Procedure from commencement to Options Hearing II Flashcards
What is the difference between citation and service?
Citation is the calling of the person to appear and service is the physical delivery of the writ to appear upon the defender.
What are the modes of service of the initial writ?
There is postal service - known as residence or place of business by first class recorded delivery - must be recorded delivery, must use a special type of envelope, (OCR5.3) and
Personal service - service by Sheriff Officer or being left with a resident at dwelling place or place of business (OCR5.4)
Special rules for furth of Scotland (person outside scotland) (OCR5.5.)
What are the rules on service?
Rules found in OCR Chapter 5
Rules 5.2 requires form O4 to be served along with copy of initial writ, warrant of citation and form O7
Different forms for certain actions e.g. Familya nd time to pay
Forms designed to ensure that person who receives it knows what it is they have got and what they have to do
Lodge certiicate of citation with court which is evidence that you have cited the defender, stating how it was served e.g. by post. The form is signed either by the sheriff officer with witness or by solicitor of pursuer.
With this, the sheriff knows the action has been properly started and person has been duly served.
What are the rules on service by sheriff officer?
Service by sheriff officers is covered by rule OCR 5.4
Sheriff officers and Messengers at Arms (They work for the sheriff, they tend to be the same people but are responsible for different courts) can effect personal service but more expensive (set fees)
Postal service = just recorded delivery
If time is not of essence then just use postal service but if vital to know writ served within time limit then use sheriff officers
Need to have a record of delivery for both.
Messengers at arms is the same but for the court of session
Sheriff Officers are trained and qualified officers of the court and serve court documents on people and enforce decrees. Bailiffs are english equivalent.
Benefit - individual can attest to meeting and serving writ on defender.
If use postal service defender can claim he is on holiday. But recorded delivery is normally used.
Sheriff officers can also go along to address looking to serve personally, if he/she is not there they may as well serve it by (1) finding out if the address is correct (2) act of sederunt are authorised to serve the writ posting it though the letterbox after giving 6 audible knocks.
Why and how must citation and service be “effective”?
This is important.
Rule 5.5. Provides detailed requirements in service of situations where the person is outside Scotland - may have to make use of hussier (french for judicial officer)
Rule 5.6 deals with cases where address is not known and service can be effected by newspaper advert and displaying initial writ on walls of court (OCR5.6)
Proper citation and service is pars judicis — must be followed correctly (OCR5.9)
Any defect in citation, service or intimation is cured by turning up. If you do not turn up you take a risk if you are wrong. No obligation to the regularity of service or citation if appear — appearance by person remedies defect in citation service or intimation (OCR5.10) but this does not preclude a plea of no jurisdiction which is a separate matter.
What happens if there is no notice of intention to defend lodged?
Court has power to grant decree in absence
It is not the same status as decree in foro (this is a decree pronounced after notice to defend has been lodged and court has adjudicated on merits of dispute)
It was not grant decree in absence where it is an action in which sheriff requires to hear evidence (e.g. Divorce, presumption of death).
How do you get Decree in Absence?
The rules are found in Chapter 7.
In summary you:
1. You Minute for decree (in terms of OCR7.2)
2. Get a decree in absence
3. Effect is that it can be responded and cannot support of plea of res judicata
Reponing is the procedure which allows Sheriff to reserve granting of decree in absence in certain circumstances (e.g. Defences)
Res judicator means the thing has been adjudicated upon and there has already been a decision which is competent then the end result is decree in foro contentioso - so you cannot relitigate the same grounds with the same parties.
The point of this is that it cannot support plea of res judicata as the court has not adjudicated on the matter. It thus does not have the same finality.
However after 6 months from date of decree in absence where service has been possible it has the same effect as a decree in foro (OCR7.5) another reason to elect for the more expensive sheriff officers to elect for service.
What is reopening?
Procedure allows party who for genunilly good reason was not aware of the decree against them and allows them to lodge notice of intention to defend.
Rules in Chapter 8 OCR.
It must be within 6 months and decree in absence must not have been implemented in full (e.g. enforced and satisfied by executing diligence) if these conditions apply then you lodge a reopening note (reasons setting out why sheriff should lodge reopening)
The effect of reopening note is that diligence has sisted — meaning it is frozen.
Diligence is the procedure by which decree is enforced.
The reponing note requires an explanation of failure to appear and proposed defence is. Must explain reason for not answering citation and explain proposed defence.
Must also outline proposed defence so sheriff is satisfied — when reponing must justify yourself.
It is a matter of discretion for sheriff as to whether or not to allow you to repone.
Thomson v Jardine
inner house considered whether sheriff had exercised discretion or not. Held sheriff took the wrong view and defender should be allowed to repone.
Cosy Legs of Scotland v Razno & CO 1991
sheriff was not satisfied with the explanation and reopening note was refused
Forbes v Johnstone
makes it clear sheriff can allow a reponing note even where reason for failure to appear is poor but is satisfied that there is a reasonable defence then a repning note may be granted. The stronger the defence on the merits the more likely you will get away with reopening.
Can reopening be repealed?
Only a refusal to allow reponing can be appealed. So if defender successfully persuades then pursuer cannot appeal this. The justification for this is that no one wants to delay cases with appeals.
What is the Standard Procedure?
Notice of intention to defend (Chapter 9)
The clerk then fixed options hearing which is less than 10 weeks hence
Parties are told in form G5: the last date for defences, adjustment and date of options hearing.
Defences must be lodged within 14 days (OCR9.6)
Adjustment can be done until 14 days of options hearing (OCR9.8) this is of interest to both parties.
What are adjustments?
Parties responsible for maintaining a record of adjustment
Open record is record of defences as they are at that date
Once the adjustment period dis finished you are no longer allowed to change pleadings without permission of court.
After adjustment period is finished you must amend your pleadings with permission of court.
The purpose of adjustments is that you respond to each other’s averments - so for pursuer to adjust in light of what defence say. Must follow the correct form: “With reference to the defenders averments in answer admitted…believed to be true…not known and not admitted…quaod ultra denied. Explained and averred that…”.
It is important to do this in the right order. Must see what is in dispute and what is not in dispute.
You can do adjustments by either marking up copy of the record (one document) or by making a note of adjustments.
What are the requirements of record of the options hearing?
Pursuer then has to lodge the record for the options hearing at the end of the period of adjustment.
The pursuer shall make a copy of pleadings as adjustment in the form of a record
And lodge not later than 2 days before hearing lodge a certified copy of the record in process
