SCOTLAND Law and Practice Contributed by: Jacqueline Harris, Kirsty Gallacher, James Ferguson and Charlotte Kelly, Pinsent Masons
postponing) hearings to allow parties time to address outstanding issues and allocating time for parties to adjust their pleadings. The court can also grant a sist which is the Scottish legal term for halting or suspend- ing a court action. It is equivalent to a stay in English law. Once an action is sisted, no procedural steps can be taken unless the sist is recalled. A sist is typically granted on the motion (request) of one or more parties. The motion should specify the reason for the sist being sought and the duration for which it is sought. The court should only grant a sist where there is a valid reason, such as, for settlement discussions or there are related proceedings ongoing that would impact on the proceedings. An example of this is the sisting of the James Finlay group proceedings pending the resolution of the group members’ ongoing claims in Kenya under the Work Injury Benefits Act. At permission stage, the court rules provide that a sist must be for no longer than 28 days, but can be renewed. Summary Decree A summary decree is a fast-track judgment and is awarded in cases with no real prospect of success. This would be unlikely in group proceedings as the proceedings should not be authorised by the court at the stage of granting permission to bring group pro- ceedings. Decree by Default This is a judgment when a party has not complied with certain procedural requirements. When a defender fails to respond to the court action, such as failing to appear or provide a defence, within the required timetable, the court can order decree by default. Debate A party to litigation in Scotland can seek to have pro- ceedings disposed of at a debate (a hearing where the court considers legal arguments on preliminary pleas, such as whether the case should be dismissed, without hearing evidence). This can be sought, for example, on the basis of a party not providing suf- ficiently specific or relevant pleadings. Depending on the outcome of the debate, this may avoid the need
for an evidential hearing altogether or possibly limit the scope of such a hearing. 3.9 Funding and Costs Funding Options The 2018 Act introduced several funding mechanisms to improve access to justice. Third-party funding of litigation in Scotland is permitted under the Act. Funding mechanisms include: • speculative fee agreements – commonly known as “no win, no fee” arrangements, where solicitors are paid only if the case succeeds; • damages-based agreements – the solicitor or funder receives a percentage of the damages awarded if the case is successful; and • third-party litigation funding – external funders (often commercial entities) may finance the litigation in return for a share of the damages or settlement. Legal Aid can also be made available in some cases, subject to eligibility and approval by the Scottish Legal Aid Board. Financial Position of the Representative Party When considering an application to appoint a rep- resentative party, a matter for the court to consider is whether the applicant has demonstrated sufficient competence to “litigate the claims properly, including financial resources to meet any expenses awards”. The applicant is, however, not currently required to disclose details of their funding arrangements. This will change if/when Section 10 of the 2018 Act comes into force. Caution Caution (pronounced “kay-shun”) is a legal mecha- nism in Scotland where a party is ordered to provide financial security – usually in the form of a bond or deposit – before proceeding with a court action. It is designed to protect the opposing party from the risk of being unable to recover legal expenses if they win the case. There is a high bar to be satisfied in a request for caution; to be successful a party needs to show a legitimate concern that the other party (usually the pursuer) lacks the financial means to pay any award of expenses against them if unsuccessful.
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