Alan Cameron | Partner

Playing by the (Court) Rules

Following the introduction of the Simple Procedure process in 2016, there has been debate between practitioners as to how much leeway an unrepresented party should have in the court process. The introduction of the Simple Procedure rules marked an understanding from the Scottish Courts that some of the more low value court actions can often be dealt with without the need for lengthy court procedure and expensive solicitors fees. The Simple Procedure process aimed to design a more user friendly set of court rules for this purpose. However, although the rules are a little more relaxed the rules do still remain and the importance of adhering to them cannot be overlooked, regardless of whether a party is legally represented or not.

This has been confirmed by a recent case before the Sheriff Appeal Court in Edinburgh. A party litigant who was sued by a plastic company over an unpaid invoice, has had an appeal against a sheriff’s decision to grant decree by default dismissed. The Sheriff Appeal Court ruled that the appellant had taken “a dilatory, if not cavalier approach” to the court rules and that “he had failed to engage with the court process” in failing to comply with the court rules.

The principal action

The Pursuers had raised an action for payment of £6,800 in respect of unpaid invoices plus other losses and expenses against the Defender in March 2017. The court action was served on the Defender and a Notice of Intention to Defend (NID) was lodged by him. The court then issued a court timetable (G5) setting out the crucial dates the parties were to comply with during the course of the action. The last date for lodging defences was 20 April but no defences were submitted by that date and the Pursuers made a motion for decree, asking the court to use its discretionary power where a party has failed to comply with the rules. The Defender opposed the motion for decree but then failed to attend at the hearing or lodge any defences.

Because of this failure, the sheriff granted decree in terms of the court rules, which provide that where a party fails to lodge or intimate the lodging of, any production or part of process within the period required under a provision in the rules, that party shall be in default; and that where a party is in default, the sheriff may grant decree as craved with expenses.

The appeal

The Defender appealed the decision stating that he was unaware of the deadline for lodging defences. The Defender also said that he intended to consult with solicitors but didn’t do so until after decree had been granted. No reason was given as to why the Defender considered that the Sheriff had erred in her approach, he accepted that he was in default and that he had failed to lodge defences late or attend at the opposed motions hearing.
The Defender produced defences during the appeal in which he said that he did not order the items from the Pursuer and had no contractual relationship with them. The Defender was asking the appeal court to exercise its discretion to allow him to be reponed, for the decree to be set aside and for the action to be continued.

The appeal was refused. The Sheriff Principal said that:

“Whether or not the appellant should be reponed involves a broad consideration of the circumstances surrounding the default and whether there is a proper or meritorious defence to the action. The correct question is whether the interests of justice require that the appellant be reponed… In all the circumstances it is difficult to avoid the conclusion that the appellant is simply failing to engage with the court process; has failed to follow regular procedure; and has delayed these proceedings on account of these failures. The court has a real interest in ensuring that its rules are followed.”

The court regularly has to weigh up the interests of parties, both represented and unrepresented. The court has the power to relieve parties from failure to comply with the rules but usually only on cause shown. Therefore parties who are unrepresented should not always assume that the court will look on them favourably for failing to comply with the rules. The Sheriff Principal summarised the case in saying that “Rules of court have the clear objective not only of regulating procedure but also to provide parties with a just resolution of the dispute between them. Non-compliance with the rules of court undermines those objectives and inflicts delay and expense on the party who follows proper procedure.”

If you are involved in a dispute, have been injured or been involved in a road traffic accident and are considering raising court proceedings or if you are defending an action against you we understand that the court process can be daunting especially when faced with a long list of rules to follow. At Jackson Boyd Lawyers, we are more than happy to assist you. We have an experienced team of lawyers who are on hand to answer any questions you may have regarding the court process or rules.

If you require any advice or assistance please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

Contact us Share this page

Request a free call back

Our specialist lawyers will call you back at your preferred time to discuss your situation and explain how we can help.

Request Call Back

What our clients say about us

Read more