Defended Actions in the Sheriff Court - A Note on the Standard procedure

Court's timetable - G5

Once an action becomes defended the Sheriff Clerks issue to each of the parties a document known as a G5. This sets out the Court's timetable for procedure in the early stages of the action. The G5 states the last day by which written defences require to be lodged with the Sheriff Clerk. The defences also require to be intimated to the other party.

Defences

Defences are required to be in the form of answers in numbered paragraphs corresponding to the articles of condescendence of the initial writ. The answers require to be followed by a Note of the Pleas in Law upon which the defender is relying. Unrepresented party defenders usually find it easy enough to lodge a Notice of Intention Defender but most find it impossible to produce defences which are technically sufficient. Failure to lodge defences timeously is likely to result in the pursuer making an application by way of a written motion to the Court for decree by default in terms of OCR 16.

Adjustments

The G5 also gives notice of expiry of the period of adjustment. Adjustment is the process by which the parties expand upon their original written position each giving to the other further and better particulars, while at the same time taking account of what the other has said, by admitting or denying the other statements of fact. Proper pleading is a difficult and technical business which a lay person is unlikely to be able to master. Many practitioners fail to achieve a proper command of the system of pleading.

Of the various style books mentioned in the context of initial writs Bennett's Style Book and Green's Litigation Styles offer precedents for the drafting of defences. Guidance on the techniques of pleading is to be found in An introduction to Written Pleading by Professor Robert Black; also MacPhail's Sheriff Court Practice and Jamieson's Text Book on Cross Border Litigation.

Options Hearing

The G5 also provides the date, time and place for the options hearing. The options hearing is the first occasion upon which the case requires to be heard in Court before a Sheriff.

Two clear days prior to the options hearing the pursuer in the action must lodge in Court a document known as a Record. This incorporates the adjusted initial writ and defences in a single document. Each article of condescendence in an initial writ is followed by the corresponding answer in the defences. The pursuer's pleas in law are then stated in full followed by the defender's pleas in law. Along with the record the pursuer requires to pay the second instalment of court fees which at the present time amount to £58.

Failure to lodge the record timeously is a default in the observance of the rules which may well cause the action to be dismissed with a finding of expenses against the pursuer (OCR 16). Notes of arguments on behalf of either party require to be lodged three clear days before the options hearing (OCR 22). The purpose of notes of arguments is to justify any preliminary pleas. The most common preliminary pleas are:

  1. That the Court has no jurisdiction;
  2. That the action is incompetent, e.g. that the action has been raised in a court which is not authorised to hear it;
  3. Relevancy and specification.

There are two legs to this last plea in (c) which is one that is almost invariably taken by both sides in the early stages of an action. In effect the defender is arguing that even if everything the pursuer is saying in his writ is true, as a matter of law (relevancy) the pursuer is still not entitled to his remedy. Put very crudely the defender is saying 'if it is true, so what?' The defender will also be contending that the pursuer is not providing enough specification of his factual position and the defender may be taken by surprise at any subsequent trial. (In Scotland a trial at which witnesses are heard is known as a Proof.) At the options hearing if there is any preliminary plea which if unsupported by a note then the Sheriff will reject that plea. Some Sheriff Clerks supplement the information which they are required to give in a form G5 by helpfully giving the last date for lodging a record and the last date for lodging any notes of arguments.

At the options hearing the parties require to appear personally or be represented. At least in terms of OCR 9.12, whoever appears, is expected to be in a position to provide the Sheriff with sufficient information to enable him to conduct the hearing properly. At the hearing the Sheriff has five options:

  1. The Sheriff can fix a proof. This is a trial after which having heard evidence the Sheriff reaches a conclusion on the facts. A case which goes to a simple proof after the options hearing is one where there is no real dispute as to law.
  2. The Sheriff can fix a legal debate. The purpose of a legal debate is to determine issues raised by the parties preliminary pleas and most commonly it will centre on a plea to relevancy and specification. The purpose of the Rule 22 Note mentioned above is to justify the ordering of a debate, i.e. to persuade the Sheriff that there is a real legal issue to be resolved before it is appropriate for evidence to be heard. In theory it is possible for a debate to resolve a whole action or a substantial part of it.
  3. The Sheriff can fix a Proof before Answer. The Sheriff may fix a Proof before Answer where the questions of law which have been raised are in the view of the Sheriff so bound up with the facts that they can only be resolved after evidence is led. For example, a case may turn on whether or not the person who has made a contract on behalf of a party had the apparent authority to do so. Such an issue would only be capable of resolution once evidence had been led as to the various actings of the principal which might be said to have amounted to a holding out of the person as an agent. The Sheriff may also fix a Proof before Answer if he is not persuaded that the notes of arguments show that there would be any advantage in having a Debate. In other words if the Sheriff is not convinced that there are arguments which might secure a knockout blow for one or other of the parties or do substantial damage to a party's case. At the present time the trend appears to be towards a reluctance on the part of Sheriffs to allow debates except in circumstances where they are likely to produce a clear cut result and for actions to be forced forward to either a proof or proof before answer.
  4. The Sheriff can continue the options hearing for 28 days to allow for further adjustment. This is often useful especially where one or other party's note of arguments raises a complaint as to a specification which the other party is able to deal with thereby avoiding the necessity of an unnecessary debate. The additional period allowed for adjustment is in fact very short. Only the first 14 days of the 28 days are available for exchanging alterations to the pleadings.
  5. The Sheriff's fifth option is additional procedure (OCR 9.12.4). If the Sheriff is persuaded that the case is one of difficulty or complexity which makes it unsuitable for the standard procedure which ordinarily allows for an initial eight week adjustment period followed possibly by a further two weeks, then he may grant additional procedure which will effectively allow a further eight weeks for adjustment (OCR 10.1). Before that period expires it is open to the parties to make further applications for further extensions of time (OCR 10.3). If at the end of the further eight week period there has been no further extension the Sheriff Clerk issues an order appointing the parties to appear in court and to be heard at a procedural hearing which is essentially a postponed options hearing. It is worth noting that additional procedure is relatively unusual and because of this it frequently occurs that at the end of the initial eight-week period the Sheriff Clerks omit to fix a procedural hearing until they are reminded that they should do so.

The Options Hearing

Options hearings were introduced in 1996 as an attempt to encourage Sheriffs to be more pro-active and to cut down on delay. Prior to then cases tended to be at adjustment (i.e. at the stage of written pleading) for an excessively lengthy period. The policy of the new options hearing was to encourage Sheriffs to force the parties to focus the issues between them and to procure the expeditious progress of the action. The extent to which Sheriffs have taken on a more active role varies to a very great extent between different Sheriff Courts and among different Sheriffs. Part of the difficulty is that the Sheriff is not actually looking at the written pleadings until after the initial period of adjustment is over: too late in fact to do much to influence the way in which the action is being pled. There has been feeling that expeditious progress has not been achieved particularly in relation to commercial actions.