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Simple Procedure 

What happens in a disputed case?

Applies from 28th November 2016


What happens in a disputed case?

If the respondent disputes the claim and has sent the response form to the court, the sheriff (includes summary sheriff where referred to on this page) will consider the case. The sheriff must, within two weeks of the Response Form being sent to the court, issue a first written order which may do any of five things:

  • Refer  the respondent and the claimant to alternative dispute resolution
  • Arrange a case management discussion
  • Arrange a hearing
  • Indicate that the sheriff thinks that a decision could be made without a hearing, and that they are considering doing so.
  • Dismiss the claim or decide the claim.

Part 7 of the simple procedure rules explains about what happens after a Response Form has been received.

Part 8 of the simple procedure rules explains about the orders that the sheriff can give to manage or decide your case.

 

What is an order?

The sheriff uses Orders to manage or decide a case. Orders can be given in writing (Form 8A and Standard Orders) or in person at a case management discussion or a hearing.

Standard Orders are orders that the sheriff may give in typical situations and the sheriff may do one of three things:

  • Give parties a standard order
  • Give parties an amended standard order, or
  • Give parties an order customised to their case.

Should a party not follow an order, the sheriff may make a decision in the case, including:

  • Dismissing the claim or part of the claim.
  • Awarding the claimant some or all of what was asked for in the Claim Form.

The standard orders can be viewed in full in Schedule 3 of the simple procedure rules at: http://www.scotcourts.gov.uk/rules-and-practice/forms/sheriff-court-forms/simple-procedure-forms

Another type of order the sheriff can issue is an Unless Order (SO6).  This is an order which states that unless a party does something, or takes a step, that is detailed in the order, for example, to deliver something to someone within a specified time period, then the sheriff will make a decision in the case. This could include:

  • Dismissing the claim.
  • Awarding the claimant some or all of what was asked for in the claim form. 

Part 8 of the simple procedure rules explains about the orders that the sheriff can give to manage or decide your case.

 

What is a Case Management Discussion?

A case management discussion is an informal hearing the sheriff may arrange so they can:

  • Discuss the claim and response with both the claimant and respondent to clarify any concerns the sheriff may have.
  • Discuss negotiation and alternative dispute resolution with the claimant and respondent.
  • Give the claimant and respondent, in person, guidance and orders about witnesses, documents and other evidence which they need to bring to a hearing.
  • Give the claimant and respondent, in person, orders which arrange a hearing
  • Make a decision in the case.

A case management discussion takes place in a courtroom or any other place decided by the sheriff. The sheriff will also decide how the discussion will take place, for example, by video conference, conference call or any other form that they decide.

Part 7 of the simple procedure rules explain about case management discussions.

 

What is a hearing?

If the respondent disputes or defends the claim, the sheriff will want to find out about the facts that are not agreed on by asking questions of the claimant and respondent and any witnesses the sheriff thinks will help decide these facts.

The purpose of a hearing is to help the sheriff make a decision in the case.

The hearing will require the attendance of all parties involved in the case. The sheriff may also ask witnesses to attend the hearing, to help find out about the facts that are not agreed upon.  You will be informed of the date, time and place of the hearing.

It may be necessary for the court to inspect a document or item, or visit a place, to help decide the facts that are not agreed upon.

Parties must send each other and the court a List of Evidence Form (Form 10A) at least two weeks before the hearing. The form must list all the evidence and documents that you are lodging with the court.

If you think that there would be practical difficulties involved in sending evidence to the court, you must contact the sheriff clerk. The sheriff clerk will consult with the sheriff and the sheriff may give you permission to lodge a description or possibly a photograph of the evidence. You must then bring this to the hearing.

If you wish to be represented or ask for advice about appearing in court, please see Representation and Advice.

Part 6 of the simple procedure rules explains what has to be done when the Rules require something to be sent to someone and the court

Part 10 of the simple procedure rules explains about documents and other evidence.

Part 11 of the simple procedure rules explains about the citation of witnesses and their attendance at hearings

 

How will the dispute be resolved at the hearing?

To assist you to resolve the claim, the sheriff may take the following actions:

  • The sheriff may refer you to Alternative Dispute Resolution (ADR) as a way to try and settle disputes outside of the courtroom. Further information on ADR can be found on the mygov.scot website.
  • If the sheriff thinks that settlement is possible by negotiation between the claimant and the respondent, the sheriff must help you to negotiate settlement of the dispute. If this is not possible, the sheriff must make a decision on the claim.

Part 11 of the simple procedure rules explain about witnesses.

Part 12 of the simple procedure rules explain about the hearing.

 

 How will evidence be given at the hearing?

Before evidence is heard, the sheriff must explain to the claimant and the respondent the way that the sheriff has decided to consider the evidence at the hearing.

The sheriff may impose conditions on how evidence is given to the court, including on how witnesses are questioned or setting time limits on how long witnesses may be questioned. This may also include whether the evidence of any witness is to be taken on oath or affirmation or not.

The sheriff may also ask any questions of the parties or witnesses.

Part 1 of the simple procedure rules gives an overview of simple procedure

Part 12 of the simple procedure rules explains about the hearing.

 

What if the claimant and or respondent do not come to the hearing?

If the claimant does not come to the hearing or is not represented at the hearing, the sheriff may dismiss the claim.

If the respondent does not come to the hearing or is not represented at the hearing, the sheriff may make a decision in the case at the hearing.

If neither party comes to or are represented at the hearing, the sheriff must dismiss the claim.

Part 12 of the simple procedure rules explains about the hearing.

 

What decisions can the sheriff make?

The sheriff may make any decision which resolves the dispute between the parties, including a decision which:

  • Orders the respondent to pay the claimant a sum of money.
  • Orders the respondent to deliver something to the claimant.
  • Orders the respondent to do something for the claimant.
  • Dismisses the claim or part of the claim made by the claimant.
  • Absolves the respondent of the claim or part of the claim made by the claimant.

A decision which absolves the respondent in a claim means that the claimant cannot make a claim about the same subject against the respondent again.

Part 13 of the simple procedure rules explains about the decision of the sheriff.

 

When must a sheriff make a decision after the hearing?

At the end of the hearing, the sheriff may either make a decision there and then, or can take time to consider the facts that were disputed and the evidence that was heard, before making a decision.

If the sheriff makes a decision there and then, they must explain their reasons for that decision to the parties in person.

If the sheriff takes time to consider a decision, the decision must be made within 4 weeks from the date of the hearing. The sheriff must prepare a note of the reasons for the decision and the sheriff clerk will send a copy of that note to all of the parties.

Please note that the court will not issue a decision until a decision on the expenses of the case has been made.

Part 13 of the simple procedure rules explains about the decision.

 

What order can the sheriff make about expenses?

Once the decision on a claim has been made, the sheriff must make an order about expenses, such as:

  • That no payments are to be made in respect of the expenses of any party.
  • That a payment is to be made to a party or party’s solicitor.

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.

Expenses which may be awarded to the successful party by the court include:

  • The cost of any solicitor employed by the successful party.
  • Loss of wages and travelling expenses for the successful party and any witness who appeared on their behalf.

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 of the claim is between £200 and £1500, the maximum amount of expenses which can normally be awarded by the court to the successful party is £150.
  • If the value is between £1500 and £3000, the maximum amount of expenses which can normally be awarded by the court is to the successful party is 10% of the value of the claim.

There are exceptions to the normal limit on awarding expenses. Full court expenses may be awarded if:

  • The respondent has not stated a defence.
  • The respondent does not proceed with his defence.
  • The respondent has not acted in good faith in defending the claim.
  • The sheriff finds that either the claimant’s or the respondent’s conduct in the case has been unreasonable.

If the 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.

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.

The limits for awarding expenses do not apply to the hearing of appeals. Any expenses that you have incurred by using a courtroom supporter cannot be part of an order about expenses.

If the court makes an award of expenses, the amount to be awarded may be determined by the sheriff there and then. If the sheriff does not make an order about expenses there and then, they must give parties written orders which:

  • Must arrange an expenses hearing to assess the level of expenses (if any) that should be awarded to the party.
  • May require the parties to send an account of expenses to the court and to each other.
  • May require the sheriff clerk to assess the level of expenses (if any) that should be awarded to a party. A notice of the assessment will be sent to parties before the expenses hearing.

Please note that 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 unsuccessful party yourself. Please see "Enforcement of the Decision".

Part 14 of the simple procedure rules explains about expenses.

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