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FOOTNOTES
1. The Government Economic Strategy - published 13 November 2007 - ISBN 978-0-7559-5548
2. In the Commercial Court of the Court of Session (in contrast with the Ordinary Roll in the Outer House) the time taken to bring a case to debate or proof is, we understand, generally quite short and probably compares favourably with (for example) London. It is normally possible to avoid long continuations if a case runs beyond its anticipated duration. However, problems do arise with long cases clogging up the system by blocking out dates for quick hearings on other matters. Lack of judicial resource appears to be the main contributing factor. There are also concerns regarding the delay sometimes experienced between a Commercial Court decision and the hearing before (and decision of) the Inner House, if there is an appeal.
3. One of the problems in the Commercial Court in the Court of Session is that of late settlements - the Court diary is filled and a case then settles too late for the time thereby released to be used for other cases. One solution is to double book cases e.g. fix work for three or more Judges when only two regular Commercial Judges are available, in the confident expectation (or hope) that one or more of the cases may settle. This is done to some extent, but the concern is always: what happens if none of the cases settle?
The availability of a pool of temporary judicial back-up - whether "ticketed" Outer House Judges or temporary Judges - would make this more manageable, leading to wider use of double booking and a resulting benefit to court users in terms of their being given earlier dates for hearings etc.
As to the use of temporary Judges with the requisite experience, it may be that there is some reluctance amongst Advocates to accept appointments as temporary Judges out of concern that it might (wrongly) send out a signal that they are winding down their practice.
One option that could be explored which would avoid this problem, would be to mirror the "Assistant Recorder" process in England and invite all newly appointed QCs (and possibly existing QCs) to apply for appointment as temporary Judges/Sheriffs. They might be expected to be available to sit, if required, for up to a certain number of weeks a year. From the resulting larger pool of resources, the Commercial Courts, whether Court of Session or Sheriff Court, could find a person of the requisite experience to sit as a temporary Judge/Sheriff on a one-off basis for such longer periods as were necessary to meet the particular resource problem.
4. At present in the Court of Session intellectual property cases are heard by nominated specialist intellectual property judges, and the applicable Rules of Court provide for a form of case management (though less intensively "hands on" than that applicable to commercial cases). Construction cases are dealt with within the Commercial Court. Construction cases tend to be long and complex. Because of that they can impose a heavy resource demand and have a disruptive effect on the work of the Commercial Court, but they often raise issues of law which are appropriate for resolution within the Commercial Court.
5. The Forum is aware of the concerns of the Inner House in the case of Jackson v Hughes Dowdall (8th July 2008) reporting possible ECHR issues with some of these procedures, but would hope nonetheless that pragmatic solutions can be found to resolve any such concerns.
6. Options for the Future Administration and Supervision of Tribunals In Scotland: A report by the administrative justice steering group, chaired by the Rt. Hon Lord Philip
7. In a relatively small country the professions work closely together and, therefore, there is in effect a 'one-stop-shop'.
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