Commercial litigation in Scotland

Commercial litigators’ workloads vary significantly. Generally they will work on disputes concerning constitution or interpretation of contracts, claims for late payment or breach of contract and landlord and tenant disputes. Some clients may seek specific performance of contracts or some other declaratory remedy. Many individual litigators and teams specialise in a particular field such as health and safety, intellectual property (IP) or property litigation.

A commercial litigation solicitor's work

The type of client can vary but typically includes property developers, energy suppliers, manufacturers, retailers, technology companies, construction companies and entrepreneurs. Lawyers will act on both sides, pursuing and defending cases for commercial clients. Once instructed, lawyers should first find out what their client is seeking to achieve. It may sound obvious but it’s important to understand a client’s business objectives: one size does not fit all and it is only once you understand where the client wants to be that you can really add value.

There are a number of avenues commercial litigators can pursue when dealing with commercial disputes, including interdict, payment, damages and declarator. It is becoming increasingly important to engage in pre-action discussions with your opponent in a bid to resolve the matter amicably, whether by informal process, mediation or some other dispute resolution procedure. If litigation is unavoidable, it will be necessary to prepare formal pleadings. Once litigation is commenced, the parties call upon opponents to produce documents relevant to the case. The case then proceeds to either a debate on the legal issues or a hearing on the evidence (proof). If the case is to be determined at proof, lawyers will need to spend time with witnesses taking statements and preparing the case.

It may sound obvious but it’s important to understand a client’s business objectives

Commercial litigators’ time is often split between spending time with clients, whether taking instructions, statements or working on documents; working on the legal and practical aspects of the case in the office or the library; spending time in conference with counsel in chambers; and presenting the case or attending at court. The length of time required to see a particular case through to resolution in whatever form can take between two weeks and – in extreme cases – ten years. Depending on the complexity of the case and the volume of work, a team of five or six lawyers may be working on the case at any one time.

The work is demanding in terms of both intellect and time. Lawyers working in a large commercial firm can expect to work reasonably long hours, although with the right organisational skills caseloads can usually be managed effectively to avoid working late into the evenings or at weekends. Exceptional situations do of course arise but the work in such scenarios is generally exciting and rewarding.

Skills required

• Sound analytical and research skills.
• Good interpersonal skills.
• Strong oral and written ommunication skills.

Traineeships in commercial litigation

Trainees are important members of the team and can expect to be involved with all aspects of commercial litigators’ workloads. If a trainee is in their second year and has obtained a practising certificate, they may also get to do appearance work. A trainee can look forward to a good degree of client exposure and will spend time in court and taking statements

Types of law practised

• Civil litigation.
• General commercial litigation.
• Health and safety.
• Intellectual property.
• IT.
• Personal injury.
• Property litigation.

About the author

JOANNE GILLIES is a senior associate in the commercial litigation department of MCGRIGORS LLP. She graduated from the University of Glasgow in 1997 with a degree in law.