Classification of Actions I and II Flashcards
What is a petitory action?
The defender is asked to pay, do or refrain from doing something. These are actions for: 1. Payment 2. Count reckoning and payment 3. Of Forthcoming 4. Multipoinding 5. Ad Factum Pratestandum 6. Interdict 7. Division and sale
What is a action of count reckoning and payment?
When one party owes a duty to account for another party for their intromissions with the pursuer’s funds. This is often the case in partnerships where each partner owes a duty to account for his intromission of partnership funds, or by a principal against his agent, or claims for trustees against beneficiaries.
The definign characteristic is the crave which seeks first order against defender for production of an account and payment in terms of that account.
The pursuer always includes an alternative crave for payment of sum of money however pursuer will often not know what sum is due and so will be a sum larger than one due/arbitrary.
Such a crave only comes into play if the primary order craved/order to produce an account is granted but the defender fails to do so.
How is an action of count reckoning or payment considered?
- Is there a duty to account? The defender may dispute this. Once this is resolved whether by agreement or judicial determination, the defender produces an account.
- Consideration of the account — sets out any disputes and defender lodges answers to the note of objectionss.
The court will typically remit the issue to an expert accountant to act as a reporter. The accountant audits the defenders account and this report will be lodged with the court. It remains open to either party to take issue with the report by note of objection. However the report will allow objections to be narrowed. If the accountants report is not disputed the sheriff will grant decree for the amount brought over in the final amount.
What is an action of furthcoming used for?
Application to the court to authorise the release of arrested funds or goods to the creditor.
The defenders to such an action are the arrestee (third party in whose hands the goods were arrested) and the common debtor (defender in original action).
Formally they were required to recover funds already arrested.
The instance of this actions have been reduced since s73J 1987 act which provides for the automatic release of arrested funds.
Action of forthcoming are still required to recover arrested goods. Where these have been arrested and debtor has not signed mandate authorising their released, this action is required to recover the arrested goods.
What is an action of multipoinding used for?
This is appropriate to resolve competing claims to a fund in medio.
This fund can be money, movable property, heritage or mixture of any of these. Where a party holds assets and there is a dispute as to who is entitled to claim the assets, such assets are termed the fund in medio.
In order to protect from any accusation, the holder of fund can raise an action and get court to determine who is holder of the fund.
Anyone with a potential claim on the fund should be cited as defender. The pursuer should state fully the circumstances of the funds in the initial writ. The sheriff will hold a first hearing at which he has to determine the progress of the cause by ascertaining from the parties the matters in dispute. The defenders who wish to dispute the competency of the action should be resolved first based on the pleadings. Second, the dispute as to the extent of the fund will be resolved. Third, the sheriff will adjudicate on claims on the fund (debate or may require evidence).
The court may remit matters to a reporter in order to resolve factual issues.
Parties may challenge certain findings of the report in which case proof of those issues may be required.
The final stage may see the sheriff ranking and preferring claims.
The normal rule about expenses following success does not apply here- any bonafide claimant can claim expenses which may diminish the fund,
What is an action ad factum praestandum used for?
Actions of specific implement or performance are used to enforce the performance of a positive obligation other than payment of money, e.g. To deliver certain goods or sale of heritable property by clear title.
A party to a contract is entitled to performance, the exception to this is employment contracts as masters may no longer propel this.
Can include other craves such as declarators or interdict selling to another third party.
Or alternative crave for damages.
It is possible to obtain an interim order e..g that an item of property be held by a third party in order to establish the status quo.
An interim order in Sh Ct is rare but CoS has statutory power under s46/47 of CoS Act to regulate this interim possession of property and accordingly if such an interim order is required it is best to seek statutory remedy in the CoS.
The crave for implement must be precise in its terms and framed as closely as possible to contractual obligations sought to be enforced and specificy time limit for obedience.
Court has discretion to refuse this action if benefit for pursuer is not in proportion with the performance causing grave hardship to defender.
The defender will then obtemper the decree, if he does not the pursuer may bring defender back into court for a contempt of court matter. Purseur will draft an incidental writ/minute which states that decree has been granted and circumstances of defenders failure to obtemper that decree. Then the pursuer will enroll a motion to have defender ordained to appear to answer for the breach. If they deny breach he may lodge answers to the minute and a proof may be required, if he admits or is found to breach then sheriff can grant order for warrant for imprisonment.
What is an action for interdict used for?
Interdict is a court order either against a wrong in the course of being done or an apprehended violation of a party’s right. It is an order preventing the defender from doing something.
In order to obtain such an order the pursuer must show that his right will be infringed in some way e.g. Breach of contractual obligation or trespass.
The wrong complained about must be in the course of being permitted or in reasonable contemplation of happening.
The crave must be in precise terms so as to leave the defender in no doubt as to what is required of him. This is because the sanction for breach of interdict is penal (contempt of court).
An interdict action can proceed like any ordinary action, it will typically involve an application for interim interdict at the outset of the case.
It is possible to apply for interim interdict before you serve the initial writ and this can be granted even before the defender learns of the action.
In order to obtain interim interdict you must include a crave with supporting averments and a plea in law.
In cases of genuine urgency this can be done outwith working hours.
To obtain interim interdict the pursuer must establish that he has a prima facie case and if succeeds then he must prove that the balance of convenience favours him e.g. An assessment of prejudice of defender in order being granted as opposed to prejudice to pursuer in order not being granted. Must satisfy sheriff for both legs of the test.
It is important to bear in mind that interim interdict is obtained at the risk of the pursuer, if the pursuers action fails then the defender may be entitled to damages for wrongus interdict, e.g. For selling property in dispute with third party.
The defender may enrol a motion for recall of interim interdict then there will be a further hearing where prima facie case and balance of convenience will be argued.
What is a caveat?
A caveat is a document which any person may lodge at any court and requires annual renewal. If the defender lodges a caveat with the court tin question the court will honour the caveat by informing him that the pursuer has enrolled an interim interdict before the service of the writ. The defender will then be given an opportunity to appear at that initial hearing and explain why interdict should not be granted. If the defender breaches an interdict or interim interdict the procedure is identical to that of a breach of any other court order - the pursuer drafts a minute which states hat interdict has bee granted and the circumstances of the defenders breach of interdict, the defender is then ordained to appear before sheriff to answer for the breach, if he denies the breach then he lodges answers and proof may be required, if he fails or admits he may be imprisoned or a fine imposed.
What is an action of division and sale?
Such an action may be raised by any owner of common property. Any owner of common property is entitled to realise his interest in it (e.g. In equal shares)
All other pro indiviso owners of the property must be called as defenders.
The first matter to be determined is whether the property will be capable of division. If this is in dispute the court will hear evidence of the matter or appoint an expert to report.
Assuming the property is to be sold rather than divided the court will appoint an independent person to affect the sale. The reporter will report on the proposed method of sale and parties are given opportunity to object.
Then the property will be sold and proceeds given to court.
Court authorises a division of the proceeds in proportion to each party’s title to the property.
What is a declaratory action?
This is one where the pursuer craves a right to be declared in his favour but nothing is demanded to be paid or performed, e.g. Existence of servitude right,
Pursuer can also seek declarator as to the non existence of a particular right.
Or declarators of death, parentage or non parentage or legitimacy or non legitimacy.
As of september 2015 actions of reduction may now competently be raised in the sheriff court. Actions of reduction are discussed later.
All parties with an interest should be called as defenders to a declaratory action. This is in order to ensure that any order the pursuer obtains is given proper legal effect so must consider all parties who may have a legal interest in the outcome and they must all be called as defenders.
Often accompanied by other craves, e.g. Payment or interdict.
Declarators sought must be precise and unambiguous. The courts will not entertain academic disputes, there must be a live practical issue in order for the court to entertain it. The question is whether the court will be left in any reasonable doubt as to what the order means, if so, it is insufficiently precise.
How is a person declared dead?
One statutory form is the action for declarator of death under the Presumption of Death (S) Act 1977.
Such actions may be raised when a person has gone missing and circumstances suggest they are dead or when they have been missing for several years.
In such cases the missing person is called as the defender and the action must be intimated to any spouse and children and the lord advocate in the public interest.
If the action is undefended, an undefended proof is required in order to obtain decree.
Any decree obtained should be registered in the Register of Births, Marriages and Deaths.
What is an action of proving the tenor?
OCR 53
This provides for this action to be raised in the Sheriff Court, previously only competent in CoS this changed as of 22 September 2015.
This action is an action to obtain the order of any term or content of any part of a lost or destroyed document.
Such an action is appropriate when (a) the party requires the principal of the lost or destroyed document in order to establish title to sue; or (b) the document is the subject matter of an action.
Once pronounced the order has the same effect that the original document would have had although it is not an action of declarator - although same effec.t
The document in question must have been lost of destroyed erroneously - not a superseded will.
Any person with an interest in the lost or destroyed document may raise such an action.
And every person having an interest in the document should be called as a defender.
Where no such defender can be identified the LA should be called as representing the public interest.
When lodging an initial writ the pursuer must lodge in the process supporting documentary evidence of the tenor of the document to be proved, in so far as in his possession or control.
Where the action is undefended, evidence will be given by affidavit unless the sheriff otherwise directs. If undefended evidence will be given by parole evidence in the normal way.
What is an action of reduction?
OCR54
This provides that these can be raised in sheriff court.
Such an action is appropriate where a person seeks to reduce a document upon which real or personal diligence may proceed (OCR54.2(1)).
This is an equitable remedy - meaning that where other means for review of a decree are available which have been used or where the person seeking reduction has failed to pursue other means for review, reduction will not be granted.
In addition to the substantive crave for reduction, the writ will usually include craves for suspension and interdict. Where the defender objects to satisfying a crave for production of a document sought to be reduced the defender must state in the defences the grounds of objection and any defence on the merit of the action (OCR54.3). Where the sheriff repels or reserves an action, the defender must be ordered to satisfy that crave within such period as the sheriff thinks fit.
Where the defender following that order lodges any document a motion to hold document satisfied or in respect of the document lodged must also be made.
Failure of the defender to comply with any such order provides opportunity for pursuer to make a motion for decree by default.
What does Rule 54.4 provide for?
Rule 54.4 provides for a situation where defender does not state any objection to satisfying a crave for production. In this situation, the defender must when lodge defences lodge and process any such documents for the defenders possession or control and make a motion to hold production satisfied or satisfied in respect of the document lodged. Failure to do so entitles the pursuer to make a motion for decree by default.
What does Rule 54.5 provide for?
Rule 54.5 - deals with the situation where the pursuer has possession or control of the document in respect of which reduction is craved. In such cases the pursuer must lodge that document in process with the initial writ and enrol the motion to hold production as satisfied.
The sheriff may at any stage order the pursuer to satisfy a crave for production of the document sought to be reduced. Where the pursuer does not comply with that order the defender may make a motion for dismissal.
