Preliminary Pleas I Flashcards
What are preliminary pleas?
Involve issues which can and often should be dealt with before the merits in dispute proper are assessed.
By the merits this means the subject matter of the case as the parties perceive it to be.
For example, the merits could be an allegation of delict, breach of contract etc. The merit of a case like that are the disputed issues of fact and law which will ultimately be dealt with by the sheriff if the case is not settled or otherwise dealt with on a preliminary plea.
In contract to the merits the subject matter of preliminary pleads tends to be collateral or antecedent to the main issues in the case.
They are more usually raised by the defender who is in effect saying never mind the merits of the case, there is another legal consideration which comes into play first which means the pursuer loses his or her case.
What is the common outcome for preliminary pleas?
In terms of outcome the usual outcome of a successful preliminary plea is dismissal of the action.
There is an important distinction between a case which is dismissed and the case where decree of absolvitor is pronoucned on the other. In the former the action is dismissed and the pursuer can start again subject to conditions. If on the other hand, decree of absolvitor is announced then the pursuer, subject to minor exceptions, cannot start again with a fresh case.
The verb from absolvitor is to assolzie - so it means that the court believed the defender.
Further information and spellings can be found in the glossary in resource section.
Sometimes preliminary pleas can be resolved simply on the pleadings via a legal debate. Other occasions require evidence. In the latter situation the court fixes a preliminary proof on the subject matter of the plea in question.
This is dealt with distinct from the proof on the merits. If the party taking the plea wins after the proof the action will probably be dismissed, if he/she loses then the case will continue to a further proof to address the merits.
What is the procedure for preliminary pleas?
First, it is a mandatory requirement that the party taking the plea has an appropriate Plea in law in
Their pleadings e.g. Initial writ or the defences.
Secondly, it may be necessary to make Averments in fact and law in support of the preliminary plea.
Thirdly, there is the requirement found in Rule 22 Note – OCR 22. to lodge a Rule 22 note which comes into play towards the end of the period of adjustment which follows service of initial writ and loading of defences.
As that draws to the end, anyone who wants to argue a preliminary plea in addition to putting it into their pleadings has to frame and lodge an intimate a rule 22 note.
This should set out the nature of the plea and argument in support of it.
After this, at options hearing you can ask the sheriff to allow further proceedings in respect of your preliminary plea. The rule works quite drastically the other way around, because OCR 22.1(3) provides that if a party has not lodged the rule 22 note timelessly then he is deeded to have abandoned the preliminary plea even though it is in the pleadings. So it is essential to get the thing off the ground to put in the Rule 22 note in advance of the options hearing.
The options hearing of the preliminary plea is still insisted on at that stage the sheriff has to decide on what procedure to allow in connection with the plea and he or she can fix the date as appropriate or allow a preliminary proof.
Must lodge before Options Hearing: OCR 22.1(3)
Debate or preliminary proof
What is a plea to the competency?
Plea to the competency: the defender would not be taking that plea normally.
Form: “The action being incompetent, it should be dismissed”
The plea involves trying to raise an action in respect of which the sheriff does not have jurisdiction in respect of subject matter e.g. Action to prove the tenor of a lost document. The defender would then readily tender a plea to the competency of the procedure and there would be no need for a proof about that.
Or an action raised by someone who didn’t have legal capacity for whatever reason. This covers a range of situations.
Calling in question the remedy, or the pursuer in these proceedings in this court
What is a plea of no jurisdiction?
This concerns jurisdiction with regard the actual parties in the case. This would invariably be defender who took this plea.
Form: “No jurisdiction”
Might arise where it is apparent from the face of the pursuer’s pleadings that there is no jurisdiction
For example: if you had a road traffic accident in aberdeen and defender domiciled in glasgow but pursuer raises an action in Edinburgh saying this court has jurisdiction because I am pursuer domiciled in edinburgh - this would be ex facie a defect in jurisdiction because the pursuer would be proceeding erroneously by saying of the court having jurisdiction by virtue of his domicile.
The defender would table a plea of no jurisdiction as a preliminary plea.
The sheriff would not need to allow a proof on that as it would be open to the defender to show in a legal debate that even by his own pleadings the pursuer does not have proper basis of jusridciton.
The case would go through rule 22 note to a debate and inevitably the pursuer would lose if he didn’t abandon the case or change the ground of jurisdiction before the final determination.
You can also have a plea of no jurisdiction which cannot be determined by reference solely to the pleadings. e.g. Road traffic accident, the pursuer may raise the action averring that the defender is domiciled in edinburgh and thats why it is being raised there. The defender’s position might be that I have never lived in edinburgh therefore I am not domiciled there - two competing version of events which can only be resolved by evidence so if the plea is taken and the rule 22 note is put in the sheriff would fix a proof which would be a preliminary proof on the question of whether on the facts the defender had ever lived in edinburgh and whether they would be seen as domiciled in edinburgh according to the appropriate rules of jurisdiction.
No jurisdiction over these parties
No jurisdiction over these parties in these circumstances
What is a plea to the relevancy?
The third category is relevancy. This plea is usually combined with a plea of specification.
Most common form shown below:
Form: “The pursuer’s/defender’s averments being irrelevant et separatim lacking specification, the action should be dismissed/decree de plano should be pronounced.”
This will always be resolved at debate rather than at a preliminary proof because a plea to the relevancy can only be argued and sustained with reference to pleadings.
The test for relevancy: even if the pursuer proves everything he or she avers on record, as a matter of law, is the pursuer entitled to the remedy sought?
An action will not be dismissed as irrelevant unless the defender satisfies the court during debate that the pursuer must necessarily fail even if all the averments are proved:
Jamieson v Jamieson1952 SC(HL) 44, per L Normand at p 50 — be aware of this case when preparing for a debate about relevancy.
What is a plea to specification?
This is exclusively an issue as to sufficiency of detail of opponents pleadings and will only be dealt with by a rule 22 note
Almost always combined with plea of relevancy - Relationship with plea to relevancy
An argument about specification of pleadings is an embodiment of the Cardinal principle of fair notice
This is the cardinal principle that your opponent and the court are entitled to fair notice of the case which a party seeks to establish.
This applies equally to pursuer and defender.
Another aspect makes giving proper specification in each parties self interest. If proper interest is not given on the fact which a party relies he/she will not be able to lead evidence on the matter at proof.
It is necessary to set out the material facts which the parties intend to prove, e.g. In breach of contract it is necessary to plead sufficient facts to give notice on what the contract comprised, what defender did to breach and facts relevant to establishing the pursuers losses.
Importance of pleading case full – will not be able to lead evidence on a point not made the subject of averments
What is a plea of no title to sue?
Plea is written in Form: “The pursuer having no title to sue, the action should be dismissed”
It is part and parcel of any valid action that the pursuer should show both title and interest, so if contract between A and B it is not open to C to raise an action to enforce A or Bs contractual rights unless these have been validly assigned
In delictual case if A is injured as a result of Bs negligence it is not open to C to raise action to get B to pay damages
to A because C does not have title to pursue the claim as B did not owe a duty of care to C.
In the law of property there are endless examples of who has particular title to pursue a particular right.
You cannot litigate about things which have become purely academic interest.
Be aware that if one party is challenging another parties title to sue by means of preliminary plea, if insisting on it they put in rule 22 note and sheriff will allow a debate if appropriate or preliminary proof or exceptionally reserve it until after the proof on the merits.
Title means legal relationship between P and cause of action
Interest must be real and not hypothetical
What is a plea of timebar?
Prescription - principle here is that after passage of time some rights are completely extinguished, e.g. Damages for breach of contract is 5 years. If you fail to do this then the claim is subscribed and if you subsequently raise an action you opponent will take a plea of prescription which is preliminary plea bringing the action to the end.
Prescription is pars iudicis - this is when the court is bound to give effect to the point even if it is not raised by one of the parties.
Limitation - does not operate to extinguish right completely but makes them unenforceable if a successful plea is made. This classically occurs in relation to claims for personal injury in delict. Again, for PI claims the general rule is that limitation period kicks in 3 years after date of accident.
Broadly speaking, an adult pursuer has 3 years to raise an action and if he/she fails to do that they are vulnerable to plea of limitation. Limitaiton is not pars iudicis so if the plea is not taken then it simply does not arise.
The period where you have the right to raise the action is called the triennium - the 3 years from the date which the accident occurred and the losses suffered up to the point where limitation suffered. Golden rule therefore is have a diary more of than 3 years and every time get new client, mark in dairy a week before treienium expires.
Pleas of prescription of limitation should be supported by averments setting out the statutory provisions relied on and a series of facts indicating why the time bar applies.
Limitation must be pled by D
Example of plea: The action being time-barred in terms of section 5 of the Prescription and Limitation (Scotland) Act 1973, it should be dismissed.
