Is there any work related dread quite like your inbox after returning from some time away? As many return to work following periods of furlough or working from home, that pile of post waiting just inside the door may strike the same feelings. However, if there are any court documents within that stack or sitting in your inbox, burying your head in the sand isn’t the best option.
Court documents in Scotland require responses within set time frames and missing these deadlines can have serious consequences.
A response is required
Documents which initiate court proceedings, such as initial writs and summonses, require a response or else decree (judgment) can be given in absence.
In the Sheriff Court, ordinary proceedings (generally those worth above £5,000) are commenced with an Initial Writ. As a defender, you have 21 days to respond to the writ with a Notice of Intention to Defend.
Simple proceedings (generally worth less than £5,000) are commenced with a claim form. This form will include a last date for a response. As a respondent (defender), you are required to respond by this date if you intend to defend the claim.
If the action is in the Court of Session, you need to enter appearance with the court within 3 days after the summons has called.
If you fail to respond within the required time frames, the court can make a decision without hearing from you. Without the opportunity to put forward your position, this decision is likely to go against you.
In ordinary proceedings and in the Court of Session, the pursuer will seek a Decree in Absence. In simple proceedings, the claimant may make an Application for a Decision to the court.
If papers have been missed, all is not lost. There are various procedures in the Scottish Courts to deal with missed deadlines.
Sheriff Court – Ordinary Proceedings
If the deadline to respond has been missed but a judgment has not yet been issued, a defender can apply to lodge a late Notice of Intention to Defend. This will require an explanation for the delay. Ultimately it will be the Court’s decision as to whether to accept it.
If a Decree in Absence has already been issued, the defender will need to apply for that decision to be ‘reponed’. This is an administrative process to revive the action, on the basis that there was good reason for the missed deadline. It is different from an appeal, which is a challenge of the legal decision made.
A decision can only be reponed where it has not been implemented in full. If it has been partially implemented, then the judgment as far as not implemented can be reponed.
A reponing note must contain an explanation of the failure to appear and detail of the proposed defence. It will be the subject of a hearing, whether or not it is opposed.
Sheriff Court – Simple Proceedings
In Simple Proceedings, if you fail to submit a Response Form by the last date for a response, the claimant may make an Application for a Decision to the court. They must do this within two weeks, or the claim will be dismissed.
You can apply to have the decision recalled by sending an Application to Recall together with a completed Response Form. This can be done at any time until the decision has been fully implemented. The court will then arrange a discussion to consider whether the decision should be recalled.
Court of Session
If you have failed to enter an appearance on time but a judgment has not yet been issued you will need to apply to the Court for relief from the Court of Session Rules to allow appearance to be entered outwith the set timescales.
If a decision has been issued, the rules allow 7 days to apply to recall the Decree in Absence. If the seven day period is missed, you can ask the court to exercise its discretion and accept the application but there will, of course, need to be a good explanation. As above, a decision can only be recalled where it has not been implemented in full.
Although there are potential solutions to missed court deadlines, there is no substitute for complying with the rules. There are no guarantees that the court will allow a party to correct an error that has been made. That can have extremely severe consequences for a defender such as decree being granted against them for the full sum sued for with expenses on top. To save expense and avoid the risks of a decree in absence, court documents should be dealt with as quickly as possible.
What is the position in England and Wales?
The position on missed court deadlines in England and Wales is similar but somewhat stricter.
If a claimant serves court proceedings upon a defendant, the defendant has 14 days in which to lodge an acknowledgment of service form with the court indicating its intention to defend the claim. Unlike most other court deadlines, time frames for filing an acknowledgement of service cannot be varied. If this deadline is missed, the claimant can apply to the court for a default judgment against the defendant; this is a judgment without a trial and it can be for the amount specified in the court documents or for an amount to be determined by the court.
A claimant can also apply for default judgement if a defendant has filed an acknowledgement of service in time but later misses the deadline for filing a defence. Defendants have 28 days from the date proceedings are served in which to file a defence. If a defendant requires further time, it can agree an extension with the claimant or it can apply to the court for an extension.
If default judgment is entered against a defendant in a personal injury case, the court may list the case for a ‘disposal hearing.’ This hearing is simply to decide the amount the claimant will be awarded and the court will not normally hear oral evidence. Although the defendant may make some limited arguments on quantum, it has effectively lost its chance to defend the claim.
Is there a remedy?
If default judgment has been entered, a defendant can apply to have it ‘set aside’ if it has a real prospect of successfully defending the claim or if it appears that there is some other good reason why it should be allowed to defend the claim. ‘Some other good reason’ might include for example, an innocent administrative error such as recording the defence due date inaccurately on a case system. The defendant would be required to submit evidence in support and notwithstanding, there is no guarantee that the court would allow judgement to be set aside.
The court must also, and more importantly, have regard to whether the defendant made an application promptly. The timing of the defendant’s application is key; if it delays in applying to set aside default judgement, it will not matter that it had significant prospects of defending the claim or that there was some other good reason.
The procedure for setting aside default judgment can be costly. If a defendant applies to set aside judgment it will ordinarily have to bear its own costs and the claimant’s. If a court hearing is required to decide the application, the defendant will likely have to pay the claimant’s costs of preparing for and attending the hearing.
To conclude, if a defendant receives court proceedings it should notify its representatives without delay to avoid the risk and expense of dealing with a default judgment.