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Using Commercial Court for business disputes

Using Commercial Court for business disputes

In an increasingly litigious society it is important to reflect on all of the options available when considering a court action in relation to business disputes. With the Court of Session becoming significantly busier, the Commercial Court offers a swift and robust procedure in which to raise actions. However, individuals and organisations are not making best use of this alternative court, largely through misunderstanding its use and appreciation that they can in fact use it!

The key features of the commercial court's procedures are set out below and are intended to increase general awareness.

What actions are commercial actions?

A party wishing to raise a commercial action in the Court of Session can do so provided the action 'arises out of, or is concerned with, any transaction/dispute of a commercial or business nature'. This wide definition provides for a variety of cases being raised as commercial actions and when raising an action a party should always consider whether the action can be raised as a commercial action.

Pre-Action Requirements

Prior to raising a commercial action a course of pre-action communication must be undertaken. A practice note setting out these requirements can be found here. Adopting pre-action communication assists in narrowing the issues at dispute between parties and opens up dialogue between parties which would ordinarily not have happened until a much later stage in proceedings.

Preliminary & Procedural Hearings

Once a commercial action is raised it is allocated to a specific commercial Judge who will preside over the action until its conclusion. This Judge will take a 'hands on' approach as a result, and effectively case manages the action to its conclusion. At preliminary and procedural hearings the Judge takes an active role in the discussions with the effect that they can assist in narrowing the issues in dispute and can help in achieving early settlement of the case.

21st Century Communication

Commercial procedures are designed to deal with actions in an efficient and expeditious manner, with flexible court rules allowing the Judge to vary practice and procedure to suit the particular circumstances of an action. Additionally, there is a growing trend to conduct procedural aspects of a commercial action through email. This allows a quick resolution to procedural hiccups and identification of the appropriate procedural steps.

Should you wish further advice regarding using the commercial court for business disputes, please contact our court team.

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Written by : Alastair McKendrick