Ordinary Cause: Explanation of common terms
The following details some of the most frequently used terms you will encounter in your dealings with the court when taking an ordinary cause action:
Arrestee – the person in whose possession the wages/money or moveable goods arrested are held.
Averment – a statement positively made declaring something to be true.
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 O6) – This is the form used by the sheriff officer stating that he has served the citation documents on the defender and details the method he used to do so. (For example by first class recorded delivery service.)
Certified cheque – is a cheque guaranteed by a Bank as being covered by sufficient funds on deposit
Condescendence – statement(s) in the initial writ outlining the facts giving rise to the claim.
Crave – the opening paragraph(s) in an initial writ in which the pursuer sets out what he is seeking, for example, decree for payment of a sum of money.
Decree – a final order by the court in favour of the successful party. It normally orders the loser of the action to do something, for example where the successful party is seeking to obtain a sum of money from the other, the decree will find the sum to be due and order the other party to pay it. Alternatively it will exonerate the defender from doing, paying or submitting to anything if the court finds that the pursuer has not proved his case.
Decree of Absolvitor – an order of court granted in favour of the defender absolving him of the liability sued for. It means the pursuer cannot raise a fresh action against the defender for the same debt – unlike the position where the action is simply dismissed.
Defender – the person against whom the pursuer raises the action in court.
Diet of Proof – a hearing before the sheriff in a defended action where both parties are normally represented and the sheriff decides the case in accordance with the evidence presented.
Diligence – used to describe the form of legal procedure which enables the creditor (pursuer) to recover payment from the debtor (defender).
Domicile - a person’s domicile is the state, territory or country that is regarded as his or her permanent home.
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.
Form of citation (court form O4) - this is the form that accompanies the copy initial writ, warrant of citation and a form O7 (notice of intention to defend (“NID”)) that the sheriff officer serves on the defender to inform him of the citation.
Inhibition - a legal procedure whereby a debtor who owns a heritable property is prohibited from selling or disposing of that property or granting a security over it. Inhibition is a personal prohibition and it operates against all properties owned by the debtor. An inhibition expires after five years but a further inhibition can be laid if found necessary. An inhibition is uplifted by the granting of a Discharge of Inhibition.
Initial Writ - the document used to begin an ordinary action in the sheriff court. It contains details of the claim being pursued. When the case is registered by the court a similar document (service copy) is served on the defender giving him an opportunity to appear in court to defend the action. The equivalent document in Summary Warrant or Court of Session actions is a Summons.
Instance - the information shown at the beginning of the first page of the initial writ, which details
- the sheriffdom
- the pursuer’s name and address
- the defender’s name and address (and where applicable, the source assessed, for example, John Smith mechanic)
- any order or decision of the court which does not finally dispose of the case but is given in the course of the proceedings.
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.
Motion - a motion is a written or oral application to the court that is made in the course of civil or criminal proceedings.
Options Hearing - the first hearing in court of a defended ordinary cause. The date of the options hearing will be at least 10 weeks after the expiry of the period of notice. There are various options open to the sheriff who will decide on the merits of each case as to how it will be best to proceed.
Period of Notice - the time allowed by the court following citation for the defender to consider the position and decide as to whether he is going to defend the action. In most instances the period of notice will be 21 days after the date of execution of service.
Pleadings - in the sheriff court these are the written allegations, admissions and denials of each party and are part of the initial writ which began the action in court.
Production - a document or article of any sort lodged in or made available to the court by one or other of the parties to an action is called a production
Pleas in Law - the final section of the initial writ, that details the legal grounds entitling the pursuer to decree.
Probative document - this is a document ‘affording proof’. That is, a document because of its certain features, namely its proper preparation and production and the fact that it bears a formal signature and witnessing, affords proof of its contents, at least on the face of it.
Process (inventory of) – is the court file containing all the documents relating to the case.
Pursuer - the person raising the action in court.
Reponing - this is a form of appeal open to the defender following the granting of a decree in absence. It can be used at any time within 20 years of the granting of the decree provided that there is a balance of the debt in decree outstanding.
Sist – the suspension of proceedings for an definite period or until the occurrence of a particular event.
Warrant to Cite/Warrant of Citation – (court form O1) – the form issued by the sheriff/sheriff clerk granting warrant to cite the defender. It is issued in response to the lodging of the initial writ by the debt management office. After completion the form O1 is attached to the initial writ and returned to the pursuer for service.