Civil Engineering Reference
In-Depth Information
he Court of Session
heordinaryprocedureoftheCourtofSessionisbroadlysimilartothatoftheSherif
Court.Oncethe21-dayperiodofnoticehasexpired,thepursuerintheactionrequires
formally to lodge the Summons with the Court of Session for calling. This is a proce-
dural step as opposed to a hearing of the case in court. Once the action calls, which
means it appears in the rolls of court, the timetable for the action starts running. The
party proposing to defend an action must enter appearance within three days of the
action calling. This involves attending at the court office and formally notifying them
that the action is being defended. The period for lodging defences is seven days from
the date of calling.
Once defences are lodged, the pursuer is required, within 14 days, to lodge an open
record, a document which comprises the summons and defences. Once this is lodged,
the court fixes a start date for the period of adjustment which then runs for eight
weeks. The adjustment period can be extended by the court, on application by one of
the parties to the action. At the end of the adjustment period, parties can opt to go to
Debate, known in the Court of Session as a procedure roll hearing, a proof or a proof
before answer.
heCommercialCourtoftheCourtofSessionhasasomewhatmorelexiblepro-
cedure.hereisnoautomaticrighttoadjustmentofpleadings.heprocedureand
progressinthecaseareunderthedirectcontrolofthecommercialjudgewhoisproac-
tive in his handling of the case. A case will normally be dealt with by the same judge
throughout. The case first calls in front of this judge for a preliminary hearing within
14 days of the expiry of the period for lodging of defences. Thereafter, there will fol-
low a series of hearings designed around the requirements of the case. A proof, proof
before answer, debate or some alternative procedure may follow. Incidental applica-
tions are made by written motion.
It is important to be aware of the Court of Session Practice Note No. 6 of 2004
regarding commercial actions, introduced in November 2004. This includes direc-
tions as to the pre-action stage. It sets out the aim of having the matters in dispute
discussed and focused in pre-action correspondence between the solicitors for both
parties. It is stated in the Practice Note that the commercial action procedure works
best where issues have been investigated and ventilated before the action is raised.
The Practice Note directs that the pursuer should fully set out, in correspondence to
the defender, the nature of the claim and the factual and legal background on which
it proceeds, supply all documents relied upon and disclose any expert's report com-
missioned, prior to raising a commercial action. The defender is expected to provide
a considered and reasoned reply and to disclose any document or expert report on
which they rely. It is suggested by the Practice Note that parties may wish to consider
whether all or some of the dispute may be amenable to some form of alternative dis-
pute resolution. A failure to comply with the Practice Note may result in awards of
expenses against the non-compliant party.
The Practice Direction reflects a stated desire to reserve the Commercial Court for
cases in which there is a real dispute between the parties which requires to be resolved
by judicial decision rather than by other means, and to enable an early ventilation of
