You are not required to attend personally or be represented at court if:
You do require to appear or be represented if:
Occasionally, circumstances may arise where the court may wish attendance by one, or all, of the parties to the claim other than for one of the reasons outlined above. Should this happen, the parties will be informed of the reasons and the date of any hearing which the court has fixed.
If the case is to call in court because the pursuer has not accepted a written application from the defender to pay by instalments or by a lump sum, the sheriff will hear both parties in turn on the matter. The sheriff will have seen the defender's written application, and will wish to know why the pursuer does not find it acceptable.
In a claim for delivery or implementation of an obligation, the defender may have made an application to pay the alternative sum claimed. The pursuer may not agree to this, preferring to have the item delivered or the obligation performed, rather than accept monetary payment. Having listened to both sides, the sheriff will then consider what has been said and decide how the claim is to be settled and, if appropriate, how any debt is to be paid.
The procedure in this situation will be similar to that outlined in the previous paragraph. If the defender has not submitted any written application, he or she will have to tell the sheriff how they want to pay the debt, and give details of their financial position. The sheriff will then hear the pursuer in reply (if the pursuer decides to attend or be represented) and decide how payment is to be made.
If the defender wishes to challenge the court's jurisdiction, he or she will be invited to speak first and give reasons for so doing. The sheriff will then, if necessary, hear the pursuer in reply, and make a decision. If the matter is very complicated, the case might be continued to a later date to allow the court to consider what the parties have said. In that situation, the sheriff would fix a date for a further hearing and announce his decision at that time.
If the defender admits to owing the pursuer a sum of money, but does not agree with the amount claimed, the sheriff will invite the defender to state what sum he or she feels is appropriate, and why. The sheriff will then hear the pursuer in reply and make a decision. This will usually be done at the hearing, but sometimes the case may have to be continued to another date if the court requires further information from the parties before coming to its decision.
If the defender intends to make an application about payment after the court has decided what sum is due, he or she should consider this before attending court and be prepared to tell the sheriff exactly how they wish to pay the sum.
Where the defender does not admit the claim and wishes to defend the case, the sheriff will take a note of the defence at the hearing. The defender should therefore be prepared to tell the sheriff as clearly and concisely as possible what the defence to the claim is when asked to do so at the hearing.
The sheriff will then question the pursuer and the defender to find out about the facts of the case and which issues the parties do not agree about.
Remember to bring any documents or items with you which you think might help the court to reach a decision.
The court will try to resolve the dispute at this hearing, but sometimes that will not be possible. For example, the sheriff may wish to inspect an item which cannot be brought to court, or ask for a report from an expert about the condition of an article. If something like this happens, it will probably be necessary to continue the case to another date. If agreement on the facts of the case cannot be reached, the court will want to hear evidence from witnesses. It would then be necessary to continue the hearing to another date to allow witnesses to attend and for both sides to prepare their case further.
The sheriff will note any facts which are agreed on the summons, and indicate in court what requires to be proved by the parties at the continued hearing. The date fixed will be far enough ahead to allow parties to prepare their case properly and arrange for any witnesses to attend. Any such continued dates will be fixed by the court at the hearing. No further reminders will be given, so parties should note carefully any dates and times fixed.
It may be necessary for the court to inspect an item, or visit a place, to help establish the facts of the case. For example, if the dispute was about a faulty washing machine, it would not be practicable to bring such a machine to the court. A further example might be a claim for damages arising from a road accident. The sheriff might feel it would help the decision to visit the site where the accident took place.
Should any such inspection or visit be decided upon, the court will continue the case to another date to allow any necessary arrangements to be made. The sheriff will visit the site in the presence of parties, or their representatives, on a date before the continued hearing.
Sometimes, the court may wish to have a report from someone who has specialist knowledge. An example would be a claim for damages arising from work done to a car by a garage. The sheriff might require a report from a trained mechanic regarding the standard of work done.
A party also may wish to apply for such a report. They would do this by lodging an incidental application. A report can only be obtained, however, if:
Again, should this situation arise, the sheriff will continue the case to another date to allow the report to be written and sent to the court.
Once submitted, these reports cannot be challenged by the parties or by the court. This means that the sheriff will accept whatever opinions they contain and pay heed to them in deciding the issue.
During the course of the case, either the pursuer or the defender may wish to apply to the court for an order to have something done. This happens by applying to the court for an 'incidental application'.
Here are some examples of the kind of applications a party might make:
The procedure for making an incidental application is quite straightforward but, if you do run into difficulties, the sheriff clerk will be able to offer guidance.
Your application should include:
The incidental application should be taken or sent to the sheriff clerk. The sheriff clerk will then fix a date for parties to be heard on the application. If the person making the application is a private individual or sole trader, and not represented by a solicitor, the sheriff clerk will send a copy of the application to the other party. Otherwise, the party making the application will have to arrange for this to be done. At least two days' notice of the date fixed for the hearing of the application must be given to the other party. If the party receiving the application then tells the court they are not opposing it, the application will not have to call in court.
The sheriff will decide the matter on the day set down for the hearing, and no attendance by the parties will be required. If the party receiving the application intends to oppose it, (or fails to tell the court that they do not intend to oppose it) the case will call in court. The sheriff will hear those parties who attend on the application and decide the matter. Therefore it is essential that the party making the application appears or is represented at court on the date fixed to hear it. If the party against whom the application is made does not appear, the court may grant the application in their absence.
Sometimes, someone other than the defender (against whom the claim is made) may also wish to defend the action. For example, if a claim is made by a pursuer against a defender for damage done to the pursuer's car, then the defender's insurance company may wish to become involved in the case.
Anyone wishing to become an additional defender does so by making an incidental application to the court. In that application, the person (or company) must detail their interest in the claim and provide a note of their defence to it. When such an application is lodged, the court fixes a date for a hearing. When that has been done, the applicant has to send a copy of the application, and also a note of the date of this hearing, to the pursuer and the defender in the claim. At the hearing, the sheriff will hear the applicant (along with the pursuer and the defender if they wish to be heard), on the application, and decide whether or not the applicant is allowed to enter the claim. If the application is granted, then the party making it becomes an additional defender to the claim.
A pursuer may offer to abandon their action at any stage of the case. This is done by lodging an incidental application. When the incidental application is heard in court, the court will decide if the defender is entitled to an award of expenses. If the defender is not entitled to such an award, the sheriff will allow the action to be abandoned, and grant a decree of dismissal or, if the pursuer agrees, a decree of absolvitor.
If the defender is entitled to an award of expenses, the clerk of court (who is the sheriff clerk or a member of his or her staff) will fix the amount. It is essential that the defender appears at the hearing, and is able to give the clerk of court full details of any expenses he wishes to claim.
After the clerk of court has fixed the amount of expenses due to the defender, the case will be continued to another date for a further hearing, which will be at least 14 days later. At that hearing, the court will do one of two things:
If you know that you will have to attend a full hearing of the case, it is essential that you prepare for it as thoroughly as you can.
Any party to the case may take any documents or other items to court which they think might be helpful. Such documents or items are then called 'productions'. Once they are taken to court, productions are then said to have been 'lodged'. Where practicable, you may lodge electronic copies of productions, instead of the original documents. The sheriff is, however, entitled to ask for the original document to be produced. You should therefore bring the originals to court with you if you are attending any hearing at which evidence is to be heard.
There are certain rules about productions which have to be complied with. Some of the most important are:
In this context that means a hearing at which evidence is to be led, and not the hearing on the date fixed in the summons when the case is first raised
Sometimes you may wish to lodge some document as evidence in the case but find that you cannot because someone else has it and they are reluctant to give it to you. In this situation, you may make an incidental application to the court to have it produced.
You should make any incidental application for recovery of documents as soon as possible, to make sure that they can be produced in good time for the hearing. If the application is granted, the sheriff will appoint someone (called a commissioner) and authorise them to obtain the documents you wish to have lodged in court from the person who has them.
It is normal to give the person having the documents an opportunity to lodge them with the court before the commissioner takes any formal steps. To do this, you will need to complete the order and certificate and, if you are not an individual or a sole trader, have a solicitor or sheriff officer send them to that person.
The sheriff clerk will send the forms for you, if you are an individual or sole trader. You can obtain copies of the forms of order and certificate from the sheriff who can also help you to complete them. If the person having the documents does not then deliver the documents to the court within the time allowed, you could ask the commissioner to recover the documents on your behalf. The sheriff clerk will inform parties about any documents received. They may then be inspected at the sheriff clerk's office and lodged as productions if necessary.
At this hearing, the court will decide the facts of the case by hearing evidence from witnesses. Both the pursuer and the defender may give evidence as witnesses. If you wish to bring other persons to court as witnesses to give evidence, it is important to note the following:
If you do not have a solicitor acting for you, you will have to assure the court that you will be able pay any witness expenses you will become liable for because you intend to cite them to attend. This is done by a procedure known as finding caution. To find caution, you must lodge an incidental application with the court at least 28 days before the date of the proof diet (the actual hearing). Your incidental application should ask the court to fix caution in such a sum as the sheriff considers reasonable.
When the application is heard by the court, you should be prepared to tell the sheriff:
The sheriff will then decide at what sum caution should be fixed, and tell you how to arrange the caution. Caution is usually found either by:
If you are using a sheriff officer to cite a witness, you must find at least enough caution to cover what you estimate that witness's expenses will be before instructing the sheriff officer to do so. At the end of the case, if you have found caution by lodging the money with the sheriff clerk, you will be able to ask the sheriff clerk to return the money to you.
It should not be necessary to ask the sheriff to fix caution where your witnesses will attend without the need for them to be served formally with a witness citation.
The case will start when it is called by the clerk of court or court officer. If you are representing yourself, you should come forward and take a seat where indicated by the sheriff clerk or the court officer.
The sheriff will tell you a little bit about the way the hearing will be conducted. The hearing will be conducted in public. It will, however, be less formal than most other types of court hearing. The pursuer and the defender will be allowed to remain in court throughout the hearing.
Each party will call their witnesses to give evidence. Normally, the pursuer and his or her witnesses will give their evidence first. The defender will then do the same, after the pursuer's evidence has been completed. The witnesses (apart from the pursuer and the defender) are not allowed to sit in court until after they have given their evidence.
Normally, the pursuer and the defender (if they are giving evidence) and each witness will be asked to take an oath. If they wish, they may affirm (promise to tell the truth) instead of taking the oath. Each witness will be questioned firstly by the party who has called them to give evidence. Next, they may be examined by the other party if that party wishes to do so. Finally, the first party may again question the witness, to challenge any points made by the other party. The sheriff can also question witnesses. The witnesses may be shown any of the productions lodged in the case and asked for their opinions or comments.
When all the witnesses have been heard, both parties will be given an opportunity to address the sheriff and make a final statement about their case.
Let us consider the following example:
The pursuer states in the claim that he or she bought a computer system from the defender for £1700 on 23 June 2001. It was delivered to the pursuer's home on 26 June 2001. It consisted of the hardware, a cabinet, the monitor, speakers, cabling and a scanner. When they bought the computer system at the shop, the pursuer was told that a free workstation would be included as part of the deal. However, when the system arrived, no workstation was delivered. The pursuer now asks the defender to deliver a workstation, or to pay a sum of money by way of compensation. The defender agrees with all that the pursuer says, but contends that no offer of a workstation was included in the purchase price. In such a situation, evidence would only require to be led regarding whether or not a workstation was part of the deal. It would not be necessary to lead evidence about the other component parts, the purchase price, the delivery date and so on. Before this stage is reached the sheriff will be aware of the agreed facts and have given directions on the matters to be the subject of evidence.
The sheriff may come to a decision at the end of the hearing on evidence or, alternatively, may wish time to consider it. If further time is required, a decision will be issued in writing within 28 days of the hearing. The sheriff clerk will send a copy of the decision to the parties on receiving it from the sheriff.
At the end of the case, if the court makes an award of expenses, the amount to be awarded may be determined by the sheriff there and then. Alternatively the amount is calculated by the clerk of court (sheriff clerk), either at the time or on a later date. If the case is continued for a hearing on expenses, the successful party will need to produce an account of their expenses and send a copy of it to the other party, before the sheriff clerk hears their claim for expenses. The account must be lodged with the sheriff clerk, and copied to the other party, at least seven days before the date of any hearing fixed to consider the question of expenses.
Any receipts or vouchers for expense incurred which support the claim should be attached to the account. As a general rule, court expenses are awarded to the party who succeeds in the claim. These expenses must then be paid by the unsuccessful party. There is normally a limit on the amount of expenses which can be awarded. If the value of the claim is £200 or less there will normally be no award of expenses.
If the value is over £200, the maximum amount of expenses which can normally be awarded by the court to the successful party is £75.
If an award of expenses is made, any court fees paid may be included in the award, as long as the total amount of expenses and fees do not exceed the maximum limits mentioned above.
Expenses which may be awarded to the successful party by the court include:
These costs however are normally subject to the overall limits for an award of expenses mentioned above. This means that the total of costs and expenses awarded normally cannot exceed these limits. As a result, the successful party may not necessarily be able to recover all of the money spent in appearing at court by means of an award of expenses.
There are exceptions to the normal limits on awarding expenses. Full court expenses may be awarded if:
If full court expenses are allowed, the sum awarded will largely depend on the amount and nature of the work which has been done in the case. Please note that the court expenses do not include the cost of having any court order enforced. You will have to arrange for this to be done and recover the cost from the other party yourself.
After the clerk of court has calculated (assessed the amount of expenses), the account will be submitted to the sheriff for approval. If this has been done at a separate hearing for expenses, the sheriff clerk will fix a date and time for the case to call in court so that the account of expenses can be approved by the sheriff. The court's final decision (decree) on the case cannot be pronounced until the account of expenses has been approved by the sheriff. This will be done at the same time as approval of the account.
The sheriff's final decision will normally be one of the following:
This means that the pursuer has been successful, either totally or partially, in the claim. The court might then order the defender to pay the sum of money claimed, or deliver the article or implement the obligation.
In an action for delivery or implementation of an obligation, the court may order the defender to deliver the article or carry out the duty within a specified period. If the defender does not comply with the court's order, the pursuer will be entitled to come back to court and ask for an order for payment of the alternative sum claimed.
If decree of absolvitor is granted, this means the pursuer's claim has been rejected by the court. The pursuer cannot raise the same claim against the defender another time.
A decree of dismissal is also a decree in favour of the defender, but the pursuer would be entitled to raise the same claim again if he or she chose to do so. Decree of dismissal might be granted where, for example, the pursuer abandoned the claim. In any of the above situations, the court may make an award of expenses (see previous paragraph).
Normally, when the court has decided a claim, that decision is final, unless an appeal is made. However, in certain circumstances it is possible to apply to the court to have the decree recalled. This usually happens where a party has failed to do something (see below) and there is an explanation for that failure. If a decree is recalled, the case proceeds as if no decree had ever been granted.
The circumstances in which a decree may be recalled are:
You cannot apply to have the decree recalled at the end of a defended case. If you are dissatisfied with the court's final decision, you may, in certain circumstances, be able to appeal.
A copy of the form of minute (and a copy for the other party) may be obtained from the sheriff clerk or the Scottish Court Service website. If you do not have a solicitor representing you, the sheriff clerk will assist you to complete the form if you have any difficulty in doing so.
There is no fee payable for lodging a minute to recall a decree. There are time limits within which an application to recall a decree must be lodged. These are as follows:
The sheriff clerk will fix a date and time for a hearing on the minute for recall. A copy of the minute, and a note of the date, time and place for this hearing, must be served on (sent to) the other party at least seven days before the date of the hearing. This may be done by the sheriff clerk if the person seeking recall is a private individual, or sole trader, and is not represented by a solicitor.
The minute, when lodged, effectively stops the other party from taking any further steps to enforce the decree. When the copy minute for recall has been sent to the other party, they must immediately return any extract decree which has been issued to the sheriff clerk. If a satisfactory explanation is given, the sheriff will recall the decree at the hearing, and the case then proceeds as if it were a normal hearing date.
There are rights of appeal from the sheriff to a more senior judge. Any party to the case may appeal in this way against the final decision (decree) of the sheriff.
There is also a separate right of appeal against any decision made by the sheriff in an application which relates solely to a time to pay direction.
An appeal against the sheriff's final decision in the case can be made to the sheriff principal of the sheriffdom in which the court is situated.
It is important to note that such an appeal is only available if you wish to challenge the sheriff's decision on a point of law. You cannot appeal any decision about the facts of the case.
If you have no legal knowledge, it would probably be difficult for you to put forward an appeal on a legal matter. If you are considering doing so, you may wish to consider taking legal advice. Legal aid may be available to you for an appeal.
The person making the appeal is called the appellant and the other party the respondent. A person wishing to make an appeal must lodge a note of appeal with the sheriff clerk within 14 days of the date of the sheriff's final decision, setting out the points of law upon which the appeal is made. A fee (currently £32) is payable to the sheriff clerk when an appeal is marked (registered). Within 28 days of the appeal being marked, the sheriff will issue a document called a draft stated case to both parties in the appeal. This contains details of the facts which the sheriff has found proved in the case, findings in law, the questions of law which will be considered at the appeal hearing, and a note stating the reasons for making his or her decision.
The draft stated case is then sent out to the parties, to let them suggest any amendments which they would like to propose. The sheriff may then fix a hearing to consider any proposed amendments. The sheriff, after considering these, adjusts the draft and signs the stated case.
The sheriff clerk will then send the stated case, and other documents in the case, to the sheriff principal. The parties will be informed by the sheriff clerk of the date, time and place of the appeal hearing and will also receive a copy of the stated case.
At the hearing, the sheriff principal will hear the parties and make his decision on the appeal. If the sheriff principal requires time to consider the matter, a written decision will be issued within 28 days of hearing the appeal, and the sheriff clerk will then send a copy to both parties.
An award of expenses may be made and it is important to note that, unlike the hearing which took place before the sheriff, there is no limit on the amount of expenses which can be awarded as a result of the appeal.
Both the pursuer and the defender are entitled to appeal against a decision made by the sheriff regarding an application for a time to pay direction. The person making the appeal is called the appellant and the other party the respondent. It is important to note that such an appeal is only available if you wish to challenge the sheriff's decision on a point of law. You cannot appeal any decision about the facts of the case.
If you decide that you do wish to make an appeal without the assistance of a solicitor, you should contact the sheriff clerk who will help you with more detailed procedural advice. The procedure is different from that used to make an appeal against the sheriff's final decision in the case. Before any appeal about a time to pay direction can proceed, permission must be obtained from the sheriff.
The application for leave to appeal must be made in writing to the court within seven days of the sheriff's decision, and must specify the question of law upon which the appeal is to proceed. You will be notified of the sheriff's decision by the sheriff clerk. The sheriff's decision about granting leave to appeal is final. If leave is refused, the appeal cannot proceed.
If leave is granted, you must then lodge a note of appeal with the sheriff clerk within fourteen days of the date of the order granting leave. At the same time as you lodge the note of appeal, you must send a copy of it to the other party. A fee (currently £32) is payable to the sheriff clerk when the note of appeal is lodged .
After the note of appeal has been lodged, the sheriff will write a note about the reasons for the original decision on the time to pay application. The sheriff clerk will then send the note and other documents in the case to the sheriff principal (if the appeal is made to him) and inform the parties of the date, place and time for the hearing of the appeal.
At the hearing, the sheriff principal will hear parties and make a decision on the appeal. If the sheriff principal requires time to consider the matter, a written decision will be issued within 28 days of hearing the appeal, and the sheriff clerk will then send a copy to both parties.
An award of expenses may be made, and it is important to note that, unlike the hearing which took place before the sheriff, there is no limit on the amount of expenses which can be awarded to cover the appeal procedure.
It is also possible to appeal against a time to pay direction to the Court of Session. The procedure is the same, up to the point where the sheriff clerk sends off the note and other documents. In an appeal to the Court of Session, these documents are sent to the Court of Session in Edinburgh, which will hear the appeal using its own procedures.
If the pursuer has been successful, the court will have granted a decree (which may include an award of expenses) in the pursuer's favour. This means that the defender will have to pay any sums which the court has found due, or, in claims for delivery or implementation of an obligation, deliver any item or perform the duty in question.
However, as 14 days are allowed to the unsuccessful party to appeal, a copy of the court's order authorising enforcement of the decision cannot be issued until that period has expired. If no appeal is registered, the sheriff clerk will issue the pursuer with a document called an extract decree, which gives authority to enforce the decree if the defender does not comply with it. The extract decree contains details of the court's order, and informs the defender about any date by which he or she is required to comply with it. If the defender has been allowed to pay by instalments (or by deferred lump sum), the extract decree will indicate the date by which the first instalment (or the whole sum) must be paid.
If the pursuer has been unsuccessful, and an award of expenses has been made against him or her, these expenses should be paid to the defender. If the pursuer does not do so, the defender will be entitled to enforce the decree for expenses in the same way as any other extract decree for payment.
If the defender has been successful, the case will have been decided by the granting of a decree of absolvitor or dismissal in the defender's favour. If an award of expenses has been made in the defender's favour, he or she will be entitled to enforce it in the same way as any other extract decree for payment.
If the defender has been unsuccessful, the court will have granted a decree (which may include an award of expenses) in favour of the pursuer. This means that the defender will have to pay any sums which the court has found due or, in actions for delivery or implementation of an obligation, deliver the item or perform the duty in question.
However, as 14 days are allowed to the unsuccessful party to appeal, a copy of the court's order authorising the decision cannot be issued until that period has expired. If no appeal happens, the sheriff clerk will issue the successful party with a document called an extract decree, which gives authority to enforce the decree. The extract decree contains details of the court's order.
It is the responsibility of the successful party to have the court's order enforced. The court cannot do so on their behalf. They will also be responsible for the cost of any enforcement action, although they may be able to recover this from the other party.
If any order of the court is not complied with, what happens next depends on the terms of the court's order. We shall look at the various possibilities below:
If the court has granted a decree for payment, and allowed the defender to pay by instalments or within specified period, the pursuer must send a copy of the extract decree to the defender. This is important, because the order for payment cannot be enforced until the defender has received a copy of it. It is therefore in the pursuer's interest to send it to the defender as quickly as possible. The pursuer should send it by recorded delivery letter to ensure proof of posting if it becomes necessary to formally enforce the decree because the defender does not comply with it.
If the defender fails to pay instalments on time, the right to pay by instalments ceases, and the pursuer will be entitled to take steps to recover the entire amount.
If no time to pay direction or time order has been made, the procedure for sending a copy extract (outlined above) does not apply. The court's order must be complied with as soon as the 14-day period for appealing the sheriff's decision has expired.
The same rules for enforcing payment apply as for a decree for payment of any other sum.
If the court has granted decree for delivery or implement of an obligation, the extract decree will state the period by which the court's order must be carried out. The pursuer should therefore send a copy of the extract decree to the defender as soon as possible, to allow the defender to comply with the court's order within the time allowed.
If the defender does not comply with the court's order by the due date, the pursuer can make an incidental application to the court to ask for payment for the alternative amount claimed. A copy of this incidental application must be sent to the defender at or before the time it is lodged with the sheriff clerk. If the court then grants decree for the alternative amount, the procedure for enforcement will be the same as for any other decree for payment of money.
If the unsuccessful party does not comply with the court's final order, steps can be taken to compel them to do so. However, it is important to note that the court cannot assist with enforcement procedures. After the sheriff clerk has issued the extract decree, it is up to the successful party to do what they think fit to see that the court's order is carried out. If it becomes necessary to use any formal enforcement procedure, please note that this can only be carried out by a sheriff officer, who will also be able to advise you about the cost of doing so. Before you consult or employ a sheriff officer, you may wish to write to the other party and allow them whatever final period you think fit to comply with the court's order.