CMS_LawTax_Negative_28-100.eps Litigating in Scotland and England The differences explained June 2016 Litigating in Scotland and England The differences explained CMS Cameron McKenna CMS Cameron McKenna CMS Cameron McKenna Cannon Place 2 College Square Saltire Court 78 Cannon Street Anchor Road 20 Castle Terrace London EC4N 6AF Bristol BS1 5UE Edinburgh EH1 2EN T +44 (0)20 7367 3000 T +44 (0)20 7 367 3000 T +44 (0)131 228 8000 F +44 (0)20 7367 2000 F +44 (0)20 7367 2000 F +44 (0)131 228 8888 CMS Cameron McKenna CMS Cameron McKenna 6 Queens Road 191 West George Street Aberdeen AB15 4ZT Glasgow G2 2LD T +44 (0)1224 62 2002 T +44 (0)141 222 2200 F +44 (0)1224 62 2066 F +44 (0)141 222 2201 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.