DMBM681020 - Ordinary Cause: Defences not received

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Where a defender lodges a notice of intention to defend (NID) but does not follow this up by lodging defences you must enrol a motion for decree by default.

That being the case two days after the last date for lodging defences you must telephone the court to ascertain if any defence has been received. Where the court advise that no defences have been received you must proceed on the basis that the defender has failed to follow up the NID and intimate and lodge a motion for decree by default.

Requesting the sheriff officer to intimate and effect service

To do this you will need to prepare two copies of the motion (form G6). One copy will be used for service; the other will be used for lodging in court.

You should then send these forms to the sheriff officer with a request that he

  • arranges for the form G7 (intimation of the motion) to be completed. The sheriff officer will enter the last date for lodging a notice of opposition on this form. This will be seven days after the date of service of the motion.

Once this has been done, the sheriff officer should

  • arrange for service of these forms and then immediately after service he should send the forms G6 and G8 to court. (To enable him to do this you will need to include a form E200 for the court fee with your request.)

The sheriff officer should also be instructed to telephone you immediately he has sent the forms to the court to confirm that service has been effective and that he has forwarded the forms to the appropriate sheriff court.

Action by the debt manager

Once the sheriff officer has notified you that service has been effective and the forms have been sent to the appropriate sheriff court you must telephone the court to confirm that the motion has been lodged.

Note: The motion must be lodged in court within five days of the intimation of the motion.

Motion unopposed

If the motion is unopposed decree by default will normally be granted and an extract decree will be issued.

Motion opposed

If the motion is opposed the sheriff will assign a date, time and place for a hearing and will intimate the details of this to all parties. You must attend this hearing.

Action to take where motion to enrol for decree by default not taken or where it hasbeen taken and there is insufficient time to lodge/intimate it before the options hearing

There may be some instances where a motion to enrol for decree has not been taken. Or it may be that it has been taken but there is insufficient time to make arrangements with the sheriff officer for the intimating and lodging of the motion (10 days before the options hearing) thus making it unlikely that decree by default will be granted before the date set for the options hearing. In both these circumstances it will be necessary at least three days prior to the options hearing date to lodge a record in the sheriff court together with the appropriate fee. To this end you should prepare the record using a copy of the initial writ held for the case;

  • at the heading of the form amend “Initial Writ” to “Record”
  • at the foot of the form insert

“Certified a record for the purposes of Ordinary Cause Rule 9.11”

(signature)……………………….

Pursuer

Date……………………….

The debt manager should attend the options hearing and if the defender is not present or not represented orally move the court to grant decree by default.

Where the defender appears or is represented the debt manager should make the same motion but be aware that the sheriff may exercise his dispensing power to allow defences to be lodged late. If this happens only formal opposition should be made. – Nothing will be gained in labouring the point further.

If an agent acting for the defender intimates at the options hearing that he is no longer acting the debt manager should move for a peremptory diet. Where this is granted the sheriff will set a date for the defender to appear in court and state whether he wishes to proceed. A copy of this interlocutor (or pronouncement of the court) must be served on the defender and the debt manager must arrange for this to be done by the sheriff officer.

The debt manager must attend the peremptory diet and if the defender does not attend or is not represented must move for decree together with expenses as taxed.