Welcome to our Handling Disputes in Scotland series, where we provide a high-level overview of Scottish civil procedure.
This series has been designed with a wide range of viewers in mind: from solicitors practicing in England and Scotland, firm or in-house, who want to further their understanding of Scottish litigation and the Scottish court system, to individuals and those in business who might have a dispute and need to understand more about the processes and possible enforcement.
Listen to members of our expert disputes team below and gain insightful knowledge that will help you navigate disputes in Scotland.
1. Introduction
This introductory video sets the scene for our Handling Disputes in Scotland series. In this series, our legal experts will provide an overview of Scottish court procedure and the Scottish legal system.
2. The Scottish court system
In this video, Gina Johnston and Thomas McFarlane provide an overview of the civil courts and tribunal system in Scotland, and consider which court or tribunal might hear your dispute.
3. The progress of a court action
Gina Johnston and Thomas McFarlane provide a high-level overview of the progress of a typical court action in Scotland, from pre-action correspondence to final disposal.
4. Pleadings
Ross Simpson explains and explores the essentials of drafting “pleadings”. He covers key principles such as relevancy and specification.
5. Witness evidence
Learn about witness evidence in Scottish courts from Alec Fair, including oral testimonies, witness statements, precognitions, and taking evidence on commission when parties can't attend court.
6. Expert evidence
The use of expert evidence or evidence of skilled witnesses is often relied upon in court cases in Scotland. Ross Simpson explains the processes and procedures involved when leading expert evidence.
7.1 Disclosure and recovery of evidence – Part 1
Alec Fair explores the general position in relation to disclosure of evidence in Scottish court proceedings and how documents might be recovered by parties considering litigation, including those obtained via “dawn raids”.
7.2 Disclosure and recovery of evidence – Part 2
Alec Fair discusses how documents might be recovered by parties during the course of an active court case in Scotland and the challenges that arise when seeking to recover documentation not held in Scotland.
8. Settling disputes
In Scotland, most disputes settle before they reach court. In this video, Gina Johnston and Thomas McFarlane explain how disputes might be resolved and the steps that can be taken to convince a party to settle a dispute, including the impact of Minutes of Tender and Pursuer’s Offers on the expenses payable.
9. Caveats
Caveats are unique to Scotland and are often referred to as an early warning system in relation to court proceedings. Thomas McFarlane explains everything you need to know about caveats, including running through a case study that highlights why it is prudent, particularly for businesses, to have them in place.
10. Litigation funding
Litigation can be expensive, so regardless of whether you are the defender or the pursuer, it is important to consider how your case will be funded. Thomas McFarlane looks at a range of litigation funding options available in Scotland.
11. Recovery of expenses
If successful in litigation, you should be able to recover some of your expenses from the opposing party. Gina Johnston and Thomas McFarlane explain recoverability of legal fees and disbursements, and how to obtain payment from the opposing party.
12. Security for costs
The courts in Scotland can order a party to put up security for the costs of a court action. Gina Johnston explains when this might be ordered by a court, considerations, and consequences of failure.
13. Appeals
If you have been unsuccessful in your litigation, you may wish to appeal the decision. Ross Simpson explains the procedure for appealing a decision of the Sheriff Court or Court of Session.
14. Remedies
There are a number of remedies that can be granted by the Scottish courts. Ross Simpson provides a run-down of five of the most commonly encountered remedies: payment or damages; declarator; reduction; interdict; and specific implement.
15. Diligence and enforcement methods
The technical name for enforcing judgments in Scotland is “diligence”. Alec Fair and Gina Johnston provide a high-level overview of some of the most commonly used diligences, or enforcement methods, in Scotland.
16. Diligence on the dependence
In Scotland, if a pursuer is concerned that a debtor will seek to avoid payment by disposing assets or concealing assets before a court action is determined, they may seek “diligence on dependence” of an action. Gina Johnston explains what this means and when this might be granted by a court.
17. Prescription
Prescription and limitation, otherwise known as “time bar”, are pivotally important to practitioners and clients in every jurisdiction as they may impact the prospects of a successful claim. Gina Johnston and Thomas McFarlane consider the applicable and complex rules in Scotland.
18. Privilege and confidentiality
Alec Fair and Ross Simpson explore the two different types of legal privilege that exist in Scotland: legal advice privilege and litigation privilege. Both impact the confidentiality of documents sought to be relied on in court.
19. Without prejudice
You may have seen the phrase “without prejudice” across a range of legal documents, but what is this wording seeking to achieve? Thomas McFarlane explains the term, why it is used, and when it might not operate as intended.
20. Cross border assistance
Where court proceedings have commenced in a foreign jurisdiction but might involve assets held in Scotland, the Court of Session has discretionary powers to make certain interim orders to safeguard those assets. Gina Johnston considers when orders might be granted and why they are important.
