The Commercial Court of the Court of Session - A Practitioner's View

I had the pleasure of being one of three Advocates appearing before Lord Bannatyne at his very first Commercial Preliminary Hearing last week, Friday 6 January 2017.  His return to having all advocates sit round the table for an initial chat with him about the case gave me cause to reminisce.

The Court of Session is the most senior Court in Scotland.  It has both first instance and appellant jurisdiction so can hear cases for the first time or hear appeals from lower courts.  The Commercial Court in effectively a specialist group of Judges within that who deal with specifically Commercial matters within the Court of Session.  What that means for lawyers is that we have within Scotland a robust hierarchy of Courts within which actions can be contested.  It is possible to appeal from the Court of Session to the Supreme Court in London, although many commentators raise concerns that even after one possibly two appeals from within Scotland’s Courts on potentially significant matters of Scot’s law, the Judges who could end up making the ultimate decision may themselves not have been Scottish practitioners.

My own experience of the Commercial Court in the Court of Session is very positive.  As a Solicitor Advocate I am able to appear in the Court of Session, where non-Solicitor Advocates require to instruct separate representation from those who have what is known as “Rights of Audience”.  What that means for our clients is that I am able to take a case from start to end running the matter including the Hearings myself without the need for the involvement of an external third party.  There are cases where external input is useful however, each case is assessed on its own merits

Going back to the Commercial Court, Lord Bannatyne is a very experienced Judge having formerly been a Commercial Sheriff within Glasgow.  That gives him the sort of commerciality that is envied across the world in other jurisdictions.  It also means that Hearings like the one last week are conducted on a round table discussion basis, without the need for wigs and gowns, and very much on a cutting to the chase basis, without the need for protracted communications either in advance or after.  Nobody was left in any doubts about where his Lordship wanted the case to progress after the hearing!

That is only half of the story of course.  The efforts that go in to making such Hearings appear very simple are significant.  If sensible Advocates and Solicitor Advocates are involved and are able to take a reasoned approach to their case, there is a huge amount of progress towards a resolution that can be made out with the confines of a Court Hearing.  Our clients were pleased to find out that was the case with the three Advocates who were in court last week.

So in short, I am very proud of our Courts in Scotland and am honoured to be a part of that process.  The Commercial Court before which I have the benefit of appearing in and dealing with on a regular basis is a particular source of pride, particularly when I still see commentators in other jurisdictions envious of our system.  But as with any Court structure, the case itself is only ever as good as the agents you are instructing.  Getting good advice early is a mantra I have been taught and in turn have used throughout my career.  That is particularly true when it comes to Commercial actions within the Court of Session.  The individual Judge nominated has the ability to “cut to the case” and that can involve getting rid of spurious or unsupported allegations that affect Court proceedings.  There is a huge amount that other Courts can take from  this approach in my opinion.

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For More Information Contact:
Steven Jansch
Mobile: 07841920100
Direct Dial: 0131 516 5361
Email:sjansch@gilsongray.co.uk

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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.