A Guide to Doing Business in Scotland Dispute Resolution in Scotland

Pre-Action

Pre action communications are required in commercial actions. Parties must set out the nature of the claim and disclose documents that will be relied upon, including expert evidence.

Protective measures

The court has the ability to grant a wide range of interim remedies, including interim interdict (i.e. injunction), which may be granted ex parte. As a protective step, which is straightforward and inexpensive, we recommend that all businesses trading in Scotland lodge caveats, which are an early warning notice in respect of certain types of interim order.

There are other protective measures which allow a pursuer (i.e. claimant) to preserve defender’s (i.e. defendant’s) assets, including money, pending the outcome of a case – these are principally arrestment and inhibition. There are rules governing interim diligence, and the pursuer must persuade the court that it has a prima facie case and there is justification for the diligence.

Discovery

Unlike the position in England, or indeed the US, there is no automatic early disclosure. The courts in Scotland have limited powers to order recovery of documents, which can be an advantage in terms of reducing costs.

Time bar

The position on time bar is different in Scotland from England & Wales, and is five years for most commercial claims. The start date generally runs from the date of awareness of actual loss, and relevant proceedings against the correct parties must be raised within this period.

Alternative dispute resolution

In terms of other options for dispute resolution, arbitration is governed by the Arbitration (Scotland) Act 2010, which established a statutory regime for arbitration in Scotland, applying the same rules to domestic, cross-border and international arbitrations. It incorporates features of the UNCITRAL Model Law and the Arbitration Act 1996.

Mediation is a popular alternative to litigation. While the court may encourage parties to use ADR such as mediation, it has no power to compel parties to use it.

Expedited enforcement

One other interesting feature to note in Scotland is the possibility of expedited enforcement of a financial obligation under a contract without the need for a preliminary court action. The process is “summary diligence” and is available where the deed or document contains a consent by the parties to registration for execution. The financial obligation must either be directly ascertainable from the deed itself or there must be a mechanism for identifying the financial obligation. The clause is commonly seen in leases or bank or personal guarantees.

Our Awards & Accreditations

  • In 2016, we became one of the first law firms in Scotland to become Living Wage accredited employers.

  • Winners of Corporate & Commercial Team of the Year and Family Law Team of the Year at the Scottish Legal Awards 2020.

  • Our Real Estate team won the Property Team of the Year Award at the British Legal Awards in 2018.

  • Winner of SME of the Year at the Scottish SME Awards 2017, hosted by Scottish Business Insider.

  • Highly Commended for Commercial Team of the Year at the British Legal Awards 2016.

  • We are a proud member of the Legal Sustainability Alliance, a network of law firms committed to working collaboratively to reduce our environmental impact

  • In 2019, MacRoberts achieved Cyber Essentials Plus certification, a UK Government entry-level information security standard. 

  • MacRoberts holds the ISO 9001:2015 certification for Quality Management, the most widely recognised quality management system standard in the world.

  • MacRoberts holds the ISO14001:2015 certification for Environmental Management, demonstrating our ongoing commitment to environmental awareness.

  • MacRoberts holds the ISO27001:2013 certification for Information Security, an internationally recognised security gold standard.

  • Business continuity is a critical element of the Business Management System at MacRoberts and we hold full accreditation with the ISO 22301:2012.

  • MacRoberts is a member of IP Inclusive, a network of intellectual property professionals working to make our community more equal, diverse and inclusive.

  • We are active members of the PRIME Programme – an organisation that focuses on ensuring a career in law is open to talent from all economic and social backgrounds.

  • MacRoberts supports the Scottish Business Pledge, a values-led partnership between Government and business that is based on boosting productivity and competitiveness through fairness, equality and sustainable employment.

  • We are supporters of the Partnership for Change, a network of organisations and individuals who share a common ambition to improve diversity on boards and in senior leadership.

  • MacRoberts is a Disability Confident employer, and are committed to disability equality across our firm.

  • MacRoberts fully supports flexible working practices and supports family-friendly working practices.

  • MacRoberts became a member of the Stonewall Diversity Champions Programme in 2018.

  • MacRoberts is a member of The Glass Network, Scotland's organisation for LGBT+ allied legal professionals.
  • MacRoberts is a longstanding member of Scotland Food & Drink, the leading trade association for Scotland's food and drink industry.