What happens after you receive Scottish court papers?

Receiving court papers can be daunting, but understanding what happens next  is essential to resolving the issues at hand. In this episode of Podcasts by Brodies, Carly Forrest and Gemma Nicholson break down everything you need to know about dealing with Scottish court documents, ensuring you can respond effectively and avoid potential pitfalls.  

We examine the importance of understanding which court has served the papers, whether you need to respond to the papers and how you respond.
 
For those defending a court action, we delve into the strategies available, including submitting written defences, challenging claims, and seeking dismissal where appropriate.  

If you are interested in the process related to court papers in England and Wales, listen to our podcast 'What do I do if I'm served English court papers?'

Transcript

00:00:05 David Lee, Host

Hello and welcome to Podcasts by Brodies. My name is David Lee, and today we'll be discussing the Scottish legal system and specifically what happens if a person or organisation receives Scottish court papers.

I'm delighted to be joined to talk about this issue by two Brodies experts, partner Carly Forrest and senior associate Gemma Nicholson. Welcome to you both. Gemma, we'll start with definitions as we like to in these podcasts. We're talking today about receiving Scottish court papers, can we just start by defining what Scottish court papers are and what that might cover?

00:00:44 Gemma Nicholson, Senior Associate

I think the first thing to say about that is the type of court action that we were thinking about and discussing today, it's a civil court action to start with and the day-to-day work that both Carly and I will do is mainly to defend claims made to recover civil damages. So those types of actions can be raised against a variety of people so that can be individuals, businesses, charities, public authorities, and for RTA claims you can get them raised directly against a motor insurer. So, when we're talking about court papers today, we are really thinking about litigated claims for compensation. Those types of action these days are very, very common and in terms of subject matter, they can arise when a person is or claims to be injured either at work, on third party premises or for example from what they will say was a defective product. So, it's a very wide subject matter today.

In terms of labelling those court actions as Scottish, well, what we mean by that is that the action has been stamped for service by a court with a physical presence in Scotland and by way of background, we have more than 35 local courts in Scotland and we call them sheriff courts. They span the country from Lerwick and Shetland, right down to the border at Dumfries. Each local court has a defined geographical area that they cover. So, you can use a local court to commence litigation if the accident that caused you to suffer injury either happened in that area or if the person you say that was at fault for your injury either lives there or has a place of business there. So, that's one option in terms of a Scottish court action and what it might look like and where it might be raised. In the sphere of work that Carly and I do, you do also have courts with what we call national jurisdiction, so that's when they can deal with any claim which is made, provided that occurred in Scotland or it involves a Scottish domicile defender. We have the specialist national Personal Injury Court that's just about to turn 10 years old. We've had that for a while, and many personal injury actions are raised within that court in Scotland so if you receive court papers, you'll often see that name listed at the top. The other alternative is the Court of Session, which is Scotland's highest civil court, and it also has national reach but it will only hear actions with a value of more than £100,000. So that's limited to more complex cases.

00:03:45 David Lee, Host

Thanks very much indeed, Gemma. That’s good and clear. Coming to you, Carly, how can individual or organisation recognise that they'd received formal papers from a Scottish court?

00:03:59 Carly Forrest, Partner

The first thing I would say is that it's not going to look like normal post. There are three ways which I'll talk about that the court papers can be served. It's probably worth being aware that it's unlikely and unusual that that's going to be the first correspondence that someone recieves, particularly in our line of work where there are reaction protocols. There are requirements that claims do have to be intimated prior to proceedings being issued, so most of the time there will be some sort of correspondence that that is a precursor to the court paper. But when it gets to the point of litigation, as I say, there are three ways. The first would be the post and it's going to look official. It is normally recorded delivery, there's going to be a stamp to confirm there's court papers inside. The document inside will set out the claim made against you or your business, and that's called an initial writ or in the Court of Session it’s called a summons and it's going to have the name of the court, it will have a reference which is normally one letter or three numbers. It does look like an official document and it will normally have the financial sum claimed or sued for on the first page of the writ or the summons and there's normally also a number of service documents that come along with that. So, the warrant for service, which is the courts permission to allow that document to be formally served.

If it is post, it’s fine for an individual, but in terms of a business context, I suppose one thing to think about is making sure that people within the business are aware of what a court document looks like because if it goes to, you know an administrative address or the mail room or finance, it may be that someone doesn't appreciate what it is and that it does require to be actioned, and so that's something that's worth bearing in mind. I think the other thing to bear in mind is that you can also receive court papers by e-mail and the ability to serve court papers electronically was introduced during the COVID pandemic and that remains a valid method of service now, but only if you've agreed in advance to accept the court papers electronically. So, as I say, if you do agree to that, you have to have procedures within your business to make sure that they are going to the right person. The alternative is to set up a specific e-mail address or to
 nominate solicitors to receive court papers on your behalf, and that's done frequently in practice. If you do receive documents by e-mail then you might already be expecting them, so it's going to come in the same format as that would be sent to you in post. So, same documents, same court name, reference request for a financial sum of money and the warrant for service and they're not going to be any more difficult to recognise. But just due to inbox traffic, as everyone is aware of these days that it's just making sure it's not missed when it comes in and it's actioned straight away or at the very least marked as urgent so it is picked up upon because there are strict time limits and we will come on to talk about that.

The third way is personal service. Now, that's where a sheriff officer or messenger arms would basically physically hand court papers to you or a member of your business. They would say who they are, what they are giving to you and the fact that it is court papers, obviously that can be quite stressful and upsetting for some people to receive that approach. It is most common where someone's making a claim and it's just about to time bar and you have to make sure that it's served on time then you would go down that route. It's more expensive to go down that route, so that's why we don't necessarily always see that in in every case. What I would also say is just if a case is approaching a time limit, then if you again nominate solicitors then you try to avoid the need for personal service having to be affected which just increased costs and also as I say, it's not particularly pleasant to have someone serve court papers on you.

00:08:28 David Lee, Host

Thanks very much, Carly. It’s obviously a formalised process there. As you say, we'll talk later on about any missed deadlines and so on. Gemma, before we go to that, can you tell us why it's relevant where the court papers have come from?

00:08:45 Gemma Nicholson, Senior Associate

So, being alive to where the court papers have come from, that really is the first step to informing what you need to do next, put simply where the court action is raised, that's where any response to it has to be entered and if you're thinking further ahead, it's where any future evidential heading might take place. So as a defender, if you're wanting to instruct a solicitor, for example, what court will hear the case might influence what solicitor you choose to represent you. It will also influence what time period you're allowed to respond to the litigation as well and that's because what procedural course the litigation will follow will be different in different courts and even within different courts there could be different court tracks as well. So, for example, the same court rules apply to personal injury actions raised within the Sheriff Court and the national Personal Injury Court. They will follow chapter 36 rules, but those court rules are different if the action is raised within the Court of Session because in the Court of Session the same action, the same type of claim, it will follow a different procedure called Chapter 42. So, the different court tracks do apply different methods and time limits to the claim, so you need to be alive to what court you're dealing with, what court track to inform what you need to do next.

00:10:14 David Lee, Host

Thank you. Carly, particularly if you're receiving those papers in person, it can be quite a stressful and difficult process. So, what does someone need to do if they do receive those papers rather than being paralysed by it, what do they need to do to really understand them?What's the first simple step?

00:10:39 Carly Forrest, Partner

I think the most important thing is to take action, don’t ignore them because there are strict time limits, recognising that they are court papers is the most important step and the action does need to be taken to avoid you falling into default of the court rules and having further action taken against you. It’s not unusual when you see, particularly in personal injury litigation which Gemma and I both specialise in, you're immediately thinking about preparing your defence. A lot of the time the defence is already partially prepared because the insurers have most likely responded to the claim at a pre-action stage and if the solicitors and instructed as they often are after the court action is raised, part of their job is going to be to explain the implications of the court action to you or your business and to be able to say what we need to do next, what further investigations have to be carried out. The key issues to understand are where the action is being raised, for what sum of money, what's the legal basis the claim is being presented and this will be identified simply from reading the court papers. The court is going to be named on the first page of the summons or the initial writ and you'll also see a statement there of what the sum of money is, that doesn't mean the sum that they will get or they're entitled to, but that's what that person is saying the claim is worth and what they're what they're looking for. That's called the crave. As I say, don't be alarmed because it normally is higher than what the claim is worth. In a personal injury action, the person who's making the claim is also going to set out what's happened to them so that's the factual background of any accident that's taken place, why they consider you or your business, or in the case of an insurer, you're insured, to be at fault for that outcome. They'll also say out when the when they're making the claim what the legal duty is that they say has been breached. So, there'll be legislation, they'll be most likely referenced in common law also, and as I say, that's the legal standard which has been set down over time and looking at previous decisions of the courts.

So by looking at all of that, it should be possible to understand, or at least get a feel for the court action just by reading through the papers. As I say, the most important thing to do is to take action and make sure that a solicitor is instructed ASAP.

00:13:21 David Lee, Host

Thanks very much, Carly. So, we've got the papers in front of us, we understand that they are. Scottish court papers, we understand broadly speaking, what they are, what we need to do, what is that next step, Gemma? What is the appropriate response at that stage?

00:13:38 Gemma Nicholson, Senior Associate

So, you have to respond formally to the court action. It's an obvious next step, but doing nothing isn't an option at all, because a legal process has started and you have to then try and protect yourself or your business as quickly as possible. Before I discuss what those steps are, it is worth saying that if an action has been raised against you as an individual, you do have the option in Scotland of defending yourself in the Court action or you can instruct a solicitor, most people will tend to do the latter, but to act for yourself is an option. For corporate entities, they have to have the permission of the court for a director or a partner to represent the company. So, in most cases they will instruct solicitors instead. Before you instruct a solicitor or at the same time, you should be considering whether you have any insurance policy which might cover the action in personal injury litigation that might be quite obvious. So, if you're facing a workplace injury, all businesses have to have employers liability insurance. So, the first thought in your mind should be ‘I need to notify insurers that litigation has been commenced’ or alternatively your broker. Each of those people might already be alive to the potential for litigation because, like Carly said, there can be a pre-action process to these claims typically. So, it might not be new news in terms of the claim being made, but the fact that it's now live court action, it will be something that you do have to flag specifically because a failure to do so may mean that cover you think you've got in place for that claim would no longer be in place.

In terms of liaising, once you've done that, so you've notified insurer or your broker of the court action. You do need to make sure that something is done on your behalf, either personally or by the solicitors instructed for you within 21 days of receiving the court papers. That's to make sure that the response deadline isn't missed. Now, the 21 day period, that's the minimum period for the vast majority of personal injury actions, which will come across people’s inbox or their postbox. It's 21 calendar days, though it's not 21 business days, so that's something to be aware of. For claims that are worth a nominal value so less than £5000, the court will set the response date, but it will be no sooner than 21 days after you receive the papers, and the same is true in the Court of Session. So, the deadlines, they are quick but they are not immediate. You do have time to try and consider your position and to take steps to protect it but it is really just about getting the head start because you want to start not only protecting your position and stopping you falling into default, but really allowing your agents to start preparing the defence as early as possible as well.

00:16:50 David Lee, Host

Thanks very much, Gemma. Carly, why is it important to respond within those time scales that Gemma has laid out there and not just put your head in the sand?

00:17:00 Carly Forrest, Partner

I think the short answer is it won't get any better by putting your head in the sand and that is guaranteed. A failure to respond can have a number of implications for an individual, their insurers, and a business and their insurers, so it could lead to a payment decree being awarded against you or your business. In most cases, that means a windfall payment to the injured party because, as we mentioned earlier you tend to see the sum sued for is more than the claim is worth, but that sum is what would be awarded in the event of no appearance being entered. So, potentially they get a windfall, they potentially receive money for a claim which has no merit because there was no legal breach. It's being awarded more than a court would award them for the injury sustained and also importantly, it can have reputational consequences. So, the incident and the failure to respond to the litigation could potentially make its way into the media or the press or social media. It can also lead to insurance cover, which would otherwise have been in place, being withdrawn. So, if you don't do anything, then insurers could potentially fail to provide cover and all of those outcomes cause stress and inconvenience and loss time to a person or their business. So, the short answer is to deal with them promptly is going to reduce time spent and the stress overall.

00:18:35 David Lee, Host

Thank you very much, Carly. Gemma, Carly has laid out some of the potential implications there. Anything you want to add if deadlines are missed, what else might happen?

00:18:45 Gemma Nicholson, Senior Associate

If you don't do anything after receiving court papers, the person who has litigated the claim, what we would call the pursuer, or more likely they are agents, they can ask the court to award a payment decree against you in absence. Now, you don't normally get further notice of that, hey just go and do it. If that request is made to the Court and the Court is satisfied that the action has been properly served on you. The court will then grant a formal order stating that the person making the claim is entitled to recover from you the full sum of money that they've asked the court to award. They would also be entitled to recover undefended court expenses and outlays as well. Now, if you're an individual, the decree will be noted on your credit file for six years from the date of the judgement, and it will only show as satisfied once you pay it, so it can have quite significant consequences for individual people. Once a person, so the pursuer, holds the payment decree, they will normally ask a sheriff officer, so a messenger of the court, to formally serve that charge for payment on you. So again, it will come by post or person. Now the charge for payment, that's a formal document, and it tells you that unless you pay the debt or apply for time to pay the debt, your creditor can enforce payments against you. It normally only will give you 14 days to make the payment, so that's not a long time at all. If you don't make the payment or you don't take steps to have the decree recalled in the mean time, further enforcement action can follow. So, that can take a number of different measures and means, but it can be things like arrestment of personal bank accounts, of wages that you receive or of company bank accounts and assets in. In one case that Carly and I dealt with fairly recently, a company failed to respond to a court action for damages and very quickly we saw the pursuer looking to try to wind up the company. In the meantime, all of the bank accounts were frozen so the business just couldn't trade in the interim, so the impact of a failure to respond, it really can be very significant, both for private individuals and for corporate entities as well.

00:21:13 David Lee, Host

Thanks very much. If a deadline is missed, Carly, for any good reason potentially, are there any procedures available to deal with that?

00:21:24 Carly Forrest, Partner

Yes, there are. Obviously we'll always do our best on that front. If in relation to a personal injury action, if a court decree hasn't been issued, then you can ask the court to allow you to defend the action even although the time limits passed. So to do that you have to lodge a written explanation for why it wasn't answered on time and you roll a motion, and it's a court's decision as to whether to allow late appearance. If it's not too out of time, that is normally okay and we can normally get that through. If a decree has actually been granted for payment, then it becomes a little bit more tricky. There's then an administrative process to revive the action again on the basis that there has to be a good reason for that missed deadline and there are then different processes to follow its Sheriff Court level and within the Court of Session, but both need to be commenced very promptly. You have to tell the court why you didn't respond on time and why do you have a legal basis to defend the action so that the decree should be recalled. So, for example, you could say the accident didn't occur as the party claiming alleges, it didn't occur due to a breach of any legal duty or that could be because the sum of money the pursuers seeking to recover is just too much and it would be a windfall to allow the decree to stand. The legal response is known as a request to be reopened, that's only available where the decree hasn't yet been implemented. What I would say is you have to be completely candid in your response for any mistakes or failures. So, whether that's human error or a process failure, you have to explain to the court why that has happened. For personal injury actions, so those are cases that are worth £5000 or less and raised in a local court, then the court must grant the request to reenter the action late. But in all other cases, whether or not a defender can enter late appearance and be allowed to defend the action rest entirely at the discretion of the court. The judge who's looking at the papers before him or her. So, the sheriff for the judge does need to understand what happened after court papers were received, where they served correctly and if so, then why is it appropriate to allow the case to be defended. So, it really is a case of putting all your cards on the table for what went wrong and setting out as full of defence to the action as you possibly can. So, setting out a chronology of what happened, the defence you intend to lead, the prospects of securing a positive outcome are usually good if you can put all of that information together and there is a justifiable reason. It can't ever be guaranteed though, so I think that is one caveat to give and it's something to be aware of. Also, to go through that process of entering appearance or recalling a judgement also does increase cost, so that's something to be aware of and I suppose the bottom line is just to respond to the court action on time, as therefore of crucial importance.

00:24:44 David Lee, Host

Thanks very much again, Carly. Gemma, once that court action has been served, what options are available and open to challenge it at that at that later stage?

00:24:55 Gemma Nicholson, Senior Associate

There's a number, I'll touch on as many as I can today in the podcast, David. Firstly, there are what we call preliminary challenges. Now, they can be very important because if you succeed with one of those, it can mean that the case presented doesn't proceed to a full hearing of evidence. So, you effectively cut off right at the start, we would always, as agents, consider those as early as possible, and one of them would be in relation to jurisdiction. So, that's when you challenge the place where the court action is raised and you're saying that the court where the action has been raised either doesn't have power to hear the case or it doesn't have the power to grant the remedy that the pursuer is looking for. You can also raise it on the basis that you think there's a better court with better means to address the case presented, and you can ask for the case to be transferred there. Because we have the specialist national Personal Injury Court, we don't tend to see too many challenges to jurisdiction. Now, it's more of a historic thing, but we do occasionally see requests to change which court is going to hear the case because it's either complex or of significant value so on the odd occasion, we will ask for a case within a local court or within the PI court to be permitted to the court of session, for example, where there's more specialist judges and we feel that it's better equipped to deal with the legal issues which are numerous or complex or both. Limitation, so Carly touched on it earlier when she mentioned time bar, but as a defender, one argument you're always considering is whether the action has been raised in time or it's too late. In Scotland, most personal injury claims except those which relate to disease, those arising from allegations of sexual abuse or which relate to an ongoing legal breach, they must be raised within three years of the date of injury or the date of death. So, if litigation hasn't been commenced and when I say commenced, I mean physically serves on the defender, it doesn't mean the action can't still be raised and stamped by the court but as a defender you can go to the court upon receiving the court papers and say this is out of time, they're too late and if you do make that argument the court action will only be allowed to proceed if the court accepts that it is out of time, but says actually, we're prepared to exercise our discretion to override the time limit on this occasion. The sheriff or judge, considering that point, will generally only make that decision if he or she feels that it's in the interest of justice to do so. So, it can be quite a powerful and strong argument for a defender to make.

One other type of preliminary plea, as we would call it it is called Res Judicata, that's a Latin phrase. What it means is that you can argue that the litigation that's been commenced has already been decided. Now, in a personal injury context, that can happen where a pursuer has previously obtained damages in a reparation action for certain heads of loss. So, for example, for personal injury but then they seek to recover further losses in a second action. So, for example, a claim for the cost to hire a vehicle post incident or to repair their car that was damaged, as an offender, you can say actually, no, you only had one chance here and the second claim cannot now proceed. Quite unusual but it does still happen. It's something to be aware of as a defender. One other point that sometimes can come up and it can be relevant more in cases which involve a fatal claim, but it's possible to argue that the law which applies to the claim is other than Scots law, that can happen where the person has been injured outside of Scotland but they are potentially trying to raise here based on a defender that lives here, for example, and if a different law applies, the substantive aspects of the claim will be governed by the law of that country and not Scots Law. So, it can give a completely different complexion to how you're going to deal with the merits of the claim, whether it's going to succeed and also what it's potentially worth because in Scotland claims arriving from people who have died are significantly more lucrative for pursuers than ones that were raised in accordance with English law. So, that's why it can be important.

Now, preliminary issues, sometimes they'll arise, sometimes they won't. The arguments that will always be there or thereabouts, as a defender, they'll firstly relate to whether or not you can dispute the pursuers of elements of fact, so, what they are saying happened in their version of events. As a defender, in some cases you'll just want to say, dispute that in in totality and say it didn't happen like this, it happened like that and sometimes other cases it will be sufficient just to say we do not accept and that we want to put you to proof on that and you have to prove that certain version of events to the court. The second is to deny that the facts allege do amount to a legal breach by maintaining that the defender did take reasonable care or did adhere to the legal standard that's set down by statute or practise. The third is to deny that any legal breach did cause the harm alleged, so we think of that as a causation argument, so you might be prepared to concede as a defender, yes, I was in legal breach, but actually that legal breach made no difference to the ultimate outcome and it doesn't cause your injury there's another reason why you feel the way that you do, for example. The final argument, which pretty much exists in every personal injury claim because they're always raised for more money than potentially they're worth is to say that the financial sum claim for is too high and it's not supported by objective evidence such as medical opinion or wages information.

00:31:41 David Lee, Host

Thanks very much indeed. To come to a conclusion, Carly, if a Scottish court action comes on to the desk or through the letterbox or is handed over in person to an individual organisation, what are the key things? What are the headlines that people really need to remember?

00:32:03 Carly Forrest, Partner

So, I suppose we said we said this a lot, but make no apology for it because it's so important. But don't hide from it, do not bury your head in the sand because it will not get any better by doing that. So, first step, identifying that you have been served with court papers and the best way to minimise the impact of that is to act early, action by instructing solicitors or if you wish to represent yourself by contacting the court or an advice service to confirm what the next steps should be, you should be alive to the need to act within 21 days. Check insurance policies so there will be possible coverage there in a business context you would be contacting your broker, you would have intimation of the claim already, I'm sure. Notify your insurers as soon as possible, and if there is no insurance in place, then consider whether after the event insurance could be an option.

00:33:00 Gemma Nicholson, Senior Associate

Yeah, Carly, the other thing as well is to be aware of the potential reputational impacts on the business as well and particularly now because compensation claims are widely spoken about and we hear them on the on the adverts between Coronation Street, for example, and your bigger pursuer firms will put them out there on social media. So, often you can find court papers that you receive on your desk on a Monday are reported in a national press publication by the end of the week, so to be prepared for that and to know what you want to say as a business, if anything, and potentially to make staff aware that they might be receiving attention for a claim that's happened in the past few weeks for the past few years.

00:33:46 David Lee, Host

Thank you very much to Gemma and to Carly for the great insights today talking about Scottish court papers and the key message that has come through again is just do not put your head in the sand, treat those papers with seriousness, take immediate action and take appropriate advice. Thank you to Gemma Nicholson and to Carly Forrest.

Today's episode was part of Podcasts by Brodies, where some of the country's leading lawyers and special guests share their Enlightened Thinking about big issues and developments in the legal sector and what they mean for organisations, businesses and individuals across the economy and wider society and if you'd like to hear more you can subscribe to Podcasts by Brodies on all your favourite podcast platforms and for more information and insights, please visit brodies.com.