Commercial judges provide new guidance

Introduction

On 30 April 2018, a commercial court conference was held in Parliament House. It had been conceived at a meeting of the Consultative Committee on Commercial Actions the previous October. A good deal of hard work went into preparing for it. The speakers were the Lord President, an English commercial judge (Sir Robin Knowles CBE), the commercial judges, commercial practitioners, the in-house legal director of a bank, and an IT expert.

The first aim of the conference was to share experience and to try to identify best practice in commercial actions in relation to:

• the use and deployment of electronic documents in court;
• disclosure and recovery of electronic documents.

The second aim was to discuss whether there was a need in either of these areas for the court to issue further guidance.

The conference was very well attended, and there was useful and informed discussion. There was also a valuable feedback exercise afterwards. The whole process led the commercial judges to conclude that it would be helpful to issue guidance in a number of areas.

The new guidance

Recovery of documents in commercial actions

The general view of those who contributed to the conference and to the feedback exercise was that some guidance in relation to the recovery of electronic documents was desirable. Having reflected on that, and having consulted with the Consultative Committee on Commercial Actions, the commercial judges concluded that it was desirable for the guidance to be of a wider scope.

We were not attracted to the sort of lengthy and detailed provision contained in CPR Part 31 and the associated Practice Direction 31B in England & Wales. The Scots law and practice relating to the recovery of documents is very different from the English law and practice relating to discovery. For the most part we thought it better to set out general principles than to seek to make detailed provision. However, where appropriate, assistance has been drawn from the English approach.

The guidance is designed to assist in clarifying what the court expects from parties and havers. We think it is also likely to be useful for solicitors when advising clients of their responsibilities to the other parties and to the court.

The court expects all involved to adopt a co-operative, constructive and sensible approach (para 1). Recovery should be reasonable and proportionate having regard to the issues in the action which are truly contentious (para 2). Appropriate steps should be taken to ensure that relevant documents are preserved (paras 3 and 4). Requests for recovery should be no wider than is truly necessary (para 5). Discussions concerning the recovery of documents, appropriate search methods, and the scope of the search, should be commenced as early as possible. In the case of electronic documents the discussion should include the consideration of the use of technology, including whether data sampling, or keyword or other automated search methods ought to be used, and if so, the parameters of such searches (para 6).

At the preliminary hearing the court will expect to be advised of the discussions that have taken place and their outcome. In the event of a dispute as to the way forward, the court is likely to adjudicate upon the dispute at the preliminary hearing, or fix a further hearing where it can be determined (para 8). The guidance also explains what the court expects from havers (paras 7, 9 and 11), and it provides direction as to the form in which electronic documents should generally be made available (para 10).

Enforcement of adjudication awards

Conference feedback suggested that the court might to do more to facilitate the speedy enforcement of adjudication awards. Accordingly, this guidance aims to encourage the expeditious disposal of actions brought to enforce such awards.

In general, the court is likely to be favourably disposed towards reasonable proposals which may facilitate early determination of the dispute, as long as the defender’s legitimate interests are not unfairly prejudiced by them (para 2). Appropriate proposals might involve shortening the period of notice (rule 13.4(2)); fixing an early hearing for the determination of a summary decree motion; or fixing an early substantive hearing (either at the preliminary hearing or at a procedural hearing soon after the preliminary hearing). Where it is appropriate to do so the court will deliver an extempore judgment after a summary decree motion or after a substantive hearing; but if judgment is reserved the court will endeavour to issue its decision within 28 days (para 3).

Dispensing with certain of the court’s usual requirements

Discussion at the conference, and the later feedback, suggested that it would be useful if guidance clarified that some commercial actions may not merit full compliance with every aspect of the standard guidance in Commercial Actions: Guidance for Practitioners; and that certain aspects of standard procedural orders may not be necessary or appropriate, whether for cost or other reasons.

Where such a departure or dispensation is sought the issue should be brought before the court at a preliminary hearing, or in the note of proposals for further procedure lodged prior to the procedural hearing. In dealing with the matter, the court will have regard to the full circumstances, including whether disproportionate costs are likely to be incurred, or whether any technical or other difficulties exist.

Commercial Actions: Guidance for Practitioners

Finally, a revised and updated edition of Commercial Actions: Guidance for Practitioners has been prepared. It contains practical guidance on procedure and practice in commercial actions. It replaces the previous version issued on 27 March 2017.

All of the new guidance has effect from Monday 4 February 2019. The full text of is available on the Commercial Actions page of the Scottish Courts & Tribunals Service website.