The Global Litigator | Sists, Devils, and Caveats: A Litigator’s Guide to Scotland vs. England and Wales

Welcome back to The Global Litigator!

In our inaugural post, we explored the legal landscape in England and Wales. Today, we shift our focus to Scotland—a land where the legal system is as rich and distinct as its history, while our jurisdictions share deep roots, centuries of legal evolution have created a fascinating divide.

For litigators, crossing the border means stepping into a world where sheriffs aren’t lawmen, barristers are called advocates, and even a simple disclosure request can vary from case to case.

This month, we’re diving into these cross-border distinctions to bring you a guide to the key differences every litigator should know. From pre-litigation tactics to group proceedings, and even how to put a case on hold (or rather, sist it), we’ll break down where the two systems align, where they clash, and where those differences might just work in your favour.

So, whether you’re a cross-border disputes specialist or just a legal aficionado, grab your gavel—or should we say your maul—and buckle up. This is going to be an interesting ride.

Procedural differences

1. Scotland’s caveat vs. England’s ‘without notice’ applications

One of the most practical distinctions between Scotland, and England and Wales is the mechanism available to prevent court orders being granted without prior notice to the affected party.

Scotland: The caveat system

In Scotland, a party can pre-emptively protect itself from certain ex parte (without notice) court orders by lodging a caveat with the relevant courts. If a caveat is in place, the court must notify the caveator before granting an interim order, such as an interdict (Scotland’s equivalent of an injunction). This allows the caveator an opportunity to argue against the order before it is imposed.

Caveats are commonly used by businesses, landlords, and individuals who anticipate potential legal action against them. They are particularly useful in urgent injunction-style cases, ensuring that no adverse court order is granted without the affected party having an opportunity to be heard.

England and Wales: Without Notice Applications

By contrast, England and Wales does not have a caveat system. Instead, interim relief such as injunctions can be sought without notice to the opponent, provided that the applicant demonstrates an urgent need and gives full and frank disclosure of all relevant facts to the court—including any points the absent party might raise in opposition.

However, without notice injunctions are exceptional rather than routine, and the respondent will typically have a right to apply to discharge the order once notified. While a right of recall is equally possible in Scotland the pre-emptive caveat mechanism offers opponents an early stage advantage with the burden resting with the party seeking the order. English litigants usually react to an injunction application or order, making early strategic legal advice essential in high-risk disputes.

2. The court system

Scotland: Court of Session and Sheriff Courts

Scotland’s highest civil court, the Court of Session, sits in Edinburgh and deals with high-value and complex cases (£100,000 minimum threshold). It has two divisions:

• The Outer House (ordinary and commercial)– hears first-instance cases before a single judge.
• The Inner House – serves as the appellate court.

For less complex cases, Scotland’s 49 Sheriff Courts handle a broad range of civil matters.

One key procedural difference? In England, claims must be served promptly after issue. In Scotland, however, proceedings can begin by presenting a summons for signetting (court endorsement), the pursuer (claimant) then has a year and a day to serve it on the defender (with exception of personal injury actions which apply a three month period).

When it comes to representation, Scotland has Advocates rather than Barristers. But just like in England, some become King’s Counsel (KC). And here’s a twist—while England has pupils (trainee barristers), Scotland has devils, giving a whole new (and rather fitting) meaning to the phrase devil’s advocate.

As for procedural quirks, in Scotland, a case isn’t “stayed” – it’s sisted. Requests to the court in Scotland are made via motion or minute, and if Scots need to reference a document in shorthand, they simply throw in a bit of Latin—brevitatis causa. Nothing unusual about that, right?

England and Wales: High Court and County Courts

South of the border, the civil court system is structured into:

• The High Court, which handles significant or complex cases, divided into three specialist divisions:
  • The King’s Bench Division, dealing with a wide range of civil disputes, including defamation and personal injury.
  • The Chancery Division, which focuses on business, property, and insolvency matters.
  • The Family Division, which handles complex family law issues.

Within these divisions, there are specialist courts such as the Commercial Court, Technology and Construction Court (TCC), and Admiralty Court, each catering to specific areas of litigation.

• County Courts, which handle lower-value and less complex civil matters across England and Wales, though some County Court cases can still be high stakes.

One key procedural difference between England and Wales, and Scotland is how cases begin. While Scotland allows cases to be “signed but not served” for over a year, English claims must be served within four months of issue (or six months if serving outside the jurisdiction) unless an extension is granted. This encourages swift action—or at least prevents cases from lingering indefinitely in procedural limbo.

Another quirk? England’s Civil Procedure Rules (CPR) emphasise early case management, with judges taking an active role in ensuring efficiency and proportionality. Unlike Scotland, where oral advocacy remains central, the courts in England and Wales increasingly encourage written submissions and streamlined procedures.

Furthermore, Part 36 offersa strategic tool unique to England and Wales that can put significant financial pressure on the other side to settle. Fail to beat a Part 36 offer, and you could be in for some hefty costs. That said, Scotland has its own answer to this in the form of Tenders (for Defenders) and Pursuer’s Offers—so litigants on both sides of the border have plenty of incentive to play their cards wisely.

While Scotland refers to its trainee advocates as “devils” instead of pupils, England has its own distinctive terminology, including the use of the title “Master” for judges in the High Court. Additionally while barristers in England may be famed for their traditional wigs, they do not have an exclusive right to higher advocacy —solicitor-advocates also have rights of audience. Similarly, Scotland, not to be outdone, has its own Solicitor Advocates, reinforcing the principle that on both sides of the , courtroom advocacy is not limited to those in traditional robes.

3. Disclosure obligations: Scotland’s targeted vs. England’s standard disclosure

Scotland: Specification of documents

Scotland does not impose a general duty of disclosure as found in England and Wales. Instead, a party seeking access to documents held by another party (or a third party) must apply to the court for a Specification of Documents order.

To succeed, the requesting party must persuade the court that:

• The documents are specifically relevant to the dispute.
• The request is narrowly tailored and not overly broad.

This targeted approach prevents excessive disclosure but can pose challenges for litigants accustomed to broader discovery in common law systems.

England and Wales: Standard disclosure

In contrast, England and Wales adopt a far-reaching disclosure regime under the Civil Procedure Rules (CPR). Parties must disclose:

• Documents they rely on.
• Documents that adversely affect their own or another party’s case.
• Documents that support another party’s case.

Disclosure extends to documents within a party’s control, even if not in their direct possession. All relevant documents must be disclosed, including those that are confidential—unless privilege applies. Additionally, from the moment litigation is anticipated, parties must take steps to preserve relevant documents.

Practice Direction 57AD, applicable in the Business and Property Courts, introduces a menu of disclosure options, making broad search-based disclosure no longer the default.

The approach to disclosure in England and Wales promotes transparency but comes with significant costs and administrative burdens. Scotland’s approach to disclosure, while more streamlined, can make it harder to uncover damaging internal documents that might otherwise emerge as part of disclosure in England and Wales.

4. Group proceedings: Opt-in vs. GLOs

Scotland: Opt-in model

Scotland formally introduced group proceedings (akin to class actions) in 2020 under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. However, these operate strictly on an opt-in basis, meaning each claimant must actively choose to participate.

This approach ensures that claimants remain fully informed and in control of their involvement, but it can also limit the efficiency of large-scale litigation—particularly where claimants might be unaware of their right to seek redress. Compared to opt-out models used elsewhere, this can sometimes result in lower overall participation, even in cases with widespread impact.

England and Wales: Group litigation orders (GLOs) and opt-out actions

England and Wales take a somewhat mixed approach to mass claims, with the primary mechanism being group litigation orders (GLOs). GLOs allow multiple claimants with similar legal issues to have their cases managed collectively, but like Scotland’s system, they generally require claimants to opt in—meaning each person must take proactive steps to join.

However, there is also an emerging opt-out model, particularly in the area of competition law. Introduced in 2015 under the Consumer Rights Act, this opt-out procedure enables a representative party to bring a claim on behalf of an entire class, without the need for individual claimants to actively join. Unless an individual expressly opts out, they are automatically included, and any remedy awarded applies to all members of the class.

While opt-out actions remain relatively limited in England and Wales—especially when compared to the US—there is ongoing debate about whether the system should expand to allow broader use of opt-out procedures, particularly in consumer and data privacy cases. Some argue that this would enhance access to justice by preventing large-scale wrongs from going unchallenged simply because individual claimants lack the resources or awareness to bring claims. Others caution against potential US-style litigation culture, raising concerns about unmeritorious claims and spiralling legal costs.

For now, Scotland and England remain aligned in their general preference for opt-in mechanisms—but with growing momentum for opt-out claims south of the border, the future of group litigation in the UK remains an evolving landscape.

5. Jury composition: Scotland’s 15 vs. England’s 12

Scotland: 15 jurors and the ‘not proven’ verdict

Scotland’s criminal jury system is unique in several ways:

• 15 jurors instead of 12.
• Verdicts can be reached by a simple majority (at least eight out of 15 jurors must agree).
• Three possible verdicts: guilty, not guilty, and not proven.

The not proven verdict, unique to Scotland, acts as an acquittal but carries an implication that the jury remains unconvinced of the accused’s innocence. This controversial verdict is often debated, as it can leave a cloud of suspicion over acquitted individuals.

England and Wales: 12 jurors and majority verdicts

In contrast, English and Welsh juries:

• Consist of 12 jurors.
• Initially strive for a unanimous verdict.
• If unanimity cannot be reached, verdicts of 10-2 or 11-1 may be accepted.

Unlike Scotland, England does not offer a “not proven” option—verdicts are binary: guilty or not guilty, ensuring clear outcomes but arguably removing a nuanced option for juries struggling with reasonable doubt.

In summary

As we’ve journeyed through the legal landscapes of Scotland and England and Wales, it’s clear that while these systems share a common heritage, centuries of evolution have carved out some fascinating distinctions. From the preventative power of caveats to targeted disclosure and jury compositions that could spark a lively pub debate, each jurisdiction brings its own strategic advantages—and occasional headaches—for litigators.

For cross-border disputes, understanding these nuances isn’t just an academic exercise—it’s the difference between navigating with a map or sailing blind. So, before diving into litigation on unfamiliar turf, ask yourself: Are you playing by the right rules?