Friday, 24 July 2009

Evictions & pre-proof hearings

It is now common practice in Glasgow (and to varying degrees at other Scottish courts) for ‘pre-proof hearings’ to be fixed when diets of proof are being assigned in actions for recovery of heritable property. Generally, these hearings will take place a number of weeks prior to the evidential diet.

GLC believes the issue of pre-proof hearings is procedurally uncertain as neither the summary cause rules nor the Sheriff Courts (Scotland) Act 1971 make provision for the fixing of ‘pre-proof hearings’.

Pre-proof hearings are of course well intended, and are designed to ensure the most expeditious progress of the case. However, if the defender fails to appear or be represented at a pre-proof hearing can the court grant decree by default? This type of decree cannot be recalled by minute for recall of decree.

Likewise, what happens if the defender fails to adhere to one of the conditions attached to the pre-proof hearing, such as lodging particular evidence by a certain time? Can the court grant decree by default for such ‘failure’?

Amendments to the ordinary cause rules in 2006 resolved all of these issues for ordinary actions, but GLC believes the position as regards the summary cause rules lacks certainty. Tenants should of course take their own independent legal advice on these matters.

Until the matter is resolved conclusively, GLC would suggest it is competent to minute for recall of decree where judgment has passed at a pre-proof hearing where the defender has failed to appear. We would also argue that pre-proof hearings are truly continuations and that it may be ultra vires to impose conditions to these hearings of a peremptory nature resulting in decree by default where the tenant failed to comply.

GLC has a forthcoming ‘debate’ scheduled at Glasgow Sheriff Court which will explore all of these issues, and we have also highlighted the relevant administrative issues with the Sheriff Principal. We would be interested to learn of the experience in other sheriff courts, and you can use the comment section below to discuss this issue generally.

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