Bringing a case to court - Scotland

The following paragraphs give a broad outline of the arrangements in Scotland for the commencement of proceedings. They are not intended to be and should not be regarded as a comprehensive statement of the law.

TABLE OF CONTENTS 1. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor?  2. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration?  3. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail?  4. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file?  5. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application?  6. Can I claim legal aid? ('legal aid' theme)  7. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented?  8. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)?

 

STEPS TO FOLLOW TO BRING A CASE TO COURT.

1. Can I bring a court action by myself or do I have to ask an intermediary, such as to be represented by a solicitor?

There is no requirement for a person to be legally represented in court.

The "small claims" procedure was designed to give special support to party litigants but even in such cases many parties choose to be legally represented. An "in court advice" project has been piloted in the Edinburgh Sheriff Court. This project provides court users with legal and other advice including court procedure and self representation.

Self representation in the Supreme civil and criminal courts is extremely rare.

2. Who exactly do I apply to: to the reception office or the office of the clerk of the court or any other administration?

You should first contact the administrative staff in the court. You can contact the court either in writing by phone or in person. If you write they will aim to reply to you either in writing or telephone you within 10 working days.

You can phone most courts between 9am - 1pm and 2pm to 5pm. You can visit most courts between 9.30 -1pm and 2pm - 4pm.

The Scottish Court Service provide staff who are properly trained to carry out the administrative, technical and organisational services necessary for the smooth running of the courts while giving an efficient and courteous service to court users. They have a Court Users Charter details of which are on their website.

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Courts staff cannot give out legal advice or recommend legal representatives. If you need a solicitor you should contact the Law Society of Scotland

3. In which language can I make my application? Can I do it orally or does it have to be in writing? Can I send my application by fax or by e-mail?

raised by a written document in English. Proceedings are conducted in English with the aid of interpreters if requested. Interpreters are paid for by the parties to the action. Documents are usually taken in person or posted to the court.

4. Are there special forms for bringing actions, or, if not, how must I present my case? Are there elements that have to be included in the file?

The Rules of Court specify which forms should be used to raise proceedings.

Sheriff Court - Civil

Summary cause procedure is used in the Sheriff court for cases involving disputes about rent arrears, delivery of goods and debts over £750 and up to £1500. A summary cause is commenced by completing a standard printed form, prescribed by the Summary Cause Rules with a statement of the claim. It is signed by the sheriff clerk. There are normally no written pleadings and the defender need only appear if he is defending the action.

Ordinary cause procedure is used in the Sheriff Court for cases involving divorce, children, property disputes and debts/damages claims exceeding £1500. An action is commenced by an Initial Writ, Petition or [Summons] but it cannot be served on the defender without a warrant obtained from the sheriff clerk. The principles of pleading, and conduct of proof closely follow the Court of session Procedure.

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Court of Session

Proceedings in the Court of Session are usually initiated in the Outer House by summons and occasionally by petition. A summons is a writ running in the name of the Queen and passing the Royal Signet, prepared by the pursuer's legal advisers, setting out the demand of the pursuer against the defender and summoning the defender to appear in court to answer the pursuer's demands.

5. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the introduction of my application?

Court charges are payable at the start of proceedings.

If you are representing yourself you will have to pay them to the court in cash or by cheque. If you are represented by a solicitor then you will have to come to some arrangement with them about the timing of payments.

Usually the losing party will be responsible for paying costs although the judge does have a discretion in this.

It is likely that if you win your case you may still have to cover the costs of witnesses or expert evidence.

The function of collecting sums due under decrees of the Scottish courts and of enforcing debts due under court decrees in the event of a debtor's failure to pay are not carried out by the courts or their officials but by sheriff officers (for Sheriff Court decrees) and Messengers -at -arms (for Court of Session decrees).

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Messengers at arms are appointed and disciplined by the Lord Lyon King of Arms and sheriff officers are appointed and disciplined by the appropriate Sheriff Principal. They may charge fees that are prescribed by the Court of Session.

6. Can I claim legal aid? ('legal aid' theme)

A system of free legal aid for the poor has existed in Scotland since 1424. Legal aid is now managed by the Scottish Legal Aid Board. The Board consists of 11 to 15 members appointed by the First Minister.

There are three kinds of legal aid:

• Advice and assistance helps to pay for a solicitor to give you advice on any matter of Scots law, but will not normally cover a solicitor representing a client in court. It is available to a person whose disposable income does not exceed a stated sum.
• Civil legal aid will help pay for a solicitor to represent you if you are involved in a civil dispute. This does not normally include proceedings for defamation or verbal injury, election petitions and simplified divorce proceedings. The applicant must show he has probabilis causa litigandi. It is available to a person with less than certain sums of disposable income and disposable capital.
• Criminal legal aid pays for legal representation if you are charged with a criminal offence. It applies in all courts and may include representation by a solicitor at an identification parade.

FOLLOW-UP.

7. From which moment is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented?

In the Court of Session, cases are almost always brought as "actions" or "petitions".

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An action is begun when the pursuer serves (usually by post) on the defender a summons which has been registered and signeted in the offices of the court.

Likewise, a petition is begun when it is served. Petitions are prepared on a prescribed official printed form. The authority of the court is necessary before the petiton is served.

In the Sheriff Court there are two systems ; ordinary cause and summary cause (see above).

Summary cause has a small claims procedure. The procedure may be initiated by a member of the public. The pursuer must fill in a pre-printed form (the summons) and return it to court. If the pursuer is a member of the public the sheriff clerk will serve the summons, otherwise it is served by a solicitor or sheriff officer.

Summary cause, generally, is commenced by completing a standard printed form which is signed by the Sheriff Clerk. This is then served on the defender, by a solicitor or sheriff officer.

An Ordinary cause action is commenced by an Initial Writ, Petition or Summons but it cannot be served on the defender without a warrant obtained from the Sheriff Clerk..

8. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)?

The Service tries to arrange all hearings as quickly as possible. In civil cases the target is 12 weeks from the allowance of proof. For summary criminal cases (without a jury) the target is to fix trials within 12 weeks if the accused person pleads not guilty. If the accused person is kept in custody pending trial, the hearing will be a lot sooner.

Further information

• Scottish Courts Service
• The Scottish Legal Aid Board
• Law Society of Scotland (solicitors)
• Faculty of Advocates (counsel)

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Last update: 08-05-2006