Business Disputes & Litigation
Commercial disputes brought and defended in the Scottish courts, with a candid view of cost and recovery given at the outset.
Litigation in Scotland has an architecture of its own, and a business that assumes otherwise will prepare for the wrong thing. Actions are raised in the sheriff court or in the Court of Session, and the choice between them is not always free: where the total sought is £100,000 or less the sheriff court has exclusive competence, and the Court of Session is unavailable however much a party might prefer it.
Both courts operate a specialist commercial procedure with active judicial case management, which when used properly is faster and more disciplined than the ordinary route.
The vocabulary differs as well, and the differences are not merely cosmetic. The parties are the pursuer and the defender. Proceedings begin with a summons or an initial writ. The urgent remedy restraining a party from acting is an interdict, and where an English adviser would seek specific performance the Scottish remedy is specific implement. There is no County Court in Scotland, no Chancery Division and no High Court of England and Wales, and authority from those courts is persuasive at best.
Before an action is raised
Most commercial disputes should not become court actions, and that decision is taken early or not at all. We give a view at the outset on the merits, on what a proof would realistically cost, on how long it would take, and on whether the other party could actually pay. A decree against a company with no assets is of limited value.
Enforcement in Scotland is carried out by diligence, which includes arrestment of funds or goods in the hands of a third party, inhibition against heritable property, attachment, and earnings arrestment against an individual.
These are not the English enforcement mechanisms under different names, and which of them is worth using forms part of the advice.
Timing
Scots prescription is unforgiving. A contractual obligation can be extinguished altogether by the passage of time, and not merely become unenforceable, and the period is shorter than most businesses expect.
Where a claim is more than a couple of years old, that is the first thing we examine and the first thing you should ask about.
Acting for the defence
We defend as often as we pursue. The early questions are the same in either case: what is actually being alleged, what the contemporaneous paperwork shows, and whether this is a case to resist or to settle before the costs of it make settlement pointless.