Enforcement action: summary proceedings (Scotland): general: explanation of the more common terms used by the court
The following details some of the most frequently used terms you will encounter in your dealings with the court when taking summary proceedings:
Action of furthcoming - a final stage of diligence for whatever has been subject to arrestment being made over to the pursuer. For example, when a bank account has been arrested and attempts to obtain a mandate from the defender to release the arrested funds have proved unsuccessful, this final stage of the diligence allows for the appropriate amount of funds caught in the arrestment being transferred to the pursuer.
Averment - a statement positively made, declaring something to be true.
Calling Date - the date of the first hearing of the case in court. This date is normally set seven days after the return day. Usually you will only be required to attend court on this date for cases where the defender has returned form 1b to the court advising of his intention to appear or be represented.
Catches funds/funds caught - this refers to the sum of money held in the account at the time of the arrestment. If the arrestment has been successful it will have “caught funds”.
Certificate of citation (court form 11) - a notice given to the defender of the action being taken against him.
Certificate of Execution of Service (court form 12) - the sheriff officer must complete this, advising that he has sent a copy of the summons to the defender.
Certified cheque - a cheque guaranteed by a bank as being covered by sufficient funds on deposit.
Continuation - an order made by the sheriff granting that the case can be continued to another date for whatever reason. For example, if the defender makes a claim that all or part of the tax etc sued for has been paid, it is more than likely that the sheriff will grant a continuation to allow both parties to resolve the matter.
Continue/Continued - see Continuation above
Decree - the order made by the court stating their judgement in the action. It normally orders the loser of the action to do something. For example where the pursuer has sued for a sum of money and the court has made a judgement that the defender is due to pay the sum sued for the decree will order the defender to pay the sum sued for to the pursuer. It can also relieve the defender from the obligation to pay the sum sued for in cases where the pursuer has failed to prove his case against the defender.
Decree of Absolvitor - in this situation the judgement of the court in the action has been to either find in favour of or absolve the defender. They then grant Decree of Absolvitor ruling out any further action being taken against the defender in respect of the sum sued for.
Defender - this is the person against whom the pursuer raises the action in court.
Diet of Proof - a meeting of the court, usually in cases where a defence has been lodged and normally both parties are represented. In accordance with the facts presented the sheriff will decide the case.
Diligence - used to describe the form of legal procedure which enables the creditor (pursuer) to recover payment from the debtor (defender).
Extract Decree - the document containing the court’s order stating their judgement in the action. This document must be obtained before you can proceed to enforce that order.
Hearing day - the date set by the court for the hearing of a small claim case where the defender intends to defend or dispute the claim or challenge the jurisdiction of the court. This date is normally set seven days after the return day.
Jurisdiction - there are several meanings for this but the two you are most likely to be involved with are in relation to (a) the area within which a court has the power to try or hear cases and (b) the actions a particular court has power to deal with.
Outlays - the expenses of bringing the court action.
Pursuer - the person raising the action in court.
Return Day - this is the date determined by the court on or before which the defender must lodge form 1b with the court informing of his intention to appear in court to dispute, defend or challenge the action.
Sist - the suspension of proceedings for a definite period or until the occurrence of a particular event.
Summons - the principal court document containing the details of the claim being pursued (Form1). After the court has registered the case, the sheriff officer serves a copy of this document (Form1b) on the defender. This gives the defender the opportunity to appear in court to defend the action.