Minute for recall

In terms of the Summary Cause Rules, a ‘party’ may apply to recall decree[1]. This would obviously include any defender or pursuer named in the action.

It can also include a ‘qualifying occupier’[2] as they are entitled to apply to the court to become a party in the proceedings.

A qualifying occupier is stated as being someone who occupied the property as their only home and who is:[3]

• a member of the person's family aged at least 16

• someone to whom the property, or part of it, has been assigned or sublet with the landlord's consent

• someone who is lodging with the tenant with the landlord's consent.

Where a qualifying occupier has not applied to be sisted into the proceedings before the decree was granted the courts have taken different views as to whether or not they are entitled to recall decree. Advisors should seek advice from a solicitor to discuss the particulars of each case.

Non-entitled spouses[4] are also in principal entitled to recall decree. Again, advice from a solicitor should be taken to discuss the particular circumstances of that case.

Recall of decree is not available when:

• where a minute for recall has already been lodged in that action[5]

• where a party has failed to appear at a diet of proof, or failed to comply with an order of the court and decree by default has been granted

• where decree has been granted when the party was present or represented in court on the date that decree was granted

It is not necessary for the defender to lodge or state a defence to an action in to be disqualified from lodging a minute of recall. The defender will be taken to have appeared if s/he was physically present and heard by the sheriff.[6]

In terms of the rules, only decrees granted under Summary Cause Rules 7.1, 8.2(5),(6) or (7) can be recalled.

Rule 7.1 applies to undefended actions. Where a party has never appeared or been represented at court, they are entitled to minute for recall of decree.

Rule 8.2 applies to defended actions, where a Form of Response has been lodged. Accordingly, a Minute for Recall is available where a Form of Response has been lodged.

Rule 8.2(5) allows a sheriff to grant decree where the defender fails to appear.

Rule 8.5(6) allows a sheriff to dismiss the action where the pursuer fails to appear.

Rule 8.5(7) allows a sheriff to dismiss an action and any counterclaim where neither party appears.

Where a sheriff grants decree under any other rule no recall is possible.

In practice, it can be difficult to establish what type of decree has been granted, as a sheriff may not have noted ‘decree in absence’ or ‘decree by default’ but merely decree.  This means that, care should be taken when making enquiries with the sheriff clerks. Strictly, the decision about whether a minute for recall is competent is a decision for the sheriff. Therefore, rather than asking the sheriff clerk whether a minute for recall would be competent, advisers may want to ask the sheriff clerk the following questions instead:

• At what type of hearing was decree granted?

• Was the defender present or represented on the day decree was granted?

• Has a minute for recall previously been lodged?

• Had a diet of proof been fixed?

• Had a Form of Response or Note of Defence been lodged?

• When was the action raised?

There is no provision in the Summary Cause Rules requiring that a Note of Defence be lodged. A Note of Defence can be seen as an alternative or extended version of a Form of Response. Given that the minute for recall procedure is open to a party who has lodged a Form of Response (thereby making it a defended action) but failed to appear or be represented at a continued hearing, it is arguable that the minute for recall procedure should also be open to a defender who has lodged a Note of Defence where they have failed to appear or be represented at a ‘continued’ hearing.  Advisors should seek advice from a solicitor to discuss the particular circumstances of the case. It is extremely useful if a copy of the Note of defence can be obtained.

In rent arrears cases a client may have Submitted a Time to Pay application before seeking legal advice. If a Time to Pay application has been granted along with the eviction order a minute for recall may still be possible but this should be addressed with the solicitor/lay representative who will be appearing for the client as they will require to address the sheriff accordingly at the minute for recall hearing.

If the action was raised before 4 April 2011 but decree was not granted until after this date the party will also require to give a reason for their failure to appear [7].

Advice should be sought from a solicitor. On rare occasions, for example where a proof was fixed but did not run, there may be scope to argue that a decree should be treated as having been granted under one of the allowable rules.

If the defender wishes to challenge a decision that cannot be recalled, s/he would need to lodge an appeal. This must be done within 14 days of the date when decree is granted. In this situation, advice should be sought from a solicitor.

If the decree includes a decree of eviction, a defender can apply for a minute for recall after the decree has been granted at any time up to the point of actual eviction.[8]

If the decree relates only to money, a defender can apply for a minute for recall after the decree has been granted providing the application is lodged not later than 14 days after the execution of a charge or execution of an arrestment whichever occurs first.[9]

If the decree relates both to eviction and money, the defender can separate these two parts of the decree and recall the part relating to eviction up until the actual point of eviction. The part of the decree relating to money would still have to be recalled within 14 days after the execution of a charge or execution of an arrestment whichever occurs first.[10] This is a complex area and advisers should refer cases to a solicitor specialising in housing law.

If there is sufficient time, the defender should be referred to a solicitor who can prepare the minute of recall. If it is not possible for the defender to see a solicitor before the form has to be lodged, a lay adviser can assist the defender in preparing the form.

Advisers should ensure they gain all the relevant information from the client prior to completing the form. See Minute for recall checklist for a guide to the information needed.  

Where the pursuer is a registered social landlord it can be useful for the adviser to contact them prior to completing the form. This allows an adviser to both to double check the information they have and to clarify which address should be used for service. From a practical point of view, it can be helpful to make them aware that the client intends to lodge a minute for recall. Although not required to do so, many registered social landlords may agree to delay scheduling an eviction or will arrange for an imminent eviction to be halted prior to formal service. However, it important to note that formal service must still be carried out.

Where the pursuer is a private landlord an adviser may want to consider whether it is likely to be helpful to contact the landlord however contact is not essential or required by law.  

The relevant form is available from the sheriff clerk or from the Summary Cause section of the Scottish Courts website.  The forms are Form 30 and Form 30a.  One is a service copy. Both should be completed using identical information.

Double check names and addresses of both the pursuer and all defenders (there may be more than one) If there is more than one defender state which defender is moving to recall the decree e.g the First Named Defender or Second Named Defender etc. The client should be referred to as such throughout.  

The following sentence ‘and in which execution of a charge/arrestment was effected on (date)’ can be deleted.

This section must state the basis on which the applicant proposes to defend the action.[11]

For example, where the client is a Scottish secure tenant being evicted for rent arrears the legal defence may be:

‘It is not admitted that the action is competent or compliant with the Pre-Action Requirements in terms of Section 14(2A) of the Housing (Scotland) Act 2001, as amended.

In the event that the action is competent it would be unreasonable in terms of Section 16(2) of the Housing (Scotland) Act 2001 to evict Defender due to the effects of eviction on the Defender’

If the action was raised prior to 4th April 2011, but granted after this date a reason may also need to be given as to why the defender failed to appear in court.

It is then useful to include the specifics of the case which relate to the reasons why eviction would be unreasonable or why the grounds have not been met. Advisers should be as specific as possible whilst ensuring any information contained is factually correct. The solicitor or lay representative who proceeds with the case needs to be able to rely on any information contained in the proposed defence so advisers should avoid referring to anything they are unsure about or committing the client to a proposal which they cannot meet.

The following information may be useful to consider:

• Household composition, children, health conditions

• Length of tenure

• Reason for arrears

• Income including any benefits being applied for

• Whether rent is lawfully due (particularly in cases where disrepair is a factor)

• How the defender intends to address the arrears (however, avoid committing the client to an unaffordable repayment plan. It may be useful to refer to any repayment proposal as being ‘subject to affordability’)

• Whether any other agencies are involved for example money advisers, support services etc.

The completed form should be sent to the court by recorded delivery, or if eviction is imminent taken to the court in person. Some courts may allow for paperwork to be sent via email but advisers should always contact the court first to ensure this is acceptable.

A hearing will be fixed and the date must be intimated to the other side by ‘serving the minute’. This can only be carried out by either a solicitor or sheriff officer.  

It is service of the minute for recall that prevents eviction taking place. Advisers therefore need to ensure that arrangements are in place for service to be effected before the eviction is carried out. Advisers should also check with the pursuer that the minute has been received and the eviction cancelled.

Where an adviser receives instructions from a client to serve a minute at the 11th hour, the adviser or the client needs to make arrangements with a sheriff officer directly to make sure that the minute is served before the eviction takes place.

Once the minute is lodged at court and served on the other party it will stop any further action being taken to enforce the court order. Technically however, the decree is not in fact recalled until the sheriff recalls it at the court hearing.

The client should then be referred to a solicitor or lay representative.  

At the hearing of the minute for recall the sheriff must recall the decree[12] but the summary cause will then proceed as if it were a first calling. It is crucial therefore that the client has representation in place for the new court date. If this is impossible, then they must attend the hearing themselves or the decree is highly likely to be granted again.

It should be stressed to clients that if the decree in this action is granted again the eviction is likely to go ahead because the minute for recall process can only be used once.

Minute for recall checklist

There are number of things that an adviser must find out before lodging a minute for recall.