Incidental Procedure - remits between courts Flashcards
What is remit?
Remit is when a case is sent to another court.
Where are the rules of remit found?
The rules are found in Chapter 26 of the Ordinary Cause Rules as amended by the Courts Reform (Scotland) Act 2014
One of the main themes of the 2014 act is to provide for
Case management of actions by judiciary rather than leaving control in the hands of the solicitors or the parties.
What is case management?
Case management is the principal that the court should have the power to control the conduct and timing of the cases.
The main intention of the reform is to reogranise the court court structure and procedures to have cases dealt with at appropriate level of hierarchy and cost.
Exclusive competence of Sheriff Court for cases of £100,000 or less under section 39 of 2014 Act.
A party can now only raise proceedings in the court of session for a claim worth more than £100,000.
The act establishes a New sheriff court with jurisdiction throughout Scotland as opposed to individual sheriff courts which have jurisdiction within each of their sheriffdoms under s41. S39 on exclusive competence has been applied to personal injuries cases by an act of severance. The new court is known as the all scotland sheriff personal injury court (ASSPIC).
What is the ASSPIC?
All-Scotland Sheriff Personal Injuries Court or “ASSPIC”
ss92-93 in the 2014 Act provisions for moving actions from one court to another. While these are designed to ensure that all cases are dealt with at appropriate level and court, it is difficult to predict how this will operate in practice until first decisions are issued.
These sections représent a Significant change to the existing rules. The procedural rules implementing these provisions are contained in OCR Chapter 26.
Two different versions of Chapter 26 - one applies to actions lodged before 22 September 2016 and the other to actions lodged after 2016.
How are summary cause proceedings remitted?
OCR 26.1A(1) provisions on remit of court of session under the old law.
Turning to remit and transfer of summary cause proceedings to the all scottish sheriff court. This applies where the sheriff directs that a summary a summary cause is to be treated as an ordinary cause and at the same time makes an order referring the action to the ASSPIC. The pursuer must serve an initial writ and intimate it to every other party within 14 days of the date of the order. The defender must then lodge defences within 28 days after the date of the order.
The action is to be treated as a personal injuries action within he meaning of part A1 of Ch 36.
Chapter 36 applies different procedural rules to actions of damages
Different procedural rules for case management - this ensures more efficient resolution of cases.
How are cases remitted to the court of session?
Section 39 provides for the exclusive competence of the sheriff court in actions for £100,000 or less.
An action before the sheriff under OP for under 100,000 may be remitted to the Court of Session if the sheriff considers the importance or difficulty makes it appropriate to do so. If the action does not exceed this, the sheriff may under his own initiative request that it be remitted to the court of session if the sheriff considers it important or difficult but the court of session does not have to accept this. The court of session may on cause won allow it to be remitted. There is likely to be case law on the exercise of the discretionary powers and the facts that might be remitted.
Remit from Sheriff Court to Court of Session under s92:
This application is to be made by motion within 4 days after the sheriff has pronounced an interlocutor remitting a cause to the CoS the sheriff clerk must serve notice of remit to each of the parties and certify this on the interlocutor sheet then transmit the process to deputy clerk of the court of session.
If the sheriff clerk fails to comply this does not affect the provisions of a remit.
Importance or difficulty and if allowed by Court of Session on cause shown.
Discretionary
Any party can apply
Remit to the Court of Session under other enactments possible under OCR 26.2B. This applies where the sheriff has pronounced an interlocutor remitting a cause to the court of session under an enactment other than s92 of the court of session. Within 4 days after the sheriff has pronocuned this the sheriff clerk must serve written notice of the remit of each party and certify the interlocutor sheet that that para has been complied with and transmit process to the deputy principal clerk for CoS. Failure to comply with these provisions does not affect the validity of the remit.
An action before sheriff under simple procedure cannot be redmitted to the court of session, e.g. Action for payment of under £5000. There are also provisions under s78-80 for moving actions from one form of procedure to another.
Transfer simple procedure to ordinary procedure but not Court of Session.
Remit to Scottish Land Court under s94.
How are cases remitted to the sheriff court?
Remit to the Sheriff Court: s93 of the 2014 Act
Cases are remitted under s93
On the courts initiative:
S93(1) Mandatory by court if value of case considered to be under £100,000 unless cause shown otherwise. This is mandatory.
On the motion of party or the court:
s93 (2) Discretionary by party or court if the “nature of the proceedings” make it appropriate.
This Includes remit to ASSPIC.
It is unclear exactly what is intended.
This is a new power for court to take the initiative.
OCR 26.2
OCR 26.3 - on receipt of the process of an action being remitted by CoS that remit of cases the sheriff clerk shall record the date of receipt on interlocutor sheet and fix hearing to determine further procedure on the first suitable court date occurring not earlier than 14 days after the date of receipt of the process and (c) send written notice of the date of the hearing fixed under sub paragraph to each party.
