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SUPPORTING COURT USERS:
The In-Court Advice and Mediation Projects in Edinburgh Sheriff Court
RESEARCH PHASE 2
GLOSSARY
Assisted/ 'arms-length' negotiation
In this report, assisted or 'arms-length' negotiation refers to the Mediation Co-ordinator's attempt to settle a dispute prior to, or instead of, conducting a mediation hearing. Unlike a mediation hearing, 'arms-length' negotiation does not require disputants to communicate directly with each other.
Case procedure
In this report, case procedure refers to the type of civil procedure (small claims, summary cause or ordinary cause) under which actions are raised in the Sheriff court.
Debtors (Scotland) Act 1987
Legislation providing debtors with the opportunity to pay the sum due in instalments or a lump sum when a decree for up to 10,000 was granted against them. Since July 2000, the court has had power to grant a time to pay direction or time to pay order for a sum of up to 25,000.
Defender
The party against whom a court action is raised in civil procedure.
First calling
The first sitting of the court in summary cause procedure.
'First' party
In this report, 'first party' refers to the party to the dispute who was first invited by the In-court Adviser or Mediation Co-ordinator to consider mediation as an alternative to litigation.
Full hearing or 'Proof'
The hearing in small claims cases at which evidence is presented to prove or deny the pursuer's claim. The full hearing (sometimes referred to as the 'proof') may involve the testimonies of witnesses and expert witnesses, as well as documentary evidence.
Heritable/heritage action
Refers to summary cause actions that are raised to return property to its owners and evict tenants from the property.
Heritage court
In Edinburgh Sheriff Court, all first callings of summary cause heritable actions were heard together on a Friday morning, separately from small claims and other summary cause actions.
Mediation
May refer to several methods of resolving a dispute, such as 'arms length' negotiation or a 'mediation hearing'. In all cases of mediation, a third party is responsible for facilitating negotiation between disputants, either by communicating with them one at a time or by bringing them together face to face.
Mediation hearing
A face to face encounter between disputants at which a third party attempts to facilitate a negotiated settlement.
Ordinary cause
A court action where the pursuer claims more than 1500, or services of the same value, from the defender. Ordinary cause also includes family actions. Only ordinary cause procedure involving The Debtors (Scotland) Act 1987 (see above) was within the remit of the In-court Advice Project.
Ordinary cause procedure
A civil procedure that requires pleadings to be made and allows amendments to be made to the pleadings until such time as the record of pleadings must be closed. Due to the complexity of the procedure, both parties to the dispute are usually, though not necessarily, legally represented.
Party litigant
A pursuer or a defender who appears in court without legal representation.
Procedural status
In this report, procedural status refers to the status of parties as either pursuers or defenders.
Preliminary hearing
The first sitting of the court in small claims procedure, at which the court identifies the issues that are in dispute. At the preliminary hearing, the sheriff may ask both sides whether they can resolve their differences without proceeding further. If they cannot, the sheriff writes down on the summons the main points of each side's case, and this becomes the main focus of the subsequent full hearing or 'proof', which is usually fixed for four to six weeks later.
Proof hearing
The hearing in summary cause cases at which evidence is presented to prove the pursuer's claim or to deny it. The proof hearing may involve the testimonies of witnesses and expert witnesses, as well as documentary evidence.
Pursuer
An individual or organisation that brings a case to court by raising an action or claim against another.
Second party
In this report, 'second party' refers to the party who is in dispute with the party that was first invited by the In-court Adviser or Mediation Co-ordinator to consider alternatives to litigation. The 'second' party was only contacted if and when the 'first' party agreed to consider an alternative to litigation.
Small claim
A court action whereby the pursuer makes an application for a court decree for a sum of money up to 750, or services of the same value.
Small claims procedure
Small claims procedure was introduced in Scotland in 1988 and was designed to support and encourage pursuers to raise actions, and pursuers and defenders to present their cases in court, without legal representation. Under small claims procedure, pursuers may claim up to 750. Litigants are protected from heavy losses and from incurring a large legal bill should they lose the case by limiting expenses in small claims procedure to a maximum of 75.
Small claims/summary cause court
In Edinburgh Sheriff Court, all first hearings in small claims and summary cause (excluding heritage) cases were heard on the same morning, with small claims following summary cause procedure.
Summary cause
A court action in which the pursuer makes a claim for a monetary sum over 750 and up to 1500, or for services of the same value.
Summary cause procedure
Summary cause procedure is less attractive than small claims procedure for those who are risk averse since, unlike small claims procedure, expenses are not predictable.
Summons
The form completed by the pursuer in both small claims and summary cause cases, detailing the claim and served on the defender.
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