Slides - Law Society of Scotland

ILG - Seminar 

Court Procedures, Rules & Tactics 

Jacqueline Harris, Partner 

14 March 2013

Introduction 

• Focus on court procedures used by commercial clients 

• Court of Session/Sheriff Court 

– Ordinary actions 

– Commercial actions 

• Consideration of the range of options as between:- 

– Court 

– Procedure 

– Tactical considerations

Choice of Forum 

• Range of options 

– Court of Session 

– Sheriff Court 

– Alternative Dispute Resolution 

• Mediation 

• Arbitration 

• Expert Determination


• Why choose Sheriff Court over Court of Session or Vice Versa 

• Because you have to:- 

• Statutory Limits 

– Court of Session - only available for causes exceeding £5000 

(s7 Sheriff Courts (Scotland) Act 1907) 

– Sheriff Court ordinary action – £5001 + 

– Summary cause - £3001 to £5000 (s35(1) Sheriff Courts 

(Scotland) Act 1971) 

– Small claims – up to £3000 (Small Claims (Scotland Order 1988) 

– All sums are exclusive of interest and expense 

• Exclusive Jurisdiction


• When to litigate in the Court of Session 

– Factors to Consider 

• Specialist courts and judges 

• Commercial procedure (not available in every 

Sheriff Court) 

• Availability of remedy e.g. positive interim orders 

• Employment of Counsel 

• Timing 

• Cost 

• Location 

• Client attitude


• When to litigate in the Sheriff Court 

– Factors to Consider 

• Location/Accessibility 

• Availability of the Commercial procedure 

(Glasgow, Aberdeen, Jedburgh, Selkirk, Duns and 

Peebles) 

• Rights of audience 

• Cost 

• Pressure of business – priority for crime 

• Lack of specialism 

• Identity/location of opponent

Which Procedure 

• Court of Session – what are the options 

• Number of different types of procedure including: 

– Ordinary 

– Commercial 

– Intellectual property 

– Personal Injury 

– Admiralty 

– Bankruptcy/insolvency 

• The Ordinary and Commercial procedures are the focus 

of this seminar.

Which Procedure 

• Sheriff Court 

– Ordinary 

– Commercial 

– Small Claims 

– Summary Cause 

– Summary Applications 

– Personal Injury 

– Bankruptcy/winding up procedures

Overview of Key Procedures: Court of 

Session Ordinary Action 

• Court of Session – Ordinary Procedure 

– Overview 

• No pre-action protocol 

• Commenced by Summons being signetted (RCS 13.5) 

• Service and Period of notice – 21 days/42 days (RCS 14.6) 

• Calling – within 1 year and a day after expiry of the period of 

notice (RCS 13.13) (BUT NB option of protestation for late 

calling) (RCS 13.14) 

• Enter appearance – 3 days from calling (RCS 17.1) 

• Defences – 7 days from calling (RCS 18.1) 

• Open Record – 14 days from date defences lodged (RCS 

22.1)

Overview of Key Procedures: Court of 

Session Ordinary Action 

• Adjustment – 8 weeks from the first Wednesday 3 days after 

Open Record is lodged (RCS 22.2) 

• Closed Record – occurs automatically on expiry of 

adjustment period. Copies must be lodged within 4 weeks 

(RCS 22.3) 

• Motion for further procedure (RCS 22.3(5)) 

• Options for further procedure (RCS 22.3(5)) 

– Procedure Roll (debate) 

– Preliminary proof on specified matters 

– Proof before Answer 

– Proof 

– Issues for jury trial 

• If the procedure is not agreed then the Court will hear the 

parties By Order (RCS 22.3(5)(b))

Court of Session Ordinary Procedure: Points 

to Note 

– Court of Session Ordinary Procedure : Points to note 

• No case management – limited judicial intervention 

• Requires at least one party to be driving process 

• Risk of procedural circles and black holes 

• Hearings are typically unallocated: risk of delay 

• No requirement for witness statements (but 

nothing preventing them being sought) 

• “Back-loaded” preparation 

• More difficult to expose weaknesses or accelerate 

settlement

Overview of Key Procedures : Commercial 

Action 

• Court of Session – Commercial Action 

– Rule 47 RCS 

– Practice Note 6 of 2004 

– The Commercial Court is receptive to actions being 

“commercial actions” 

– Overview 

• Letter before Action required (generally) 

• Allocated commercial judges 

• Early intervention and case management

Overview of Key Procedures: Commercial 

Action 

• Court of Session Commercial Action: 

– Overview of Procedure:- 

– Summons signetted (RCS 13.5) 

– Period of notice – 21 days/42 days (RCS 14.6) 

– Enter appearance – 3 days from calling (RCS 17.1) 

– Defences – 7 days from calling (RCS 18.1) 

– Preliminary Hearing (RCS 47.11) 

• Within 14 days of defences 

• Judge has wide discretion to make orders necessary for the 

speedy resolution of case 

• Requires a Statement of Issues to be lodged in advance and 

preferably in agreed form


Actions 

• Procedural Hearing (RCS 47.12) 

– Not less than 3 days prior to procedural hearing, 

lodge 

• Statement of proposals for further procedure 

• Witness list and witness summaries 

• Reports of skilled persons 

• Note of argument (if debate is sought) 

– Further procedure is a matter for the judge

Overview of Key Procedures: Commercial 

Actions 

• Further procedure 

– Greater flexibility and opportunity for innovation 

– Options 

• Debate 

• Proof Before Answer 

• Proof 

• Or a combination of these 

– Proof/Proof Before Answer is likely to involve 

• Witness statements rather than oral evidence in chief 

• Directions as to experts/expert reports 

• Document management


Actions 

• Court of Session Commercial Actions: Points to note 

– Will usually require a letter before action 

– Cases are managed and heard by dedicated judge 

– Significant judicial involvement 

– Difficult questions more likely to be posed at an earlier stage 

– Procedure is front loaded 

– More pragmatic in approach to proceedings 

– Opportunity to separate issues and have critical points 

determined first 

– No record unless ordered 

– Quicker than an Ordinary Action 

– Greater possibility for communication by email; more accessible

Court of Session: Choice of Procedure – 

Some tactical considerations 

• Court of Session Procedure:- 

• Tactical considerations 

– Commercial action typically appropriate if Pursuer wants to exert 

maximum pressure on the Defender and to obtain a speedy 

resolution; 

– More effective more quickly; 

– Costs typically the same overall BUT more front loading; 

– Costs involved in preparing witness statements should not be 

under estimated; 

– Requires more engagement and commitment by all parties. 

Does that suit you and your client 

– Ability to transfer to commercial roll and vice versa – when 

should you do so

Overview of Key Procedures: Sheriff Court 

Ordinary Action 

• Sheriff Court – Ordinary Action 

– Overview 

• Service of Initial Writ 

• Period of Notice – 21/42 days to lodge NID (9.1 

OCR) 

• Defences – 14 days (9.6 OCR) 

• Adjustment – up to 14 days before OH (9.8 OCR) 

• Note of Basis of Preliminary Pleas – 3 clear days 

prior to OH (22.1 OCR) 

• Open Record – no later than 2 days prior to OH 

(9.11 OCR)


Ordinary Action 

• Options Hearing – first suitable court day not 

sooner than 10 weeks after the expiry of period of 

notice (9.2 OCR) 

• Options 

– Continue Options Hearing 

– Additional procedure (Chapter 10 OCR) 

– Debate 

– Proof before answer 

– Proof

Sheriff Court Ordinary Procedure: Points to 

Note 

– Points to note 

• Options Hearing will usually be the first point at 

which the Sheriff will consider the papers 

• The Sheriff is obliged to “secure the expeditious 

progress of the cause” (9.12(2) OCR) 

• Whilst every Sheriff if different, most will NOT grant 

a continuation of the options hearing or debate as 

a matter of right 

• Practice Note for Options Hearings at Glasgow 

Sheriff Court


Commercial Actions 

• Sheriff Court – Commercial Action 

– Chapter 40 OCR 

– Sheriff Court at Glasgow, Aberdeen, Jedburgh, 

Selkirk, Duns and Peebles 

– Overview 

• Service of initial writ - period of notice of 21 days 

• Defences – 7 days 

• CMC – between 14 and 28 days after expiry of the 

period of notice 

• For Sheriff to determine procedure thereafter

Sheriff Court Commercial Action: Points to 

Note 

– Points to note 

• Designated commercial Sheriff will be allocated 

• Sheriff will actively manage case 

• No pre-action protocol BUT Sheriff will expect 

parties to explore and narrow issues in advance 

• Procedure is generally more flexible 

• Written pleadings may be less detailed 

• Front loaded – increase in initial costs

Sheriff Court Commercial Action: Points to 

Note 

• CMC’s are often conducted by telephone 

• CMC still a court hearing – don’t be fooled! 

• No statement of issues or note of further procedure 

as in Court of Session 

• Possible to email Sheriff in advance of CMC, 

copied to other side, with suggestions for agenda, 

further procedure 

• Generally quicker and more effective than ordinary 

actions

Sheriff Court Procedural Options: Tactical 

Considerations 

• Ordinary action v commercial action 

• Tactical considerations 

– Which cases/clients suit which procedure 

– Similar to those in Court of Session 

– Transfer an action to a commercial action (40.5) or 

vice versa (40.6) 

– Sheriff in a commercial action will expect progress. 

Orders will be issued with short deadlines for 

compliance.

Procedural Options – tactical 

considerations 

• A number of procedural options are not imposed by the 

relevant procedure but available to parties 

• Some examples:- 

– Summary Decree 

– Third Party Procedure 

– Interim orders/interim diligence/Court of Session Act 

– Recovery of Documents 

– Notice to Admit 

– Expenses and Tenders

Court Procedure and Tactical Considerations 

Some other points…. 

• Litigation approach 

– rules of conduct 

– does playing by the rules mean playing nicely 

– how do you deal with a difficult opponent 

• Questions & Answers 

• Thank You

Combining the experience, resources and international reach 

of McGrigors and Pinsent Masons 

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