Lawyer Monthly - January 2022 Edition

Richard McMeeken is a partner and solicitor advocate in the commercial litigation team at independent Scottish law firm Morton Fraser. 30 WWW.LAWYER-MONTHLY.COM | JAN 2022 2022 TRENDS OUTLOOK: LITIGATION IN SCOTLAND in the next year, the more traditional disputes are going nowhere – disputes surrounding the interpretation of contracts remain a significant part of the work of the commercial court in Scotland. The tension that exists in Scotland is between a purposive approach to contractual interpretation or an approach which elucidates the words of the contract. There should not, of course, be any such tension and understanding the mutual intention of the parties to a commercial contract involves an objective exercise of the kind repeatedly set out by the Supreme Court. However, the application of the relevant principles in Scotland has not been consistent. Cases such as Hoe International v Andersen & others 2017 SC 313 and Ashtead Plant Hire v Granton Central Developments 2020 SC 244 seemingly still place too little emphasis on the contractual terms and too much emphasis on a purposive approach, with commercial common sense being liberally relied upon. In recent months, however, the Scottish commercial court has started to retreat to a more defensible position with the judgment in Dragados (UK) Limited v DC Eikefet Aggregate AS [2021] CSOH 117 reflecting an important change in the right direction. It is expected, and indeed hoped, that this move in the right direction will continue in 2022. 5. Virtual court hearings will turn permanent Finally, virtual court hearings are likely to become a permanent feature of the Scottish litigation landscape in 2022. The extent to which they will be is currently open for discussion, but proposals suggest that they will be far more widespread than many in the profession hope. It is hard to see why clients would be denied their day in court and substantive hearings such as debates, proofs and appeals ought to be conducted in person. Anecdotally, judges have commented that party litigants in family cases have expressed their distaste at having decisions about custody of their children, for example, made over a Webex call. People want important decisions to be taken in open court, having had an opportunity to put their best case forward. Finding the right balance in the coming year will be crucial for the proper administration of justice in Scotland. Contact Richard McMeeken, Partner and Solicitor Advocate Morton Fraser Lawyers Quartermile Two, 2 Lister Square, Edinburgh EH3 9GL Tel: +44 0131 247 1035 www.morton-fraser.com disputes surrounding the interpretation of contracts remain a significant part of the work of the commercial court in Scotland.