The Court of Session has recently published a new practice note relating to commercial actions.
Background
The commercial court came into being back in 1994. It was designed to be a speedy and efficient procedure for settling commercial disputes with a real focus on providing a forum to parties who needed a quality decision quickly.
The key features of the commercial court are:
- a requirement for parties to have fully ventilated disputes prior to raising proceedings;
- judges with commercial expertise;
- cases are assigned to a single judge who deals with the case from inception to decision; and
- much shorter and stricter timescales to encourage parties to keep the case moving along.
The commercial court has refined its approach through the years and the most recent set of updates are set to further improve the efficiency and speed of commercial litigation in Scotland.
The key changes
Increased emphasis on the use of alternative dispute resolution (ADR) to resolve disputes.
The practice note now requires parties to "consider carefully and discuss" whether some form of ADR may be appropriate, either before court action is raised or, later, in respect of individual or all of the substantive issues.
Limits on the number of preliminary/procedural hearings
To avoid delays occasioned by adjournments of preliminary/procedural hearings, the practice note provides that there can be no more than one preliminary and one procedural hearing unless one or both of the parties is able to persuade the court that there is a good reason for additional hearings. This will put pressure on parties to ensure their cases are fully prepared at an early stage and, it is expected, lead to more cases reaching settlement or a final substantive hearing at a much earlier stage.
Greater emphasis on agreement of issues / evidence
The practice note also puts on a formal footing the practice of judges ordering parties and/or their expert witness to meet to discuss and agree the scope of their dispute and their evidence. The practice note goes as far as saying that it is likely that a joint meeting will be ordered in most cases. These meetings can significantly restrict the scope of issues which require to be explored at any substantive hearing and often lead to the quicker resolution of a case.
Increased use of technology
That just leaves to mention that the court is looking to keep with the times. Motions can now be enrolled electronically in the commercial court and productions can now be lodged on a USB memory stick.
Comment
The commercial court is very successful in providing a high quality and efficient forum for resolving commercial disputes. This practice note will help to cement the court's practice of ensuring cases are well managed and concluded in the shortest time possible. It will allow parties to know more precisely how their cases will be handled by the commercial court. That certainty and consistency, together with this practice note, are to be welcomed.
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