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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10910
Experience:  30 years as a practising solicitor.
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Ordinary Cause Procedure Sheriff Court

Customer Question

I am a party litigant (the pursuer) in an Ordinary Cause case in a Scottish Sheriff Court. Yesterday I opposed a motion for the recovery of documents. My opposition was successful and the case was thereafter sisted. Today I have had amended defences and a further motion for recovery of the same documents. What is the courts attitude likely to be to the defender's motion given there is no application to recall the sist. Am I obliged to respond to the defences although I will oppose the motion.

Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.

If the case is sisted the renewed motion for specification would have to include an application to recall the sist. If it doesn't the sheriff clerk should bounce the motion.

I presume the other side didn't have sufficient pleadings to justify the specification forts time round and they are now adding a further averments so as to be more specific. Because of that you should adjust your own pleadings in answer.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10910
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

The motion does not ask to recall the sist which was granted on the defenders motion and which I did not oppose. I did oppose the recovery which failed to get through based on a point of law i.e. these were not even mentioned in the defences. The defences have now been lodged with further averments, but I understood that the case was sisted (as it is). What is then the point of a sist? What stops me or the defender from doing this every week, irrespective of the sist. I accept you don't know the specifics. Is it likely to succeed if my version is correct

Expert:  JGM replied 3 years ago.
.What was the purpose of the sist, in other words what did the defender say in support of the case being sisted?
Customer: replied 3 years ago.

The sist was based on another case that stood or failed on the same facts. He said it was prejudicial to continue whilst this was outstanding. I agree. IF the pursuer in that case failed (unlikely) I would not continue my action

Customer: replied 3 years ago.

sorry that case has concluded awating the sheriff's decision, likely to be some months off (submissions made Feb 2014)

Expert:  JGM replied 3 years ago.
I fail to see then what the purpose of a specification or indeed any further procedure until the parties have had the judgment in the other case.
Customer: replied 3 years ago.

The guy has another purpose for the documents but is saying that he is -"afraid" that the company, a well-respected telephone company will delete the information if not given promptly. You have more than done your job and I am well satisfied but if you had to speculate on an outcome or my approach what should it be

Expert:  JGM replied 3 years ago.
Thank you. He would have to demonstrate to the court that there was a real risk that the information

A. Was relevant to the the case, and,

B. Was likely to be deleted by the telephone company concerned.

As always, happy to discuss further.
Customer: replied 3 years ago.

I am about to pay your fee so feel no compulsion to answer this. Your best guess on the limited information I have given you, will it wash with most sheriffs accepting the company won't delete the data

Expert:  JGM replied 3 years ago.
Th sheriff refused the motion before. Unless there is a change in circumstances it's not going to be granted second time round. That's like appealing the first decision by the back door.

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