The devil’s in the detail: Old law needs new rules

The Commercial Court of the Court of Session strives to be the forum of choice for commercial organisations operating in Scotland.  Huge procedural changes have taken place over recent years and the work of the judges and their clerks in ensuring efficient and effective case management and decision making has made litigating here fast and cost efficient.  However, there’s still work to be done in ensuring the process runs as smoothly as it possibly can.

One issue which you would assume must come up frequently is how to ensure that a witness from England attends a hearing in Scotland where they’re required to be a witness?  You’d be forgiven for thinking that this must be an easy process given the number of disputes involving parties in both jurisdictions.  The answer however, is not that straightforward.

A witness resident in England or Wales can be sent a citation in the same way as Scottish witness would be. However, the difficulty is that if the witness doesn’t turn up, there’s nothing which a litigant can do about it.  You may be faced with not knowing if your key witnesses is going to turn up until the morning of Proof or even worse turning up for Proof and finding out that the witness has decided not to attend.

There is however a method which can be used in order to ensure the attendance of witnesses- the snappily titled “Attendance of Witnesses Act 1854” does just that.  Whilst the Act is generally known to the Scottish legal profession, it’s seldom used.

Gilson Gray were recently instructed in a case where the attendance of a witness resident in England was of crucial importance to our case so we made use of the 1854 Act.  The initial step involves drafting a Minute which includes a crave, statement of facts, pleas in law, a warrant and a statement to be signed by the Depute Clerk of Session.  In addition to this a Motion also needs to be enrolled for the Warrant to be granted.  These steps on their own aren’t particularly difficult but when put together become a cumbersome process.

After service of a Warrant and a witness having failed to attend Court, the next stage is to ask the Court to grant a certificate stating that the Defender being duly cited has failed to appear and requesting the High Court in London take steps to (1) punish the witness for not attending the Court of Session and (2) apprehend the Witness and transport him to Edinburgh to appear before the Court.  Separate proceedings would then need to be raised in England to enforce this.

Although in recent years there have been many advances in the Scottish Court system to keep up with modern developments, this process is now outdated.  It could be argued that the lack of people using this procedure shows it’s seldom needed but it seems more likely it’s not widely enough known about and the complex procedure is seen as too cumbersome.  It’s incredibly expensive for what should be a straightforward matter and is one which could be considerably simplified.

Given that any change to the underlying legislation would require to be dealt with by Westminster, change is unlikely to be a priority.  However, the Scottish Courts do have the power to regulate their own procedure so could take steps to streamline the process and a new standard form would make a substantial difference in making it easier for litigants to Cite witnesses who may live only a few miles away over the border.

The Scottish Court system is rightly highly regarded throughout the world and the Commercial Court has in particular made great strides towards making this a forum of choice for cross-jurisdictional disputes.  However, as often is the case in law, the devil’s in the detail and if we are to ensure that we retain our position, we need to take steps to simplify matters such as this.

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.