Much of public procurement law is the same across the UK.

However, from our experience of public procurement challenges in Scotland there are a number of key differences in legal practice and procedure compared with England that you should be aware of.

1. Jurisdiction

All significant procurement challenges are conducted in the Court of Session, in Edinburgh.

The Outer House of the Court of Session is a single judge court of first instance for all commercial disputes in excess of £150,000.

The Inner House is the main appeal court in which, typically, three judges will sit. Scotland also has a Sheriff Court system across the country, with a Sheriff Court attached to every major town.

Some of these have efficient commercial court procedures, but timescales in the Sheriff Court are also much less certain.

2. Pre-action protocols

A ‘letter before action’, notifying the defender of the pursuer’s intention to bring proceedings and the grounds for doing so, must be issued before proceedings are raised.

There is no minimum period between the sending of the letter before action and the bringing of a challenge, but our practice is to issue letters before action at least 48 hours before the commencement of the relevant action.

Details of the breach or breaches must be included. Failure to include one or more grounds in the letter may preclude the pursuer from relying on them later in the process.

3. Commencement of proceedings

In Scotland – as in England - when a procurement is to be challenged, proceedings must be raised against a contracting authority within 30 days from the day on which they first knew, or ought to have known, that grounds for starting court proceedings had arisen (“the date of knowledge”).

If a pursuer wants to prevent the contract from being entered into, they must raise proceedings before the expiry of the 10-day standstill period or seek an undertaking from the defender to extend the standstill period.

If the contract is entered into, then the pursuer’s only remedy would be damages (which may not be available in every case).

The clock stops running only when the pursuer has served a summons (i.e. pleadings in traditional form) on the defender.

In practical terms, this means that the pursuer’s legal team must have instructed counsel; issued the letter before action; prepared the summons; lodged the summons for signetting at the commercial court along with any documents relied upon; and arranged service of the summons on the defender, all before the expiry of the 30 day time-bar period.

If the 10 day standstill period and, most certainly the time-bar period is allowed to expire, so too does the window of opportunity for redress.

In reality, in Scotland, the time to ponder that opportunity for redress is considerably less than 30 days and may, if the standstill period is not extended, be less than 10 days.

4. Disclosure

There is no general obligation to disclose documents or information during a court action unless a party is ordered to do so by the court (or where a party relies on that document in their pleadings).

The normal procedure in Scotland is to lodge a motion for ‘commission and diligence’ seeking disclosure of a targeted list of documents identified in a ‘specification of documents’.

The absence of discovery in Scotland, and the more targeted approach to the specification of documents, represents a significant cost saving when litigating here but can lead to relevant documents going undiscovered if they fall outside of the specified categories.

While there are formal procedures to enforce the commission and diligence process, more often than not parties comply voluntarily.

5. Interested party

In Scotland, where a procurement process which is the subject of a legal challenge has identified a successful tenderer, that party would be referred to in the summons and would be served a copy of the summons.

The successful tenderer doesn’t have to become involved in the court action, but can choose to be admitted as an interested party.

The interested party would be entitled to receive a copy of the court papers and could respond to the claims made by the pursuer, as well as responding to the points made by the contracting authority defender.

Pursuers need to be aware of this possibility, particularly in terms of the documents which it relies upon to particularise its claim – this may include commercially sensitive bid documentation, presented to the court at the outset and would become available to the interested party.

There is no formal agreed process that applies to the protection of confidential information - unlike in England & Wales where confidentiality rings are regularly used.

6. Precedent

A decision of the Commercial Court (a court of first instance in the Outer House of the Court of Session) is not binding on Sheriff Court or other cases of the Commercial Court.

In practice, however, it is likely to be followed.

A decision from the Inner House (the Scottish Court of Appeal) is binding on all lower courts, including the Commercial Court. Supreme Court judgments in Scots law cases are binding on the Inner House, Commercial Court and the Sheriff Court.

Decisions of the Supreme Court in English law matters are binding unless there’s a difference on a point of law and then they are merely persuasive.

7. Court costs

Regardless of the nature or value of the claim, the only up front court fee to be paid to commence action in the Commercial Court is £312.

8. Without prejudice

As in England and Wales, privilege applies to allow parties to advance settlement discussions without necessarily committing to that position in court.

However the common practice in England of using “open” and “closed” correspondence tends not to be followed in Scotland – where a party can unilaterally waive their own “without prejudice” privilege.

9. Timescales

Once the summons has been served, there is a minimum 21-day period before the summons can be returned to court for calling, which step would require the defender to inform the court that the action is defended within three days and to file a written note of defence within seven days of that.

This 21-day period gives pursuers an opportunity to take stock, and to engage in settlement negotiations.

21 days is the minimum period required – it is possible to defer returning the summons to court for up to a year, which is beneficial where there is scope for settlement negotiations.

Once the action is placed on the court timetable, the Commercial Court seeks to progress cases more quickly than ordinary actions.

10. Costs

In Scotland there is no judicial involvement in the budgeting of costs.

There is also no scope for recovery of costs associated with pre-action correspondence.

The general rule is that costs follow success - although the awarding of costs is entirely discretionary.

In Scotland, a successful party would typically get between 40%-60% of their solicitor’s costs and close to 100% of counsel’s costs.

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