Credit Management magazine May2017

SHERIFF’S ROLE?
The Sheriff has four options to resolve the
dispute at the hearing. The Sheriff’s role
at the hearing is interventionist. This is
articulated by the Sheriff having to identify
what the dispute is, both legally and factually
as well as establishing the parties’ attitude
towards settling matters.
Accordingly:
• The parties may be referred to alternative
dispute resolution.
• The parties should attempt to negotiate
settlement if this is possible.
• If negotiation is not possible then the Sheriff
must resolve the dispute by deciding it at
the hearing.
• The sheriff can continue the hearing to
another day without the dispute having
been resolved but only if it is necessary to
do so. If evidence is to be given then the
Sheriff must explain to the litigants the way
in which the Sheriff has decided the way in
which evidence has to be given. This power
will generally be used where the litigants
are unrepresented. So, for example, the
sheriff may explain that he will expect the
claimant to lead evidence and to justify
why he is entitled to what is being asked
for in the claim. Thereafter the Sheriff will
probably explain to the Respondent that
he can question the claimant once the
claimant’s evidence has been led. The
rules provide that the Sheriff may impose
conditions on how witnesses are questioned
as well as setting time limits on how long
witnesses may be questioned. The Sheriff
is also empowered to ask questions to the
parties or to witnesses.
DECISION TIME
Whilst the Sheriff may make the decision
at the end of the hearing failing this it must
be made within four weeks from the date
of the hearing. In all cases the Sheriff’s
decision must be set out in a ‘Decision Form’.
The decision may be appealed within four
weeks from the Decision Form being sent. If
either of the parties want to appeal then an
Appeal Form has to be completed and sent
to the Court as well as to the other party. The
Form must detail the legal points which the
applicant wants the Sheriff Appeal Court to
answer.
EXPENSES
Once the decision has been made the Sheriff
will make an expenses order. As one would
expect, expenses follow success so as a
general rule will be that expenses will be
awarded to the successful party. However,
normally the amount of expenses will be
limited as follows:
• If the claim’s value is £200 or less there will
be no award of expenses
• If the claim’s value is between £200 and
£1,500 the maximum expenses awarded
will be £150
• If the claim’s value is between £1,500 and
£3,000 the successful party will be awarded
ten percent of the claim’s value
• Claims over £3,000. These expenses are
block fees set by the Court and are fairly
generous to the claimant. If the claimant
instructs a legal representative and
expenses are awarded in favour of the
claimant then if the sum claimed is less than
£3,000 it is unlikely the expenses will cover
the costs of legal representation.
ENFORCEMENT
Whilst this article is not concerned about
Scottish judgment enforcement Simple
Procedure has introduced a new step which
will be required before enforcement can
commence. This will not affect the Scottish
Pre-Judgment remedies the provision
of which is fully addressed by the rules.
Accordingly, before a decision for payment
of a sum of money can be enforced the
successful party must formally serve a
‘charge’ on the party. The Charge must
demand payment within two weeks if the
party is in the UK. Once this time has elapsed
then Sheriff Officers may be instructed to
enforce the decision. It is slightly puzzling
why there is reference to the charge because
this is what creditors have been doing
anyway,
CONCLUSION
It is likely that the new procedure will have
its greatest impact when there is a dispute.
The new rules should provide greater
opportunity for matters to be resolved at an
earlier stage in the court’s process rather
than for cases to ‘trundle along’ aimlessly
without resolution at an increased cost.
Much in the rules has to be commended,
particularly the objective for the Sheriff
to have matters resolved without the
requirement to have evidence being led.
The issue will be that with there being 39
Sheriff Courts will all the Sheriffs be singing
the same tune despite them having identical
hymn sheets?
The Sheriff has four options
to resolve the dispute at the
hearing. The Sheriff’s role at
the hearing is interventionist.
This is articulated by the
Sheriff having to identify
what the dispute is, both
legally and factually as well
as establishing the parties’
attitude towards settling
matters.
The recognised standard
www.cicm.com May 2017 37