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Sheriff commercial procedure: count 10

19 June 17

Is the sheriff court commercial procedure being used for as many actions as it could? A sheriff suggests 10 advantages to solicitors yet to adopt it

by Nigel Ross

To get straight to the point:

1 Speed – early court diets

Commercial procedure (OCR Chapter 40, “Commercial actions”) operates in Glasgow, Edinburgh, Aberdeen, Inverness, the Borders and Tayside Sheriff Courts. These courts make provision for dedicated hearing dates for proofs and debates in commercial actions, and (subject to any specialties of individual cases) will aim to fix diets as early as possible. Not all commercial actions are suitable for early hearings, but actions should benefit from early allocation for future diets.

2 Consistency – allocation of sheriff

A single sheriff will be allocated to each action, so will carry familiarity with the case, and its preparations, into every case management conference. The sheriff will have an understanding of the progress of the case and will take the opportunity at the CMC to discuss with parties’ agents how progress can be maintained towards a final hearing. Parties will be able to discuss each stage of the case with the sheriff and will have a clear understanding of how the case is developing. They will be able to rely on a consistent approach by the bench, and to prepare accordingly.

3 Convenience – telephone and email procedure

Unlike Court of Session procedure, case management conferences are normally carried out by telephone. A court hearing will only be fixed where a CMC involves matters of particular length or complexity, for example a long motion for summary decree. Telephone procedure means that CMCs can be fixed at short notice, according to parties’ availability, and serves to reduce or eliminate unproductive travelling time.

At the discretion of the sheriff, parties will be able to email the sheriff direct to ask for a decision, for directions, or to deal with non-clerical matters. This might cover matters such as requests for extension of time, for orders for commission and diligence, for directions as to meetings between experts, to set a timetable for works or exchange of expert reports, and similar incidental orders. All emails are copied to all parties.

As the aim is proactive case development, commercial procedure is often of limited utility where party litigants are involved, as it is unfair to impose these expectations on a lay litigant, and it is unlikely that telephone procedure will be used.

4 Speed – an early end to the pleading phase

Once defences are lodged, the court allocates a CMC as the first step, rather than the traditional automatic adjustment period. There is no open record. At the first CMC the parties’ agents and the sheriff discuss and identify the most efficient way forward, and will develop a schedule and timescale within which preparation and pleading can be brought to a conclusion. Recovery of documents can, if appropriate, be ordered without the need for full pleading. There may be no need for a closed record. The sheriff will discuss with parties what and how much further preparation is required, and fix further procedure accordingly.

5 Efficiency

Each CMC will involve a focus on the central issues in dispute which require judicial decision, in order to minimise unnecessary procedure and to ensure that court diets are used to best effect. The sheriff will discuss with parties what preparations they intend, the best procedure for progressing the case, and what the parties should attempt to discuss privately to narrow the issues for determination. The sheriff will be proactive in considering the use of litigation tools such as notes of issues (to identify factual disputes), notes of argument (for legal points), notes of further procedure, joint minutes, Scott schedules, commission and diligence for recovery of documents, exchange of reports or other documents, lodging of productions, motions for summary or interim decree, and preliminary proofs. Early meeting of experts may be ordained.

6 No financial limit, and jurisdiction for interdicts

There is no upper limit in the sheriff court. Many multi-million pound actions have been successfully litigated in the sheriff court. At the lower end, unless the sum awarded is below £5,000, there is limited risk of expenses being restricted. Every sheriff now has the power to grant interdicts and other orders which have effect in relation to conduct at places outside the sheriffdom (Courts Reform (Scotland) Act 2014, ss 84 and 86).

7 Cost

Practitioners might compare the table of fees for the Court of Session (SI 1997/688, as amended) with sheriff court fees (SSI 2015/264). For example, the total fee payable for a four-day diet of proof in the former is £7,056 for two-party cases, rising by 50% for each additional party. The fee for a four-day diet of proof in the sheriff court is £908. Similar savings apply to applications, incidental hearings and lodging documents.

8 Expertise

Sheriffs are allocated to commercial procedure by their sheriff principal, and this is commonly on the basis of relevant professional experience and background. Every sheriff has accrued, prior to appointment, many years of practical knowledge in running litigation. The sheriff will readily understand the requirements for speedy and efficient litigation, and will aim to promote (where appropriate) speed, cost saving and certainty, and to address at an early stage dilatory or inadequate defences.

9 Certainty – priority of hearing

Commercial causes are specifically allocated to court diets to suit parties, as far as the court timetable permits, and at an early stage. On the day of the allocated proof, debate or other diet, there is an expectation that the case will (save in exceptional circumstances) proceed on that date, and will not be deferred. It is therefore highly likely that the proof or debate will proceed on the allocated date.

10 Early result

While timescales for a final judgment will vary according to sheriffdom, pressure of business and complexity, sheriffs will aim at a timescale for production of a written judgment which allows parties to benefit from an early decision.

These are the principal reasons to use commercial procedure in the sheriff court. Practitioners might consider them, for actions which qualify as commercial actions (a wide category – see OCR, rule 40.1) when assessing what pre-litigation advice to tender to clients.

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