The hearing

Generally a detailed hearing of a summary cause case will not occur at a first calling. The information in this section is therefore more applicable to cases being heard at a summary cause proof or at the first hearing of a simple procedure action.

This content applies to Scotland

What happens during the court hearing?

When a case is due to be heard the sheriff clerk calls out the name of the case and the hearing begins. At this point the parties or their representatives should come forward and stand at the front of the court. They should then introduce themselves (the pursuer or their representative first). A lay representative would say 'my name is Smith, I am representing the defender Mrs Blair and I am from Shelter's Advice Service'.

Lay representatives should have a letter of authorisation from the client. Where a lay representative acts for the debtor in a mortgage arrears case they must be approved by an approving body and should bring evidence of the approval to court. An approved lay representative must at all times convince the sheriff that they are a suitable person to represent the debtor. This will probably entail ensuring that approved lay representatives know about the relevant court procedure and legislation relating to mortgage repossession.

Technically sheriffs have to determine whether a lay representative is a 'fit and proper person' and if they decide that a lay representative may not appear on behalf of a party the client will have to represent her/himself. Most courts allow lay representation but advisers should contact the sheriff clerk's office to check the court's practice.

The pursuer's representative usually states her/his case first. Any person giving evidence including the pursuer and the defender must do so on oath or by affirmation. This includes interpreters who have to swear an oath that they will interpret correctly. The pursuer and defender can remain in court throughout the hearing. Other witnesses are not allowed in court until giving evidence.

Both the sheriff and the defender will have an opportunity to ask questions. Thereafter the pursuer can call any witnesses. The sheriff and the defender too may question them.

The representative of the defender must wait until the sheriff invites her/him to speak after having heard the case for the pursuer. It is important to speak slowly and clearly and if the sheriff is taking notes, to give her/him time to do so. Do not interrupt either the sheriff or the representative for the other side even if they appear to be either misunderstanding what has been said or misleading the court. There will be a chance to reply or contest what has been said. If the representative is not sure whether it is her/his turn to speak, s/he should simply say 'My Lord/Lady'. The sheriff will soon let them know whether or not s/he wants to hear what they have to say.

The process of the defender and her/his witnesses giving evidence and being questioned by the sheriff and the pursuer is then followed.

At the end of the evidence both sides will normally be given an opportunity to make a final statement about their case and the evidence that has been heard.

Once both sides have been put to the sheriff s/he can:

  • grant decree, for example, for recovery of possession

  • continue the proceedings

  • fix a hearing on the evidence (simple procedure) or proof (summary cause)

  • sist the case

  • dismiss the case.

Once the sheriff has made her/his decision there can be no more arguments about a case. If it is thought that the decision is wrong then it may be possible to appeal.

Getting the hearing dismissed/continued/sisted

There are various circumstances where a simple procedure or summary cause can be dismissed, continued to another date or sisted (put on hold). These are:

  • where the case is clearly incompetent or there is a patent defect in jurisdiction (in these circumstances the case can be dismissed)

  • where all parties fail to appear at a hearing (if this occurs the case will be dismissed)

  • on a joint motion of the parties in a summary cause or where the court considers it necessary, a case can be continued

  • where the sheriff sees fit in actions for the recovery of possession of a secure tenancy prior to decree

  • to monitor repayments towards arrears [1] (here the case can be continued or sisted).

These are the main examples. Advisers should check the relevant rules and statutes to see whether or not they apply to a particular case. The date of any continued calling should be noted.

If the pursuer fails to turn up at a hearing then decree of absolvitor is likely to be granted.

If the defender fails to turn up then decree is likely to be granted, ie the pursuer will get the remedy sought in the court action.

However if a defence has been stated then it is possible the sheriff will fix a hearing on the evidence. This means that the defender will be given another opportunity to turn up at court. The sheriff clerk will notify the defender of the date of the new hearing.

Appeals

Appeals against the decision of the sheriff who heard the case may be made to the sheriff principal only on a point of law. This is the case in both simple procedure and summary cause actions. An appeal is made on a decision made after a hearing on the evidence in a simple procedure or proof in a summary cause. Lay representation is possible in a simple procedure appeal but as legal aid is available for appeals the case should be referred to a solicitor who specialises in civil court work. S/he will be able to advise whether an appeal is stateable.

The key thing to note is that any appeal must be lodged within the time limit.  For summary cause action the appeal must be lodged within 14 days after the date when the sheriff made the decision and dealt with the question of expenses. For simple procedure actions the appeal must be lodged within 28 days of the court sending the Decision form.  

The note of appeal must specify the point of law on which the appeal is based and it must be intimated to the other side.

Minute for recall

A minute for recall may allow a party to an action to re-open proceedings if decree has been awarded against them, but only in specific circumstances.

Recalling a simple procedure action

See the information on recalling a decision on the pages for Simple procedure.

Recalling a summary cause action

For information on using a minute of recall in a summary cause hearing, please see the section on Summary Cause.

Information can also be found on the pages relating to Minute for recall.

Last updated: 11 June 2018

Footnotes

  • [1]

    General power of sheriff - s.16(1) Housing (Scotland) Act 2001