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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience:  30 years as a practising solicitor.
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Hello I am the lay representative for the pursuer in a summary

Customer Question

I am the lay representative for the pursuer in a summary cause action.
It has been continued until 15th January 2015.
The clerk of the sheriff's court has advised me that it will be a "debate", that only legal argument can be considered and that evidence will not play a part. I find this to be strange.
The reason is that the cause of action concerns who repaid the Royal Bank of Scotland jointly-named loans.
The defender has obtained bank statements and an RBS which clearly show that a third-party repaid those loans.
I have a later-dated letter from the RBS confirming that the pursuer repaid all of those loans but, being joint accounts, the computer merely took the first name of the joint names and recorded the repayments as if the third party made all of the repayments.
Those are the facts and they are the evidence.
That is what I propose to argue on 15th January 2015.
To find precedent and summary cause rules to substantiate why a letter from a bank should be admitted in civil procedure would be akin to me giving a year-long lecture on the various civil evidence statutes.
Surely it is a question of evidence or am I being incredibly naïve when it comes to Scots procedural law?
I'll have another more-substantial question to ask you next time on a separately-chargeable basis.
Keith J.Salmon
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.
What is it that that's the pursuet is seeking from the defender? In other words what is the action about?
Were are you present in court when the diet on 15th January was fixed? If so, I presume that the suggestion for a debate came from the defender? What did the defender say about this? What did the sheriff say about this? What is the nature of the defence to the action?
-Could you explain your situation a little more?
Customer: replied 1 year ago.


Yes I was present October 2014 when the case called.

I managed to argue successfully that the defender should be renamed to Mrs Elizabeth T.Stobo; she is the executor. The defender resisted with a hopeless argument seeing as part of her defence was that I had not named a living person on the summons. The Sheriff allowed the amendment.

The defender had entered a defence and clauses 3,4 and 5 are relevant to this cause of action.

Clause 3 states that the RBS wrote her a letter saying that Mr K.Meara (deceased) made all repayments to RBS; a fact that she says is backed up by bank statements.

Clause 4 shows those bank statements.

Clause 5 deals with the proposition separatum esto that (in the alternative) the Pursuer is only entitled to a reduced amount in terms of clauses 3 and 4 above.

I have a letter from RBS that states that the pursuer made all of the payments and the defender made none. It explains that the computer only records the first name on any jointly-named bank account and therefore all bank statements in this matter wrongly record K.Meara as the payer; (hence the error of the defender who is the executor for K.Meara's estate.)

On 15th January 2015 it is not a proof diet; I am told it is a debate. I would expect to argue the evidential facts; the clerk has said not. He says that I need to address clauses 3,4 and 5 which I expect to and I don't think he really understands that they cannot be addressed without an evidential approach.

This is what I need your advice on. It may be that you agree with me that perhaps the clerk was misunderstanding something. I do not know the cause rules in Scotland; I understand the civil procedure rules in England, otherwise I would not be asking you this question.

I'll contact you next, under a separate question as to how to create the first inventory of productions and the counterclaim to the defence from the information I shall supply to you. On this, all I need to know is the format and any specific words like (crave, etc) that I need to use. I shall state the legal arguments.



Expert:  JGM replied 1 year ago.
Thank you for that information which will be helpful but you haven't told me what the case is about.
Who is the pursuer in relation to the defender, why is the pursuer suing the defender, for how much and on what basis?
Customer: replied 1 year ago.


It is a summary cause summons of the pursuer against her dead husband's estate.

It concerns the non-payment of payments she made in respect of the joint loans to the Royal Bank of Scotland prior to April 2011 when the parties were divorced.

Under clause 1(b) of the Minute of Agreement dated March 2011 which formed the basis of the divorce, the parties agreed that each would be repaid his/her respective payments to the RBS loans. This was not honoured by the defender in respect of the pursuer who made all of the repayments.

Keith Meara died in October 2011 and his estate has, since then, disputed the pursuer's right to this repayment.

Moreover, the defender's agents have repeatedly kept secret the identity of the executor of the estate.

The amount is £5,813.

In February 2014, I lodged a summons for £5,000 and expenses for payment under the summary cause rules in Perth Sheriff court where the decree of divorce was granted. It was undefended.

On 2nd April 2014, we obtained a decree and expenses in the form of an extract for payment.

I took a chance and served it on Elizabeth T.Stobo.

Within two hours she instructed agents and they entered a recall motion in the same court.

In August the decree was recalled under a summary cause rule that allows each party one recall per action regardless of any supporting, convincing legal argument.

The case was continued until mid October. I have told you about the outcome and now it is continued until 15th January 2015.

These are the facts.

As an aside, it seems like Sheriffs' courts like to continue matters rather than resolving them.

This is the antithesis of English civil procedural execution.


Expert:  JGM replied 1 year ago.
Thank you for that narrative which explains things well.
It appears to me that this is a question of fact and that the a pursuer's case can be presented by lodging the RBS letter and citing as a witness the bank employee who wrote the letter. That is evidence that the pursuer made the payments, that the defender didn't and provides an explanation as to why the deceased is named on the statements as the payer.
Furthermore the entering of appearance in the action by the executor and the amendment of the designation on the summons cures any earlier defect in procedure.
So this should be a simple issue of an ex wife suing the estate of a deceased ex husband under a Minute of Agreement that made certain provision for the repayment of a bank loan, the ex husband having breached the terms of the agreement.
I don't see the need for a debate unless any specific point of law was raised at the hearing in mid October which the sheriff took on board.
I think you should call the court just now and ask the sheriff clerk to read you the minute of the hearing in October so that you can write down precisely what the sheriff has ordered is to happen on 15 January.
Then come back and tell me and I will assist you further.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 9977
Experience: 30 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Expert:  JGM replied 1 year ago.
Here is the relevant extract from the Summary Cause Rules which I presume you are fully conversant with anyway if you are acting as a lay representative:
"(2)​At the hearing, the sheriff shall-
(a)​ascertain the factual basis of the action and any defence, and the legal basis on which the action and defence are proceeding; and
(b)​seek to negotiate and secure settlement of the action between the parties.
(3)​If the sheriff cannot secure settlement of the action between the parties, he shall-
(a)​identify and note on the summons the issues of fact and law which are in dispute;
(b)​note on the summons any facts which are agreed;
(c)​where it appears that the claim as stated or any defence stated in response to it is not soundly based in law in whole or in part, hear parties forthwith on that matter and may grant decree in favour of any party; and
(d)​if satisfied that the claim and any defence have or may have a sound basis in law and that the dispute between the parties depends upon resolution of disputed issues of fact, fix a diet of proof or, alternatively, if satisfied that the claim and any defence have a sound basis in law and that the facts of the case are sufficiently agreed, hear parties forthwith on the merits of the action and may grant decree in whole or in part in favour of any party"
The sheriff, I would suggest, is following a route either (c) or (d). Either he has a problem that one or either case is not sound in law OR he thinks that the law is fine and the facts are as presented by the documents and he simply wants to hear submissions as opposed to evidence from witnesses, in other words a documents only hearing.
Anyway come back to me when you've spoken to the clerk.
Customer: replied 1 year ago.

I reckon you're right on d and that either the Clerk misunderstood or I misunderstood the Clerk.

To me, making an argument means using the evidence in a matter.

In this matter, there are no obscure points of law.

I think the points above are what have been confusing me.

If we cannot resolve this when the case calls in January, can I please write separately to you, asking what documents do I need to create, what special wording do I need (like condolescences - I think and assoilsies) and just general advice on how to lay out the documents?

I will, of course, pay extra for this advice.


All the best

Expert:  JGM replied 1 year ago.
Yes, of course. Remember that productions for the hearing have be be inventoried and lodged in accordance with the rules.

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