David Armstrong, a Partner in our Dispute Resolution and Litigation team, considers the recent changes in Scottish litigation and the positive impact of the ongoing improvements.
Over the past year or so, we’ve seen a number of measures designed to modernise litigation in Scotland. Although some of these changes are still in the pipeline, taken together the effect of them could persuade parties, not necessarily in our jurisdiction, to contemplate litigating in Scotland. These changes might send strong signals to our colleagues and contacts south of the border, and also further afield, that Scotland is a credible litigation jurisdiction and an attractive place to resolve a dispute. Whilst some changes have focussed on personal injury litigation, other areas such as commercial litigation can also benefit from these improvements.
Costs and class/group actions
The changes envisaged by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, currently before the Scottish Justice Committee will potentially have far reaching consequences. The main proposals of the Bill will:
- allow solicitors to enter into Damages Based Agreements (DBAs), whereby they will not charge a fee if the claim fails but retain a percentage of the damages if it succeeds
- introduce Qualified One Way Costs Shifting (QOCS), meaning that unless there is fraud a claimant will not pay the defendant’s costs, even when the claim fails
- allow the raising of class and group actions.
The third proposal, in particular, is a major step in bringing Scotland into line with other jurisdictions. If the proposal goes through the Scottish Parliament (which it is expected to do), lawyers will be able to raise class or group actions, in a way that has not been possible in the past. The move perhaps signals a move by Scotland to promote itself as a forum of choice for multiple parties seeking the same redress against multinationals. It is recognition that it is about time our litigation system should be competitive and compatible with other modern jurisdictions.
Pursuers’ (claimants’) offers
Another notable example of change is the reintroduction of pursuers’ offers in the Court of Session and Sheriff Court Ordinary Cause procedure. This brings the Scottish system into line with England and Wales. It is designed to encourage the early settlement of cases. As the Lord President, Lord Carloway, pointed out,
The lodging of a well-pitched pursuer’s offer will … provide a strong inducement to settle.
Personal Injury Arbitration Initiative
The recent tireless work done by the Faculty of Advocates has led to the launch of a new personal injury arbitration service in August 2017. The primary objective of the service is to improve the ADR options available to pursuers and defenders, and to respond to demand for methods that offer greater speed, efficiency, economy and confidentiality than going to court. Arbitration is of course not restricted by the same geographical limitations as exist in most court-based litigation processes. So whilst we expect most referrals to the Arbitration Service to have a Scottish element to them, there doesn’t necessarily have to be one. This is a bold move by the Faculty. It is designed to be an alternative arena to the more traditional court approach and to recognise that many personal injury claims ought to be dealt with far more quickly than they currently are. Having a more open and user-friendly forum for both parties to discuss matters can only be a good development for the client as well as court practitioners.
Moving towards a digital system
It is great to see at last the adoption of technology, bringing Scottish litigation into line with the expectations of tech-savvy, twenty-first-century clients and practitioners.
One notable name (in the Scottish context) moving towards this better use of technology is the All-Scotland Sheriff Personal Injury Court (or “ASPIC”). A key element of ASPIC has been its embrace of digital technology. These changes are designed to drive the more efficient disposal of motions and streamline the processes for users of the system. The court has video screens to display evidence, and is shortly due to introduce a cloud-based system for uploading and downloading documents to an online workspace.
In Scotland’s Commercial Court too, digital technology is being used to improve the management of cases and reduce court time – driven by the need to catch up with English courts (or else risk seeing business head south). In a forum where cases can regularly involve thousands of productions, digital capability is a modern necessity. The Commercial Court now operates a system of properly encrypted USB sticks and access to documents in court at the click of a mouse.
The Scottish Courts and Tribunals Service’s plan to maximise the use of digital technology to improve services is driven by multiple factors. Firstly, the nature of cases litigated has changed. They involve more technical or forensic evidence, video evidence, or parties who are abroad, so that digital solutions are needed to gather, share or display evidence, or reduce delays and costs. Secondly, the expectations of clients, lawyers and even judges have changed – they see digital embedded in the other aspects of their personal, commercial and corporate lives and expect the justice system to incorporate it too.
Civil Online
However, not all progress towards a paperless and streamlined digital legal system has been smooth. Just over a year ago, in November 2016, we saw the introduction of the new Simple Procedure Rules, replacing the Summary Cause and Small Claims in the Sheriff Court (primarily for monetary disputes not exceeding £5,000), and promising quicker, jargon-free court actions with electronic court forms. The experience one year on has been mixed.
A headline feature of the new system was to be a web-based portal, called Civil Online, that would enable court actions to be raised, documents logged, fees paid and progress tracked online. The portal is not yet online. Originally due to be launched in late 2016, and then early 2017, the portal is now scheduled to go live in April 2018 – ready for the planned implementation of the Simple Procedure (Special Claims) Rules (for actions concerning multiplepoinding, furthcoming, aliment, Tenancy of Shops Act 1949, recovery of heritable property, personal injury and count, reckoning and payment).
Delays in the implementation of IT systems are an unwelcome fact of life so the tardy arrival of Civil Online is not unique. But ‘modernisation’ and streamlining are generally only as effective as their weakest link, whether that’s technical or administrative.
Commercial litigation – increasingly specialised
Commercial litigation has been at the forefront of moves by the Scottish Courts to embrace new technologies and modernise the approach to dispute resolution in Scotland.
The Commercial Court of the Court of Session has long encouraged parties to exchange evidence at an early stage, focus their disputes and consider alternative forms of dispute resolution. The introduction of Practice Note No. 1 of 2017 has brought a new emphasis on those objectives. In particular, the direction to ‘consider carefully and discuss whether all or some of the dispute may be amenable to some form of alternative dispute resolution’ cannot be treated as optional in the way that the previous came to be viewed.
The same Court requires affidavits or statements from witnesses to serve as their ‘evidence-in-chief’. Affidavits reduce court time, while enabling fuller assessments of respective positions and so increasing prospects for settlement. Significantly, affidavits have increased the level of specialism required of commercial litigation solicitors, with the critically important ‘evidence-in-chief’ being taken by solicitors, rather than solicitor-advocates or Counsel.
Commercial litigators are used to the challenges and benefits of a flexible court procedure, nimble enough to embrace opportunities and meet the needs of modern litigation practice. Practice Note No. 1 of 2017 is simply the latest step taken by the Commercial Court to ensure it ‘holds its own’ with the best of comparable jurisdictions.
A job well done, but not yet finished
There is very much to applaud in Scotland’s recent commitment to modernisation of its litigation systems. We appreciate the determination to draw level with and compete with other jurisdictions. The introduction of class and group actions and DBAs are good examples of such determination. We see an openness to measures that could cut delays and costs and expedite resolution. And we see an ambition to use technology to improve the processes and procedures around litigation and ultimately to provide a better service to the parties involved in the litigation.
However, there is no room for complacency. Law firms themselves will need to adapt and evolve, in order to interact successfully with a modern court system. They’ll need to invest in specialist skills, in case management systems and technology that can handle the processes of lodging multiple and complex documents, managing cases online, and keeping data secure.
Further, if we are serious about wanting to modernise and attract (or retain) heavy-hitting litigation or arbitration to Scotland, we will also need to position ourselves as a progressive jurisdiction which recognises the need not only to embrace digital technology, but to continue to invest in the future to meet the modern demands of business and consumers. Now is not the time to wait and see what happens; but rather we need to keep pushing the boundaries and looking for ways to further improve the litigation process for parties both in this country and way beyond its shores.
