Disposal of Action Without Proof I Flashcards
What happens if an action is undefended?
The vast majority of cases are disposed of without substantive hearing
Where actions are undefended there is no need for a proof however in some cases in relation to status there requires to be a proof.
What are the types of disposals of actions without proof or debate?
- Decree by default (including withdrawal of solicitors and dismissal of actions due to delay).
- Abandonment.
- Judicial Settlement
- Extra-judicial settlement - by far the most common way in which actions are disposed of without need for proof or debate.
What is the basic principle of litigation?
The basic principle of litigating is that once commenced it should be progressed to conclusion as soon as reasonable practical in accordance with procedure.
What is decree by default?
In certain circumstances if one party fails to comply with the rules of procedure and they are in default then the court has discretion to dispose of that action by reason of default.
What are the rules about decree by default?
In the sheriff court the rules about decree by default are set out in OCR Chapter 16. Similar rules apply in the CoS.
What is Rule 16.1?
Sets out the circumstances in which the rules on decree by default apply. In short the rules apply to all actions except family actions, civil partnership actions, actions of multiplepoinding, actions on the presumption of death (S) act 1977 and commercial actions.
What is Rule 16.2?
deals with the circumstances which amount to default and the possible circumstances. There are four specific circumstances which amount to default: where party fails to lodge or intimate any production or other part of process provided for in the rules or by the sheriff. The second is where one of the parties fails to implement an order for the sheriff within a period which is specified for implementing it. The third is there one party fails to appear or be represented at any diet where this includes the options hearing or procedure hearing under ch 10, any proof or proof before answer or general debate. The fourth is a catch all where a party fails to comply with any of the OCR.
If one of the parties is in default within the meaning of this rule then a sheriff may grant decree by default. The form of decree depends whether it is pursuer or defender in default. Where defender is in default the sheriff may grant decree as craved with expenses. In this situation the sheriff may consider whether it is intelligible to grant decree in terms of the craves, if there is no decree in terms of the primary crave then the pursuer can return to court to seek decree in terms of an alternative crave.
Where pursuer is in default the sheriff may grant either decree in absolvitor or decree in dismissal. In either case the grant of decree will be accompanied by an award of expenses.
Must understand this distinction.
If a decree of absolvitor is granted then the pursuer cannot raise the action again and the defender is forever free from the crave on the basis of those averments.
If an action is dismissed then the pursuer can raise it again so decree of absolviotr is more favourable to the defender. It is usually only granted after a proof or proof before answer. Even following a debate, decree of dismissal is the best a defender can achieve.
The sheriff may also make any other order which allows the case to be progressed extra judicially.
These rules apply where there has been a failure by one of the parties to an action. Where neither party appears then the sheriff may dismiss the cause and decide not to grant decree. If they choose to grant decree then they can only grant decree of dismissal, in relation to expense it is only permitable to find none due to or by either of the parties. The sheriff will usually take some step to allow parties to explain what has happened.
What is Rule 16.3?
provides that in any action where decree by default may be granted the sheriff may on cause shown prorogate the time for lodging production or part of process or intimation or influencing an order. This is a specific instance of the dispensing power given to the court by ch 2 of the OCR. Whether or not cause is shown where the sheriff is prepared to prorogate - it is closely related to issue whether sheriff should exercise discretion and grant decree by default and both depends on the nature of justice.
What is the effect of decree by default?
Decree by default with a finding of expenses disposes of the whole subject matter of the action and is therefore a “final judgment” within the meanings of Sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907.
The effect of this is that there can be an appeal without leave of the sheriff. It is not competent to seek to be reponed in relation to decree by absence. It is not a final judgement and a refusal to grant decree by default can only be appealed with the leave of the sheriff.
What is the aim of an appeal?
Aim of an appeal is to restore the party who is in default to the position he/she was in before the default. The party must persuade the sheriff principal or inner house that the decree granted by reason of his/her default ought to be recalled. The overriding consideration is what is in the interests of justice.
The appeal court is often reluctant to allow a decree by default to be undisturbed by the pursuer with a prima facie case. Or a defender with a prima facie defence. So if there is an issue to try what often happens in practice is that the appeal is granted on the condition that the party in default meets the expenses incurred by the default which incldues the expenses of the appeal. Expenses are usually rewarded on the party tot party scale or an agent to client scale or to the solicitor personally. Hwoever if contrary to the interests of justice to recall a decree by default then the court will not recall it even though there is an issue to try.
What is the discretion of the sheriff?
Where one party is in default the sheriff may grant decree in default.
The word may indicates the Discretion of the sheriff.
The sheriff ought to take into account:
Factors relevant to an appeal which an appeal court will take into account.
Limitation and/or prescription - in the case of a pursuer in default with a prima facie case the sheriff must consider whether any subsequent action will be barred by passage of time.
The sheriff must also consider the circumstances of the default. If the default consists of a failure to appear at a diet then the sheriff must consider whether there is Further explanation of failure to appear. And further inforamtion should be made to the party who has failed to appear.
What are some examples of decree by default?
- Failure to lodge defences following lodging of notice of intention to defend.
In this situation in the sheriff court the defender is in default and it is competent to award decree by default against them. However a decree is not treated as a decree incompeturo etc until the passage of time of a considerable period of time. This is potentially relevant to a subsequent claim to reduce the decree. In the court of session, by contrast, if the defender fails to lodge defences having lodged appearance, the appropriate decree is a decree in absence. - Failure to lodge Record for Options Hearing.
DTZ Debenham Thorpe v. I Henderson Transport Services 1995 SC 282.
The first division held that the record is so integral to the options hearing that the sheriff is entitled to dismiss the action due to the failure.
O’Callaghan v. Simpson, Sheriff Principal, Edinburgh Sheriff Court, 2 July 2004, unreported.
There is less to be said for motion for recall in decree by default where an opportunity has been afforded but not taken for rectifying the failure of default.
David Winter & Sons Ltd v. George Craig & Sons Ltd 1995 SC 141.
Held to be innaprorapite to dismiss the action due to failure to lodge the record. In this case the options hearing was fixed for 12 oct 1994 and the defender lodged a minute of tender and on 11 oct 1994 the pursuer indicated that this was to be accepted. A minute of tender was lodged on the day of the options hearing but the record was not. The defender moved for decree of dismissal by default which the sheriff granted. The record was late when it was intimated that the minute of tender was to be accepted. The second division said that the sheriff ought to have prorogated the time for the ldoging of the record or dispensed with it entirely.
- Failure to appear at a diet.
Canmore Housing Association v. Scott 2003 SLT (Sh Ct) 68.
Held that in the case of a party failing to appear it is usually not appropriate to proceed directly to granting decree by default and instead it would be appropriate to fix a pre-emptory diet to enable the party defaulting to tender an explanation.
Samson v. Fielding 2003 SLT (Sh Ct) 48.
Held the defender had failed to appear or be represented at diet in proof when eh solicitor who appeared had no instructions save to move for a discharge. In allowing the defenders appeal the sheriff principal held that it was not possible to distinguish between a solicitor who was fully instructed and the solicitor nominally instructed. The sheriff recalled the decree by default but found defender liable to pursuer in expenses of diet of proof and the appeal.
When will a solicitor withdraw?
These issues are related to decree by default.
When you act as a solicitor in an action in the sheriff court there are situations where you wish or are bound to withdraw from action, e.g. Client not paying you, unable to obtain instructions or you cannot comply with instructions as they involve dishonestly or client declines to take your advice.
You cannot use withdrawal to contrive a result.
The procedure to be followed is regulate by OCR Chapter 24.
Rule 24.1. — Provides that unless in an open court the fact of withdrawal must be notified by writing to the sheriff clerk and every other party and the sheriff clerk must then lodge the letter in the process. The withdrawal of a solicitor may leave a party unrepresented at the diet which triggers provisions of chapter 16 regarding decrees by default.
Rule 24.2. Provides that the sheriff must grant an interlocutor ordaining the party who has withdrawn to appear where a solicitor intimates that he/she has withdrawn from actionor be represented on a specified date in time and the certification that if they do not appear or they are not represented decree must pass against him/her. In the ordinary case the diet fixed for this purpose must be at least 2 weeks in the future. But the sheriff may fix an earlier date if he/she thinks fit and there is specific provision to allow a previously fixed diet to take place for this purpose even if within 2 weeks. The represented party will then have to serve notice on the party whose solicitor has withdrawn within Form G10 together with a copy of the sheriff’s interlocutor.
Rule 24.3 — provides that where the party whose solicitor has withdrawn fails to appear under rule 24.2 then decree can be granted. Provided the formalities of chapter 24 are followed, if a party fails to appear or be represented at the relevant diet, decree will usually be pronounced and any subsequent appeal is not likely to succeed. In effect it is decree by default and decree in foro. If it is decree in faboru of pursuer it will be decree in plano in terms of the initial writ, if defender it will usually be decree of dismissal or absolvitor.
It can take weeks where your opponent solicitor withdraws to the point where you are able to obtain the decree.
Fernandez v. Fernandez 2007 SC 547.
Held decree by default granted following attempt to engineer discharge by a diet of proof. You have to be careful when withdrawing from acting that you do not threaten your former client’s position.
Connelly v. Lanarkshire Health Board 1999 SC 364.
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