Decisions made in court

Decisions made in court

• Grant the decree in favour of the pursuer
• Grant a disputed time to pay direction
• Dismiss the claim
• Decree in absence

When an ordinary cause action comes before the court, the sheriff has several options when deciding on a claim. This varies depending on the action that has been raised, but, in most money claims, the options available to the sheriff include:

•grant the court order (decree) in favour of the pursuer (see here);
•grant a disputed TTPD (often referred to as an instalment decree) (see here);
•dismiss the action/decree absolvitor (see here);
•decree in absence (see here).

Chapter 30 of the Ordinary Cause Rules covers decrees, extracts and executions.

Grant the decree in favour of the pursuer

If after listening to all the evidence, the sheriff grants the order in favour of the pursuer, it means the defender has lost the claim. The pursuer may also ask for expenses to be awarded to them. The pursuer must then wait 14 days before they can extract the decree, this is to give the defender time to appeal if they wish.1Chapter 30.4 Ordinary Cause Rules

After 14 days, they can take further steps to recover any monies claimed. This means the defendant is served with a charge for payment for money and given 14 days to repay the debt in full before the pursuer can proceed to further diligence – eg, wages arrestment or sequestrating the defendant.

If the defender did not appear in court and decree was ‘granted in absence’ in favour of the pursuer, there may be an opportunity to recall (‘repone’) the decree (see here). In these cases, the pursuer must wait 14 days to extract the decree.

 

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Grant a disputed time to pay direction

If a defender has submitted a time to pay application which has been challenged by the pursuer, the sheriff hears arguments from the defendant and the pursuer. The sheriff can grant a decree to the pursuer and grant time to pay to the defender at the same time. This allows the defender to repay the debt at the amount offered in the application, and, although a decree has been awarded, the pursuer cannot take any further action against the defender while the TTPD is being paid. If the defender fails to make the agreed payments and the TTPD fails, the pursuer can extract the decree without waiting and begin to pursue further diligence.

Dismiss the claim

If the sheriff dismisses the claim, it means the court has ruled in favour of the defender. In this case, the pursuer’s claims are rejected, and no court order or decree is granted. There are certain instances when the sheriff can dismiss a claim which can include:

•where the pursuer fails to appear at a hearing or submit paperwork to the court;
•when the sheriff finds in favour of the defendant;
•where the pursuer ‘abandons’ their claim.

If the case is dismissed, the pursuer can raise the same claim again against the defender, unless ‘decree absolvitor’ is awarded.

Decree absolvitor

This legal term is borrowed from the Latin meaning ‘let him be acquitted’. The defender is absolved of any responsibility in the claim, it also prevents the pursuer from raising the same claim again. It is therefore important when the sheriff dismisses a claim that the defender requests ‘decree absolvitor’. A sheriff may ask the defender or their solicitor if that is what they want before awarding and the answer should always be ‘yes’.

Decree in absence

This is a decree granted in favour of the pursuer where the defender did not respond in any formal way to the court summons, or does not appear in court on the day. Approximately 80 per cent of cases passing through the sheriff court are undefended.

Other common terms in ordinary cause actions

‘Averment’ is a statement of fact which is set out in the written pleadings. Every averment is something that the party is offering to prove in the action before the court.

‘Jurisdiction’ is the official power to interpret and apply the law. In Scotland, there are a number of different courts and tribunals. They are given powers to deal with different types of case. These powers define the ‘jurisdiction’ of the particular body. A court cannot deal with matters which are beyond the scope of the powers it has. Where an applicant asks the court to do something beyond its powers, the application is said to be ‘incompetent’ or ‘out with its jurisdiction’.

‘Motion’ is the name given to any formal request by a party asking – or moving – the court to make an order. Use of the words ‘motion’ or ‘moving’ helps to distinguish such requests to the court from informal comments or suggestions made in correspondence to the clerks. The latter will not necessarily be drawn to the attention of the court.

‘Move’ is when a party makes a formal request to the court, they are said to move the court to do something, or move that it be done.

‘Sist’ is an application made where a party wishes to pause all procedure in proceedings. It brings about a temporary halt to the case and is at the discretion of the sheriff. Usually, a motion to sist must specify the length of time sought in respect of the sist. Either party in a claim can request a sist, either in person in court or by lodging a motion (incidental application).