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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10909
Experience:  30 years as a practising solicitor.
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I have a court decree registered against me dated the 11th

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I have a court decree registered against me dated the 11th of April 2013 for £693 from a small claims action. I received no formal notification to attend court and the first I knew was when I received a demand for payment from the sheriff officers on the 16th of May which I immediately paid in full. Stupidly I thought that was the end of it until I tried to get a loan this year and discovered that it was on my credit file. I contacted The Registry Trust who immediately showed it as satisfied with the various credit reference agencies and suggested I get back in touch with the court to see if it can be recalled as it was paid so close to the court date and because I received no summons etc.. I believe that it can be recalled using Rule 24 accompanied by a Reponing Note due to the time elapsed. Is this correct?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
The rule 24 you are referring to is under the Summary Cause rules and a reponing note only applies to Ordinary actions, which have a different set of rules.
Recall of a Small Claim decree is dealt with under rule 22 of the small claim rules. You can get these rules at www.scotcourts.gov.uk
Rule 22.1 (7) provides that where a charge has been served (the demand served by sheriff officers) the application for recall of the decree has to be made within 14 days so technically you are too late to have the decree recalled.
However, in practice the pursuing party isn't going to object to the recall so I would fill in and lodge the Form 20, which you can also get at the same website under "sheriff court forms". You should lodge along with this a written motion, known as an incidental application, to ask the court to allow the minute for recall to be allowed although late and for the sheriff to exercise his dispensing power to allow this under rule 3.1 on the ground that you made a mistake not applying before and in any event the sums due have been paid to the Pursuer in full.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Many thanks for your advice,

With regards ***** ***** motion, incidental application to which you refer; is there a specific format that I should use/adopt in order to satisfy the court protocol/requirements?

Kind regards

David

Expert:  JGM replied 2 years ago.
Your heading should be the name and address of the court followed by the names and addresses of the parties and the case number, then the wording is:
The Defender moves the court to allow the Minute for Recall of Decree to be received although late and accordingly for the court to exercise its discretion as a result of the Defender's oversight in terms of Rule 3.1.
Then sign and date and lodge along with the complete Form 20. The court will assign a date and you have to then intimate it all on the Pursuers along with the interlocutor assigning the date. You then have to return all papers with an execution of service and the RD confirmation
You have to turn up on the court date. It would help if you got a letter from the Pursuers confirming that they have no objection to the recall and produce it to the court.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10909
Experience: 30 years as a practising solicitor.
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