Going to court
If a client (defender) wishes to dispute a claim or has applied for a time to pay direction (TTPD) which has been objected to by the pursuer, they must go to court for a hearing in front of a sheriff. The client can attend court by themselves or can be represented by a solicitor. They can also be represented by a lay representative for most aspects except appeals.1 If the client represents themselves, they will be acting as a ‘party litigant’. A solicitor may represent the other party.
Points to remember
All parties should arrive in plenty of time and check with the court officers to find which court the case will be heard in.
Ordinary cause actions are complex and the process in court can be very formal.
Always wait to be addressed by the sheriff, and address them as ‘My lord’, ‘My lady’, ‘Sir’ or ‘Madam’. Lay representatives must use ‘My lord’ or ‘My lady’.
Generally, a sheriff asks the pursuer why they have raised an action (the defender must not interrupt).
The sheriff asks the defender ‘what is it you want?’ Where the defender is seeking a TTPD, they should state this clearly at the outset. Then explain clearly why the time to pay application is reasonable – eg, client is on benefits. Refer to the income and expenditure form orginally submitted.
If the defender is disputing the claim, they should state this to the sheriff and say they are seeking the action to be dismissed. They should further explain why it should be dismissed – eg, debt is extinguished.
If the defender has any additional paperwork they want the sheriff to look at that has not already been submitted to the court, they must bring three copies with them to court (one for themself, the sheriff and the pursuer).
If the sheriff asks the defender a question, be prepared to answer it if able to. If they cannot answer it, tell the sheriff they cannot answer.
If the sheriff asks the pursuer a question, wait for them to finish speaking.
If the sheriff is taking notes while you are speaking, stop and wait for them to look up from the bench before continuing.