Sheriff Court - Civil Procedure

Question 1

What is the first steps in raising a summary cause action including what has to be included in forms?

Answer 1

1. Obtain from sheriff clerk Form 1 (principle copy) and either form 1A or 1B (service copy)
2. Complete on both copies
   - the type of action
   - court details
   - pursuer details
   - defender details
   - what is being claimed (sum sued for, any contractual interest rate/if not then courts 8% rate) and expenses of action
   - statement of claim outlining circumstances giving rise to the claim I.e the contract and non payment thereof - also outlining grounds of jurisdiction of court

Question 2

Which court should proceedings to recover debt be raised?

Answer 2

Sheriff court - any action for pay,net of a sum or sums totalling less than £100,000 can only be heard in sheriff court (commenced 22/09/2015). The jurisdiction of the sheriff court for these claims is thus private jurisdiction - see Courts Reform Scotland Act 2014.

Question 3

Which act sets out the grounds of jurisdiction

Answer 3

The Civil Jurisdiction and Judgements Act 1982

Question 4

What are the grounds of jurisdiction in the sheriff court (under the Civil Jurisdiction and Judgements Act 1982)

Answer 4

• normally place of defenders domicile as sheriff courts have jurisdiction where the defender is domiciled in the territorial area
• if it is a company jurisdiction on domicile is based on their either having a place of business within the territorial jurisdiction or having their registered office there
• 1982 Act also gives jurisdiction to the court in which the contractual obligations were due to be performed

Question 5

Which Act regulates summary cause actions of financial claims and where are the rules regulating summary cause actions found

Answer 5

The Sheriff Court (Scotland) Act 1971 and the rules regulating a summary cause action can be found in the Act of Sederunt (Summary Cause Rules) 2002

Question 6

What sum are summary cause financial claims between

Answer 6

£3,000 - £5,000

Question 7

When does a financial claim become an Ordinary action?

Answer 7

When the sum being sued for is over £5,000

Question 8

What is different about an Ordinary Action compared to a Summary Cause action and where can the rules be found?

Answer 8

• much more formal and complex procedure (including fairly severe penalties for failure to comply with these rules) and requirements for fully detailed written pleadings.
• ordinary action rules are found in the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 no. 1956, section 223

Question 9

Should you instruct a solicitor in an Ordinary Action

Answer 9

Due to the complexity it is almost essential to instruct a solicitor. Although you can still represent yourself or with permission of the court have anyone you want represent you.

Question 10

What should you do after filling out details on both principe and service copy of summary cause action forms?

Answer 10

• take principle copy to sheriff clerk along with payment of dues of warrant (warrant is courts authority to serve the action)

Question 11

What does the sheriff clerk insert along with granting the warrant to serve?

Answer 11

2 dates;

• the return date (which is the date by which the defender must lodge with the court a notice if wants to defend the claims)
• the calling date (which is the date that the case will then call in court if it is defended - and which both parties have to appear if defended)

Question 12

What should you do after receiving the return and calling date?

Answer 12

Copy dates on to the service copy of summons

Question 13

Who serves the service copy of summons on the defender and how?

Answer 13

Only an officer of court can serve the summons (solicitor or Sheriff Officer) and can either be by way of-

a) recorded delivery post or
b) if by sheriff officer then by serving on defender at their address if anyone is there - if not then by way of ‘keyhole citation’ I.e affixing copy to front door and sending another copy by first class post.

Question 14

What should be done after service of the summons?

Answer 14

Have the solicitor/officer of court complete details of service onto the principle copy of form and sign.

Question 15

What happens if the summary cause action is to be defended?

Answer 15

Defender must on or before return date lodge response with the sheriff clerk who will then intimate this with the pursuer or pursuers solicitor.
The pursuer or more likely the pursuers solicitor must then lodge the principle summons (with the evidence of service) with the court (must be done before calling date).
Both parties must then attend on the calling date - if pursuer does not appear the case shall fall

Question 16

If defended; what happens at the calling date

Answer 16

Sheriff shall
A) ascertain factual basis of the action and any defence, and the legal basis on which the action and defence are proceeding and;
B) seek to negotiate and secure settlement of the action between parties. If cannot secure settlement then sheriff shall identify and note on the summons the issues of fact and law which are in dispute and also not on the summons any facts which are agreed - then fix a date for hearing of the case.

Question 17

If summary cause action is undefended what shall happen

Answer 17

If undefended - at least second day before calling date - minute for decree using form 17.
Decree will be granted unless the sheriff refus s to do so - if refused the sheriff will fix a date for the pursuer to be heard on the sheriff’s concerns and to seek decree.