TABLE OF CONTENTS
- 1 Existence of an order for payment procedure
- 1.1 Scope of procedure
- 1.1.1 What types of claims are eligible (e.g. only pecuniary claims, only contractual claims etc.)?
- 1.1.2 Is there an upper limit regarding the value of the claim?
- 1.1.3 Is the use of that procedure optional or obligatory?
- 1.1.4 Is the procedure available if the defendant lives in another Member State or in a third country?
- 1.2 Competent court
- 1.3 Formal requirements
- 1.3.1 Is the use of a standardised form obligatory? (if yes, where can that form be obtained?)
- 1.3.2 Is representation by a lawyer required?
- 1.3.3 In how much detail do I have to describe the reason for the claim?
- 1.3.4 Is it necessary to present written evidence of the claim at issue? If yes, which documents are admissible as proof?
- 1.4 Rejection of application
- 1.5 Appeal
- 1.6 Statement of opposition
- 1.7 Effect of statement of opposition
- 1.8 Effect of lack of statement of opposition
- 1.1 Scope of procedure
1 Existence of an order for payment procedure
All claims go through a process where the opportunity is available to defend the case. If claims remain undefended they do not have to be called in court and a "decree in absence" can be obtained which is in effect a simplified procedure for uncontested claims.
1.1 Scope of procedure
Such procedure is available in the Sheriff Court in small claims, summary cause and ordinary procedure and in the Court of Session by ordinary summons procedure.
1.1.1 What types of claims are eligible (e.g. only pecuniary claims, only contractual claims etc.)?
Small Claims deals with monetary claims up to £3000.
Summary Cause deals with claims up to £5000.
Ordinary Cause deals with claims over £5000.
The Court of Session deals with claims over £5000.
1.1.2 Is there an upper limit regarding the value of the claim?
Small Claims - limit £3000.
Summary Cause - limit £5000.
Ordinary Cause in the Sheriff Court and Court of Session - no limit.
1.1.3 Is the use of that procedure optional or obligatory?
Each of small claims, summary cause and ordinary cause in either Sheriff Court or Court of Session has separate procedures and it is obligatory to follow them.
Small Claims - if the defender is domiciled in another Contracting State the Sheriff shall not grant decree until it has been shown that the defender has been able to receive the summons in sufficient time to arrange his defence or that all the necessary steps have been taken to that end.
Summary Cause - same as small claims.
Ordinary Cause - the Brussels I Regulation provides jurisdictional rules which must be followed by United Kingdom courts in proceedings whenever the defender is domiciled in another European Union State.
1.2 Competent court
Summary cause and small claims application should be made to the Sheriff Court. Unless other grounds of jurisdiction can be established applications should be made to the court in the area where the defender resides.
Ordinary actions can normally be made either to the Sheriff Court or the Court of Session. The Court of Session has jurisdiction throughout Scotland. Again, in so far as the Sheriff Court is concerned, unless other grounds of jurisdiction can be established applications should be made to the Court in the area where the defender resides.
The procedures are all governed by separate rules of court, which are available on the Scottish Courts and Tribunals Service website.
1.3 Formal requirements
Small claim - a small claim shall be commenced by summons (Form 1) with a statement to give the defender fair notice of the claim, details of the basis of the claim and details of the goods etc if the claim arose from the supply of goods.
Summary Cause - same as small claims except the Form 1 is different.
Ordinary Cause in the Sheriff Court - by initial writ in Form G1. An article of condescendance shall be included in the initial writ covering -
a. the ground of jurisdiction: and
b. the facts upon which the ground of jurisdiction is based.
Ordinary Cause in the Court of Session - by summons, a description and the form of which are set out in the Court of Session rules.
1.3.1 Is the use of a standardised form obligatory? (if yes, where can that form be obtained?)
Yes, in small claims and summary cause a Form 1 must be completed and in ordinary cause the action shall be commenced by initial writ in the Sheriff Court and summons in the Court of Session. These are available on the Scottish Courts and Tribunals Service website under the rules for the respective forms of procedure.
1.3.2 Is representation by a lawyer required?
No, you can present an application on your own behalf but for ordinary cause it is advisable to have a solicitor, as the procedure is relatively complicated.
1.3.3 In how much detail do I have to describe the reason for the claim?
The proceedings should include details of the claim including relevant dates. The larger and more complex the claim the greater is the need for description.
1.4 Rejection of application
The court establishes from the content of the application that the debt is due. The order could be rejected because the forms may be incomplete, the Sheriff may not be satisfied that a ground of jurisdiction exists or the action may have been raised at the wrong court.
Can the applicant appeal against the refusal of a decree in absence? Yes.
Ordinary cause - an appeal can be marked to the Court of Session or Sheriff Appeal Court.
Summary Cause - appeal to the Sheriff Appeal Court.
Small Claim - appeal to Sheriff Appeal Court.
In the Court of Session the appeal procedure is called “reclaiming”.
1.6 Statement of opposition
Summary cause - the defender is allowed 21 days within which to complete a form of response which includes a statement giving the pursuer fair notice. Small claim - 21 days, to complete and lodge a Form 1a or 1b indicating whether they intend to challenge the jurisdiction of the court or state a defence. They must submit any response to the court by the return date specified on the summons.
Ordinary Cause in the Sheriff Court - defender allowed 21 days within which to complete a notice of intention to defend in Form 07 and send a copy to the pursuer.
In the Court of Session the defender if he wishes to oppose the application requires to “enter appearance” by marking a note to this effect on the summons within three days of the case “calling”. This case will not call until the period of notice has expired. The normal period of notice is 21 days.
1.7 Effect of statement of opposition
Small Claims - attends 1st hearing, where sheriff will seek to negotiate settlement.
Summary Cause - same as small claims.
Ordinary Cause in both the Sheriff Court and the Court of Session - defences require to be lodged, and thereafter the case will follow the rules for defended causes, which unless settled earlier between the parties, will culminate in a proof of the facts in dispute between parties.
1.8 Effect of lack of statement of opposition
In all 3 procedures the pursuer could lodge a minute or motion for decree.
1.8.1 What needs to be done in order to obtain an enforceable decision?
The pursuer would lodge a minute or motion for the decree and the Sheriff or Judge may grant decree or other competent order in terms of that minute.
1.8.2 Is this decision final or is there still a possibility for the defendant to appeal against that decision?
Although the Sheriff or Judge grants decree it is open to the defender to apply to the court for a recall of that decree.
The Scottish Courts and Tribunals Service website includes the ordinary, summary cause and small claims rules.
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Last update: 14/12/2016