05 Oct 2026
By Rosie Walker, Partner, Head of Litigation, Gilson Gray
When a dispute arises, going to court is rarely anyone’s first choice. It is often sensible to investigate what has happened, explore settlement and consider whether litigation is commercially worthwhile before proceedings are raised. There, are, of course occasions when speed is critical but often calm consideration is equally valuable. However, while it is often undesirable to rush into court too quickly, there is an important difference between not rushing into litigation and allowing a dispute to drift.
Waiting for too long can materially reduce the strength and value of a claim. Documents may disappear, witnesses forget, businesses fail, assets move and, critically, legal rights can be lost through the passage of time. If you think a dispute may ultimately require court action, early legal advice does not necessarily mean starting proceedings straightaway; often its value lies in protecting your position while you decide what to do.
1. Your claim may have a time limit
One of the most serious risks of delay is prescription or limitation. In Scotland, many obligations “prescribe” after 5 years. In other words, an obligation can be extinguished if it has subsisted for five years without a “relevant claim” being made and without relevant acknowledgement of the obligation. The calculation of that period can be difficult and depends on the nature of the claim and the particular facts.
Different rules and time limits apply to particular types of case so it is definitely not a good idea to assume that every Scottish claim has five years in which to raise proceedings. Judicial Reviews, for instance, have a three-month time limit while personal injury claims, Human Rights Act cases, Equality Act claims, defamation actions and statutory appeals all have different time limits. The practical lesson is do not work backwards from an assumed five-year deadline. If there is a potentially valuable claim, prescription or limitation should be considered at an early stage.
2. Evidence rarely improves with age
Even where there is plenty of time to raise proceedings, delay can weaken the evidence needed to prove the case. Two or three years later, sometimes even two or three months later, recollections may be considerably less reliable than they were immediately after the meeting or discussion in question.
Contemporaneous documents can be even more important. Messages may be contained in Email, Teams, WhatsApp or other messaging platforms. A former employee may have relevant documents on an old device. CCTV may be routinely overwritten. Electronic records may be deleted in accordance with an organisation’s normal retention policies. Once litigation is contemplated, identifying and preserving potentially relevant evidence should therefore be an early priority.
3. The people who know what happened may move on
Employees can leave. Directors may retire. Contractors move abroad. Companies restructure. People become unwell or, quite simply, their recollection deteriorates. They may be less keen to get involved in a dispute for a variety of reasons. In a factually complex dispute, the loss of a key witness can make a significant difference and may even make the claim non-viable.
An early investigation allows solicitors to identify the witnesses who matter and establish what evidence exists while events remain relatively fresh. In some cases, it may be sensible to take a detailed witness statement or at least preserve a contemporaneous account of the relevant events. This does not commit the client to litigation. It simply reduces the risk that, when a decision is eventually made, some of the evidence needed to pursue the case has disappeared.
4. Important documents may be in someone else’s hands
Scots law provides mechanisms in certain situations for the recovery and preservation of evidence which is held by somebody else. These are not routine remedies in every dispute, and their availability will depend upon the circumstances. But where important evidence is at risk of disappearing, waiting until the substantive litigation is well underway may be a costly mistake.
5. Winning the case and recovering the money are different things
A strong legal claim has limited commercial value if the defender cannot satisfy a court judgment. The financial position of an opponent can change significantly if litigation is delayed too long. A company may dispose of its assets, encounter financial difficulties or enter insolvency. An individual defender’s financial circumstances may also change. The prospects of actual recovery should form part of the litigation strategy from the outset.
6. Delay can reduce your options
The strongest litigation strategy is not necessarily to litigate immediately. Sometimes the right answer is negotiation, mediation or another form of alternative dispute resolution. But negotiating from a position in which the evidence has been secured, the legal case has been analysed and the relevant time limits are understood is very different from negotiating under pressure because a deadline is rapidly approaching.
7. A dispute can become more expensive while nothing appears to be happening
There is also a financial cost to waiting. A dispute that could have been investigated efficiently at the outset can become much more expensive to reconstruct several years later. Instead of reviewing a contained set of documents and speaking to the people involved, lawyers may have to search archived systems, trace former employees, reconstruct incomplete records and work out what happened from fragments of correspondence. Delay can therefore increase the cost of litigation even where it does not prevent the claim altogether.
What should you do when a potential dispute arises?
Perhaps the most important point is that instructing a litigation solicitor early does not mean committing to court proceedings. Good early litigation advice can help a client decide whether litigation is necessary or beneficial at all. In some cases, we may recommend urgent proceedings. In others, the right advice may be to preserve the evidence, protect the client’s legal position and attempt to negotiate a commercial solution. Occasionally, our advice may be that the economics or evidential difficulties mean that litigation would be unattractive.
The important thing is that the decision is made carefully, with an understanding of the legal and commercial risks.
If you are involved in a dispute, or believe that one may be developing, our Litigation & Dispute Resolution team can provide an early assessment of the legal position, applicable time limits, available evidence and commercial options before you decide whether court proceedings are necessary.
