Choosing jurisdiction for litigation: Scotland/England differences

Litigation is arguably a matter of choice – although not everyone always sees it that way. The jurisdiction in which you litigate can be also a matter of choice. So, when deciding whether to litigate north or south of the border, it is useful to know some of the key differences.

Civil litigation in Scotland takes place in the Court of Session in Edinburgh (Scotland’s equivalent to the High Court) or in one of the Sheriff Courts located in the major towns and cities throughout Scotland.

As well as differences that are specific to particular courts or types of action, there are some fundamental differences that apply to all Scottish courts when comparing Scottish civil procedure with the Civil Procedure Rules in England and Wales.

One of the key characteristics of the Woolf reforms is the requirement for active management by the court, to give effect to the overriding objective of dealing with cases justly. The overriding objective has no counterpart in Scotland so, as a general rule, judges in Scotland are less interventionist than they are in England.

However, it is a requirement in the Scottish commercial court that the same judge hears all stages of an action whenever possible and takes a proactive approach. Although proactivity is not mentioned, the Sheriff Court rules also require the Sheriff to ‘secure the expeditious progress of the cause’; and a similar rule applies in the commercial court of the Court of Session.

Until 29 November 2004, Scotland had no equivalent to the pre-action protocol. Advance notice might be given of litigation but there was no need for claimants (or pursuers, as they are called in Scotland) to set out the factual and legal basis for their claim.

Now, before an action is brought in the commercial court of the Court of Session, matters in dispute must be ‘discussed and focussed in pre-litigation communications between the prospective parties’ legal advisers’. Failure to do so may result in an order for expenses being made at a later stage against the party responsible should a continued preliminary hearing (the first hearing in the action) be needed as a result.

Witness statements, as we know them in England, do not exist in Scotland. Instead, warts and all proofs of evidence are normally given by each witness in advance but not shared with the other side or the court. Oral evidence is normally given by each witness at trial.

The commercial court procedure in Scotland (which has now been replicated in Glasgow and Aberdeen Sheriff Courts) allows witness statements but in practice they are not used. Instead, précis of limited value tend to be created summarising the issues the witness will speak to rather than their actual evidence.

While this system avoids the sizeable costs and delay normally associated with the preparation of witness statements, the disadvantage is that there is greater scope for ambush in the witness box.

Disclosure does not exist in Scotland. If a party wishes to obtain evidence in Scotland, it must first apply to the court by motion for an order for ‘commission and diligence’. Evidence can be obtained from another party to the action or from a third party.

The party making the application must produce a ‘Specification of Documents’ with numbered paragraphs (or calls) listing the documents, property or information it is seeking to obtain. The calls should relate to the issues of fact that have been pleaded in the action to which the documents are supposed to relate.

The advantages and disadvantages of the chosen approach are perhaps obvious. Disclosure tends to increase costs and delay whereas commission and diligence only works for types of document which are known to exist. There is, therefore, little chance of stumbling upon something helpful.

Scotland, like England, is modernising its procedure. Unlike England, however, modernisation is happening piecemeal. This means that a gap is growing between the way in which the majority of actions are handled in Scotland and the way in which the Scottish commercial court deals with matters. When this gap will be closed is anyone’s guess.