The purpose of the short guide is to provide clients with an explanation and understanding of the procedure which is followed in all sheriff Court litigation which falls with what is know as Ordinary Procedure. This applies to actions where the sum sued for exceeds £1500.
The Sheriff Court has exclusive jurisdiction over cases involving claims of less than £1500. This sum is also at present the limit for summary causes. Actions to the value of less than this sum must be raised as a summary cause unless the action is for the sum of less than £750. In the latter case the SCR 1976 will apply. There is no limit on the value of an ordinary action in the Sheriff Court. To this extent the jurisdictions of the Court of Session and of the Sheriff Court are concurrent. The principal matters that are excluded from the Sheriff Court jurisdiction are:
Once an action becomes defended the Sheriff Clerks issue to each of the parties a document known as a G5. This sets out the Court's timetable for procedure in the early stages of the action. The G5 states the last day by which written defences require to be lodged with the Sheriff Clerk. The defences also require to be intimated to the other party.
Defences are required to be in the form of answers in numbered paragraphs corresponding to the articles of condescendence of the initial writ. The answers require to be followed by a Note of the Pleas in Law upon which the defender is relying. Unrepresented party defenders usually find it easy enough to lodge a Notice of Intention Defender but most find it impossible to produce defences which are technically sufficient. Failure to lodge defences timeously is likely to result in the pursuer making an application by way of a written motion to the Court for decree by default in terms of OCR 16.
The G5 also gives notice of expiry of the period of adjustment. Adjustment is the process by which the parties expand upon their original written position each giving to the other further and better particulars, while at the same time taking account of what the other has said, by admitting or denying the other statements of fact. Proper pleading is a difficult and technical business which a lay person is unlikely to be able to master. Many practitioners fail to achieve a proper command of the system of pleading.
Of the various style books mentioned in the context of initial writs Bennett's Style Book and Green's Litigation Styles offer precedents for the drafting of defences. Guidance on the techniques of pleading is to be found in An introduction to Written Pleading by Professor Robert Black; also MacPhail's Sheriff Court Practice and Jamieson's Text Book on Cross Border L
The G5 also provides the date, time and place for the options hearing. The
options hearing is the first occasion upon which the case requires to be
heard in Court before a Sheriff.
Two clear days prior to the options hearing the pursuer in the action must
lodge in Court a document known as a Record. This incorporates the adjusted
initial writ and defences in a single document. Each article of condescendence
in an initial writ is followed by the corresponding answer in the defences.
The pursuer's pleas in law are then stated in full followed by the defender's
pleas in law. Along with the record the pursuer requires to pay the second
instalment of court fees which at the present time amount to £58.
Failure to lodge the record timeously is a default in the observance of the
rules which may well cause the action to be dismissed with a finding of expenses
against the pursuer (OCR 16). Notes of arguments on behalf of either party
require to be lodged three clear days before the options hearing (OCR 22).
The purpose of notes of arguments is to justify any preliminary pleas. The
most common preliminary pleas are:
(a) that the Court has no jurisdiction;
(b) that the action is incompetent, e.g. that the action has been raised in a court which is not authorised to hear it;
(c) relevancy and specification.
There are two legs to this last plea in (c) which is one that is almost invariably
taken by both sides in the early stages of an action. In effect the defender
is arguing that even if everything the pursuer is saying in his writ is true,
as a matter of law (relevancy) the pursuer is still not entitled to his remedy.
Put very crudely the defender is saying 'if it is true, so what?' The defender
will also be contending that the pursuer is not providing enough specification
of his factual position and the defender may be taken by surprise at any subsequent
trial. (In Scotland a trial at which witnesses are heard is known as a Proof.)
At the options hearing if there is any preliminary plea which if unsupported
by a note then the Sheriff will reject that plea. Some Sheriff Clerks supplement
the information which they are required to give in a form G5 by helpfully giving
the last date for lodging a record and the last date for lodging any notes
of arguments.
At the options hearing the parties require to appear personally or be represented.
At least in terms of OCR 9.12, whoever appears, is expected to be in a position
to provide the Sheriff with sufficient information to enable him to conduct
the hearing properly. At the hearing the Sheriff has five options:
1. The Sheriff can fix a proof. This is a trial after which having heard evidence the Sheriff reaches a conclusion on the facts. A case which goes to a simple proof after the options hearing is one where there is no real dispute as to law.
2. The Sheriff can fix a legal debate. The purpose of a legal debate is to determine issues raised by the parties preliminary pleas and most commonly it will centre on a plea to relevancy and specification. The purpose of the Rule 22 Note mentioned above is to justify the ordering of a debate, i.e. to persuade the Sheriff that there is a real legal issue to be resolved before it is appropriate for evidence to be heard. In theory it is possible for a debate to resolve a whole action or a substantial part of it.
3. The Sheriff can fix a Proof before Answer. The Sheriff may fix a Proof before Answer where the questions of law which have been raised are in the view of the Sheriff so bound up with the facts that they can only be resolved after evidence is led. For example, a case may turn on whether or not the person who has made a contract on behalf of a party had the apparent authority to do so. Such an issue would only be capable of resolution once evidence had been led as to the various actings of the principal which might be said to have amounted to a holding out of the person as an agent. The Sheriff may also fix a Proof before Answer if he is not persuaded that the notes of arguments show that there would be any advantage in having a Debate. In other words if the Sheriff is not convinced that there are arguments which might secure a knockout blow for one or other of the parties or do substantial damage to a party's case. At the present time the trend appears to be towards a reluctance on the part of Sheriffs to allow debates except in circumstances where they are likely to produce a clear cut result and for actions to be forced forward to either a proof or proof before answer.
4. The Sheriff can continue the options hearing for 28 days to allow for further adjustment. This is often useful especially where one or other party's note of arguments raises a complaint as to a specification which the other party is able to deal with thereby avoiding the necessity of an unnecessary debate. The additional period allowed for adjustment is in fact very short. Only the first 14 days of the 28 days are available for exchanging alterations to the pleadings.
5. The Sheriff's fifth option is additional procedure (OCR 9.12.4). If the Sheriff is persuaded that the case is one of difficulty or complexity which makes it unsuitable for the standard procedure which ordinarily allows for an initial eight week adjustment period followed possibly by a further two weeks, then he may grant additional procedure which will effectively allow a further eight weeks for adjustment (OCR 10.1). Before that period expires it is open to the parties to make further applications for further extensions of time (OCR 10.3). If at the end of the further eight week period there has been no further extension the Sheriff Clerk issues an order appointing the parties to appear in court and to be heard at a procedural hearing which is essentially a postponed options hearing. It is worth noting that additional procedure is relatively unusual and because of this it frequently occurs that at the end of the initial eight-week period the Sheriff Clerks omit to fix a procedural hearing until they are reminded that they should do so.
Options hearings were introduced in 1996 as an attempt to encourage Sheriffs to be more pro-active and to cut down on delay. Prior to then cases tended to be at adjustment (i.e. at the stage of written pleading) for an excessively lengthy period. The policy of the new options hearing was to encourage Sheriffs to force the parties to focus the issues between them and to procure the expeditious progress of the action. The extent to which Sheriffs have taken on a more active role varies to a very great extent between different Sheriff Courts and among different Sheriffs. Part of the difficulty is that the Sheriff is not actually looking at the written pleadings until after the initial period of adjustment is over: too late in fact to do much to influence the way in which the action is being pled. There has been feeling that expeditious progress has not been achieved particularly in relation to commercial actions.
At the time of writing there is an experiment in Glasgow Sheriff Court with the handling of commercial actions. Actions which are identified by the Sheriff Clerks as being of a commercial nature are referred to four designated commercial Sheriffs who may at an early stage in the action invite the parties to a preliminary hearing precisely with a view to assisting in the focusing of issues and in identifying whether or not there are any legal or factual issues central to the case which might be separated out at an early stage and dealt with by way of debate or in some cases preliminary proof before answer. There are as yet no formal rules regulating the new commercial cause. It is anticipated that new rules will be in place in the autumn of 2000.
Practice notes issued by the Sheriff Principals of Glasgow and Strathkelvin
and also of North Strathclyde require that in advance of a debate the parties
give written notice of the authorities (case law, text books, statutes, statutory
instruments etc.) upon which they intend to rely. It has to be said that
these practice notes are more honoured in the breach than in the observance.
The likelihood of the library in some of the smaller courts actually having
the authorities may be slim. In a busy court such as Glasgow the chances
of the authorities actually having been looked out in advance of the debate
are equally small. The majority of debates that proceed do so on the basis
of reference to photocopied authorities provided by the parties. Most agents
provide copies of the authorities upon which they intend to rely for the
Sheriff, for themselves and for their opponent.
Formerly at a debate a party was not confined to arguments set out in any Rule
22 Note (OCR 22.1.4), however, for actions raised after 2 October 2000 additional
arguments will only be allowed on 'cause shown'. Presumably this reform is
to reduce the scope for ambush. It seldom happens that in the course of preparation
for a debate other good arguments do not present themselves. Where this occurs
it is obviously advisable that Supplementary Notes of Argument be lodged and
intimated. This may be perhaps another reason not to leave preparation to the
last minute.
A very small percentage of the debates which are actually assigned ever proceed.
The contents of most Rule 22 Notes of arguments relate to points of specification
or to technical pleading points that can easily be rectified by amendment of
the pleadings.
At any debate one or other party may appear and move the court to discharge the debate and to continue the case for amendment. In order to avoid being found liable for the expenses of preparation for any debate it is more sensible if the party who has resolved to amend does so well in advance of the debate, by enrolling a written motion seeking leave to amend. Amendment is regulated by OCR 18. Typically a party will enrol a motion seeking:
(a) discharge of a diet of debate;
(b) permission for their minute of amendment to be received;
(c) a period of time for the opponent to answer;
(d) a period of time for the parties to adjust their pleadings in the light of the minute and answers
(e) a Rule 18 hearing at which the court will in the usual course of things allow the record to be opened up and amended in terms of the minute and answers and deal with further procedure as well as expenses of the amendment procedure.
Once a proof has been fixed by the Court the parties are entitled to cite
witnesses. Witnesses may be cited either by recorded delivery or by Sheriff
Officer. The period of notice is a minimum of seven days. The form of witness
citation is form G13. Witnesses who fail to attend are subject to a fine of £250.
There is a considerable practical limitation on the power to cite witnesses
in the Sheriff Court. It is only possible to cite witnesses who are located
in Scotland. Witnesses who are located in Scotland who refuse to attend may
become subject to a procedure known as second diligence which involves them
being arrested by Sheriff Officers (OCR 29.9).
Within 14 days (28 days for actions raised after 2 October 2000) after the
court order allowing a proof or proof before answer the parties are required
to intimate to each other a list of the witnesses upon whose evidence they
intend to rely (this would extend to witnesses giving evidence by Affidavit).
The list of witnesses must provide the name, occupation and address of each
intended witness. This is another requirement which is more honoured in the
breach than in the observance, however, it is potentially of considerable importance
as a party who tries to call a witness who is not on his list may face an objection
from the other party and will only be allowed to lead the witness with leave
of the Sheriff (OCR 9.14).
A similar rule to that relating to the disclosure of the identity of witnesses
also relates to documentary evidence. Within 14 days after the court order
allowing the proof or proof before answer each party is required to intimate
to the other a list of the documents which are or have been in his possession
or control which he intends to use or put in evidence at the proof including
the whereabouts of those documents. Again this rule is virtually ignored,
although the failure to comply might lead to an objection whereupon the evidence
will only be allowed subject to the discretion of the Sheriff. It is thought
that the rule may only be significant in the situation where the other party
can genuinely show that he has been taken by surprise (OCR 9.13).
It will often be the case that any proof will not occur for perhaps several
months after the court has allowed a proof to take place. Paradoxically the
parties are only actually obliged to lodge their productions in Court a clear
14 days before the date of the hearing (OCR 29.1.1).
In the course of a proof objection may be taken to the use of copy documents. It is therefore desirable as far as possible to lodge the principals of any document. Where copies are used these should be appropriately certified in terms of the Civil Evidence (Scotland) Act 1988 as true copies. It is often inconvenient to produce originals. Often originals will have been destroyed and only microfilmed copies will exist. If there is to be an objection to the use of copies it is better not to wait to discover this until an objection is taken to a line of evidence in the course of the proof. One way of achieving this is by way of Notice to Admit as explained in section 2:7.6.5.
As well as lodging the principal copies of productions or alternatively certified copies OCR 29.12 requires the party lodging productions to lodge an extra set for the use of the Sheriff. This is to allow the Sheriff to have a set of copies to look at while the witness is speaking to the principal copies. It is normal to provide a set of copies for opponents.
Once a proof has been allowed in terms of OCR 29.1.4 a party may call on his opponent to admit facts relating to an issue focused in the pleadings. Similarly he may call on his opponent to admit that a document lodged in process is an original and properly authenticated document or a true copy of an original and properly authenticated document. If the opponent does not issue a notice of non-admission within certain time limits then he may be deemed to have admitted the facts or documents referred to in the notice to admit. Notices to admit are particularly useful in relation to copy documents. If a notice to admit is issued as soon as a proof is allowed then it will become clear whether or not there is an issue to be taken in relation to the use of copy documents.
The fee to be paid by the pursuer on the fixing of a proof or a debate is £26. The pursuer also requires to pay £58 for each day or part of a day a debate or proof takes place.
In any action other than a family action or a multiple poinding (see section
2:8.3) a defender may counterclaim against the pursuer. It is fair to say
that in most contractual disputes the defence to the principal action will
be a plea that the defender is entitled to set off against the whole or part
of the sum sued for the amount claimed in a counterclaim for damages for
breach of the contract which gave rise to the principal action. The form
that a counterclaim should take is set out in OCR 19.1.
The counterclaim can include a warrant for protective diligence. Accordingly
it is possible to arrest or inhibit upon the dependence of a counterclaim (OCR
19.2). It is important to understand that while a debt or claim due by the
pursuer to the defender may be the basis of a counterclaim it may not necessarily
be a valid defence to the principal action. If this is the case then the pursuer
may be granted decree for the full amount of his claim which the counterclaim
may be allowed to continue as a substantive action. The best short treatment
of this subject is to be found in Chapter 13 of the Scottish Law of Debt, W
Wilson, Second Edition.
This procedure is available for defenders to bring into the action persons who are not already defenders. The defender may invoke this procedure in three separate sets of circumstances:
(a) the defender claims he has, in respect of the subject matter of an action, a right of contribution, relief or indemnity against any person who is not a person to the action. Where a defender brings in a third party under this head the defender is not contending that the third party ought to be defenders to the action he is merely saying that he has a right of relief in the event of pursuer being successful;
(b) the second ground upon which the defender invoke third party procedure is where he wishes to plead, 'that a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such a person is solely liable, or jointly and severally liable with the defender, to the pursuer in respect of the subject matter of the action'. The pursuer has the option to amend his pleadings to design a third party as an additional defender;
(c) a defender may also claim, 'that a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such a person is liable to the defender in respect of a claim arising from or in connection with the liability, if any, of the defender to the pursuer'. It will be seen that this is a very wide basis for bringing in a third party. The procedure for bringing in a third party is set out in OCR 20.
A pursuer may at any time after a defender has lodged defences apply by written
motion for summary decree against the defender on the ground that there is
no defence to the action, or part of it disclosed in the defences. Most often
the pursuer is asking the court to grant decree in terms of all of the craves
of the writ, however, it is possible to seek summary decree for some lesser
aspect of the case. In deciding an application for summary decree the court
is not bound to confine itself to the written pleadings but may look beyond
the pleadings to other facts and circumstances (Delta Sales & Marketing
Ltd v. Nugent (1991) SCLR 461.
Applications for summary decree require to be made on a motion with a 14 day
period of notice as opposed to the lesser periods of notice required for motions
which are seven days (for actions raised after 2 October 2000 the period of
notice for Summary Decree is reduced to seven days).
Applications for summary decree should not be confused with motions for interim
decree. A pursuer may apply for interim decree in circumstances where the defender
has admitted that parts of the sum sued for is due.
After the court has given judgment in an ordinary action, summary cause or a small claim then the Sheriff Clerk will issue a document recording that judgment which is known as an extract decree. The extract decree gives the party holding it the right to use various enforcement procedures.
This is the initial stage in enforcement. Sheriff Officers serve a formal notice upon the debtor requiring payment within 14 days. This notice makes it clear to the debtor that if he fails to pay within 14 days then the Sheriff Officers may proceed with a 'poinding' or sequestration (bankruptcy) proceedings may follow.
This is a process whereby Sheriff Officers inventory the debtor's goods with a view to their being sold. If the debtor attempts to remove or sell the poinded goods himself then this in theory entitles the creditor to request the Court to have the debtor imprisoned. Many debtors who have means will pay up either at the stage of charging or at a poinding. If no payment is forthcoming then a warrant sale will be arranged by the Sheriff Officers at which the poinded goods can be sold. There are strict rules as to what may be poinded. The basic essentials of domestic life cannot be included, e.g. beds, chairs, etc. There are procedures for resolving disputes where third parties, such as finance companies, claim ownership of the poinded goods. Claims for rates and taxes have a preference over the claims of the poinding creditor. At the time of writing the Scottish Parliament have taken steps to abolish poindings and warrant sales. The operation of the legislation has been suspended until some alternative means of recovering debts has been identified.
Arrestment on the dependence of the action has already been noted. Further arrestments can be carried out once a decree has been obtained.
An arrestment only freezes the asset in the hands of the third party. Before that assets can be released to the pursuer, the pursuer must either obtain the consent of the debtor or failing that must obtain a further order from the court by means of an action of furthcoming. A furthcoming is relatively unusual. Generally speaking the debtor will wish to avoid the expense of further procedure and will authorise release of the frozen asset.
This may be used in securing payment if the debtor is in employment. The debtor's employer is required by statute to deduct weekly sums from the debtor's wages and thereafter forward this sum to the creditor. This is done without the need for the debtor's consent r for further court action as would be necessary for other types of arrestment.
Bankruptcy proceedings may be commenced in respect of debts in excess of £1,500
where the debtor fails to pay 14 days after receiving a charge. It is also
open to creditor to commence bankruptcy proceedings 14 days after the service
of a demand for payment of a debt in excess of £1,500 provided that demand
has been served by Sheriff Officers and only in accordance with that particular
statutory form. Statutory demands do little more than harass a debtor. The
statutory form makes it clear that in order to avoid bankruptcy all the debtor
must do is serve on the creditor a formal notice stating that he denies the
debt. No grounds for denial are necessary.
Bankruptcy proceedings are relatively inexpensive. Once a decree has been granted
the further costs to the creditor of proceeding to a bankruptcy is likely to
be of the order of £350/£400. These costs are a first charge on
the debtor's estate in the event of the bankrupt having any assets.
If there are no assets the costs incurred after the award of bankruptcy are
met out of the public purse provided that the person appointed by the trustee
is a public official known as the Accountant in Bankruptcy.
This is a short guide and it is general in its terms. If you want more information about your case or if you have any problems contact Peter Watson or William Macreath of the Litigation Department by telephone or email:
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