While the wind of change continues to blow the cobwebs from the Scottish legal profession, the Commercial Court in the Court of Session is still perceived as floundering in its attempts to establish itself as a viable dispute resolution option for Scottish businesses.
In recent years, there has been a dramatic drop-off in the number of cases going to the Commercial Court. In 2006, the number of cases heard was half that in 2005. With commercial proceedings encompassing any action arising out of, or concerned with, any transaction or dispute of a commercial or business nature, it is clear that the potential of the Commercial Court is not being maximised.
Some things have changed in recent years, though. The rise in popularity of mediation as an alternative to resolving disputes continues, which, of course, has a knock-on effect on the number of claims being litigated, while the introduction of Solicitor Advocates has broken Counsel's monopoly in the Court of Session. The Faculty of Advocates itself is also going through its biggest shake-up in memory.
There nonetheless continues to be concern at the way in which the Commercial Court is working, and two important review projects are now well underway. Since September of last year, Lord Reed, the principal judge in the Commercial Court, has been conducting a review of the Court at the request of the Lord President. This review was prompted, in part, by the decrease in the number of actions being raised in that Court.
At the same time, the Lord Justice Clerk, Lord Gill, is conducting, at the request of the Scottish Government, a more wide-ranging review of the structures, jurisdiction, procedures and working methods of all the civil courts in Scotland, which is likely to take two years to complete.
Against this backdrop of scrutiny of the Scottish legal system, several key issues have been highlighted to and by Lord Reed. These include delays in issuing judgements in the Commercial Court, which in turn exacerbates concerns as to the consistency and effectiveness of case management by judges.
The original intention of the Commercial Court was that judges would adopt an interventionist approach, and the hope was this would lead to speedy resolution of cases. This advantage of the system is ultimately negated if companies are forced to wait months for a judgement.
The requirement to "front-load" cases, and carrying out extensive preparatory work with consequent costs before commencing proceedings, can also be frustrating for businesses. In particular the need in many cases to obtain and disclose an expert report before raising an action can prove problematic. Correlatively, the discrepancy between actual costs and recoverable expenses is increasingly significant.
A further challenge faced by the Commercial Court is the feeling it compares unfavourably with its equivalents in England, leading to a growing preference on the part of many commercial organisations to litigate south of the Border whenever possible.
Businesses with experience of the Scottish courts are clearly attracted to the pragmatic approach taken by our English counterparts. It is essential to the sustainability of commercial actions in Scotland to challenge this perception, by demonstrating the Commercial Court can provide a workable forum for dispute resolution.
The Scottish Government has stated its objectives in instructing Lord Gill's review are to ensure cases are dealt with in ways which are "proportionate to their monetary value and the importance and complexity of the issues raised" and offer value for money by "making sure civil justice services are efficient, meet reasonable public expectations, and promote early resolution of disputes".
Some may dismiss these as unachievable aspirations, but the reality is that, to most people in the commercial world, becoming involved in traditional court-based litigation is as popular as another rise in interest rates. That cannot continue.
And, for those of us who hesitate when asked what job we do because we know the response we usually get when we disclose that we are litigation lawyers, any change for the better will be very warmly welcomed.
Kenny Cumming is a partner specialising in litigation with UK law firm Shepherd and Wedderburn