Preparing for court
Before going to court the representative should have prepared the case and, if appearing in a simple procedure case, have lodged all relevant documents.
What to take to court
The following documents should be brought to court:
copies of the statement of claim/defence lodged
copies of the client's statement (not for the other side)
copies of any case law relied on in the case
simple procedure/summary cause rules
any available supporting evidence
paper and pen to take notes during the proceedings and to write down the sheriff's decision
copies of witness statements.
As the originals will have been lodged, three copies should be brought to court. These are for the representative, the sheriff, and the pursuer/defender, ie the other side. These documents are usually referred to as an 'inventory of productions'. It is a good idea to arrange all the papers for the case in a way that makes them easily accessible and to put letters in date order.
Simple procedure action
In a simple procedure action, it may be useful to take the following documents to court:
evidence of receipts
copy of lease/inventory
copies of any relevant correspondence between landlord and client
any photographic evidence on the condition of the property
any witnesses as to the condition of the property
confirmation from utilities' companies that bills have been paid.
Summary cause action
In an action for eviction because of rent arrears, the following documents should be taken to court:
evidence of receipt of or application for housing benefit
rent book or copy of rent account
details of income and expenditure to show what offer can reasonably be afforded
copies of any relevant correspondence between landlord and client, particularly where proposals to repay arrears have been accepted
any evidence as to why arrears accrued, for example, sickness certificates
any evidence on arguments as to reasonableness.
Ordinary cause action, summary procedure
In an action for repossession due to mortgage arrears, details of the following should be taken to court:
the nature of the debt and the reason the debtor defaulted on the mortgage agreement
the debtor's income and expenditure to demonstrate their ability to repay the arrears in a reasonable time
the actions taken by the creditor to help the debtor keep up with their mortgage payments and pay the amount due
the ability of the debtor or any entitled residents to find alternative accommodation if necessary
details of whether the pre-action requirements have been followed
Members of the legal profession appear in court in formal attire. Solicitors wear a gown. Advocates wear a special collar and tie, a wig and a gown. The sheriff will wear a wig and gown. The simple procedure tends to be less formal. Solicitors will generally wear a suit and sheriffs may appear without wig and gown. If it is not clear who is who, the sheriff clerk (who wears a gown) will be able to help.
Lay representatives should be dressed smartly. There is no rule about dark suits for men and skirts for women, but men should wear a tie. Although a lay representative would probably not be refused permission to appear on the grounds of being dressed inappropriately, there is no point in prejudicing the client's case by annoying the sheriff.
Arriving at court before the hearing
It is useful to arrive early at court. This will give the representative time to introduce her/himself to the sheriff clerk and say where s/he is from and whom s/he is representing. It will also allow her/him to check the list of cases set down for that day and find out when her/his case is likely to be heard.
Although the summons will state a time for the hearing all the other cases will be set down for that time too. It is therefore quite common for a case set down for 10am to be heard much later and parties and their representatives will have to wait at court until their case is called. The cases will usually be heard in the order they are listed unless there is a good reason why the running order should be changed. It may be possible for a case to be called early if one of the parties has commitments (such as childcare) and no-one else objects. The sheriff clerk calls out the name of the case with the pursuer's name first and the defender's second.
Negotiating with the other side
If there has not been time to negotiate with the other side before the court date it is a good idea to speak to the representative for the pursuer/defender at court. S/he will want to know whether a defence is to be stated, a continuation sought, or a proposal made. It may be possible to agree terms that can be presented to the court. If agreement can be reached at this point then tactically it is a good idea to do so as it saves time and possibly expenses (in avoiding further continuations). It may also be possible to make an agreement on expenses, especially if the defender has a good case.
When negotiating the level of arrears repayment it is important to agree a realistic and affordable rate. The client should not agree to a figure just because s/he is in court and finds the atmosphere intimidating. It is important to remember that the other side may reject a particular offer to pay the arrears but it is up to the sheriff to decide whether that offer is acceptable.
Agreements made 'at the door of court'
The court will usually but not necessarily endorse an agreement made by parties before the hearing. In most actions for recovery of possession the court will have to be satisfied that it is reasonable to grant decree. The position as to the court's discretion is set out in the court rules, statute and case law. Representatives should be familiar with this before the court hearing.
When an agreement has been made before the case is heard the representative who speaks first (usually the pursuer) should tell the sheriff about the arrangement.
Simple procedure and summary cause cases are heard in open court. This means that any member of the public may attend including the press.
In the courtroom the sheriff sits behind a desk on a raised platform. In front of her/him sits the sheriff clerk, also behind a desk, and there are designated seats for advocates, solicitors, clients and members of the public and the media. Witnesses will have to sit in a separate room until their evidence has been heard. Most courts prefer the pursuer or her/his representative to sit on the sheriff's left and the defender or her/his representative on the sheriff's right. If the representative is not sure where s/he should sit, s/he should ask the sheriff clerk before the court.
When the sheriff enters or leaves the court everyone is expected to stand up. If anyone leaves the court during the hearing they are expected to bow to the sheriff as they go out of the door.
Last updated: 11 June 2018