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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11135
Experience:  30 years as a practising solicitor.
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Scottish Small Claims Court. As a Pursuer I failed to attend

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Scottish Small Claims Court. As a Pursuer I failed to attend a proof hearing. The Sheriff granted decree for expenses to the Defender, correctly in my absence, stating that it was because I failed to attend.
The Sheriff Clerk has stated that I am NOT entitled to seek decree under 22.1(1) because 9.1(7) "only applies to preliminary hearings".
As far as I can tell the rules only specify "the Hearing" and that it can be continued for all sorts of reasons including evidence on oath. 9.1(4) makes that clear.
I am told that I can appeal the decision but as far as I can see I have no grounds to do so because the Sheriff didn't get it wrong.
Is a recall under 22.1 (1) the right way to go?
Thank you for your question.

You can only apply for a recall of decree if you fail to enter appearance in the action or fail to attend the preliminary hearing which occurs 14 days after the return day or any continuation of the preliminary hearing, usually if there is a counterclaim. That is the Hearing referred to in Rules 8 and 9 insofar as they at referred to in Rule 22.

You cant cure a failure to turn up at a proof diet by lodging a minute for recall of decree. Your only course of action is to appeal if the sheriff granted the defender decree of absolvitor. As tou acknowledge your chances of a successful appeal are slim. If the sheriff granted decree of dismissal only then you could reraise the action and start again.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 4 years ago.

Thanks. It was dismissal only, no absolvitor, so I'll re-raise the action and put the expenses down to experience.

That said, I still say the rules don't differentiate in types of hearing..

See Rule 9.1 where the "Hearing" is defined:

"The Hearing
9.1.​(1)​Where a defender intends to-
(a)​challenge the jurisdiction of the court;
(b)​state a defence (including, where appropriate, a counterclaim); or
(c)​dispute the amount of the claim,
he must complete the form of response part of Form 1a or 1b as appropriate indicating that intention and lodge it with the sheriff clerk on or before the return day.
(2)​Where the defender has lodged a form of response in accordance with paragraph (1) the claim will call in court for a hearing ("the Hearing").
(3)​The Hearing shall be held on the hearing date which shall be 14 days after the return day.
(4)​If the claim is not resolved at the Hearing, the sheriff may continue the Hearing to such other date as he considers to be appropriate.
(5)​The defender must attend or be represented at the Hearing and the sheriff shall note any challenge, defence or dispute, as the case may be, on the summons.
(6)​Where at the Hearing the defender-
(a)​does not appear or is not represented; and
(b)​the pursuer is present or is represented,
decree may be granted against the defender in terms of the summons.
(7)​Where at the Hearing-
(a)​the pursuer does not appear or is not represented; and
(b)​the defender is present or represented,
the sheriff may grant decree of dismissal.
(8)​If all parties fail to appear at the Hearing, the sheriff shall, unless sufficient reason appears to the contrary, dismiss the claim."

The Hearing is distinct from the hearing on evidence referred to later in the Rules.

In any event you have the correct remedy and that is to reraise the action.

Please leave positive feedback so that I am credited for my time.
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