Civil Procedure in Scotland
Civil actions may be raised in one of the 39 sheriff courts or the Court of Session. The Court of Session is Scotland's supreme civil court which sits in Parliament House in Edinburgh. Raising an action in the Court of Session is usually reserved for high value cases or where there is an element of legal complexity. Care must be taken to ensure you have jurisdiction to raise an action in a particular court. If not, that can be the sole ground for a defence.
Types of Civil Actions
Introduced in Scotland on 28th November 2016 to replace the Small Claims and Summary Cause actions, although initially only dealing with straight forward actions. Personal injury actions, actions of multiplepoindings and other more complicated procedures (Simple Procedure (Special Claims) Rules) are under consultation but should fall under these new rules during 2017. Payment actions under £5,000 will be dealt with in terms of the new simplified procedure.
Small claims action
Small claims action – actions for payment of a sum of money up to and including £3000, actions for an order requiring someone else to carry out an obligation or perform a duty (e.g. performance of a contract) where the monetary value is less than £3000.
Summary Cause action
Summary cause action - actions with a monetary value of between £3000 and £5000, or seeking delivery of an object.
Small Claims and Summary Cause actions raised prior to 28th November 2016 will proceed under their relevant rules and not be affected by the new Simplified Procedure
Ordinary Cause action
Ordinary action - actions with a monetary value greater than £5000 are raised using the ordinary cause procedure. Other examples are actions for divorce and actions relating to contact with children.
Miscellaneous actions – actions raised as a result of provisions in legislation, for example, relating to bankruptcy or liquidation of a company, the protection of children or incapable adults. The courts also consider applications for adoption of children.
Whatever type of civil action is raised, it is likely that hearings will take place before a date is fixed for a proof (Proof is a civil trial). These hearings will assist in clarifying the issues in dispute. A diet of proof is where a sheriff will hear evidence in the case and, in the case of an ordinary action, will issue a written judgment. Where actions are summary cause or small claims a sheriff may give his/her decision verbally from the Bench at the conclusion of the proof diet.
In the sheriff court an ordinary action begins with the lodging of an initial writ (a formal written application) with the sheriff clerk. The sheriff clerk grants warrant to serve the writ on the defender (i.e. opponent) and he/she has a period of 21 days to lodge a notice indicating a wish to defend the action. If a notice is received by the sheriff clerk, they will fix dates for various steps in the procedure and there can be a number of hearings before a diet of proof is fixed. If the case is not defended, then the order which the pursuer applied for may be granted together with an award of expenses.
The procedure in small claims and summary cause actions is quite similar commencing when an application form is completed by the pursuer (i.e. the person making claim). Warrant to cite is granted by the sheriff clerk. Again the defender is required to indicate whether or not they wish to defend the action and if not, decree may be granted against the defender in the terms of what was sought by the pursuer.
Decree / Judgement
Where a final order is made in any case, the court will issue an extract decree (equal to a Judgement in England). This is a formal copy of the order made by the court which will be issued to the successful party and which may be used to enforce the order. It may, for example, be an order to pay a sum of money with interest due, an order prohibiting a certain course of conduct, or indeed an order relating to the care of children. The enforcement of the court order may involve instructing sheriff officers.
A Scottish Decree can be enforced in England, but must be transferred.
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