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2. THE COMMERCIAL COURT OF THE COURT OF SESSION
2.1 How the Commercial Court Operates
2.1.1 As the forum designed to hear Scotland's major commercial disputes, the Commercial Court has brought many benefits for litigants. In recent years, there have been uncertainties and concerns over the application of the pre-action protocol and concerns about delays. However, action has already been taken to reduce delays both in fixing hearings and in producing judgements. Concerns about the protocol have also been alleviated to a large extent. Recent figures show that the case-load within the Commercial Court is picking up. This suggests that the court is again attracting work from within the business community in Scotland, though more needs to be done if it is to attract commercial work from outside that community.
2.1.2 The principles and procedures upon which the Court was established remain sound and it remains a potential flagship in attracting businesses to use Scotland's civil court system. The Forum concluded, however, that a number of steps could be taken to enhance the service that the Court offers to businesses.
2.1.3 We suggest below some ways in which this might be achieved. The Forum was not able to conduct a detailed review of the operation of the Court and its rules, but the key principle is that, while retaining its judicial authority, the Court should operate in the way that successful businesses operate - flexibly and responding to the needs of those who use the service.
2.1.4 The issues discussed in Chapter 1 are also relevant, since Commercial Courts are dependent on efficient operation of the whole system. For example, it is important that cases are not only dealt with quickly in the Commercial Court itself, but that any appeals and reclaiming motions arising from the Court are dealt with speedily.
2.2 Recommendations
2.2.1 The Commercial Court should consider the development of pilot schemes for new initiatives designed to speed-up/improve case management e.g. to identify cases where parties could be informally encouraged to consider ADR. If these proved successful, they could then be referred to the Rules Council for possible wider application.
2.2.2 Commercial Court judges should continue to explore how, within existing cost constraints, technology might be better utilised to achieve efficiency savings and to free up court time. Measures already taken in the Glasgow Sheriff Court Commercial Court illustrate some possibilities, including greater use of email, electronic document submission and use of conference calls for routine procedural hearings 5.
2.2.3 The Faculty of Advocates should review its Code of Conduct to identify ways of increasing user-friendliness and client focus. One example of this could be relaxing the current rules that constrain Counsel from speaking to witnesses in advance of proof, thus removing a perceived "distance" between Counsel and client and creating greater accessibility.
2.2.4 To address any continuing misconceptions over the effect of the pre-action protocol and to enable the court to respond flexibly to issues as they arise, the Commercial Court should issue informal practice statements from time to time about issues of practice in the court.
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