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Debt Advice Handbook Scotland 1st ed - with new material

Post-decree

• Appeals
• Reponing

When decree has been awarded the options available to the client (defender) are limited by the time available and the action they have taken previously.

Appeals

Appeals are made on a point of law whereby one of the parties claims that the sheriff got the law wrong in a previous hearing of the case. Any party wishing to initially lodge an appeal has 14 days from the awarding of the decree to do so. Appeals are lodged with the Sheriff Civil Appeals Court in Edinburgh and then go further to the Inner House of the Court of Session. An appeal may even end up going to the Supreme Court of the UK. Lay representatives cannot lodge an appeal for their client (defender or pursuer), and any client wishing to appeal a judgment should be advised to seek legal advice. An accepted appeal stops the pursuer from extracting a decree for further diligence until the appeal is heard and decided.

Reponing

A ‘reponing note’ is a request to reopen a case where decree in absence has already been granted. This is made on the basis that there was a good reason for the missed deadline. It is not the same as an appeal. A decision can only be reponed where it has not been implemented in full. If the decision has only been partially implemented, the judgment which has not been implemented can be reponed.

Reponing notes have to contain specific information, detailed in the Ordinary Cause Rules.1Ch 8 Ordinary Cause Rules It is important that advisers are aware of reponing rules and have an understanding of what is required. Lay representatives cannot represent clients in a reponing and are unable to draft a reponing note. Advisers should contact a solicitor as soon as it becomes apparent the reponing note procedure is applicable.

Clients (defenders) often require representation from a solicitor. While a client can represent themselves, it is not advisable as the procedure is complex.

Reponing notes must be lodged with the sheriff clerk before full implementation of a decree in absence. Reponing notes cannot be used in all circumstances, and they are not guaranteed to be granted.

Reponing notes can be lodged if there is a full and substantial reason for a client failing to appear and there must be a stateable defence to the action.

Once a reponing note has been lodged, it is put before the sheriff by the sheriff clerk, to obtain a warrant to serve to the pursuer. There is a charge for lodging a reponing note.

A reponing note suspends any diligence based on the decree.

The sheriff can refuse a reponing note. If this happens, an appeal can be made to the sheriff principal or the Court of Session.

A reponing note must include an explanation of the failure to appear and details of the proposed defence. It will be subject to a hearing even if it is not opposed. Unlike minutes for recall in summary cause court procedure, there is no template form to be used for drafting reponing notes. The application is made to the court by ‘minute’ – the procedure for making an application by minute can be found in Chapter 14 of the Ordinary Cause Rules.

The form of a minute must contain:

•a crave: a formal statement on behalf of the defendant explaining what they are seeking. It explains the minute seeks to repone the decree in absence;
•a condescendence: statement of facts supporting the crave, it explains the reasons for the defender’s absence and lack of response to the initial writ;
•pleas-in-law: the concise legal propositions setting out the merits of the case. It sets out the defenders proposed defence.

A reponing note should not be drafted without legal advice.

 

1     Ch 8 Ordinary Cause Rules »