Incidental Procedure - Motions Flashcards
What is an incidental procedure?
This business is often called interlocutory business as it involves discussion between the parties in the court about a specific issue rather than about the totality of the case.
What does interlocutor mean?
The term interlocutor means the written formulation of an order which the court has made.
What is the motion procedure?
In the course of the litigation one or more parties at any one point during the case will need to ask the court for assistance with something in order to make progress with the case.
What are some examples of motions?
A number of incidental orders which might be asked for in an action. All of these orders require one of the parties to take action and make a motion to the court.
• INTERIM INTERDICT - an order stopping the defender from doing something.
• SIST - either party - to stop the procedural timetable for a period, e.g. Action moved close to a time bar and one or other party needs time to investigate the issues, or one or another party needs time to apply for legal aid, or a party is due to be heard on appeal which affects the outcome of your case.
• AMENDMENT of the pleadings
• THIRD PARTY NOTICE - bringing a third party into the action
• COMMISSION AND DILIGENCE TO RECOVER DOCUMENTS (order from court requiring third party to produce documents)
• INSPECTION OF PROPERTY order
• INTERIM DAMAGES
• SUMMARY DECREE
How do you go about making a motion?
A procedure about motions is dealt with in chapter 15 of the ordinary cause rules.
Lodging of motions
15.1. (1) A motion may be made-
(a) orally with leave of the court during any hearing of a cause; or
(b) by lodging a written motion in Form G6.
(2) Subject to paragraph (3), a written motion shall be lodged with the sheriff clerk within 5 days after the date of intimation of the motion required by rule 15.2 (intimation of motions) with-
(a) a certificate of intimation in Form G8; and
(b) so far as practicable any document referred to in the written motion and not already lodged in process.
(3) Where the period for lodging opposition to the motion is varied under rule 15.2(4) (variation of and dispensing with period of intimation) to a period of 5 days or less, the written motion and certificate to be lodged in terms of paragraph (2) shall be lodged no later than the day on which the period for lodging opposition expires.
It is now possible to intimate and lodge motions by email. This has only been in place since September 2015. At the moment this applies only to personal injuries actions in the sheriff court.
The way this works is there is a central motions email box and if you are using that court you have to sign up with a dedicated motions email address. This is being extended to the sheriff appeal court.
This means at the moment for non personal injury actions you must proceed by means of the written forms as prescribed in the rules of court in the appendix.
Form G6 and form G7
Form G6 is the form of the motion itself. It contains the sheriff court, the instance of the actions and then whichever party it is moves the court and you must insert the details of the motion and list any docs lodged with that motion and the form must be signed and dated. With that, you require to intimate the motion with form G7. And also require to have evidence of intimation.
Must have some form of evidence for service to complete form G9.
Form G7 - must call attention to the character of what is being served so the person has no doubt.
Form G8 - what you have to complete to prove that you have intimated the motion.
If the motion is opposed - the sheriff clerk will fix a hearing in front of the sheriff.
What should you put in a motion?
- Must know what it is you want and the court must have power to grant it.
- Must be precise in what you are asking for.
- Some motions can be simple, e.g. For allowing a minute of amendment to be received. Careful thought will be required as to why the court should allow it. In interim interdict for example the formal words used in the motion itself require careful thought.
- OCR Chapter 15 - the sheriff court rules make specific provisions about motions in this chapter. Court of session make similar provisions in chapter 23.
How can a motion be made?
The rules provide that a motion can be made in a two ways:
• Ask Orally, with leave of the court during any
hearing of a cause – OCR 15.1(1)(a) called making a motion to bar.
• If the case is not before the court then by lodging a written motion in Form G6 – OCR 15.1(1)(b). This requires certification of intimation and to give the other side an opportunity to oppose the motion, setting out the reasons for that.
The forms used for these sets are Form G6,7,8,9 and are all set out in the ordinary cause rules.
• Intimate motion Form G7
• Certify intimation Form G8
• Opposition Form G9
So first of all must set out an ordinary motion in form G6 setting out what you are seeking and your reasons. This slide and the next show two examples of motions: (1) for commission for diligence and (2) minute of amendment.
When must a party reply to a motion?
The other parties do not have an indefinite period to make up their minds how to respond. Unless the party making the motion has asked the sheriff for a shorter period the party will have 7 days to do something. In the court of session the period is less and is usually 2 days. It may be that the party or parties responding to the motion are in agreement and are prepared to consent to it.
What happens if a party consents to a motion?
- In this event OCR 15.4 and consent must be given in writing. It may be that while not actively consenting the other party is not opposing, in that event no written notice is required.
- Where a party consents to a written motion he shall endorse the motion or give notice to the sheriff clerk in writing of his consent
- Where no notice of opposition is lodged the motion determined by the Sheriff in chambers - the sheriff may require to be addressed by one or more parties even on an unopposed motion - e.g. A list.
- Sheriff may require to be addressed on unopposed motion
- OCR provide that Sheriff clerk may deal with routine unopposed motions in accordance with directions given by Sheriff Principal (e.g. motion for re-service of the writ). The interlocutor may be signed by the sheriff clerk rather than the sheriff but it is nonetheless valid.
What happens if a party opposes a motion?
- If the motion is to be opposed the party opposing should take several positive steps provided for in OCR 15.3
- First that party must Complete notice of opposition in Form G9 - example in next slide. Although OCR do not require party opposing to specify reasons, it is good practice to do so. The Court of session rules do require reasons to be given and this is helpful in focusing the argument about what facts in the motion are in fact disputed.
- Secondly, the party must intimate a copy of notice to other party/ies (all of them). The methods of intimating are the same as the methods for intimating the motion.
- Finally, must lodge the notice with sheriff clerk within 7 days after the date of intimation. The 7 day deadline runs from the initiation of the motion, not from the intimation of the opposition.
- Same methods of intimation of opposition as for intimation of motion
What happens when a motion is opposed?
Where a motion is opposed OCR 15.5.5 requires the sheriff clerk to fix a hearing on the motion and this is a parties opportunity to set out their various oppositions to the Sheriff.
Assigned by the sheriff clerk
• Can be heard within the 7 day notice period
• The hearing must taken place on the first available court day after the lodging of the motion. This does not mean it must be the first actual day.
• In each sheriff court there will be a day when the Civil Ordinary Court takes place and the hearing will usually be fixed to take place at the first ordinary court after the notice of opposition.
• At the hearing the party making the motion will be heard first and the other parties will have opportunity to reply. The sheriff will then decide the motion unless it is particularly complex, then the sheriff will advise in writing at a later stage.
In disposing of a motion the sheriff can - Grant the motion, refuse the motion, refuse in hoc statu (means the motion is refused for now but if there is a significant change in circumstances the party may make the motion again), or continue the motion which means that the hearing will take place at another day. Perhaps because an issue has arisen which requires parties to consider matters further.
What are the rules concerning expenses?
The party who is successful should ask the sheriff to make an award of expenses in relation to the motion at the time, without an interlocutor about expenses, whatever the ultimate outcome, it will be very difficult to work out those expenses later.
When can an action be dismissed due to a delay?
- Special rules at OCR 15.7
- Written motion
- Inordinate and inexcusable delay
- Unfairness
- Full statement of grounds required
- Notice of opposition to contain grounds of opposition
When can you sist an action?
- Special rules apply to motion to sist an action • A sist stops an action or postpones progress • Reason for sist to be stated • Reason to be recorded in interlocutor
- Sheriff may recall sist after hearing parties
What are Ch15A E Motions ?
- Motions by email in personal injuries actions
- Practice Note No 2 of 2015:
- http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice- notes/sheriff-court/lothian-and-borders/sheriff-court-practice-note-lb-number-2- of-2015.pdf?sfvrsn=4
- All Scotland Sheriff Personal Injury Court
- Motions to sist and for dismissal due to delay possible
- Special rules apply to documents referred to in motions
