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Powers of the sheriff in civil legal action below the value of £5,000

This advice applies to Scotland

Rules of the court

The rules of the court in civil legal action worth up to £5,000 come from the simple procedure. The parties in the action are called the Claimant and the Respondent.

More about the simple procedure

The simple procedure is meant to be a straightforward, quick and easy way to resolve disputes. Think carefully about having to go to court as you may be able to resolve your dispute without court action using an alternative dispute resolution process like mediation or arbitration under a code of practice.

More about using Alternative Dispute Resolution to solve your problem

Powers of the sheriff

When the parties (the claimant and respondent) do not have legal representatives the sheriff has a responsibility to make sure that they are not disadvantaged, in the legal process, because of their lack of legal knowledge or guidance. 

Whether to have a hearing and what sort of hearing it should be is totally at the discretion of the sheriff.

The simple procedure rules allow the sheriff to take the lead in trying to resolve the dispute that has been brought to court. The powers of the sheriff may be used to:

  • give the parties orders in person or in writing to take particular actions
  • do anything or give any order to encourage negotiation or alternative dispute resolution at any time
  • do anything or give any order considered necessary by the sheriff to resolve the case at any time
  • support either party that fails to comply with rules but conditions or rules about expenses may be imposed on that party because they have not abided by rules
  • change the time limits and deadlines written into the rules to suit the circumstances of the case
  • amend the discussions in court or case management meetings in terms of form, location and conduct but must explain why
  • combine separate cases
  • continue discussions in court or case management meetings to another day
  • pause and restart a case
  • decide the outcome of a case without a hearing
  • dismiss a part of a claim or the whole claim if it has little chance of success
  • dismiss a part of claim or the whole claim if it appears to be incompetent
  • deal with any responses by either party in the case that appear incompetent
  • make provisional orders which protect or secure a claimant’s position before a hearing. These are called actions on the dependence
  • treat an authenticated copy of a document as an original even if the original was destroyed
  • transfer a case to another court.

When one party has legal representation it is possible that the other party may have difficulty in putting forward their case clearly if legal arguments are presented but difficult to understand.

The sheriff has discretion to try to ensure that someone who is not legally represented is not disadvantaged.

What the powers of the sheriff mean in practice when the parties are in dispute

Whether you have raised a legal claim under simple procedure or, you are trying to defend a claim against you, the sheriff can take many actions or decisions including to:

  • refer both parties for alternative dispute resolution
  • organise a case management discussion
  • arrange a hearing
  • end the claim without either party gaining anything
  • decide the outcome of the case without a hearing so you won’t have had a chance to talk in court.

The sheriff can also:

  • move the case to a court further away from where you stay
  • order you to do something you don’t want to do
  • reset the timing of the case from the rules of court
  • dismiss part of the case because the sheriff thinks it is incompetent. 

The sheriff is meant to use the discretionary powers to try to settle the dispute between you. In some cases the use of these discretionary actions may settle the disagreement and claim but it is possible that one party or both parties may feel that they don’t agree with the actions taken by the sheriff. 

The sheriff is expected to explain what has been done and why.

When both parties have legal representation the sheriff is likely to discuss the case more with the legal representatives than you, particularly if each has provided good legal arguments for their party’s side of the dispute.

The sheriff may still try to end the dispute using discretionary powers at a case management discussion. If it can’t be resolved at that point then it will have to go to a full hearing.

More about taking someone to court

What can you do if you are unhappy with the decisions of the sheriff

If you are unhappy with what has happened in the claim you should seek advice if you don’t understand what has happened and why. You can get help from a Citizens Advice Bureau - where to get advice. You should take any paper work to do with the claim with you.

If you disagree with the outcome you can appeal against it to the Sheriff Appeal Court but only on a point of law. It may be very difficult to identify a point of law upon which you can appeal.

 

 

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