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JGM, Solicitor
Category: Scots Law
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Experience:  30 years as a practising solicitor.
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When attending a Small Claims Court Diet of proof do both

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When attending a Small Claims Court 'Diet of proof' do both parties have to lodge evidence with the Sherriffs Clerk prior to the hearing, and are they able to table evidence at the hearing which has not previously been lodged?
Thank you for your question.

Productions to be used in evidence should be lodged 14 days before the proof. If they are not they can be lodged late of the other party agrees or if the sheriff allows it. If the productions are late and the other party would be prejudiced, for example, by not having time to read and prepare, then the sheriff can make an order for expenses or adjournment or such other order as he considers fit.

Here is the Rule:

"Lodging of productions

16.1. (1) A party who intends to rely at a hearing at which evidence is to be led, upon any documents or articles in his possession, which are reasonably capable of being lodged with the court, must-

(a) lodge them with the sheriff clerk together with a list detailing the items no later than 14 days before the hearing; and

(b) at the same time send a copy of the list to the other party.

(2) The documents referred to in paragraph (1) include any affidavit or other written statement admissible under section 2(1) of the Civil Evidence (Scotland) Act 1988.

(3) Subject to paragraph (4), only documents or articles produced-

(a) in accordance with paragraph (1);

(b) at an earlier hearing; or

(c) under rule 17.2(3) or (4),

may be used or put in evidence.

(4) Documents other than those mentioned in paragraph (3) may be used or put in evidence only with the-

(a) consent of the parties; or

(b) permission of the sheriff on cause shown, and on such terms as to expenses or otherwise as to him seem proper."

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