The new Commercial Action Guidelines, effective as of this week, introduce a new element of disclosure of documents in commercial actions in Scotland, but what does this mean for you?

Commercial Action Procedure in Scotland

The Court of Session, the highest civil court in Scotland, has a special procedure for commercial actions.

"Commercial actions" are widely defined, being any disputes of a commercial or business nature. As such, most disputes encountered by businesses will fall within this procedure.

Such actions are dealt with by specialist judges who are well versed in commercial issues, by way of a 'fast-track' adaptable procedure which enables these cases to be dealt with in a flexible and timely manner.

The New Guidelines

Recently, the four commercial judges - Lord Doherty, Lord Bannatyne, Lady Wolffe and Lord Ericht - issued new guidance for the commercial action procedure. This includes new guidelines on the recovery of documents in commercial actions. These guidelines took effect on February 4, 2019.

Traditionally in Scottish litigation there has been no requirement for parties to voluntarily disclose documents, unlike the position in other jurisdictions such as England. Instead, if a party wanted to recover a document from the other side or a third party to assist it in the action, it would have to make an application to the court for an order for disclosure, which was not guaranteed.

How will they affect you?

These new guidelines introduce a new element of disclosure of documents to commercial actions in Scotland.

There are three key points to note.

Firstly, parties to disputes 'should adopt a co-operative, constructive and sensible approach' in order to identify documents which are relevant to the dispute, and these should be produced to the other side, whether they assist their position or not.

Secondly, all documents should be produced voluntarily as far as possible, meaning that an application for disclosure will no longer be the norm. Parties are required to agree how searches for documents should be carried out and the sources of such searches, and the documents should be produced electronically unless otherwise agreed or ordered by the court.

Thirdly, the guidelines emphasise the importance of 'preserving' documents, as soon as litigation is contemplated. It is vital for parties who are in dispute to preserve documents such as emails, letters and meeting notes from that point onwards, and for third parties who hold relevant documents to be informed of the need to preserve such documents also.

To conclude, it is clear that the commercial action procedure in Scotland has taken a large step away from the traditional approach to the production of documents. These guidelines highlight that, going forward, the commercial judges will expect parties to co-operate, so far as possible, in the exchange of relevant documents, and for this to be done in a way which is sensible and cost effective. Although this may already have been the approach of parties to commercial disputes, this will now be the norm.


Lucy Duff