The Gilson Gray Litigation & Dispute Resolution Team is at the cutting edge of dispute work in Scotland, as demonstrated by three of their recent significant cases. This is the first in a short series of blogs by Iain K Clark Solicitor Advocate, Partner and Head of Litigation and Dispute Resolution at Gilson Gray, which concerned the thorny issue of escalating costs – an issue key to the heart of any client.
We represented our clients in the Outer House of the Court of Session in an action against some of their family members for reduction of a will, which it was claimed was made in Pakistan and superseded an earlier Scottish will. We had expert evidence from a forensic document examiner of both wills that concluded the signatures on the Pakistani “will” were forgeries.
Getting to that conclusion was not easy. It involved a “Proof Before Answer” (when evidence is given in court before legal arguments) that ran for 16 days. Our team tackled unusual logistical issues, including arranging interpreters, assisting with visa arrangements and even taking evidence by a form of ‘live television link’ between witnesses in Pakistan and the court in Scotland
All of this took time. We and our clients were worried that the other side were causing delay and expense in an effort to stall the case and rack up cost for our clients. Following the withdrawal of Legal Aid for our opponents, we raised this with the Court, who agreed. In December last year we were able to secure a court order requiring the other side to pay £10,000 to the court, to be held as security (“consignation of funds” or caution”, to use the legal terms) for our clients’ costs. Then, in May this year, we secured a further order for payment of another £60,000.
The manner in which the case was conducted by our opponents, combined with the risk of them not paying, should they lose, were major factors in securing these orders. Without them, our clients faced the risk of a pyrrhic victory – where the Court found in their favour, but they still faced costs being run up by the other side. These court orders were extremely rare for two reasons: (1) it is very difficult usually to get an order of this type against a defender and (2) the value of the sums ordered.
In the end, the other side chose not to comply with this order, and we secured a judgment of reduction of the Pakistani will for our clients.
This case perfectly illustrates that, where a party has been unnecessarily running up legal expenses in court by their conduct and there is a material risk of non-recovery from them, steps can be taken to bring a case to conclusion. Obtaining such an order is a complex procedure involving technical arguments and an understanding of the subtleties of litigation – something in which Gilson Gray’s team excel.
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The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.