Ordinary Cause Procedure
Ordinary Cause Procedure is a Sheriff Court procedure that is used when the debts being recovered are for £5,000 or more. It can also be used to recover possession of heritable property, such as homes and for the recovery of mobile property, such as cars.
Unlike, Simple Procedure, Ordinary Cause actions are not as quick, they are more expensive and more complex. For that reason, Ordinary Cause actions are usually raised with the assistance of a solicitor.
However, if you are taken to Court for a debt using the Ordinary Cause Procedure, you can be represented by a Lay Representative from a Citizen Advice Bureau or a Local Authority Money Adviser.
Ordinary Cause Actions can be raised for a variety of different types of debts, such as:
- Credit Cards;
- Personal Loans;
- Store Cards;
- Mortgage Arrears;
- Hire-Purchase Agreements.
How is a Ordinary Cause Action raised?
The first step in raising an Ordinary Cause Action is with an Initial Writ (Form G1).
When an Initial Writ is served on someone, they are given twenty-one days to respond to the writ
Understanding the Ordinary Cause Initial Writ
There is three main parts to the Initial Writ.
These are the
- The Crave;
- The Condscendence; and
- The Plea in Law
The Crave is the part of the document that tells you what the Party raising the action (known as the Pursuer) wants. So, for example, if the action is for payment of a debt, the Pursuer will crave the Court for a court order for Payment of that money.
They will also normally ask for interest on that amount at 8% per annum and for their expenses in raising the action.
The Condescendence is the part of the document that outlines the facts of the case.
It is normally laid out in numbered paragraphs.
The Condescendence should provide details of what the debt is for, what type of agreement it was, when it was signed and what payments have been made and missed. It should also state when a Default Notice was served and when the agreement was terminated.
The Condescendence is an important part of the Initial Writ.
If you intend to dispute the debt, it is important to check that the facts are correct.
Pleas in Law
The Pleas in Law are the part of the Writ that outlines the legal arguments that support why the order craved should be granted by the court.
Responding to Initial Writ
Once you have been served an Initial Writ, you need to decide what you are going to do.
You have several different options. These are:
- Do nothing/Admit the claim;
- Dispute the claim;
- Apply for a Time to Pay Direction or Time Order;
Do Nothing/Admit the Claim
If you admit you owe the money and don’t want to apply for a Time to Pay, you can do nothing. The Pursuer will then submit a Minute to the Sheriff, after the expiry of the notice period contained in the Writ, and ask for the Court Order.
This will usually mean they will obtain the Court Order.
However, the Sheriff may refuse the decree if on the face of it he believes the action is incompetent, possibly because the Court does not have jurisdiction.
In cases involving, repossession of a home, the Court will always set a hearing date, even if you don’t respond.
Dispute the Claim
If you dispute the claim, you must have a reason for doing so.
It may be that the debt is prescribed and unenforceable; or you may disagree with the amount that the Pursuer is claiming you owe them.
If you do want to dispute the Claim, it is advisable you seek legal advice or seek the advice of a Citizen Advice Bureau or Local Authority Money Advice Service, as Ordinary Cause Procedure can be complicated and is not as consumer friendly or simple as the Simple Procedure is.
If you do decide to dispute the Claim that has been made against you, you must do so before the expiry of the Notice period in the Initial Writ. You do this by returning Form 07 to the Sheriff Clerk.
When the Form 07 is returned, the Sheriff Clerk will normally submit an Options Hearing date. This basically is a hearing where the Sheriff will hear the pleadings of the Parties and decide what the options are.
This may mean deciding the case. It may also mean setting another date for a Proof hearing, which is like a civil trial, to hear evidence on any factual matters in dispute.
The Sheriff may also first set a Debate, if he believes there are legal questions of law that should be dealt with first.
The Parties also must submit their Defences within 14 days of the expiry of the Notice period in the Initial Writ.
Where Defences are submitted, they should be made in numbered paragraphs and correspond with the numbered paragraphs in the Pursuer’s Condescendence.
This means where facts in the Condescendence are agreed, it should be stated in the defence that the fact is admitted, by referring to the paragraph in the Condescendence where the fact is stated.
Where stated facts are disputed, it should be stated they are not admitted. You should then state what your version of the fact is.
This allows the Court to focus on what facts are in dispute, so if there is a proof, evidence on these disputed facts can be heard.
The Defence should also contain Pleas in Law for the Defender, supporting their defence.
As Ordinary Cause Procedure is complex, it cannot be emphasised enough how important it is to seek advice.
Apply for a Time to Pay Direction or Time Order
If you accept you do owe the debt, but are not able to pay the debt back, you can apply for time to pay. You do this by using Form 03.
When you apply for Time to Pay you are admitting you owe the debt but are just asking for more time to pay.
This does not mean, however, that if you apply for a Time Order (see below), that a Court Order should be awarded against you.
Both Time to Pay Directions and Time Orders can be used by completing Form 03.
Time To Pay Directions
The first type of time to pay you can apply for is called a Time to Pay Direction. This is governed by the Debtors (Scotland) Act 1987.
It covers all types of debts, providing they are for less than £25,000.
It cannot be applied for all debts, however.
It cannot be applied for:
- Income Tax, Car Tax, VAT debts;
- Divorce settlements; and
- Maintenance debts.
The other type of time to pay you can apply for is a Time Order under the Consumer Credit Act 1974.
Time Orders are different from Time to Pay Directions. They can only be applied for debts that are Consumer Credit debts, such as:
- Credit Cards;
- Bank Loans;
- Hire Purchase/PCP Agreements;
- Store Cards.
Time Orders, if granted, do not need to result in a court order being granted and instead the Court can be asked to sist the action to monitor the repayment plan. This suspends the action.
Time Orders can be extremely useful when used for actions to enforce a hire-purchase or PCP agreement, as the action will normally be asking for an item, such as a car, to be returned and for a debt to be repaid.
The Time Order addresses the payment of the debt and whilst it is doing this, normally the court will allow the person in debt to keep the car and continue to use it.
You can also counterclaim against the Pursuer.
To Counterclaim, normally your claim must arise out of the same agreement or facts of the cases.
Counterclaiming can be complex, so again you should seek advice. It may be if you are owed money, counterclaiming is not the appropriate action and instead you should be raising a separate action against the Pursuer.
Also, counterclaiming may be complex as you may want to admit the debt, but still Counterclaim; or you may want to deny the debt and still Counterclaim.
Where a Counterclaim is made, a Crave should be included in the Defence that is submitted to the Court, stating what the Defender wants the Court to do.
Going to Court
If you go to Court, either because you are defending the claim, or you have applied for a time to pay and the person raising the court action has rejected it, then there will be a hearing in front of a Judge known as a Sheriff.
You can either attend Court yourself (known as a Party Litigant) or arrange for yourself to be represented by a solicitor. Alternatively, you can arrange for yourself to be represented by a Lay Representative or supported by a Courtroom Supporter.
Representing Yourself in Court
If you are acting as a Party Litigant, this means you are representing yourself.
You will be up against the other Party. who in an Ordinary Cause Action, will likely be represented by a Solicitor.
If you are representing yourself, you should turn up in plenty of time and if you don’t know what court your case will be heard in, speak to the Court Receptionists.
Once you are in the Court, you should sit in the Gallery.
When the Sheriff comes in, the Court Officer will ask everyone to stand.
Once seated the Sheriff will be assisted by the Sheriff Clerk, who will sit in front of them. The Sheriff Clerk manages the paperwork and the cases that are in front of the Sheriff.
You should wait to your case is called and then approach the court and stand to the front and left of the Sheriff. The other party, who raised the action, normally stands to the right.
The Sheriff will then ask who you are, and you should identify yourself. The Sheriff will then normally ask the other Party why they have raised the action. You should remain quiet whilst the other Party explains why they are there and what they want, even if you disagree with them.
The Sheriff will then look to you and ask you what you want. You should always address the Sheriff, not the other Party. You can call the Judge, My Lord, or My Lady; but equally as a Party Litigant you can address them as Sir or Madam.
You should then explain clearly to the Sheriff what it is you want. Where you are seeking a Time to Pay Direction or Time Order, you should state this clearly at the outset. If you are disputing the claim, you should state this to the Sheriff and inform him you are seeking the action to be dismissed.
You then should explain to the Sheriff why it is you are asking them to do what you want.
So, explain why you don’t owe the debt, or why the Time to Pay is reasonable, with possible reference to your income and expenditure, that you should have completed and returned with you Time to Pay Application.
If you have any additional paperwork that you want the Sheriff to look at, you should bring three copies with you. One for yourself, one for the Sheriff and one for the other Party. You should give them to the Sheriff Clerk, and they will pass them to the Sheriff.
A good rule of thumb is to speak clearly, and if you see the Sheriff taking notes, stop speaking until the Sheriff looks up again.
If the Sheriff asks you a question, be prepared to answer it if you are able to. If you can’t answer it, say so. If the Sheriff asks the other party a question, wait to they are finished, and the Sheriff addresses you again.
Lay Representation is a person who is not a solicitor or advocate, who can represent you in Court in relation to civil matters, such as actions for payment of debt.
They are not allowed to charge you for providing the service and can do everything that you are able to do for yourself, with the Court’s permission.
This means they can speak on your behalf and you can request they are the person the Court communicates with when you return the Response Form.
For a Lay Representative to act on your behalf they must ask the Court’s permission and submit a Form 1.A.2 to the Court.
Sheriffs can remove permission for a Lay Representative to act, if they don’t believe they are assisting the Court in dealing with your case.
Although a Lay Representative can do everything for you that you could do for yourself, you must still attend Court when a Lay Representative is acting on your behalf.
A Courtroom Supporter is usually a friend or family member who supports you during a court case. They are not allowed to speak on your behalf, but can speak with you during the case, advise you and give you moral support. They can also help you organise your paperwork.
When you want someone to act as your Courtroom Supporter, you should make the Sheriff aware of them and ask if the Court will allow them to support you.
Once the Sheriff has heard all the evidence, which may involve multiple hearings, he will make his decision and say what this is.
He may dismiss the action, or grant the time to pay, but equally he may grant the court order that the Pursuer has requested.
Once the decision is made, you and the other Party have 14 days to appeal.
Where a Court Order has been granted, after 14 days the decree can be extracted. It can then be enforce using Diligence