Serving an initial writ

• What happens after service of an initial writ

There are specific rules about service, which must be looked at carefully. Chapter 5 of the Ordinary Cause Rules outlines the steps that should be taken by the pursuer to serve an ordinary cause writ. Various forms must be completed and accompany the initial writ. In a money claim action under ordinary cause, a Form O7 (Notice of Intention to Defend) and a Form O5 (Time to Pay Application) should be included with the initial writ.1Part 5.2(2) OCR

The forms and initial writ can be served on the defender by recorded delivery post or using sheriff officers.

Alternatively, if the pursuer’s and defender’s solicitors have been in contact previously, the parties might agree that it can be served on the defender by sending it to their solicitors. This is called ‘acceptance of service’ by the defender’s agent.

Postal service must be by first class recorded delivery. The envelope must contain a notice which states that it contains a citation from the relevant sheriff court, with a return address for the sheriff clerk’s office in the event that service is unsuccessful. If service is unsuccessful, the court returns the papers to the solicitor for reservice; or sheriff officers can serve the writ by handing it to the defender personally or depositing it at their address. The original writ, warrant and productions should be sent to sheriff officers with the copies to be served. The sheriff officer returns the originals to the court, along with a Certificate of Citation (Form O6). This is the form used by the sheriff officer stating that they have served the citation documents on the defender and details the method used to do so.

Once it has been served, the client (defender) has 21 days to inform the court of their intention to defend the action. If they wish to defend the action, they must lodge a Notice of Intention to Defend (Form O7).

 

1     Part 5.2(2) OCR »

What happens after service of an initial writ

The client (defender) has several options on how to deal with the initial writ. They can:

•admit the claim and settle the debt;
•admit the claim and apply for time to pay;
•dispute the claim, or part of the claim;
•do nothing;
•counterclaim.

Admit the claim and settle the debt

If a writ for action has already been raised and served, the client (defender) would need to directly contact the creditor/pursuer or their solicitors to agree full payment of the debt, including any associated legal fees before the last date for response.

If they pay the full debt and expenses, the pursuer or their solicitor contacts the court to advise the claim is settled in full. This avoids a court order being registered against the client (defender) and damaging their credit rating.

Admit the claim and apply for time to pay

Time to pay allows the client (defender) to pay the money owed in instalments. If the creditor does not object to the application, it may be granted. However, if the creditor objects, a hearing is arranged where the sheriff decides if the time to pay should be awarded.

If the client misses more than two instalments, and the third becomes due, the time to pay fails and the creditor can go forward with normal diligence methods against the client.

Form O5 must be completed correctly and returned to the court before the expiry of the response date.

Dispute the claim

If the client wishes to dispute the claim, they must have a reason to do so. The client must dispute the claim before the expiry of the notice period in the initial writ. This is done by returning Form O7 to the sheriff clerk. There is a fee payable to the courts, but a client may be able to get a fee exemption.

Both parties must submit their defences within 14 days of the expiry of the notice period in the initial writ. The defence should have numbered paragraphs corresponding to the paragraphs in the pursuer’s condescendence. The defence should include pleas in law for the defender supporting their defence.

When the form is returned, the sheriff clerk usually submits an options hearing date. This hearing allows the sheriff to hear the pleadings of the parties. The sheriff then decides what options are available. They may:

•decide the case;
•set a date for a proof hearing, which is similar to a civil trial, hearing evidence on the factual matters in the dispute;
•set a ‘debate’ if legal questions of law need to be dealt with.

Do nothing

This is a suitable option if the client (defender) admits the claim but is waiting for proof of apparent insolvency or if the client has multiple debts and is looking to access a statutory option – either self-sequestration or waiting for a creditor petition for their sequestration. Note that 8 per cent judicial interest is added to a claim after a decree in absence is granted and the amount being claimed on the initial writ may increase by the time a statutory debt option has been accessed and completed.

If the client (defender) opts to do nothing, the pursuer submits a ‘minute’ to the sheriff, after the expiry of the notice period contained in the writ, and asks for the court order (decree). This usually results in them obtaining a court order in their favour. If the sheriff decides the action is incompetent (eg, when the court does not have jurisdiction), they may refuse the decree.

Counterclaim

This is claim made by a defender against the pursuer in an existing action between the same parties.1Sch 1 Ch 19 OCR Three conditions must be met in order to bring a counterclaim.

•The counterclaim could have formed a separate action.
•It would not have been necessary in that separate action to call another person as defender other than the pursuer.
•The subject matter of the counterclaim either:
◦forms part of the pursuer’s action; or
◦arises out of the grounds of it; or
◦is necessary for the determination of issues between the parties; or
◦has arisen due to reconvention.

This is complex law and, if the client (defender) wants to counterclaim, they should be signposted or referred to a solicitor. Note that it can be expensive to counterclaim.

Reconvention

‘Reconvention’ is where one party (A) can raise a counterclaim against another party (B) in circumstances which would normally be outside the territorial jurisdiction of the court. This is allowed because B has already brought an action against A in A’s jurisdiction.

 

1     Sch 1 Ch 19 OCR »