement of the parties. Their use was recommended by Hedigan J in planning injunction cases requiring remediation, in his judgment in Hunter v. Nurendale Ltd [2013] IEHC 430 (17 September 2013).

In W.L. Construction Ltd v. Chawke & anor [2016] IEHC 539, Noonan J succinctly set out the benefits of a well-prepared Scott Schedule:

“The efficacy of a Scott Schedule is of course entirely dependent on the parties setting out their stalls in a frank and forthright manner in it. The schedule is intended to give a summary of what the plaintiff’s claim is and the defendant’s response to it. Importantly also, the schedule contains a list of items agreed between the parties. Obviously the identification of agreement on items is of great assistance to the court being an indication that no adjudication is required on that particular item. It seems to me that once an item is agreed on a Scott Schedule, that is an end of the matter save perhaps in exceptional circumstances such as for example manifest mistake or non est factum. It has however, to all intents and purposes the same characteristic as the compromise of an individual claim in relation to the item agreed.”

As the courts are increasingly seeking to narrow down issues in advance of trial, by means of case management, exchange of expert reports and meetings between experts, it is likely that more use of Scott Schedules would result in a considerable saving of court time.

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