Scotland has its own civil justice system, which differs significantly from that in England and Wales both in terms of process and terminology. It is important for businesses which operate in Scotland, particularly those based in England, to recognise that there are differences between the two systems and understand what they are and how they might impact on any dispute which arises in Scotland.
Here are ten of the most important differences between the two systems:
1. The Courts
Scotland has a different court structure to England and Wales. The Court of Session in Edinburgh is equivalent to England’s High Court and the sheriff courts are equivalent to the county courts. The sheriff courts have exclusive jurisdiction in claims up to £100,000. Claims over £100,000 can be litigated in either the sheriff court or the Court of Session. Cost, judicial expertise, accessibility, the availability of a fast-track commercial procedure and the desire to employ counsel are all factors which are relevant to a litigant’s decision which court to sue in. Appeals from the sheriff court are to the Sheriff Appeal Court and appeals from the Court of Session are to the Inner House, firstly, and then the UK Supreme Court.
2. The Rules
The Civil Procedure Rules do not apply in Scotland. The sheriff court and the Court of Session have their own rules which vary according to the nature and value of the claim. In the sheriff court the ‘small claims’ or ‘summary cause’ rules apply to claims under £5,000 and the ‘ordinary cause’ rules apply to claims over £5,000. In the Court of Session the default procedure is the ‘ordinary action procedure’. There are also specialist procedures for commercial, intellectual property and personal injury cases.
The limitation period for standard breach of contract and delictual (i.e. tortious) claims is five years in Scotland, not six as it is in England and Wales. However, as in England and Wales, the limitation period for personal injury claims is three years.
4. Pre-action conduct
In England and Wales parties must comply with pre-action protocols or practice directions before issuing a claim. This is not generally required in Scotland except in relation to professional negligence and personal injury actions, where voluntary pre-action protocols operate. However certain pre-action conduct is necessary before a commercial action in the Court of Session. A commercial action is a dispute of a commercial or business nature which has been commenced using the Court’s fast-track commercial action procedure. In commercial actions, parties are required to have pre-action communications with each other and substantially set out their respective positions in advance of raising proceedings. This might include disclosing documents or even expert reports. Parties are also encouraged to consider ADR as a method of dispute resolution. Non-compliance with these rules can have adverse costs consequences for those in breach.
5. Issue Fees
Commencing a legal action in Scotland is less expensive than it is England. The court fee for issuing proceedings in England can be up to £10,000, depending on the value of the claim. In Scotland the issue fee is set at a flat rate of £94 in the sheriff court and £210 in the Court of Session. These fees are reviewed annually.
There is no obligatory disclosure of documents in court proceedings in Scotland. Litigants need only disclose documents that they seek to rely on to prove their case. Parties seeking further documents during a court case must apply to the court for a disclosure order specifying the document or category of documents that they require. The order will only be granted if the documents specified are relevant to the case. Fishing trips for evidence are not permitted. The practical effect of Scottish procedure is that the parties may not automatically see all documentation relevant to a litigation, which may impact on settlement prospects. However the disclosure process is also generally less burdensome than it is in England and Wales, which can bring about cost savings.
Witness statements are called ‘precognitions’ in Scotland. Precognitions are taken to enable parties to evaluate the evidence a witness will likely give at court. Unlike in England and Wales, precognitions are not generally admissible as evidence in Scotland and they are not disclosed or exchanged between parties. Furthermore witnesses are not legally required to comply with a request for precognition. The only formal requirement in Scotland is for witnesses to be identified in a “list of witnesses” which must usually be lodged at court, and intimated between parties, no later than 28 days before a proof (i.e. a civil trial) in the Court of Session, or 28 days after the proof is fixed in the sheriff court. In practice these factors can mean that the evidence likely to come out in court in Scotland is less easy to predict than it is in England and Wales.
In Scotland experts do not have to be authorised by the court. It is a matter for each party whether they decide to instruct an expert and also whether to lodge and rely on the expert’s report at court. Joint experts are also very rare in Scotland. It is much more common for each party to instruct their own expert, and if the experts disagree for the judge to decide which expert is more persuasive.
Substantive hearings are different in Scotland. Civil trials are called “proofs”. A proof is a hearing of the evidence in a case. A proof is appropriate where there is a factual dispute between the parties. A “debate” (referred to as a “procedure roll’ hearing in the Court of Session) is a hearing on legal arguments. A debate is appropriate where a preliminary legal issue, such as relevancy or jurisdiction, needs to be resolved before any factual dispute can considered. No witness evidence is led at a debate. A “proof before answer” is a hearing on both factual and legal issues. A proof before answer is appropriate where the court needs to hear the evidence before addressing the legal issue. Finally, a jury trial is available to pursuers in personal injury cases in the Court of Session or the new Sheriff Personal Injury Court in Edinburgh. With the exception of a jury trial all substantive hearings are heard by a single judge in Scotland sitting alone. In terms of representation solicitors can represent clients at all hearings in the sheriff court, however advocates or solicitor-advocates must appear in the Court of Session. An English qualified barrister does not have rights of audience in Scotland.
Litigation costs tend to be lower in Scotland as a result of lower court fees and solicitor costs. As in England and Wales the unsuccessful party usually pays the winner’s legal costs. However in Scotland costs awards are determined by reference to a standard scale. This usually allows a successful party to recover 50% to 60% of their actual costs. The Scottish system is currently under review and the Scottish Civil Justice Council is expected to publish proposals for reform in the near future.