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The Scottish Courts: The largest volume of litigation takes place in the Sheriff Courts located throughout Scotland, which are similar to the County Courts in England & Wales in that they typically handle disputes which are relatively straightforward and low value. Although there is no upper value limit in the Sheriff Courts, more complicated cases or those with a value over £50,000, will usually be issued in the Scottish High Court equivalent called the 'Court of Session', based in Edinburgh where all hearings are held.

Some Scottish Options

Where you have a choice between the jurisdictions of Scotland versus England and Wales, there can be advantages in choosing one over the other. This is especially true where injunctions (known as interdicts in Scotland) are concerned as your chances of obtaining the injunction may be better in Scotland. The Scottish Courts have the power to grant interdicts on an interim basis at any time (before or after issue of proceedings). The Scottish Courts will seek to maintain the status quo or prevent an unlawful event occurring, until such time as the court has had an opportunity to deal with the issues involved properly. Such interdicts will generally be granted more readily in Scotland than their English equivalents, particularly where it may be difficult for the innocent party to put a value on appropriate compensation after the wrong has occurred.

The Commercial Court in the Court of Session

To try to address issues of delay and/or court availability, the Court of Session has a Commercial Court with rules and practices intended to bring commercial disputes to a head quickly. Following the lodging of written defences, a specific commercial judge is assigned to the case. They have the case called before them on a regular basis and proactively manage it so that the substantive issues in dispute are crystallised and disposed of quickly. The commercial judge has wide discretion as to how each case is dealt with and can order early production of documents, expert reports or other evidence. They might order each sides' expert witnesses to meet and discuss the case to see if the issues in dispute can be narrowed. They can also order early hearings on specific issues of the dispute where a decision on those might accelerate an overall resolution. In general, the commercial judge has substantially more control over the court diary and the procedure to be followed, which usually allows the whole process to be concluded over a much shorter timescale than would be the case under the standard procedure.

Alternative dispute resolution (ADR)

Litigation is often unavoidable. It can, however, be time consuming and make undue demands on management and other personnel over a prolonged period. As in England and Wales, the ADR options available include arbitration, expert opinion and mediation.

Whatever side you are on, if you find yourself embroiled in a dispute within the Scottish jurisdiction (before or after the issue of proceedings), ACH Shoosmiths can advise on the options most likely to achieve the best outcome.