OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

Journal
New Rules
More preparation for
Third party procedure
Under the new rules a form of third
party procedure is made
competent in summary causes. The
rules governing this are modelled
on those in the Ordinary Cause
Rules. However, an application for
service of a third party notice
normally requires to be made at the
time when the defender lodges a
form of response. It can be made
later only with leave of the sheriff
on cause shown.This is understood
to be with a view to focusing all of
the issues in the case at the initial
hearing.
Decree by default
Much frustration has been caused
by the provision of the present rule
28 which requires the fixing of a
peremptory diet if a party is in
default. The new rules are more
robust. The sheriff may now grant
decree by default if a party fails to
appear at a hearing (other than the
hearing of an incidental application)
where required to do so. He is not
obliged to grant decree but has a
discretion in the matter. In the case
of a failure to implement an order
of the court after a proof has been
fixed, the sheriff has again a
discretion whether or not to grant
decree by default, but in this case he
must give the offending party an
opportunity to be heard.
Proof
The provisions in the new rules for
proof are relatively little changed
from those in the present rules.
Perhaps the most significant
practitioners and sheriffs
Concluding his guide to the news summary cause rules, Sheriff Alastair Stewart
looks at actions of damages for personal injury and small claims
innovation is that the sheriff is given
power, either of his own accord or
on the motion of a party, to order
that proof on liability or some other
specified issue should be heard
separately from proof on any other
issue.This is likely to be of particular
importance in actions of damages
for personal injury.
The new rules also contain
provisions for an exchange of lists of
witnesses similar to those in the
Ordinary Cause Rules.
Regarding productions there is a
new rule providing that a party
Party lodging
productions must
send a list thereof to
every other party
lodging productions must send a list
thereof to every other party and
must also send a copy of each
production to every other party
unless it is not practicable to do so.
It is understood that these
disclosure provisions are intended
to encourage and facilitate
settlement. A further new provision
is that a copy of each production
for the use of the sheriff must be
lodged with the sheriff clerk not
later than 48 hours before the diet
of proof.
Actions with special rules
It is not intended to go into any
detail about actions with special
rules other than actions of damages
for personal injury which are dealt
with below.
Multiplepoindings and actions of
count reckoning and payment often
appear to cause dread in the heart
of the practitioner (and of some
sheriffs too), but the summary
cause rules governing them are
clearly expressed and, if followed
accurately, should cause no difficulty.
The rules for actions for recovery of
possession of heritable property
are little changed. It may be of some
importance to note that the
requirement for a written defence
in the form of response applies to
such actions as well as any other.
Those advising defenders should
bear in mind that a defence stated
as “unreasonable to grant decree of
ejection” without further
specification is unlikely to meet with
a sympathetic reception by the
sheriff.
Actions of damages for
personal injury
In the case of an action of damages
for personal injury (or in respect of
the death of a person from
personal injury) the actual form of
the statement of claim is specified. It
is set out in very much the same
way as would be the
condescendence in a standard
reparation ordinary cause. It is
specifically provided that the
statement of claim must contain a
concise statement of the grounds of
action and the facts relied upon to
establish the claim. The pursuer’s
date of birth and, where applicable,
his National Insurance number, must
35 May 2002 Volume 47 No 5