Commercial Court Guidance

Regular readers of our blog will know that we are strong supporters of the Commercial Court procedure provided by the Court of Session. Readers will recall that the Lord President in Scotland appoints specialist commercial judges to the Commercial Court in the Court of Session. They have particular flexibility in case managing disputes. Disputes can be dealt with speedily in comparison with other procedures and the judges’ specialism usually results in robust and fair decision making.

The Commercial Court judges have issued a series of new and updated guidance notes that take effect from 4th February 2019. They are designed to provide further flexibility to them as Commercial Court judges in dealing with disputes proportionately.

For example, at present, it is typical in the Commercial Court for very detailed witness statements to be prepared that will usually represent a witness’ evidence in chief (that is the evidence they give to the court before any cross examination). It is also usual for parties to be ordered to prepare an electronic joint bundle of documents with appropriate electronic referencing before a substantive hearing. These features of Commercial Court litigation are very useful in a proof (final hearing) but they are also very expensive. The guidance recognises that, for example, in simpler or lower value cases there can be an application made to the Court to consider dispensing with such requirements.

Further guidance has also been given about recovery of documents. Again readers of this blog will recall the differences in the procedure in recovery of documents in the Scottish Courts, compared with England and Wales. In general terms, recovery (discovery) rights in Scotland have tended to be much stricter and narrower. The new guidance note confirms further flexibility for the Commercial Court judges to make orders at an early stage and also gives guidance on how they ought to approach making orders in respect of electronic searches that are required- such as what key words must be searched for.

Importantly, solicitors are required in terms of the guidance to discuss preservation of documents when they first begin to be involved in advising on a dispute.

As well as general other updated guidance, new specific guidance is given by the Commercial Court judges in relation to actions to enforce awards made, particularly in construction disputes, by adjudicators. It appears there will be a presumption toward summary disposal of these cases where possible (for example by an action of summary decree), and judgements being given where possible on an immediate basis by the judge presiding at any hearing where a final disposal of the case is sought. If the written judgement is required it is aimed that this will be provided within 28 days. This reflects the fact that the whole utility of adjudication depends on a swift remedy being available for contractors and employers; again particularly in the construction sector.

These changes should ensure that where disputes have to be litigated, and cannot be resolved more swiftly by negotiation, or for example by mediation or other alternative dispute resolution, that the Commercial Court will continue to provide a swift and effective route to justice.

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