Reponing notes and minute for recall - mortgage arrears cases

A reponing note is a formal document that can be lodged in court on behalf of a client to reopen a case where decree in absence has already been granted. Reponing notes have to contain specific information as set out in legislation in the form of the Ordinary Cause Rules.[1]

Therefore, it is very important for advisers who are involved in reponing note procedure to be aware of the rules governing reponing note procedure and it is useful to have an understanding of what is required. Advisers should get in touch with a solicitor immediately as soon as it becomes apparent that reponing note procedure is applicable in a case. Due to the fact that reponing notes are used in ordinary cause court procedure, clients will require representation from a solicitor. Clients can represent themselves at this level of court procedure, however, this is not advisable due to the complexity of the procedure. Lay advisers cannot represent clients in ordinary cause procedure, unless they are an approved lay representative acting for a client in a mortgage repossession case after 30 September 2010. Therefore, advisers should inform clients of all their options and, where appropriate, where to seek specialist legal advice from a solicitor without delay.

Reponing notes are different from a minute for recall. They have the same practical effect as both are applications to the court asking for a case to be re-opened after decree has already been granted. However, they are used in different levels of court procedure. A reponing note is usually used in ordinary cause court procedure (for example, in cases where a landlord is trying to evict a tenant). Mortgage repossession cases which started after 30 September 2010 now use summary cause court procedure but the cases still call in the ordinary courts. Therefore a minute for recall may be lodged by the defender in these matters.

In housing law cases, reponing notes are likely to be most relevant in relation to repossession cases where a client has mortgage arrears in an action that started before 30 September 2010. They may also be used in rent arrears cases raised under ordinary cause procedure as the arrears are above £5,000, however this is very rare. The section on court action over mortgage arrears provides advisers with further details on all stages of repossession procedure. This page is solely concerned with reponing note procedure in a more general sense.

Reponing notes must be lodged with the sheriff clerk before full implementation of a decree in absence; in other words, before the client has been ejected from the property.[2]

It is important to be aware that it is not appropriate to use reponing notes in all circumstances and lodging one does not necessarily that it will be granted. This should always be explained to clients. There must be full and substantial reasons for failure to appear and there must be a stateable defence to the action. The sheriff has discretion on whether or not to grant an order reponing the case. The legislation states that:-

'The sheriff may, on considering the reponing note, recall the decree so far as not implemented subject to such order as to expenses as he thinks fit……'[3]

Clients should always be informed that it will not be helpful to their case to ignore any court documents they receive. Likewise, it is not helpful to deny that an initial writ has been received or to refuse to accept service of same.

What happens while the reponing note is being considered?

Once a reponing note has been lodged with the sheriff clerk under the Ordinary Cause Rules, he/she will put it before the Sheriff to obtain a warrant to serve it on the pursuer. It is crucial to be aware that the eviction or repossession will only be cancelled (this is called 'sisting diligence' in legal terminology)[4] when the warrant has been served on the pursuer, and not before. Diligence is sisted until the sheriff has considered the reponing note and decides either that:-

• the reponing note will not be granted and the repossession will go ahead, or

• note is granted in respect of either the whole or part of the action the case will be reopened for consideration.

As stated above, representation by a solicitor is essential for clients involved in ordinary cause court procedure. It is not advisable that clients represent themselves at this level and they cannot be represented by lay advisers (unless the action is an action for repossession which commenced after 30 September 2010, which now uses summary procedure).

Reponing notes must be concise and use appropriate legal terminology. Solicitors who deal in housing law will have experience in drafting reponing notes on behalf of clients in repossession cases and advisers should always seek such advice immediately. Advisers should be prepared to provide full details of the case to the solicitor, including comprehensive reasons for failure to appear in court and failure to respond to the initial writ (which is the formal document sent to the client telling them that the court action has been raised against them and requiring a formal reponse). Advisers are referred to the section called ‘when to use a reponing note’ above for an fuller explanation of the circumstances in which a reponing note may, and may not, be appropriate.

Unlike minutes for recall in summary cause court procedure,[5] there is no prescribed form to be used solely for drafting reponing notes and this can cause confusion. Application is made to the court by ‘minute’. The form and procedure for making an application by minute are contained in chapter 14 of the Ordinary Cause Rules.[6]

It is worth reiterating that legal advice from a solicitor should be sought at this stage but, in essence, a reponing note in the form of a minute must contain:-

• a crave[7]. This is a formal statement on behalf of a client setting out the point of the minute and explaining what the client is seeking. In other words, the crave in a reponing note would say that the minute seeks to repone the decree in absence.

• where appropriate, a condesendence.[8] This is a statement of facts supporting the crave. In a reponing note, the crave states that the client seeks to repone so the condesendence would contain facts supporting that aim. For example, it would say that decree in absence has been granted and that the defender wishes to reopen the case in court, giving reasons for absence and lack of response to the initial writ.

• where appropriate, pleas-in-law.[9] These are concise legal propositions on behalf of the client setting out the merits of the case. In this part of the minute, it would be appropriate to set out the client’s proposed defence.

Once again, advisers should not attempt to draft a reponing note without seeking legal advice. It would be useful, however, for advisers to gather as much information as possible from the client so that the solicitor can lodge a full and appropriate reponing note.

As previously mentioned, actions for repossession that commence after 30 September 2010 now use new procedure. Consequently, if someone has been taken to court for a repossession action and they were unrepresented, or didn't turn up, a minute for recall should be lodged at court to reopen the case.

To lodge a minute for recall the defender must fill out Form 11F.[10] This can be lodged at any time up until the point of eviction. This must be served on the pursuer by a Sheriff Officer and a copy must also be given to the Sheriff Clerk. The Sheriff Clerk will then fix a date for the next hearing, informing all parties of the time, date and location of the hearing. Once the case has been recalled the Sheriff can decide to either; continue the case; dismiss the case or grant an order for repossession.