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Pilgrim's Process? Defended Actions in the Sheriff's Ordinary Court - Research Findings

DescriptionTo provide information on the operation of procedure for ordinary defended actions prior to implementation of new procedural rules in January 1994.
ISBN
Official Print Publication Date
Website Publication DateDecember 29, 1998
Legal Studies Research Findings No. 3 (1995)
Pilgrim's Process? Defended Actions in the Sheriff's Ordinary Court

Sue Morris and Debbie Headrick

ISBN0-7480-2923-0Publisher The Scottish OfficePrice £5.00
This study investigated the procedural paths and outcomes of a sample of defended ordinary actions concluded in 5 sheriff courts between July 1991 and July 1993. The report is based mainly on analysis of data collected from court records and information from interviews with sheriffs, solicitors and court staff.
Main findings
  • Very few defended ordinary actions were resolved through proof; only 5 in every 100 cases reached this stage in proceedings.
  • The rate of attrition was high: one third of actions were concluded before defences were lodged and of those with defences lodged, just over half reached the stage of closing the record.
  • The average length of proceedings was 48 weeks, although there was some variation among cases depending on procedural stage reached before conclusion.
  • Nearly half of all defended ordinary actions were sisted at some stage in proceedings with the average duration of a sist being 28 weeks.
  • More than half of the defended actions with defences lodged called on the adjustment roll more than twice and a minute of amendment was lodged in one third of all cases in which the record had been closed.
  • Some differences in procedural paths and outcomes were identified between family and all other actions and across the study courts.
  • While it was recognised by most interviewees that the ordinary court provides a forum for resolving disputes using both adjudication and negotiation, interviewees were divided on the question of whether it is (or should be) sheriffs or solicitors who control the ordinary procedure.
Introduction
This report is based on research into the system of civil dispute resolution in the sheriff's ordinary court before new procedural rules 1 for defended actions were introduced in January 1994. The research was commissioned by Scottish Courts Administration as part of a wider study of the implementation of these rules. This part of the study aimed to provide information on the operation of the procedure for ordinary defended actions in the pre-implementation period to serve as a baseline for future evaluation of the new rules.
The research findings are presented in the report in 3 main chapters that highlight the procedural milestones, procedural diversions and procedural drivers involved in the paths taken by defended actions in the ordinary court. Several themes recur throughout the report. These are: the timescales for conclusion of actions and procedural stages; the comparisons made between family and other actions; and differences of perspectives among the professional groups interviewed. In addition, inter-court comparisons of the analyses made in the report are provided in an Annex.
The main report also includes a background chapter to give the research findings some context. This chapter includes an overview of ordinary procedure and some general information about defended ordinary actions. In addition, a concluding chapter draws upon the three substantive chapters, in which the research findings are detailed, in order to highlight some issues emerging from the study. The research methodology is described and a copy of the interview schedule provided in separate Annexes to the report.
Ordinary procedure in the Sheriff Court
Ordinary procedure forms part of the civil jurisdiction of the Sheriff Court and is an important part of Sheriff Court business in terms of volume of cases, seriousness of subject matter and legal complexity. The volume of ordinary cases has more than doubled since 1982 and represented almost a quarter of all civil business in 1992 2. Family actions (including divorce, separation and parental rights) account for nearly one quarter of all defended ordinary actions. The following account of ordinary procedure gives a brief description of the position before the new rules came into effect on 1 January 1994.
Actions in the Sheriff Court are initiated by the pursuer by means of an initial writ, a copy of which is then sent to the defender. In cases other than family actions, if the defender does not respond the court will usually grant decree. In family cases, the court must usually consider at least some evidence before granting decree.
If the defender wishes to defend the action a notice of intention to defend (NID) must be lodged with the court within a set time limit. It is the lodging of a NID which classifies a case as a defended action. The case then calls before the court at a tabling when the process, which contains all the documentary material of the action, must be lodged.
Defenders respond to the initial writ by lodging defences which answer the case made against them. This is followed by an adjustment period during which parties to the action are able to make changes to their averments in the light of each other's responses. There is no fixed period of adjustment, but when this has been completed the record is closed and no further changes can be made unless a minute of amendment is sought and granted. After the record is closed a hearing is set for evidence to be led in a proof and the sheriff makes an adjudicated decision.
This is a very direct route to proof and there are a number of ancillary procedures which parties may choose to invoke. These procedures include sists, debates and minutes of amendment and such procedures feature in the vast majority of defended ordinary actions.
Procedural paths in ordinary procedure
The research identified 3 procedural milestones which must be passed in order to reach an adjudicated decision. These milestones are: the lodging of defences; the closing of the record; and the hearing of a proof. 3
Very few cases (5%) were resolved through adjudication by the sheriff. The vast majority of defended actions in the Sheriff Court were resolved in other ways at other stages in the process. One third were resolved before defences were lodged, the first milestone, and the average length of proceedings for these cases was 32 weeks. Almost one half of the defended ordinary actions with defences lodged were resolved before the record was closed, the second milestone. The average length of proceedings for these cases was 56 weeks. Although two thirds of defended ordinary actions with a closed record reached the stage of fixing a proof, only a small proportion (14%) of these proceeded to a proof hearing. The average length of proceedings for all cases with a closed record was 68 weeks.
The research also examined the use of procedural diversions, which are those procedures that may be invoked by the parties to a defended ordinary action but which are not essential stages along the road to proof. These are: sists; written motions; callings on the procedure roll; minutes of amendment; debates; and post-decree procedures. Procedural diversions play a very important part in ordinary procedure. Very few cases involved only the essential procedural milestones and the vast majority (91%) of cases involved one or more of the ancillary procedures. For example, sists featured in nearly half (49%) of all cases; written motions and callings on the procedure roll in nearly two thirds (65%); and debates in just under one fifth (17%).
Procedural drivers and their views on the ordinary court
Interviews with sheriffs, solicitors and court staff were undertaken in order to elicit further information on how the rules were translated into practice during the period studied and to assist understanding of the characteristics of ordinary process and of outcomes. Two sheriffs, four solicitors and a member of court staff working in each court in the study were interviewed. The Sheriff Principal of each sheriffdom was also interviewed, including the two Sheriffs Principal whose sheriffdoms were not represented in the study.
In interviews, it was suggested that the low incidence of proof hearings could be explained in 2 main ways. Firstly, the most common explanation for the very low proportion of proofs heard in relation to proofs fixed was that when faced with the prospect (and costs) of a legal argument in court and the associated risk of an unfavourable decision by the Sheriff, parties prefer to settle. Secondly, the view was expressed that many defended actions are initiated as part of the negotiation process between the parties rather than because a judicial decision is required. The court can be seen therefore as having a dual role which encompasses different methods of dispute resolution, adjudication and negotiation.
The interviews also revealed different points of view about the control of ordinary procedure. On the one hand, there was the view that sheriffs do have ultimate control of the process of cases through ordinary procedure, although those expressing this view stressed that the extent of this depended on the individual sheriff involved. On the other hand, however, there was a view that solicitors ultimately control the process of a defended ordinary action through their ability to manipulate the rules. These views were also associated with differences of opinion about the role of the sheriff in ordinary actions. One approach stressed the need for the sheriff to act as a referee or umpire, making decisions when the parties could not agree, while another attributed a more interventionist role to sheriffs in which they applied the rules strictly and prepared for cases in advance.
About the study
In November 1992 Scottish Courts Administration commissioned the Legal Studies Research Branch of The Scottish Office Home and Health Department to develop a plan for a major evaluation of the implementation of new rules for ordinary cause in the Sheriff Court. The evaluation had 2 main aims: to monitor the introduction of the procedural changes in the Sheriff Court; and to evaluate the success of the implementation process in achieving the objectives of the Rules Council in making the new rules. Three critical stages were identified in the introduction of the new procedures: pre-implementation; partial implementation and full implementation.
The research reported here covered the pre-implementation stage and forms a baseline study to provide information on the situation prior to the introduction of the new rules. It provides a base against which data collected at a later date can be compared. The research was undertaken in 5 sheriff courts across Scotland. These courts were selected according to case loads in order to reflect a range of different-sized courts. The size of the sample collected from each court was proportionate to its volume of business. Thus, 500 cases were sampled from Court A, 300 from Court D, and 150 from each of the other courts, B, C and E. Of the 1206 cases finally analysed, 370 (31%) were family actions and the remaining 836 (69%) represented all other actions.
Data were collected from the sample cases, all of which were concluded between July 1991 and July 1993. The main source of information for the data collection was the individual case processes kept by the courts. These data were supplemented by 35 interviews with court personnel based in the 5 courts (sheriffs, solicitors and court staff) and with the Sheriff Principal from each Sheriffdom.
2
1 Act of Sederunt (Sheriff Court Ordinary Cause Rules) Statutory Instruments 1993 No. 1956 (S223).
2 Scottish Courts Administration (1992) Civil Judicial Statistics Scotland, Edinburgh, HMSO.
3 This includes cases in which a proof before answer was heard.
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"Pilgrim's Process? Defended Actions in the Sheriff's Ordinary Court", the research report summarised in this Research Findings, may be purchased (price £5 per copy).
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