DMBM681730 - Ordinary Cause: Notice of Intention to Defend received late

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Although there is no specific rule dealing with the question of the late lodging of a notice of intention to defend, the sheriff may be asked to use his dispensing power to excuse a failure to comply with the Ordinary Cause Rules 1993.

In practice, the defender makes an application to the court by intimating a motion seeking leave to allow late lodging of the notice of intention to defend and as the sheriff invariably grants such motions you should not oppose them.

Following the granting of a motion seeking leave to allow late lodging of the notice of intention to defend by the sheriff, dates will be fixed for the lodging of defences, completion of the adjustment period and the options hearing.

Note however that the dates to be fixed will be determined by the date of expiry of the period of notice and not the date of granting the motion. The effect of this is that say, for example, the notice of intention to defend is late by 14 days, the time for lodging defences will have expired (i.e. 14 days after the expiry of the period of notice) and the time available for adjustment will be curtailed.

The timetable for these actions must be recorded on the Ordinary Cause (OC) file cover and care must be taken to ensure that the dates are not overlooked.