Procedure from commencement to Options Hearing I Flashcards
What is an adversarial system?
We have an adversarial system in this country, which means that both parties put forward their own arguments in support of their own position, and the judge decides who to favour.
It is fundamental that the rules have to give each party to a litigation equal opportunities to explain and argue their position.
What happens if a technical requirement is not complied with?
If a technical requirement is not complied with, the party may not be able to continue its motion, whatever its merit.
Who has jurisdiction over claims totalling £5000 or less?
The Court of Session does not have jurisdiction in relation to claims totalling £5,000 or less. The sheriff court has “privative” jurisdiction over such actions.
What actions take place in the court of session?
Ordinary Action Petitory Action Commercial Cause Judicial Review Personal Injuries Procedure
What actions take place in the sheriff court?
Ordinary Action inc. Family actions Commercial action PI procedure Summary cause Small claim Summary application
Who has jurisdiction over claims totalling £150000 or more?
If for £150000 then it could be raised in sheriff court as an ordinary action or as a commercial action or in the Court of Session as an ordinary action or as a commercial cause.
What does privative mean?
It means the procedure which must be used for certain cases but many have alternatives and it is for the pursuer in the first place to decide which procedure to use.
Which party can ask the court to remit a case?
Either party can ask the court to remit a case from one form of procedure to another or from one level of court to another, after proceedings have been commenced.
Where are the rules in the sheriff court found?
SH Ct Rules - Ordinary Cause Rules 1993.
The rules themselves can be found in Sh Cts (S) Act 1907
Format - Chapters and at end of rules are forms.
Ordinary Cause rules found in schedule to 1907 Sheriff Court (S) Act - see page 10 - index of ordinary cause rules, covering a lot of ground (54 separate chapters)
Who regulates procedure in the Sh. Ct?
Courts Reform (S) Act 2014 - s104 of the 2014 Act gives CoS power to regulate procedure and practice in Sh Ct.
What is the outline of procedure in the sheriff court?
- First Draft initial writ
- Obtain Warrant
- Serve Writ on Defender
- Defender will serve notice to defend (if choosing to defend)
- If no notice to defend then Decree in Absence
- Reponing against decree in absence: If defender has decree in absence pronounced against him he may be able to reopen that decree
- Lodge set of defences
- Period of Adjustment
- Pursuer lodges record for options heading
- Options hearing - options are proof, debate, preliminary proof etc.
In order to make sense of the procedural sequence of events in the case studies, it may be helpful to consider the following flow diagram of the main procedural steps in an Ordinary Action:
- Pursuer prepares the initial writ
- Initial writ is sent to the Sheriff Clerk for warranting along with the appropriate fee.
- Process of warranting the writ
- Service of the initial writ - serve by post of by messenger of arms
- Then defender receives, initial writ, warrant from the court, form of citation (Form 05) and a form of notice of intention to defend (Form 07) must decide if they are intending to defend. If so, must lodge Form 07. They have 21 days to decide.
- As soon as the defender has done this - see defended case flow chart (p22)
- If defender has not done this - see undefended case flow chart
Form G5 sets out a number of key dates - first date will be the date by which defender must lodge defences, generally 14 days after period of 21 days for lodging intention to defend. The next date will be the end period of adjustment - around 8 weeks (not less). It is a period for parties to refine pleadings.
The third period will be the options hearing - the court will assign a date for this (at hearing, you decide the further procedure, it is the first time the case has to call in court.
There are options stemming from options hearing:
1. Additional procedure - an extended period of adjustment of the pleadings (unusual in practice)
2. Debate - a hearing which the court will address legal argument about pleadings. It will be addressed about preliminary pleas which parties may have.
In summary there are some issues which are so fundamental and do not need the court to hear evidence, which can dispose of action, e.g. Jurisdiction without evidence (debate). More common would be argument by defender that pursuer’s case is irrelevant (Donachey v Stevenson - went to HOL without any evidence heard - the idea is that an argument about relevancy is an argument about whether as a matter of law a party is entitled to the remedy which they seek on the basis of the pleadings) - again dealt with at a debate.
- Proof before answer - some legal issue like relevancy or time bar (for example) where court needs to hear evidence before it can determine that legal issue
- Proof - all issues up for discussion
How long does this take?
From period of raising the action and the options hearing there is a clear timetable.
What happens after options hearing?
This is determined largely by the volume of business in a particular sheriff court. Typically, a debate might be a couple of months after the options hearing and a proof further down the track.
NB timetabling of PI cases is different - court will fix proof then count backwards. In other actions we count forward.
If the action is undefended:
- Pursuer seeks decree in absence.
- Note when 21 days of intention to defend expires.
- If you apply for decree in absence you will get an extract decree which is similar to a certified copy; however, if defender finds out about the action and has a good reason why notice of intention to defend was not lodged, e..g on holiday then there is a process by which a decree in absence can be recalled by the court - reponing. You can find procedure about that in Ordinary Cause 8. If that is successful then action proceeds as an ordinary defended action and date of decree will be the date of losing of defences.
What is a dispensing power?
This allows Sheriff or Judge to dispense with non-compliance with the rules, e.g. Get out of jail free.
It is contained at OCR 2.1.: provides that sheriff may relive a party from the consequences of failure to comply with a provision in the Rules which is shown to be due to mistake, oversight or other excusable cause on such conditions as he thinks fit.
Thereafter, sheriff may make such order as thinks fit to enable cause to proceed as if failure to comply had not occurred, e..g award of expenses against party who has failed to comply — allows failure to comply to be excused and to pretend that it hasn’t happened in order to put matters right.
Allows justice to be done
Balances justice and compliance with rules
Gives discretion to court to allow flexibility
Should not rely on it it as cannot assume you will always be allowed to make use of the power
If no compliance then a penalty may have to be paid - the appeal court won’t lightly interfere
Grier v Wimpey
the old Sh Ct rules were not complied with, under the old procedure once a notice of intention to defend was lodged you needed to lodge process for tabling. That was procedure the pursuer had to invoke, if pursuer did not do then the case will be dropped from the rule. The pursuer sought to invoke dispensing power but Sheriff refused. Inner house held it could be appropriate to invoke dispensing power. Referred it back to sheriff to decide. This is important as it takes a flexible and charitable view of situations. If trying to invoke dispensing power then use Grier as it gives indication of instances when the dispensing power has been invoked.
DTX Debenham Thorpe v Henderson Transport Services 1995
(power not used for failure to lodge record).
Days before options hearing pursuers solicitors has to lodge a copy of record with sheriff clerk. The record is the up to date version of the pleadings containing initial writ and defences as adjusted in one final version of the adjusted pleadings for both parties. On this basis, the sheriff makes a decision for the future progress of the action. Sheriff can refuse to continue action if there is failure to lodge record. In this case the sheriff did dismiss action s pursuer failed to comply with requirement to lodge record in advance of option hearing. Inner house refused to interfere with sheriff decision. They were anxious for parties to comply with that requirement so that sheriff can exercise his power to dismiss actions for failure to comply. Time bar can be an issue here. But here only loss was the expense of raising an action which was then dismissed.
Canmore Housing v Scott 2003
one of the parties failed to appear and decree by default was granted. The party who failed to appear appealed and requested that dispensing power be exercised. Sheriff said this was not appropriate as failure to appear was not a mistake, oversight or other excusable excuse and felt it not appropriate. However sheriff principal also felt it was not appropriate to grant decree by default, they should find out why — you should be entitled to give reason why you were not there.
You should not rely on the dispensing power.
