Scottish Government

Elaine Samuel School of Social and Political Studies University of Edinburgh
Scottish Executive Social Research 2005
ISBN 0 7559 2757 5
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CONTENTS

PART I BACKGROUND TO THE RESEARCH

Chapter 1: Introduction

Chapter 2: Commercial Procedure in the Sheriff Court: Background to the research
2.1 Ordinary Procedure and the Sheriff Court Ordinary Cause Rules (1993)
2.2 OCR (93): Emerging Problems
2.3 The Court of Session and Glasgow Sheriff Court
2.4 New Rules for Commercial Procedure in the Sheriff Court

Chapter 3: Research aims, data sources and research methods
3.1 Sheriff Court CMS (Court Management System)
3.2 Court of Session Commercial Cause Data
3.3 Court Processes of Commercial and Ordinary Cause Actions
3.4 Interviews
3.5 Research objectives and data sources

PART II RESEARCH FINDINGS

Chapter 4: The Business of Glasgow Sheriff Commercial Court
4.1 Introduction
4.2 Commercial Business and the Office of the Sheriff Clerk
4.3 Commercial Procedure and Case Allocation
4.4 Raising Commercial Actions in the Sheriff Court: Nominating
4.5 Commercial Procedure

Chapter 5 Defended Actions under Commercial and Ordinary Procedure
5.1 Introduction
5.2 The two samples: Case Characteristics
5.3 Findings: A Comparison of Ordinary and Commercial Actions
A. Diets Fixed
B. Diets Heard and Cancelled
C. Type of Disposal
D. Length of Actions

Chapter 6 Glasgow Sheriff Commercial Court: Procedures, Practices and Culture
6.1 Introduction
6.2 Procedures and Practices
6.3 The Culture of the Commercial Court

Chapter 7 The Impact of Commercial Procedure on Key Stakeholders
7.1 Introduction
7.2 Glasgow Sheriff Court
7.3 Solicitors: Pursuers and Defenders
7.4 Firms and Clients
7.5 Civil Justice

Chapter 8 Rolling out Sheriff Court Commercial Procedure: Cases, Places and Procedure
8.1 Introduction
8.2 Rolling out the Commercial Court to all Ordinary Actions
8.3 Extending the remit of the Commercial Court
8.4 Increasing specialisation in the Sheriff Court
8.5 Extending Procedures and Practices of the Commercial Court to Sheriff Court Business
8.6 Extending Commercial Procedure to other Sheriff Courts

Chapter 9 Summary of Research Findings
i. The business of Glasgow Commercial Court and its users
ii. The progress and outcomes of Commercial Actions, compared with
Commercial Type Actions raised under Ordinary Procedure
iii. The Practical Operation of unique Procedural, Practical and Cultural Innovations of Commercial Procedure, and their impact on Progress and Outcomes
iv. The Advantages and Disadvantages of Commercial Procedure from the
point of view of Sheriffs, Court Staff, Practitioners and Clients
v. The Transferability of Commercial Procedures to other Ordinary Cause
Actions in the Sheriff Court

APPENDIX ONE Scottish Statutory Instrument 2001 No. 8: Act of Sederunt (Ordinary Cause Rules) Amendment (Commercial Actions) 2001

ACKNOWLEDGMENTS

The research on which this report is based could never have been undertaken without the co-operation of the many who so willingly contributed to it. Sheriffs, sheriff clerks, solicitors and parties not only gave of their time most generously but never failed to share their experiences of ordinary and commercial procedure in frank and self-reflective discussions. In particular, I must thank those who practice in Glasgow's commercial court for providing me with an opportunity to step inside the world in which they labour, and for helping me to understand the implications of commercial procedure for themselves and the Sheriff Court. I must also record my gratitude to Scottish Court Service staff in the Court of Session, Hayweight House and Glasgow Sheriff Court and, in particular, Donald Bruton, Richard Warner and Alistair Hughes. They never failed to answer my questions with patience and humour, their hospitality was responsible for easing the arduous process of quantitative data collection and the work could never have been completed without their input.

The research was supported by an Advisory Group from its initiation to its conclusion. Many thanks to Paul Cackette, Bob Coburn, Glynis Mckeand, Valerie McNiven and Anita Morrison of the Executive for their contribution, their constructive criticism, their patience and their kind consideration at a difficult time. Two members of the Advisory Group, however, deserve special mention. I am indebted to Sheriff James Taylor for his unswerving commitment to the research and for opening the gates to so many avenues. As research manager of the project, Debbie Headrick urged, cautioned, cajoled and humoured me - and always as appropriate. While final responsibility rests with the author, the opportunity to acknowledge their encouragement is gratefully taken.

Elaine Samuel
March 2005

The views expressed in this report are those of the researcher and
do not necessarily represent those of the Department or Scottish Ministers.