Litigating in Scotland and England

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The differences explained

June 2016 Litigating in Scotland and England The differences explained

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1 | Litigating in Scotland and England Contents

In this Guide, we take you through the key steps, comparing and contrasting the differences in requirements and structure between the Scottish and English judicial systems.

Getting Started 3 Choice of jurisdiction - choice of court 3 The rules 3 Pre-action behaviour 3 How do I commence proceedings? 3 Service 4

What Happens Next 4 Timescales 4 Case management 4 Debate - summary judgment 5 Document disclosure 5 Witness statements 5 Expert evidence 6 Interim requests to the court 6

Litigation Tools 6 Interim interdict - injunction 6 Caveats 6 Diligence on the dependence 6

Resolving your dispute 7

CMS Cameron McKenna CMS Cameron McKenna Settlement offers 7 2 College Square Saltire Court Anchor Road 20 Castle Terrace Proof/trial - preparation & hearing 7 Bristol BS1 5UE Edinburgh EH1 2EN Expenses/costs 8

T +44 (0)20 7 367 3000 T +44 (0)131 228 8000 F +44 (0)20 7367 2000 F +44 (0)131 228 8888 The Result 9

CMS Cameron McKenna Appeal 9 191 West George Street Enforcement of your award 9 Glasgow G2 2LD

T +44 (0)141 222 2200 F +44 (0)141 222 2201 Civil Court Structure - Scotland and England 10

Glossary of Scottish legal terms 11

2 Getting started

Topic England Scotland

Choice of There is more choice in England, from the The court titles may seem unfamiliar - Sheriff jurisdiction/ Technology and Construction Court to the Court, Court of Session, Outer and Inner choice of Mercantile Court and from Chancery Court to House… However, the basic structure is in fact court Queen’s Bench. Each division of the High Court quite similar to that south of the border. specialises in a different type of work so it is worth taking advice on the best place to start The structure of the Scottish courts is currently any claim. The benefit of the greater number of undergoing major change following enactment courts and judges is that the court diary is less of the Courts Reform (Scotland) Act 2014. full and it can be easier to progress a case swiftly Changes include a specialist personal injury court to a hearing. The downside is that it is less easy and an increase in the role of the Sheriff Courts. to become familiar with the foibles and preferences of each judge.

The rules The Civil Procedure Rules (CPR) which govern Scottish court procedure is governed by a the English litigation process are a very number of different rules, with differing comprehensive set of rules and practice procedures in different courts and for different directions which were originally intended to be types of action. an easy guide for any end user. However amendments, and evolving case law have led to As part of the current process of reform, the the Rules becoming more detailed since first Scottish Civil Justice Council has established a introduced and a good working knowledge of Rules Rewrite Project with the aim of making the them is important for a party to decide how best court rules more accessible to all court users to use them to gain tactical advantage. through a process of consolidation, harmonisation and simplification.

Pre-action Pre-action behaviour is more regulated than in Pre-action behaviour is less regulated than behaviour Scotland. This can lead to the costs in cases in England. However there are pre-action being front loaded. You cannot get to court requirements in commercial actions whereby and then develop your case; you need to parties must set out the nature of the claim and prepare your evidence and set out your disclose documents and expert evidence that arguments clearly to your opponents before will be relied upon. There are also voluntary starting any case as the English system has a pre-action protocols in personal injury and ‘cards on the table’ approach. Failure to do so professional negligence claims. can lead to costs penalties.

3 | Litigating in Scotland and England Topic England Scotland

Service The service requirements are subtly different The service requirements are subtly different between the jurisdictions and so need to be between the jurisdictions and so need to be checked carefully. Service of a claim must be checked carefully. In Scotland you are more likely acknowledged by an acknowledgment of to use a third party service agent, who will service form. provide a certificate of service. The claim is defended by a notice of intention to defend (in the Sheriff Court) or by entering appearance (in the Court of Session).

What happens next?

Topic England Scotland

Timescales Timescales will vary depending on the size and Each case has a structure and framework of its value of a case and whether there are any issues own within the relevant rules of court. There are to be decided as a matter of urgency, for fast track processes available in personal injury example where an injunction is required. Courts actions. The rules both north and south of the have the power to actively manage cases and border allow for some administrative interaction some judges are determined to do so. Once with the court after service of the action to set proceedings are started and the pleadings have up the timetable for progress. been filed, the court will usually set a timetable to trial by giving directions. In the past these deadlines tended to shift as the case progressed. However since the Jackson reforms in April 2013, it is becoming harder to delay deadlines unless there is a compelling reason to do so. Parties can propose timescales but the judge has the power to set a different timetable if he thinks it appropriate and can impose cost penalties if dates are not complied with.

Case The court has wide powers to manage cases and Generally, the Scottish courts are less hands on and costs will step in to regulate the behaviour of parties, than in England. However, in commercial actions management especially where a party is behaving and in personal injury actions the courts have unreasonably or delaying the progress of a case. power to make wide ranging orders with a view This type of case management usually includes to actively managing the case to a resolution. imposing costs penalties for unreasonable conduct. There are Case Management The Courts Reform (S) Act was passed in Conferences (CMCs) which are procedural November 2014. Implementation is taking place hearings at which the court directs the progress on an incremental basis. When fully of the case. For all cases, costs management, implemented, the measures will see a shift through a court approved costs budget, will also towards greater judicial control over the pace be the focus of attention from early CMCs and conduct of litigation. onwards. The aim is to try to ensure certainty of expenditure and that cost is proportionate to the sums in dispute, but in practice can mean caps on costs recovery.

4 Topic England Scotland

Debate/ There is no direct equivalent to Debate. In A Debate in Scotland is a hearing which takes summary England the only way to achieve an early place after pleadings are finalised. It allows a judgment dismissal of the case would be to obtain party to attack its opponent’s case because the summary judgment against a party or to apply legal arguments or pleadings do not stand up to for strike out where there is no arguable claim/ scrutiny. This can be an effective tool to strike defence. An alternative might be to ask for a trial out all or part of a case without the requirement of a preliminary issue to resolve the case. to lead evidence.

Document Disclosure in England is comprehensive. It In Scotland, the production of documents is disclosure requires a thorough understanding of, and a usually a more limited process than in England. report on, the documents held by each party at Generally, parties are not required to disclose a an early stage. Parties usually require to hand document unless they intend to rely on it in over not just the documents they rely on but also litigation, although parties may be ordered to documents adverse to their case, or documents disclose certain documents in a commercial action. which support another party’s case. Parties need to persuade the court of the most appropriate The Scottish courts do have powers to allow a disclosure option from a menu of available party to recover documents from the other party disclosure routes. The disclosing party has to give and/or from any third party who holds relevant a statement confirming how it carried out its documents. The party wishing to recover search for relevant material and that it documents produces a list of the documents understands its duty of disclosure. they require, called a ‘specification of documents’ and applies to the court for an order for recovery Documents include all electronically created of these documents. Usually, after approval by material and the Rules require parties to discuss the court, the party holding the documents and agree, where possible, how production of makes them available without further procedure. relevant material will be given. The process is However, if the party seeking the documents is intended to be proportionate to the size and not satisfied that there has been full compliance, value of the case, but it is inevitably time a hearing (known as a commission) may be fixed. consuming and costly. As in England the disclosure of documents has the potential to be a time consuming and costly exercise. Early planning is the key to dealing with disclosure.

Witness In England written witness statements, setting Written witness statements are not used statements out factual evidence are prepared and automatically in Scotland. When preparing a exchanged before trial. These set out each case lawyers usually take precognitions party’s history of the case for the court in (statements for internal use only) to give an idea advance of trial. If there is a hearing the of what a witness will say in court. However, the statement serves as the evidence in chief. The use of witness statements in place of evidence in preparation of these statements is intensive and chief is becoming more prevalent in the often involves a great deal of interaction with Commercial Court. the legal team to capture sufficient detail.

5 | Litigating in Scotland and England Topic England Scotland

Expert The use of expert evidence in England is highly The use of expert evidence in Scotland is similar Evidence regulated, both by the CPR and a protocol issued to that in England, but tends to be less regulated by the Civil Justice Council. The expert must set by the court. out the scope of his instructions, usually by disclosing the letter of instruction sent to him by The Law Society of Scotland publishes a Code of his solicitors, so it is worth framing this carefully. Practice for Expert Witnesses. The expert’s primary responsibility is to assist the court and the report must set out their duty of independence and the scope of their expertise. Experts usually meet with their opponents to try to narrow issues in dispute before trial and may be asked to give evidence concurrently with their opponents in court (known as ‘hot-tubbing’). In smaller cases court appointed joint experts may be relied on.

Interim In England if you want judicial intervention from In Scotland, if you require judicial intervention requests to the court whilst a case is ongoing you make an whilst a case is ongoing you submit an application the court application to the court under the CPR. This is (called a motion) to the court. The court rules set done by issuing an application notice with a out how and when motions can be used and witness statement in support and a draft order how they are made known to the other party. setting out what the party wants. There is also a Matters can be considered by the court on paper fee payable to the court to cover the court time. (where uncontroversial) or at a hearing. If necessary the court will consider the application at a hearing but often it can be dealt with on paper. Litigation tools

Topic England Scotland

Interim When an emergency remedy is required When an emergency remedy is required interdict/ injunctions do a very similar job to interdicts. The interdicts do a very similar job to injunctions. injunction seeker of an injunction almost always has to give There is no direct equivalent to a freezing a formal undertaking that if its case is injunction, which is addressed instead by a subsequently proven to be wrong it will process known as diligence on the dependence compensate the injured party for its losses. (covered below).

Caveats There is no ability in England to set up a warning In Scotland it is possible to put an early warning system to identify if a case is being brought system, known as a caveat, in place. This means against you. In certain circumstances you can, that you will be notified by the court if someone however, instruct a writ search which may tries to sue you. identify if a claim has been brought against a party. It is a very useful system and is inexpensive to put in place. It is worth considering if you do business in Scotland.

Diligence There is no general right to diligence on the Diligence on the dependence is the name for on the dependence south of the border, although if protective measures which allow a pursuer to dependence there is a particularly strong case that someone preserve the defender’s assets, including money, is, for example making off with another party’s pending the outcome of a case, using tools assets, it may be possible to get a freezing order known as arrestments and inhibitions. The to freeze the money in the hands of the banks or pursuer must persuade the court that it has a others. prima facie case and that there is a justification for the diligence.

6 Resolving your dispute

Topic England Scotland

Settlement There are two principal types of settlement offer Scotland has a tender system which has Offers which are likely to be seen in the English courts; similarities to Part 36, although different rules Part 36 offers and Calderbank letters. Both have govern its operation. The aims and considerations a similarity to tenders in Scotland. Part 36 offers are the same but the ways of getting there are are a stand-alone process under the Rules. If an different and so worth taking advice on. A major offer is rejected and then not beaten at trial, it difference is that in Scotland there is no has automatic operational consequences in terms requirement to make a payment into court; the of costs, interest and, for defendants, a 10% tender is simply a written offer to settle the case penalty on case value (up to £75,000). Any offer for a certain amount, plus interest and costs to date. under Part 36 must, however, be wholly compliant with the Rules or the benefits are lost. Offers that fall outside Part 36, such as Calderbank letters, can still be taken into account on costs, albeit at the court’s discretion, and are more flexible in their scope. The aims and considerations for both routes are the same, but the format and rules are different and so worth taking advice on.

Proof / Trial - There is not much difference between the Preparation for a proof or trial is similar north Preparation preparation for a proof, known as a trial, north and south of the border. A significant amount of & Hearing and south of the border. A significant amount of work is likely to be required in both jurisdictions. work is likely to be required in both jurisdictions. When you get to court, however, there are some Once you appear in court, however, there are differences in relation to how things are some differences in the process. In England there managed. In Scotland the treatment of witnesses is almost no opportunity for witnesses to set out in court is different; witnesses may not listen to their account of events; their written statements other witnesses giving evidence so that they stand as evidence in chief and they face cannot be influenced by what is said. Historically immediate cross examination. The parties will witness statements have not been used, usually agree the order in which witnesses will although this is changing (see above under be cross examined. Witness can usually sit in Witness Statements), so witnesses must court and listen to the evidence of their participate in a full examination in chief to set opponents. Expert witnesses may be subject to out their position. hot-tubbing – answering questions concurrently with their opponents. All these measures are intended to save the court time and ultimately to save costs for the parties involved.

7 | Litigating in Scotland and England Topic England Scotland

Expenses / The process in England is more regulated than in In both jurisdictions it is possible to recover a Costs Scotland. In both jurisdictions it is possible to proportion of your legal spend if you are the recover a proportion of your legal spend if you successful party. In Scotland there is currently no are the successful party. Historically this has been equivalent of summary assessment. Costs, around a 66% recovery. Costs rules are currently known as expenses, usually continue to run until changing, however. In cases worth less than £10 the end of the case when a determination about million, each party must set out a detailed costs overall success will be made. The process of budget at an early stage and will not recover recovery of expenses is subject to less more than this unless it applies to court promptly management by the court than in England. on changes occurring and is granted an Conditional fee arrangements and litigation amendment. At the end of the case if a party is insurance are less common than in England. within budget this may mean a greater than historic recovery of the costs. In September 2013, Sheriff Principal Taylor published a detailed report, setting out 85 Where there is a one day hearing or less in recommendations for changing the expenses England, the judge can summarily assess landscape in Scotland. The proposed reforms aim expenses, known as costs, at that hearing and to increase access to justice by making the cost order them to be payable within 14 days. It may of litigation more predictable and increasing the be possible to recover additional costs where the level of recovery of expenses. losing party’s behaviour was unreasonable. Seeking costs orders against another party can Implementation is taking place on an be a useful tactical weapon. The courts are incremental basis and work is underway to increasingly interested in making parties manage establish what is required. Many their costs. recommendations could be implemented by changes to the court rules. The Scottish Civil There tends to be a greater focus on alternative Justice Council has establised a Costs and fee agreements in England than in Scotland. Funding Committee to deal with this. Since April 2013 parties have been able to enter into Damages Based Agreements (DBAs) which allow for fee recovery as a percentage of sums awarded by the court. As well as DBAs the courts still allow Conditional Fee Agreements (CFAs), where parties charge a reduced free up front, but then receive an uplifted fee on a successful outcome. Parties may also seek after the event (ATE) insurance to fund litigation. Now, however, success fees under CFAs and ATE premiums are no longer recoverable from opponents on success.

8 The result

Topic England Scotland

Appeal Time limits for appeal and notification to the Time limits for appeal and notification to the other side vary north and south of the border other side vary north and south of the border and so the rules must be checked carefully. and so the rules must be checked carefully.

Enforcement In both jurisdictions there are procedures for In both jurisdictions there are procedures for of your enforcing your award from the court against a enforcing your award from the court against a award debtor’s assets in the event that the debtor does debtor’s assets in the event that the debtor does not pay up. The steps taken will depend on the not pay up. The steps taken will depend on the assets available and whether they are within the assets available and whether they are within the jurisdiction. Although the majority of the jurisdiction. Although the majority of the procedures have a counterpart across the border, procedures have a counterpart across the border, the terminology used is quite different. the terminology is quite different. In Scotland, these procedures are collectively known as ‘diligence’ and include the ability to recover money, debts or moveable property which is in the hands of a third party (arrestment and attachment) and to prevent the debtor disposing of heritable property (inhibition).

9 | Litigating in Scotland and England Civil court structure - Scotland and England

Scotland England

The Supreme Court The Supreme Court

Court of Session Court of Appeal (Inner House)

Court of Session High Court (Outer House)

Sheriff Appeal Court (Appeal, with permission, to Inner House, Court of Session)

Sheriff Courts County Courts

This diagram sets out, in simplified format, the hierarchy of the courts in England and Scotland and their closest equivalent in each jurisdiction.

10 Glossary of Scottish legal terms

Litigation terminology is very different in the two jurisdictions. Once you have found the translation, however, the concepts are often interchangeable.

Absolvitor Conclusion

The judgment pronounced when a court assoilzies (i.e. The part of the summons that sets out what the pursuer finally finds in favour of) a defender. is seeking by way of a remedy. The equivalent in a Sheriff Court writ is the ‘crave’. Adjust Court of Session To alter the pleadings before the Record closes. The leave of the court is not required. The highest court in Scotland for civil matters.

Amend Crave

To alter the pleadings after the Record closes. To formally ask the court for something. Also, in the This requires the leave of the court. Sheriff Court the crave of the initial writ sets out what the Pursuer is seeking by way of a remedy. The Answer equivalent of the ‘crave’ in a Court of Session Summons is the ‘conclusion’. A written statement lodged with the court, usually in reply to a claim. Debate

Assoilzie This is where preliminary legal matters are argued – for example that all parties have not been called, there is no To absolve (decide finally in favour of a defender). title to sue or that the pursuer does not give fair notice of his case to the defender. Caution Decree Security for costs (pronounced to rhyme with ‘nation’). Judgment. Citation Defender Service of court documents on the defender or a The Scottish equivalent of defendant. witness. Delict Condescendence The Scottish equivalent of tort.

The part of a pursuer’s written pleadings which contains the statement of the facts on which he relies.

11 | Litigating in Scotland and England Dismissal Interdict

If the case is dismissed by the court, it can be re-raised, The Scottish equivalent of an injunction. subject to any issues in relation to time bar. Interlocutor Esto Decision of the court. Latin expression used in written pleadings where an alternative case is pled. Motion An application to the court in relation to an incidental Expenses matter, such as recovery of documents. The costs incurred by the pursuer and defender during litigation. Opinion A statement by a court or judge of the reasons for the Haver decision in a case.

A person who holds documents which he is required to produce as evidence in a litigation (pronounced Procedure Roll ‘havver’). The name given to a debate in the Court of Session.

Induciae Proof The period within which a person served with legal Trial. Where evidence is heard on the facts before documents must respond. questions of law are determined, there is said to be a proof before answer. Initial Writ

The document by which proceedings are initiated in the Pursuer Sheriff Court. The corresponding document in the Court Claimant. of Session is the Summons.

Inner House Quoad ultra

The appellate divisions of the Court of Session. Latin expression meaning ‘with regard to other matters’. A common expression used in pleadings is ‘quoad ultra denied’, meaning ‘everything else is denied’. Instance Sets out the parties to the action in the Summons or Initial Writ.

12 Reclaim Specification of Documents

To appeal. Document setting out documents required by either party to progress their case – for example, medical records, Record wages details, plans. The Specification must be approved by the court before it can be served on the Haver. A document comprising the claim and answers by the parties to an action. After the adjustment period is Solatium complete, it becomes the Closed Record. Prior to that it is known as the Open Record. Damages for physical or mental injury or injury to feelings.

Sheriff Summary Decree The judge in the Sheriff Court. If the defences do not disclose an actual defence, the pursuer can ask the Court to grant decree immediately. Sheriff Court Summons The local Court for a particular part of Scotland. The document that initiates proceedings in the Court of Sheriffdom Session. Called the ‘Initial Writ’ in the Sheriff Court. There are six Sheriffdoms in Scotland, each presided Tender over by a Sheriff Principal. Each Sheriffdom is divided into Sheriff Court districts, each of which has its own A written offer by the defender to the pursuer of a sum Sheriff Court. in settlement. If the pursuer rejects the tender and subsequently fails to be awarded more than the amount Sheriff Officer of the tender by the court after proof, he will have to pay the defender’s expenses from the date of the tender. Scottish equivalent of a bailiff.

Sist To suspend an action, usually to enable detailed investigations to be carried out. The action remains sisted until one party takes steps to recall the sist.

13 | Litigating in Scotland and England Contact us

If you have any questions please get in touch with your usual CMS contact or one of the following

Gemma Lampert Colin Hutton Partner Partner TT +44 (0)131 200 7548 TT +44 (0)131 200 7517 EE [email protected] EE [email protected]

Graeme MacLeod Alison Gow Partner Partner TT +44 (0)131 200 7686 TT +44 (0) 131 200 7503 EE [email protected] EE [email protected]

Harriet Munro Lindy Patterson QC Partner Partner TT +44 (0)131 200 7677 TT +44 (0)131 200 7936 EE [email protected] EE [email protected]

Mark Kirke Rob Wilson Partner Partner TT +44 (0)131 200 7468 TT +44 (0)20 7367 3682 EE [email protected] EE [email protected]

Valerie Allan Jan Burgess Partner Partner TT +44 (0)1224 26 7149 TT +44 (0)1224 26 7151 EE [email protected] EE [email protected]

Shona Frame Esther Duncan Partner Professional Support Lawyer TT +44 (0)141 304 6379 TT +44 (0)131 200 7506 EE [email protected] EE [email protected]

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