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The importance of getting the wording of pre-trial agreements right - Kate Donachie & Mohsen Din, Brodies LLP

31/01/19. A joint minute is a form of pre-trial agreement which is lodged with the court and sets out non-controversial matters between the parties in advance of a proof (trial) or other substantive hearing. The use of joint minutes is actively encouraged by the courts because such agreement can reduce the scope of any hearing and the number of witnesses required. Recently there has been increased pressure from the All Scotland Personal Injury Court to agree joint minutes before substantive hearings. However the implications of joint minutes can be overlooked and care should be taken to ensure that the agreement reflects parties’ intentions.

A cautionary tale in this regard can be found in Lord Woolman’s recent judgement in McKenzie and others v Asda Group and DHL Services 2018 CSOH 102.

That action involved a road traffic accident in which both the Asda driver and the DHL driver were found to be at fault.

Liability was apportioned 75 percent to the Asda driver and 25 percent to the DHL driver. The value of the claim had been agreed before proof (trial) by way of joint minute. The terms of the joint minute were as follows...

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