Ordinary Cause: Preparing the initial writ - the crave, condescendence and pleas in law
Once the sheriffdom, court, pursuer and defenders details have been entered on the initial writ, completion of the remainder comprises of three parts. These are:
This follows on immediately below the paragraph identifying the defenders and it is vital that this is accurate and states all the liabilities for which you are seeking decree. The court will grant the decree in accordance with the details in this part of the writ.
You must use a separate paragraph for each type of liability to be included in the decree. Each paragraph must be numbered and any amounts detailed must be shown in words and figures.
In addition to the craves for the tax etc a clause seeking decree for the expenses of the action must be included.
This follows on from the crave and
- summarises the facts giving rise to the action
- details the amounts for which you are suing
- quotes any statutory provisions and
- contains any averments specified by the Ordinary Cause Rules (OCR) or by individual sheriffs (DMBM680090).
The first condescendence in the initial writ must
- state in what capacity you are suing, that is “as an officer of the Board of HMRC under the terms of Section 67 Taxes Management Act (TMA) 1970”
- include a description of the defender’s trade
- show the defender’s domicile and establish the correct jurisdiction (DMBM680090)
- say why the action has been raised and
- include the following additional averment at the foot of the first condescendence “No agreement is in subsistence prorogating the jurisdiction over the subject matter of the cause to another court and no proceedings involving the same cause of action are in subsistence between the parties in any other court”.
The remaining paragraphs of the condescendence should give a “potted history” of how the sums being claimed have been arrived at. The wording must be in the style required by the court and you should use only the example as detailed in the Book of Styles disk supplied by Debt Management Edinburgh Group Office.
Averment of jurisdiction
Ordinary Cause Rule 3.1(5) stipulates that a pursuer must include an averment establishing the grounds of jurisdiction of the court. The principle ground ofjurisdiction for your actions will be “domicile” which means that defenders will be sued in the court for the place where they are domiciled. Your action should be raised in the court in whose area the defender resides or carries on business (DMBM680090).
For individuals a person is held to be domiciled in Scotland or in a particular part of Scotland if
- he is resident in Scotland or that part and
- the “nature and circumstances” of the evidence indicate that he has a substantial connection with Scotland or a particular part of Scotland. A residence of three months is enough to establish a “substantial connection”.
For any case where the residence of an individual is unknown and cannot reasonably be ascertained and he does not have a place of business you must include a clause stating that the defender’s present whereabouts are unknown.
For partnerships if there is more than one defender an action may be raised in the court for the place where any one of them is domiciled.
For companies or associates the location of a company’s
- registered office
- other official address or
- place of business
will determine in which sheriff court your action may be raised.
Pleas in Law
This is the final part of the initial writ, which gives a brief statement of the legal grounds, which if shown to be correct, would entitle you to decree in your favour.
Again you should use numbered paragraphs for this (as in the section on the crave above) and use only the examples as detailed in the Book of Styles disk as supplied by Debt Management Edinburgh Group Office.