What is Litigation?

The majority of court actions take place in the Sheriff Courts, which deal with less complex and lower value claims. More complicated and higher value cases (over £100,000) are heard at the Court of Session in Edinburgh. The court system is adversarial, and the claimant (also known as the pursuer) must prove their case on the balance of probabilities.

Prescription and limitation periods

Prescription and limitation periods apply in slightly different ways to different types of claims. Generally, a person has between three and five years to bring a court action depending on the nature of the claim. For example, for a contract dispute, you must bring your claim within a five-year period, whereas personal injury claims must be brought within three years. If you are unsure about whether you still have a valid claim, please do not hesitate to get in touch.

Remedies and enforcement

The most common remedies in civil cases are a decree for payment or damages, or both. Specific performance (or implement), which compels a party to take a particular action, is also available as a primary remedy in Scotland.

There are a number of possible methods of enforcement that may be ordered by the courts in litigation cases:

• This is a common method in cases involving debt recovery, where funds held by, for example, a bank on behalf of the debtor, are frozen and then transferred to the party owed money.
• Money attachment. This procedure allows court officers to seize cash at the debtor’s business premises.
• Inhibition. This diligence prevents a debtor selling or mortgaging a property.
• Winding up petition. A winding-up order allows a creditor to petition for a company to be wound up with a claim on the assets of the company. This is similar to sequestration (bankruptcy) for individuals.

Litigation fees

Fees are not fixed by law. Costs are at the court’s discretion, based on the length and expense of the litigation and the conduct of the parties.

Civil litigation reform

The process of court reform in Scotland continues and 2018 should see the enactment of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, which aims to make civil justice more accessible and court costs more predictable.

Litigation and going to court is often unavoidable. It can, however, be resource consuming. ADR options include arbitration and mediation. ADR is an appropriate course of action where the parties wish their relationship to continue. Litigation is by its nature adversarial but by settling disputes by ADR, there is a good chance that parties can achieve a favourable outcome and the relationship can continue.

Mediation can be effective when parties are in deadlock with neither wishing to resort to the expense of the courts but where a settlement is in their best interests. Costs are usually split between the parties.

In arbitration, the neutral arbitrator decides on the admissibility and importance of the evidence and issues a binding decision. It is appropriate where the parties require a fast, efficient process.