8.4: Trial date: scheduled by court clerk
8.5: Trial date: scheduled by the Court

Case Summary

The parties’ counsel in a personal injury Action had completed and signed a Form 37 which was a condition precedent to setting the Action down for Trial pursuant to Rule 8.4; however, the Form 37 was not filed. On the Form, counsel for the Defendant wrote “not applicable” in response to the question of whether all medical examinations and reports had been completed and exchanged. Counsel for the Defendant then applied unsuccessfully to have the Plaintiff’s injuries deemed “minor” pursuant to the Minor Injury Regulation, AR 123/2004 on the basis that the Plaintiff had failed to attend a Certified Medical Examination.

The Defendant “elected a change in strategy” and made a second Application for an Order requiring that the Plaintiff attend for an Independent Medical Examination (IME). The Plaintiff filed a Cross-Application, pursuant to Rule 8.5, for an Order to file a request to schedule a Trial date, relying upon the Form 37 which the Defendant’s counsel had signed. The Chambers Judge denied the Defendant’s Application and directed that the matter proceed to Trial. The Defendant appealed on the basis that the Chambers Judge erred in interpreting Rule 8.4. The Defendant submitted that Form 37 must be filed for Rule 8.4 to apply.

The Court of Appeal stated that the purpose of Form 37 is to authorize the Court Clerk to fix a date for Trial if all conditions are met. It does not follow that a completed and signed but unfiled Form 37 has no effect on the litigation. The Court noted that a Form 37 constitutes a binding mutual representation to the opposite party that the issues are joined, and that no further steps will be taken by either party except to proceed to Trial. The Court noted that counsel for both parties were entitled to rely upon such representations. As such, the Applications in the Court below were properly adjudicated and the Appeal was dismissed.

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