Douglas Millar: Modernisation is key to creating opportunities

Over the past year or so, measures designed to modernise litigation in Scotland have been introduced. The effect of the changes could persuade parties that Scotland is a credible litigation jurisdiction and an attractive place to resolve a dispute, both personal and commercial. The changes envisaged by the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, currently before the Scottish Justice Committee, could have far-reaching consequences. The main proposals will:
Douglas Millar is Partner and Head of Dispute Resolution and Litigation at LindsaysDouglas Millar is Partner and Head of Dispute Resolution and Litigation at Lindsays
Douglas Millar is Partner and Head of Dispute Resolution and Litigation at Lindsays

l Allow solicitors to enter into Damages Based Agreements (DBAs), not charging a fee if the claim fails but retaining a percentage of the damages if it succeeds.

l Introduce Qualified One Way Costs Shifting (QOCS), a claimant won’t pay the defendant’s costs (unless there is a fraud) even when the claim fails.

l Allow the raising of class and group actions.

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The third proposal, in particular, helps bring Scotland into line with other jurisdictions, positioning it as a forum of choice for multiple parties seeking the same redress against multinationals.

Recent work by the Faculty of Advocates led to the launch of a new personal injury arbitration service in August 2017. The aim is to improve ADR options available, and to respond to demand for methods offering greater speed, efficiency, economy and confidentiality than going to court. This is a bold move which is good for both clients and court practitioners.

The introduction of the All-Scotland Sheriff Personal Injury Court (or “ASPIC”) embraces digital technology to drive the more efficient disposal of motions and streamline the processes. The court has video screens to display evidence, and is introducing a cloud-based system for managing documents online. In Scotland’s Commercial Court too, digital technology is improving the management of cases and reducing court time by operating a system of encrypted USB sticks and access to documents in court at a mouse click.

However, not all progress towards a paperless, streamlined digital legal system has been smooth. In November 2016, the new Simple Procedure Rules were introduced, 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, mostly due to IT delays.

Civil Online is to be a web-based portal, enabling court actions to be raised, documents logged, fees paid and progress tracked online. However, the portal is not yet online but is now scheduled to go live in April – ready for the planned implementation of the Simple Procedure (Special Claims) Rules.

Commercial litigation has been at the forefront of moves by the Scottish Courts to embrace new technologies and modernise the approach to dispute resolution. 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.

The same Court requires affidavits (“evidence-in-chief” statements from witnesses) to reduce court time, while enabling fuller assessments of respective positions and increasing prospects for settlement. Significantly, affidavits have increased the level of specialism required of commercial litigation solicitors, with the “evidence-in-chief” being taken by solicitors, rather than solicitor-advocates or Counsel.

There is much to applaud in Scotland’s recent commitment to modernise its litigation systems. However, there is no room for complacency and law firms will need to adapt and evolve to interact successfully with a modern court system.

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Further, if we are serious about wanting to modernise and attract (or retain) litigation or arbitration to Scotland, we will also need to position ourselves as a progressive jurisdiction. We must recognise the need to continue to invest in the future to meet the modern demands of business and consumers and look for ways to further improve the litigation process for parties both in this country and beyond.

Douglas Millar is Partner and Head of Dispute Resolution and Litigation at Lindsays