What can we help you with today?
Civil courts help to resolve disputes between parties. Parties can be individuals, companies or organisations. The cases themselves may relate to various subjects such as recovery of personal debt, divorce actions and actions relating to contact with children.
Civil actions may be raised in the sheriff court or the Court of Session. The Court of Session is Scotland's supreme civil court which sits in Parliament House in Edinburgh. The Court of Session also deals with appeals in certain civil matters.
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 - actions with a monetary value of between £3000 and £5000, or seeking delivery of an object.
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. 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. There is no legal requirement for an individual to use a solicitor to conduct the case, though in most ordinary actions the legal issues can become more complex.
In the sheriff court an ordinary action begins with the lodging of a 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 but in a small claim action the sheriff clerk will also serve the papers on the defender, provided the pursuer is an individual and not a company or partnership. 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.
Most miscellaneous actions begin with the lodging of a summary application. The sheriff clerk grants warrant to serve on the respondent and a date is fixed for the case to call in court. In the interim the respondent should consider lodging answers to the claim against them. As with ordinary actions if no response is received, the court will most likely grant the order sought together with an award of expenses.
Where a final order is made in any case, the court will issue an extract decree. 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.
As with criminal proceedings, the unsuccessful party in a civil action has the opportunity to appeal the decision. Depending on the nature of the court order an appeal may be taken to the sheriff principal of the Sheriffdom in which the case was heard or in some cases to the Court of Session. There are time limits which apply.
In certain instances it may be possible to lodge an appeal with the UK Supreme Court.