A recent case illustrates the peculiar gulf that is emerging between litigators north and south of the border.
I am retained by a rather exasperated English lawyer who has tried to apply sensible ADR techniques to a dispute which crosses Hadrian’s Wall. The case is ripe for mediation, or at least some form of negotiation. I have no doubt that, ultimately, it will be resolved without a judge or sheriff needing to determine the matter. However, my English colleague has approached me in a perplexed state for, no doubt with the Woolf reforms in mind, he has tried to follow a pre-action ‘protocol’, only to be entirely rebuffed by a firm of Scottish solicitors that, it seems to me, have rejected out of hand any possible resolution other than litigation. So, the case will proceed down that well-trodden path which ends, not in a decision but, like the other 90%-95% of commercial cases in Scotland, in a resolution at or near the door of the court.
