Civil Litigation Diploma

Front 1

Prior to the passing of the Courts Reform(Scotland) 2014 Act, what type of action had to be raised when seeking an orderto recover possession of heritable property (and no other order exceptexpenses)?

Back 1

Summary cause action

Front 2

What type of action would you raise when seeking anorder under s1 of the Administration of Justice (Scotland) Act 1972 (and noother order except expenses)?

Back 2

Acommission and diligence for recovery of documents or an order (rule 28.2)

Front 3

You act for the pursuer in an ordinary cause andforget to lodge the Record in terms of rule 9.11. What is a possibleconsequence of this?

Back 3

Where a party is in default, the sheriffmay, as the case may be- grant decree as craved with expenses; grant decree of absolvitor withexpenses; dismiss the cause with expenses; or make such other order as he thinks fitto secure the expeditious progress of the cause.

Front 4

When are defences due in a commercial action?

Back 4

The defender requires to lodge his defenceswith the court within a period of 7 days of the last date for lodging the NID

Front 5

You act for the defender in an ordinary cause.After the record was closed at the options hearing, new information came tolight (after the options hearing has taken place), which you required to beincorporated into your case. How couldsuch information be incorporated?

Back 5

By a motion to amend

Front 6

Whatdoes brevitatis causa mean?

Back 6

Brevitatis causa is a Latin term used inScots law which means for the sake of brevity. This phrase is often used inelaborate legal proceedings to show that another document had been incorporatedby reference but not fully quoted.

Front 7

Whatdoes res judicata mean?

Back 7

It is the Latin term for "a matter[already] judged." It means that a matter has already been adjudicated bya competent court and therefore may not be pursued further by the same parties.

Front 8

At an options hearing, which of the following isnot an option available unless a note of basis of preliminary pleas has beenlodged by either party?

Back 8

Closing the Record and fixing a DebateClosing the Record and fixing a Proof Before Answer

Front 9

You act for the defender in an ordinarycause. In preparing your client’s defences you failed to answer every statementof fact made by the pursuer in the writ. The matter is now proceeding to proof. How will the court interpret the defender’s position in relation to thestatements he has not answered?

Back 9

The court will interpret the defender’sposition to be that he or she admits the statements.

Front 10

12. In an ordinary causeaction, when must lists of witnesses be exchanged by the parties?

Back 10

1. Within 28 days after theinterlocutor allowing a proof or proof before answer.

Front 11

13. You act for the pursuer inan ordinary cause action. The defenderis a party litigant. You wish to move awritten motion (not an e-motion) to sist the action. Which of the following methods of intimationof your motion are available to you?

Back 11

- “Intimation of a motion maybe given by- (a) any of the methods of service provided for in Chapter 5(citation, service and intimation); or (b) where intimation is to a partyrepresented by a solicitor, by- (i) personal delivery (ii) facsimiletransmission (iii) first class ordinary post, or (iv) delivery to a documentexchange -to that solicitor.” (15.2(2))

Front 12

14. In what type of procedurecan resort be made to e motions?

Back 12

- Personal injury (Chapter 15A).

Front 13

15. In an ordinary action, apursuer may move for summary decree if:….?

Back 13

“(a) an opposing party’s case(or any part of it) has no real prospect of success; and (b) there exists noother compelling reason why summary decree should not be granted at that stage.”(17.2(2))

Front 14

16. The test to be satisfiedin seeking an order for caution under the Companies Act 1985 is:…?

Back 14

- Section 726(2) of theCompanies Act 1985: “Where in Scotland a limited company is pursuer in anaction or other legal proceeding, the court having jurisdiction in the mattermay, if it appears by credible testimony that there is reason to believe thatthe company will be unable to pay the defender’s expenses if successful in hisdefence, order the company to find caution and sist the proceedings untilcaution is found.”

Front 15

17. You act for the Pursuer in an ordinary cause action. You have learned that your client’s debtorhas certain assets, including a number of heritable properties inScotland. What order would you seek toprevent him disposing of such assets?

Back 15

Inhibition on the dependence.

Front 16

18. At a child welfare hearing it is the sheriff’s duty to:…?

Back 16

At the Child Welfare Hearing(which may be held in private), the sheriff shall seek to secure theexpeditious resolution of disputes in relation to the child by ascertainingfrom the parties the matters in dispute and any information relevant to thatdispute, and may- (a) order such steps to be taken, make such order; if any, ororder further procedure, as he thinks fit, and (b) ascertain whether there isor is likely to be a vulnerable witness within the meaning of section 11(1) ofthe Act of 2004 who is to give evidence at any proof or hearing and whether anyorder under section 12(1) of the Act of 2004 requires to be made.” (33.22A(4))

Front 17

19. In what type of action must parties attend personally at anoptions hearing?

Back 17

Family actions (33.36).

Front 18

20. In an action for damages for personal injury under the OrdinaryCause Rules 1993, a diet of proof is fixed:…?

Back 18

The sheriff clerk shall, onthe lodging of defences in the action, allocate a diet of proof of the actionwhich shall be not sooner than 4 months nor later than 9 months from the dateof the first lodging of defences.

Front 19

21. In the event that eitherparty fails to comply with any requirement of the timetable fixed in relationto personal injuries procedure under the Ordinary Cause Rules 1993, which ofthe following will happen?

Back 19

“Where a party fails to complywith any requirement of a timetable, the sheriff clerk may fix a date and timefor the parties to be heard by the sheriff.” (36.G1(3))

Front 20

. What happens at a pre-trial meeting?

Back 20

“A pre-trial meeting is ameeting between the parties to (a) discuss settlement of the action; and (b)agree, so far as is possible, the matters which are not in dispute betweenthem.” (36.K1(1))

Front 21

23. When must the first case management conference in a commercialaction take place?

Back 21

Not sooner than 14 days, norlater than 28 days after the date of expiry of the period of notice.” (40.10)

Front 22

When must the first casemanagement conference in a commercial action take place?

Back 22

Not sooner than 14 days, norlater than 28 days, after the period of notice expires)

Front 23

24. What is the period ofnotice in a motion for summary decree in a commercial action?

Back 23

(7 days)

Front 24

A pre proof hearing is afeature of what sheriff court procedure?

Back 24

Ordinary Cause Procedure

Front 25

Which of the following is truein relation to a case management conference?

Back 25

It can take place byconference call between the sheriff and solicitors

Front 26

: If, in an ordinary cause, aparty fails to lodge a note of basis in support of his preliminary pleas beforethe options hearing, that party’s preliminary pleas are:…?

Back 26

Repelled at the optionshearing

Front 27

You are instructed to raise anaction for payment of the sum of £3500. Such an action would, after the cominginto force of the relevant provisions of the Court Reform (Scotland) Act 2014be raised as:…?

Back 27

(Simple procedure)

Front 28

What options are open to theSheriff at a (first) options hearing where no Rule 22 note has been lodged?

Back 28

(Proof, continuation of theOptions Hearing or additional procedure)

Front 29

What methods of service areavailable when serving an initial writ upon a defender?

Back 29

(First class recorded deliverypost, which failing Sheriff officer, which failing walls of court or newspaperadvert)

Front 30

Which type of diligenceoperates to freeze moveable assets of the debtor in the hands of third parties?

Back 30

(Arrestment)

Front 31

Which forms (in addition to aninitial writ) must be used in an application for diligence on the dependence?

Back 31

Form G6 and G4A)

Front 32

You are approached by MrMcGowan to act on his behalf in pursuing a personal injury action. Mr McGowanis a new client to the firm. What forms of identification would you require tosee (and retain copies of)?

Back 32

(His passport/ photographicdrivers licence and two of either utilities bills and/ or bank statements)

Front 33

You act for the defender in anordinary cause. Your client has instructed you to halt proceedings to allow himto investigate matters and also to allow the parties to explore possiblesettlement. How would such a motion be phrased?

Back 33

SMITH for the defender movedand hereby moves the court to sist the action to allow the defender to makefurther enquiries and for negotiation)

Front 34

It is the eve of a continued options hearing in anordinary cause and you realize that you have forgotten to lodge a rule 22 noteas you intended to do. How would youdeal with matters?

Back 34

OCRRule 22 requires a party insisting on a preliminary plea to lodge in process anote of the basis for the plea and intimate a copy of it to every other partyno later than 3 days before the Options Hearing (same if the Options Hearing iscontinued). If it is not lodged 3 days before then under Rule 22(3) the partyshall be deemed to be no longer insisting on the preliminary plea and the pleashall be repelled by the sheriff at the Options Hearing or Procedural Hearing.Movethe court to accept the rule 22 note under OCR Rule 2, which states a sheriffmay relieve a party from the consequences of failure to comply with a provisionin the rules if this is owing to a mistake, oversight or other excusable cause,on conditions as they see fit.

Front 35

Your client has been served with an initial writ,however the writ did not come to his attention before the period of noticeexpired as his neighbor accepted service and neglected to tell him. As such, decree in absence has been passedagainst him. What can you do on behalfof your client?

Back 35

Youcan ask the court to repone the decree (“reponing”) through lodging a reponingnote.Accordingto OCR 8.1(1): the defender or any party with a statutory title or interest mayapply (in any cause, exceptions listed below) to be reponed by lodging with thesheriff clerk, before implement in full of a decree in absence, a reponing notesetting out his proposed defence or the proposed order or direction, andexplaining his failure to appear.Areponing note is not competent in certain family and civil partnership actions.It is also not competent if the decree in absence has been implemented in full.Even if the reponing note is competent it is not granted automatically and thedefender must convince the court to allow him to be reponed.Ifthe action is reponed the sheriff may recall the decree so far as not alreadyimplemented and then the action will proceed as if an NID had been lodged (FormG5 for lodging of defences, adjustments and fixing of an options hearing).

Front 36

If a defender intends to counterclaim in anordinary cause action, when must he do it?

Back 36

Thedefender can counterclaim against the pursuer when lodging defences, byadjustment, or by amendment at any other stage with leave of the sheriff – OCR19(2).

Front 37

In an ordinary cause action, if a partyincorporates a document brevitatis causainto his pleadings by adjustment, when must that document be lodged in processas a production?

Back 37

Brevitatis causa – “for thesake of brevity” - when a document is referenced but not fully quoted.Essentiallythe document brevitas causa must belodged at the same time as the document which founds on it. So, if the partyincorporates the document brevitatiscausa into their pleadings by adjustment, it must be lodged at the sametime the adjustments are intimated to any other party, as per OCR 21.1(1)(c).

Front 38

You act for a defender who has been served with aCourt of Session summons. When must youenter appearance on his behalf?

Back 38

TheDefender must enter appearance when the Summons are called by the Pursuer,which is 21 days after the Summons have been served on the Defender. ThePursuer cannot take any further action until this 21-day time period expiresand the Summons can be called (Summons must be lodged for calling with theGeneral Department).Oncethe Summons have been called the Defender has 3 days to enter appearances, asper Rule 17.1 of the 1994 Rules. The defender enters appearance by marking onthe summons the name(s) of counsel or other person who has a right of audienceand the agents appearing for him, or that he appears for himself.

Front 39

You act for a defender who has been served with aCourt of Session summons. When mustdefences be lodged?

Back 39

Defencesmust be lodged within 7 days after the summons is called or, if the seventh dayis in vacation, on the next day on which a summons may be called, as per Rule18.1(2) of the 1994 Rules.

Front 40

Whichtypes of civil procedure are a feature of Court of Session procedure only?

Back 40

Summons Procedure and Petition procedure.

Front 41

An action for damages for personal injury in thesheriff court, where the sum craved/order sought is for the sum of £5500, mustbe raised as:…?

Back 41

AnOrdinary Action if the sum sought is over £5,000.TheSheriff Court now has exclusive jurisdiction where the sum sought it under£100,000.

Front 42

A debt action for a commercial debt in excess of £5000can only be raised as:…?

Back 42

In excess of £5,000 would be anOrdinary Action, however if the matter is a commercial debt arising from amatter concerned with a transaction or dispute of a commercial or businessnature per OCR 40.1(2) then it would be a Commercial Action.

Front 43

The fees payable by a client to his solicitor for the conduct of the court action are known as:…?

Back 43

Expenses if the fees are specifically 'for the conduct of the court action'. They are legal fees in the sense in the umbrella sense, when the client is given an invoice. But they can be separated in a way from general advice and consultations away from court, in that non-court-related work cannot be claimed in expenses but the court-specific costs(prep, drafting, appearance) can.

Front 44

A debt action for a commercial debt of £15,000 cannot be raised as:…?

Back 44

ASummary Cause or Small Claims Action.

Front 45

Ordinary cause proceedings in the Sheriff court,under the standard Chapter 9 procedure, are commenced by way of:…?

Back 45

Aninitial writ in Form G1, as per OCR 3.1.Afteryou draft the initial writ you must send it away to the Court alongside theaccompanying fee for the Court, which is £96. You then receive a Form-01Warrant of Citation back from the Court which gives warrant to cite theDefender.

Front 46

The structure of an initial writ in the case of apersonal injury action under Chapter 36 is:…?

Back 46

Heading,Instance, Crave, Statement of Claim.[Heading stating: Initial writ, Personal Injuries Action, Sheriffdom and SheriffCourt/All-Scotland Court, Design of Pursuer and Defender, Crave, Statement ofClaim. ]

Front 47

48. The Pursuer (A)resides in Edinburgh. He was involved ina road traffic accident in Huntly which is within the Sheriff court district ofElgin. He sustained injuries. (A) claims the Defender (B) was responsiblefor the accident. (B) resides inGlasgow. (A) wants to raise proceedingsagainst (B). In which Sheriff court canthe proceedings be raised?

Back 47

· All-Scotland Sheriff Court/Sheriff Personal Injury Court (Edinburgh) –provided the claim is for a sum of money exceeding £5,000 (Article 4,All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015), orwhere the sheriff has certified that the importance or difficulty of theproceedings makes is appropriate to transfer the proceedings to the SheriffPersonal Injury Court (Article 5). · Domicile of the Defender (Sch 8, Rule 1, Civil Jurisdiction andJudgement Act 1982) – Glasgow Sheriff Court.· Where the wrongful event occurred (Sch 8, Para 2(c)) – Elgin

Front 48

49. Clydeside Bank plc has its registered office in Edinburgh. They want to commence proceedings to recovera debt due to them. The debt is due byMr Smith who resides in Hamilton. Thedebt is a secured debt. It was securedover property owned by Mr Smith. Thedebt was secured over the subjects known as and forming 21 Heritible WayKilmarnock. Where must the Sheriff courtproceedings be raised?

Back 48

· Kilmarnock – the place where the property is situated. (Sch 8, Rule5(1)(a))

Front 49

50. (A), aUniversity lecturer purchased a camera, for his private use, from Peter LewisLimited. Peter Lewis Limited granteddeferred payment terms to (A). Theperiod for payment has now passed and (A) has not paid the sum due for thecamera. Peter Lewis Limited is domiciledin Glasgow. The contract between (A) andPeter Lewis Limited provides that the place of payment is Glasgow and that inthe event of a dispute, the Sheriff court in Glasgow shall havejurisdiction. At the time the camera waspurchased (A) resided in Edinburgh. (A)now resides in Aberdeen. Which rule ofjurisdiction governs where proceedings must be raised by Peter Lewis Limited?

Back 49

· Sch 8, Rule 3(4): Proceedings may be brought against a consumer by theother party to the contract only in the courts for the place where the consumeris domiciled.· Proceedings must be raised in Aberdeen Sheriff Court.

Front 50

51. Which is the most accurate statement of the law, “ a consumer may bringproceedings in”..?

Back 50

· The courts for the place in which the other party is domiciled; or thecourts for the place in which he is himself domiciled. (Sch 8, Rule 3(3)(a) and(b))

Front 51

51. Which means of service of an initial writ would be the most appropriatefirst form of service, when the whereabouts of the defender is known (and thereis no particular urgency)?

Back 51

OCR 5.3: By first class recorded delivery service in a court envelope.

Front 52

51. If the defender is domiciled furth of Europe, what in usual circumstances,is the period of notice for service purposes?

Back 52

· OCR 3.6(1)(b): 42 days after the date of execution of service.

Front 53

51. You act for the pursuer. You haveserved an initial writ on the defender. The defender has not lodged a notice of intention to defend. What can you do?

Back 53

· OCR 7.2: The pursuer can minute the court for decree in absence. · Subject to some exceptions, e.g. decree in absence cannot be applied forin an action of divorce as evidence is required. · The pursuer must provide proof of service of the initial writ – acertificate of citation.

Front 54

. Witnesses in an ordinary cause are cited on aperiod of notice of:…?

Back 54

Not lessthan 7 days before proof.

Front 55

56.You act for the pursuer. The case is calling for the Options Hearingfixed by the form G5 in 1 week’s time. New information has come to light which you want to incorporate intoyour pleadings at the Options Hearing. What could you do?

Back 55

Move forthe Options Hearing to be postponed under Rule 9.2(a)(1), or at the OptionsHearing itself move for the action to be continued.

Front 56

56.An initial writ has been served on thedefender. The defender has lodged anotice of intention to defend. He thenforgets to lodge the defences. What maythe Pursuer do?

Back 56

Move thecourt to grant Summary Decree.

Front 57

A reponing note must set out:….?

Back 57

Depends onthe choices given in the quiz but I imagine a) an explanation for the failureto attend, and b) a summary of the defense that the defender intends to lead.

Front 58

An interlocutor refusing a reponing notemay be appealed:…?

Back 58

May beappealed without leave.

Front 59

What form must a defender lodge if hewishes to defend an ordinary Sheriff court action?

Back 59

A Form O7 Notice of Intention to Defend.

Front 60

On the lodging of a notice of intention todefend, the Sheriff clerk shall fix a date and time for an options hearingwhich date shall be the first suitable date occurring not sooner than:…?

Back 60

10 weeks after the expiry of the period of notice.

Front 61

What is the duty of the Sheriff at theoptions hearing?

Back 61

Secure the expeditious progress of the action.

Front 62

Thestructure of defences which include a counterclaim is…?

Back 62

Commence with a crave setting out the counterclaim insuch form as, if it had been made in a separate action, would have beenappropriate in the initial writ in that separate action, and must includeanswers to the condescendence of the initial writ, a statement of facts innumbered paragraphs setting out the facts on which the counterclaim is founded,incorporating by reference, if necessary, any matter contained in the defences,and appropriate pleas-in-law.

Front 63

Parties in a Sheriff court ordinary actionmay adjust their pleadings until…?

Back 63

Up to 14days before the Options Hearing or any continuation thereof.

Front 64

Parties in an ordinary Sheriff court actionmay amend their pleadings until…?

Back 64

The recordis closed.

Front 65

In a Sheriff court ordinary action, who isresponsible for maintaining a record of adjustments made during the period of adjustment?

Back 65

“Parties shall be responsible formaintaining a record of adjustments made during the period of adjustment” OCR9.8

Front 66

Whichitems of process must remain in the custody of the Sheriff Clerk?

Back 66

Initial writ, interlocutor sheets,borrowing receipts and process file. OCR 11.2(2)

Front 67

In a Sheriff court ordinary action (under standardChapter 9 procedure), a certified copy record requiresto be lodged in process….[when]?

Back 67

No later than 2 days beforethe options hearing. OCR 9.11(2)

Front 68

In astandard ordinary cause action, a Sheriff may allow a continuation of theoptions hearing, on one occasiononly, for a period not exceeding…?

Back 68

28 days. OCR 9.12(5)

Front 69

In a standard ordinary cause action, a Sheriff mayorder that a case proceed under the procedure in Chapter 10 if..[test]?

Back 69

“Of his own motion, or on themotion of either party, and being satisfied that the difficulty or complexityof the cause makes it unsuitable to proceed under Chapter 9.” OCR 9.12(4)

Front 70

Where a Sheriff at the Options Hearing orders thata cause shall proceed in accordance with Chapter10 procedure, he shall continue the cause for adjustment for a period of…?

Back 70

8 weeks OCR 10.1

Front 71

Under Chapter 10 procedure, a certified copy of theclosed record shall be lodged… [when]?

Back 71

Within 14 days after the dateof the interlocutor closing the record OCR 10.5(2) (Interlocutor is prepared atthe end of the adjustment period so 8 weeks + 14 days in total)

Front 72

Under ordinary cause standard procedure, an optionshearing shall take place not sooner than 10 weeksafter the expiry of the period of notice. A procedural hearing shall take place not sooner than..?

Back 72

21 days after the closing ofthe record OCR 10.6

Front 73

If a party is insisting on a preliminary plea, anote requires to be lodged in process not later than..?

Back 73

3 days before the optionshearing or procedural hearing OCR 22

Front 74

What is the current privative jurisdiction of thesheriff court?

Back 74

A claim up to and including£100,000 (S.39 The Sheriff Court (Scotland) Act 1907 (Amended 2014).

Front 75

Whichof the following may not be raised as a commercial action in the Sheriff Court?

Back 75

40.1. (2) In this Chapter-(a) "commercialaction" means-an action arising out of, or concerned with, any transactionor dispute of a commercial or business nature including, but not limited to,actions relating to-(i) theconstruction of a commercial document;(ii) thesale or hire purchase of goods;(iii) the export or import of merchandise;(iv) the carriage of goods by land, air or sea;(v) insurance;(vi) banking;(vii) the provision of services;(viii) a building, engineering or constructioncontract; or(ix) a commercial lease; and(b) "commercialaction" does not include an action in relation to consumer credittransactions.

Front 76

A Pursuer elects to adopt the procedure in Chapter40 O.C.R by bringing an action in Form…?

Back 76

The procedure starts with aninitial writ, rule 40.4: “The Pursuer may elect to adopt the procedure in thisChapter by bringing an action in Form G1A.”

Front 77

The lodging of defences in a commercial actiontriggers the fixing of…?

Back 77

The Sheriff Clark will fixa date for a Case Management Conference.

Front 78

On the lodging of defences in a commercial action,the Sheriff Clerk fixes a date and time for a case management conference whichshall be on the first suitable court day occurring…?

Back 78

Not sooner than 14 days, or notlater than 28 days after the date of expiry of the period of notice.

Front 79

The Pursuer, John Smith, raised an action againstBrian Brown. The action is raised as acommercial action. As matters progressJohn Smith asks the court to remit the action to the ordinary cause procedureso that the action may thereafter proceed as an ordinary action under thestandard procedure. The pursuer’s motionis refused. John Smith wants to make afurther motion to the same effect. Onwhat basis can he do that?

Back 79

Rule 40.6: (2), If a motion toappoint a commercial action to proceed as an ordinary action is refused, nosubsequent motion to appoint the action to proceed as an ordinary cause shallbe considered except on a material change of circumstances.

Front 80

If a Sheriff grants a warrant for interim diligenceprior to the Debtor (Defender) being aware of the Application, a hearing underwhat provision will then be fixed?

Back 80

S.15E of the Debtors (Scotland)Act 1987

Front 81

At a s15K hearing on an application for interimdiligence the Sheriff needs to be satisfied of…?

Back 81

The warrant being invalid,arrestment or inhibition is incompetent, the warrant itself is valid but thatthe arrestment or inhibition is ineffective or irregular.

Front 82

If a warrant for interim diligence is granted bythe court without a hearing and diligence is executed, for what period willthat diligence be effective without the service of an initial writ?

Back 82

21 days.

Front 83

Under ordinary cause procedure, a list of documentsmust be intimated to every other party …[when]?

Back 83

9A.2. (1) Each party shall, within 14 days after thedate of the interlocutor allowing proof or proof before answer, intimate toevery other party a list of the documents, which are or have been in hispossession or control and which he intends to use or put in evidence at theproof, including the whereabouts of those documents.

Front 84

Under ordinary cause procedure, all productionsintended to be used at Proof (other than the copy set) must be lodged inprocess..[when]?

Back 84

Rule 29.11.(1) No later than 28days before the diet of proof.

Front 85

Which of the following do not require to be lodged inprocess?

Back 85

Can’t be answered without options. Theprocess requires all writs, NID’s, defences, adjustments, rule 22 notes,minutes, motions, affidavits, interlocutors.Specifically, the following will feature (not exhaustive):(i) the initial writ;(ii) any closed record;(iii) the interlocutorsheets;(iv) any joint minute;(v) any offer andacceptance of tender;(vi) any report from aperson of skill;(vii) any affidavit; and(viii) any extendedshorthand notes of the proof

Front 86

You act for the Defender in an ordinary cause. The case is proceeding to Proof. You have been told by your client thatdocuments essential to his position are in the hands of the pursuer'sAccountant. What documents do you lodgewith the court to attempt to recover from the Accountant?

Back 86

A specification of documents.In doing so, you may proceed by way of s1 of the Administration of Justice Actor by motion for commission and diligence (which will require the requisitemotion forms)

Front 87

You act for the Pursuer in an ordinary cause. You are instructed to move to abandon theaction against the Defender. That saidthe Pursuer thinks that a later action in respect of the same facts andcircumstances cannot be ruled out of the question. What do you do?

Back 87

Minute of abandonment and consenting to/seekingdecree of dismissal. 23.1. (1) Apursuer may abandon a cause at any time before decree of absolvitor ordismissal by lodging a minute of abandonment and- (a) consenting to decree of absolvitor;or (b) seeking decree of dismissal. (2) The sheriff shall not grant decreeof dismissal under paragraph (1)(b) unless full judicial expenses have beenpaid to the defender, and any third party against whom the pursuer has directedany crave, within 28 days after the date of taxation.(3) If the pursuer failsto pay the expenses referred to in paragraph (2) to the party to whom they aredue within the period specified in that paragraph, that party shall be entitledto decree of absolvitor with expenses.

Front 88

Anordinary cause is proceeding to Proof. TheDefender has lodged a Minute of Tender in process. The sum craved by the Pursuer is£20,000. The sum tendered is£10,000. The case proceeds to proof andfollowing conclusion of the same the Sheriff finds in favour of thePursuer. He awards the Pursuer£9,500. What answer most accuratelydescribes the position in relation to the expenses the Pursuer is entitled to?

Back 88

The Pursuer cannot be said to have ‘beat thetender’. The Pursuer is therefore liable for all expenses not otherwiseallocated since the date of the Minute of the tender.From Module 8: “If the pursuer recovers a lesser sum than the sumtendered, as a general rule he is entitled to expenses down to the date of thetender itself (not to the date when it should have been accepted), and the defenderis entitled to expenses thereafter.”

Front 89

A pursuer intimated and lodges a written motion in anordinary cause. You are instructed tooppose the same. To do so you…?

Back 89

15.3. (1) Where a party seeks to oppose amotion made in accordance with rule 15.1(1)(b) (written motion), he shall-(a) completea notice of opposition in Form G9;(b) intimatea copy of that notice to every other party; and(c) lodge the notice with the sheriff clerk within 7 days afterthe date of intimation of the motion or such other period as the sheriff mayhave determined under rule 15.2(6).

Front 90

The case is proceeding to an ordinary cause Proof. At the Proof hearing the Pursuer does notturn up and is not represented. Whatmotion could the Defender make for the action to be dismissed?

Back 90

Decree by Default. 16.2. (1) In a cause to which this Chapterapplies, where a party fails-(a) tolodge, or intimate the lodging of, any production or part of process within theperiod required under a provision in these Rules or an order of the sheriff,(b) to implement an order of the sheriff within a specified period,(c) toappear or be represented at any diet, or(d) otherwise to comply with any requirement imposed upon thatparty by these Rules.that party shall be in default.

Front 91

Ordinary Cause Rule 16 [Decree by Default] does notapply in..?

Back 91

Any of the following: 16.1. This Chapter applies to any cause other than-(a) anaction to which rule 33.37 (decree by default in family action) applies;(aa) anaction to which rule 33A.37 (decree by default in a civil partnership action)applies;(b) anaction of multiplepoinding;(c) acause under the Presumption of Death (Scotland) Act 1977; or(d) acommercial action within the meaning of Chapter 40

Front 92

You act for the Pursuer in an ordinary cause. The Defender has defended the action bylodging a NID. Defences have not howeverbeen lodged. How do you proceed?

Back 92

Begin preparing your case (evidence,statements/precognitions)?If defences are not lodged in time, move for decree by default

Front 93

You act for the Pursuer in an ordinary cause. The Defender has defended the action. Defences have been lodged however thedefences have no real prospect of success. How may you proceed?

Back 93

In adjustments, enter pleas-in-law forspecification and/or relevancy. Inthe interim, motion for summary decree: 17.2. (1) Subjectto paragraphs (2) to (4), a party to an action may, at any time after defenceshave been lodged, apply by motion for summary decree in accordance with rule15.1(1)(b) (lodging of motions) or rule 15A.7 (lodging unopposed motions byemail) or rule 15A.8 (lodging opposed motions by email) as the case may be.(2) An application mayonly be made on the grounds that—(a) anopposing party’s case (or any part of it) has no real prospect of success; and(b) there exists no othercompelling reason why summary decree should not be granted at that stage.

Front 94

In an ordinary action proceeding under the standardprocedure, what parts of the Initial Writ must be amended in the event of achange requiring to be made prior to the record being closed?

Back 94

The heading, instance and crave must be amended,cannot be adjusted. Rule 18.2(2)(c).

Front 95

You act for the Pursuer. You have lodged a Minute of Amendment. You now wish to make an adjustment to theMinute of Amendment which will insert a new preliminary plea in law. When must you lodge a note of the basis forthe plea?

Back 95

Not later than 3 days before the Options Hearing.

Front 96

What type of hearing is a feature of Familyactions?

Back 96

- Child Welfare Hearing, rule 33.22A. This is if there are childrenunder the age of 16.

Front 97

In an action for damages proceeding under Chapter36 the lodging of defences triggers what?

Back 97

The personal injury action starts when defences arelodged. Lodging of defences triggers the allocation of a diet of proof of theaction and the issuing of a timetable which will include dates for proceduralsteps. Rule 36.G1.

Front 98

In an action of damages for personal injuriesproductions require to be lodged in process…[when]?

Back 98

- Not later than 8 weeks before the date assigned for the proof(Appendix 3 to the OCR). Cf rule 36.G1(1A)(g)).

Front 99

An action for damages under Chapter36 procedure may be sisted..?

Back 99

Yes, it can be sisted by the sheriff on an application by any party tothe action by motion. Rule 36.H1.

Front 100

Chapter 36 procedure provides for..[particular typeof hearing/ meeting]

Back 100

Pre-trial meeting, rule 36.K1. Must be held notlater than four weeks before the date assigned for the proof or trial.

Front 101

Pre Proof hearings are a feature of what procedure?

Back 101

Family actions where the matter concerns s.11 of the Children (Scotland)Act 1995 (court orders relating to parental responsibilities etc).- See rule 28A.1 which states that where Chapter 33AA applies, thesheriff will fix a pre-proof hearing at the case management hearing. Rule33AA.1 states that the chapter applies where a cause is proceeding to proof orproof before answer in respect of a crave for an order under section 11 of theChildren (Scotland) Act 1995 (court orders relating to parentalresponsibilities etc.).

Front 102

What is the lower jurisdictional limit for Court ofSession actions in monetary terms?

Back 102

£100,000

Front 103

What is the quorum for judgessitting in the Inner House of the Court of Session?

Back 103

Three.

Front 104

In a Court of Session action what has to be done toa Summons immediately after it has been drafted, before any kind of procedurecan follow?

Back 104

The first step in theprocess is signetting – Rule 13.5. Once the Summons is drafted, it is lodged with theGeneral Department together with a fee or court due – see RoC 13.5(4) TheSummons is then signetted and registered by a clerk of session acting underauthority from the Principal Clerk – see RoC 13.5(3).

Front 105

How long does a caveat remain in force?

Back 105

One year.

Front 106

What kind of decree can a Pursuer take when aDefender does not respond to the Summons in a Court of Session action and enterappearance?

Back 106

Decree in absence – Rule 19.1.

Front 107

In a Court of Session action how soon after aSummons has called must a Defender lodge Defences under Ordinary Procedure?

Back 107

Within 7 days after thesummons has called or, if the seventh day is in vacation, on the next day onwhich a summons may be called. Rule 18.1(2).

Front 108

In a Court of Session action at what type ofhearing would a Party debate the relevancy and specification of the otherside’s case?

Back 108

A debate.

Front 109

The appropriate mode of enquiry,where there are still outstanding issues of relevancy, but evidence requires tobe led to decide same, is what?

Back 109

A proof before answer.

Front 110

An appeal to the Inner House against a decision ofthe Lord Ordinary in the Outer House is called a what?

Back 110

A reclaiming motion.

Front 111

As from 28 November 2016 what type of action willhave to be raised when seeking an order to recover possession of heritableproperty (and no other order except expenses)?

Back 111

Simple procedure.

Front 112

The all Scotland sheriff court will sit inEdinburgh and will at present only deal with…[type of action]?

Back 112

Personal injury actions.

Front 113

Personal injury actions, where thesum sued for is less than £100,000, must be raised where?

Back 113

From 22 September 2015, per s39 of the 2014 act sheriffcourts can now hear Personal Injuries actions of up to £100, 000 value.

Front 114

Following the passing of the 2014Act, an appeal lies from the final decision of the sheriff to ….?

Back 114

Per s113 of the 2014 Act, an appeal may be takenfor the Court of Session against a decision of the Sheriff Appeal Courtconstituting final judgement in civil proceedings, ONLY (a) with thepermission of the Sheriff Appeal Court OR (b) if the Court has refusedpermission, with the permission of the Court of Session.

Front 115

A final decision of the SheriffAppeal Court may be appealed to …?

Back 115

An appeal can be made from theSheriff Appeal Court to the Inner House of the Court of Session.

Front 116

Following the passing of the 2014Act a final decision of the Inner House may be appealed to the …?

Back 116

The 2014 Act amended s40 of the Court of SessionAct 1988. S40 is substituted by s117 of the 2014 act which provides, an appealmay be taken to the Supreme Court against a decision of the Inner HouseONLY WITH the permission of the Inner House and if refused with permission ofthe Supreme Court.

Front 117

The privative jurisdiction of thesheriff court is ….?

Back 117

S39 of the 2014 Act provides the Sheriff Court hasexclusive jurisdiction (also known as ‘privative jurisdiction’) in relation to claimstotalling £100, 000 of less, exclusive of interest and expenses.

Front 118

You are instructed to draftproceedings. The pursuer has 3 separateclaims. The first is for £30,000. The second is for £40,000 and the third isfor £30,000. Where must the action(now) be raised?

Back 118

The Sherriff Court.

Front 119

You are instructed to act in apersonal injury action. The sum sued foris £150,000. Where must the action beraised?

Back 119

The Court of Session.

Front 120

You are instructed to act in anaction of aliment. You act for thepursuer who seeks the payment of school fees. The child of the marriage is 11 years of age. The pursuer seeks aliment at the rate of£13,000 per annum. Where must the action be raised?

Back 120

The Court of Session.

Front 121

Actions of reduction can only beraised in …[court]?

Back 121

The Court of Session (but note: the SheriffCourt now also has jurisdiction to deal with such matters following the CourtsReform (S) Act 2014)

Front 122

Civil jury trials are competentin…[court]?

Back 122

By way of the 2014 Act, civil jury trials are nowcompetent in both the Sheriff court and the Court of Session.

Front 123

The simple procedure will deal with actions with a monetaryvalue up to …?

Back 123

£5,000 (Act of Sederunt (Simple Procedure) 2016 -The procedure will be introduced on 28 November 2016).

Front 124

The form used for the intimation of motions byemail is …?

Back 124

Form G6A (Form of motion by email) to theaddresses of every party (Rule 15A.4(1)).

Front 125

Intimation of opposition to an motion by email mustmade by 5pm on … [court day]?

Back 125

Any opposition to a motion must be intimated tothe lodging party not later than 5pm on court day 3 (Rule 15A.5(2).

Front 126

Following the passing of the 2014 Act (and ancillarylegislation) personal injury actions in the sheriff court will be progressed inaccordance with the provisions of … [chapter]?

Back 126

Chapter 36A – Case management of certain personalinjuries action.The upshot is that all personalinjury actions in the sheriff court, other than within the summary cause limit,will be progressed in terms of Chapter 36 or Chapter 36A. The standard procedure now has no place inpersonal injury actions. Chapter 36A isa hybrid of Chapter 36 workflow procedure, the Standard procedure and featuresof Chapter 40 commercial procedure with the reference to case management.

Front 127

Chapter 36A actions proceed by way of an initial Writ inwhich form?

Back 127

Form PI1 – Form of initial writ in a personalinjuries action (Rule 36.B1)

Front 128

A written statement is a feature of what type of action?

Back 128

Personal injury actions (Rule36A.8 provides: “36A.8. Each party must,no later than 7 days before the Procedural Hearing fixed under rule 36A.7(2)lodge in process and send to every other party a written statement containingproposals for further procedure which must state…”)

Front 129

Once the initial writ in a summaryapplication has been served, what happens next?

Back 129

Service on Defender Attendance at Court (Both parties)

Front 130

What is the current (post April 2013) disposableincome limit to qualify for civil legal aid?

Back 130

Disposable income limit =£733 per month

Front 131

The upper limit for a crave for payment in simpleprocedure is…?

Back 131

Claims not exceeding£5,000

Front 132

A pre trial meeting is a feature of whichprocedure?

Back 132

Personal injury actions(Rule 36A.10(2)