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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11544
Experience:  30 years as a practising solicitor.
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I am helping a friend who is defending an ordinary cause action

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I am helping a friend who is defending an ordinary cause action in the sheriff court, as she cannot afford a solicitor and does not qualify for legal aid. Unfortunately she misinformed me over the date by which defences had to be lodged, so they have had to be lodged a few days late. The pursuer has now lodged a motion calling for a decree by default. My friend will be immediately lodging a notice of opposition to the motion, and I was wondering what the likelihood is of the motion being successful given that the lateness was simply due to my friend misreading the letter from the sheriff clerk outling the deadlines? Is there a chance that the sheriff might allow the proceedings to go ahead or is there very little chance of the opposition to the motion being successful? Also, in the motion the pursuer has stated it was due to the defender failing to lodge her "expenses" (rather than "defences") timeously. Is that something that could go in the defender's favour?
Thank you for your question.

There is virtually no chance that the sheriff will grant decree by default against a party who has missed the last date for defences by a few days assuming that the defences are now lodged and intimated and that they are of substance and disclose a stateable defence to the action.

There is less than a 5% chance of such a motion being granted. The miswording of the motion for decree is not a problem for them as they can amend it at the bar of court but may be worthy of tongue in cheek comment that even lawyers can make mistakes!

I hope this helps. Please remember to leave a positive rating so that I am credited for my time.
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