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JGM, Solicitor
Category: Law
Satisfied Customers: 12071
Experience:  30 years as a practising solicitor.
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I am opposing an application to the Scottish Sherriff Court

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I am opposing an application to the Scottish Sherriff Court for renewal of a welfare and financial guardianship order. I am representing myself. The guardian has prevented me from getting legal aid. There have been two hearings at the Sherriff court. I have requested transcripts of those hearings and a farther hearing for when the guardianship order was granted 3 years ago. All 3 hearings were held in private. I am being told the transcripts were not recorded. Please can you tell me;
• Is this correct by the due proses of the Scottish Sherriff Court?
• If transcripts must be recorded, do I have the right as an interested party who was present at all 3 hearings to have a copy of those transcripts?
• If so, can you tell me which sections of which legislation entitles me to copies of those transcripts. (I am being asked why I want them. Is it valid to request them for my records?)
• Also which documents I should request as a record of the decisions made at those hearings and which sections of which legislation entitles me to them.
Thank you for your question. I am a solicitor in Scotland.
No transcripts or recordings are kept of guardianship hearings. The only proceedings in the sheriff court that require to be recorded by a shorthand writer or on tape are ordinary civil court proofs and jury trials.
The only document that you would be entitled to would be the decision of the court, known as a decree, and you can request a copy of an extract decree from the sheriff clerk. However, all that will say is that it appoints the guardian and grants financial and welfare powers. It's unlikely to be of any assistance to your opposition to the renewal of the appointment.
I hope this helps. Happy to discuss further.
Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.
Is it acceptable as a conflict of interests for my opponent’s solicitor to know a safe guarder? A safe guarder has been appointed. My opponent's solicitor knows the safe guarder well enough to know his holiday plans. I am worried that this will put me at a disadvantage with the safe guarder. Would this be accepted as a conflict of interests by the court? Also is there any accountability for a Sherriff court, and how can i prove misconduct if it occurs?
There is no conflict of interest. Lawyers and other officers of the court often know each other but that doesn't mean there is a conflict. If it did very few cases could be heard.
If misconduct occurs you can report it to Scottish Courts Service in the first instance. Misconduct in a guardianship case is rare. If you are dissatisfied with a decision of a sheriff then you may have a right of appeal to the sheriff principal.
Your interests would be best served by taking legal advice. Sometimes a consultation with a solicitor can focus the issues and is worth paying for.
Customer: replied 2 years ago.
Thanks! that puts my mind at ease a bit. Is there anything irregular about the Sheriff changing from hearing to hearing? Also, does the Sheriff have everything he needs if he chooses to find in my favour? He has my objection. It asks for him to replace the existing guardian with myself under section 71 of the AWI act. 3 years ago my opposing application was sabotaged and could not be accepted by the Sheriff Clerk. Thus, although I and a solicitor objected in person to the existing guardian's application, The Sheriff only had 1 application that he could act on. I don't want to put the Sheriff in that position this time. Again, is there anything he needs in addition to my objection if he agrees that he should replace the existing guardian with myself?
It is normal for a case to be placed before whichever sheriff is sitting in the particular court that day. A sheriff won't necessarily 'keep" a case although he can do so.
If you have lodged Answers which are relevant and specific and if you have evidence in support of what you say in the Answers then you cent do any more.
Customer: replied 2 years ago.
Sorry, did you mean can't do any more? And, what do you mean by "answers"?
Customer: replied 2 years ago.
Without a transcript, how can misconduct in a court room be proven? E. g. in Quebec, If an employer treats an employee unfairly, The law recognizes that it is nearly impossible to prove. Therefor It places the onus on the employer to prove his innocence. Is there any such policy or recognition by the Scottish Courts Service or the sheriff principal? Also, can you tell me why transcripts are not recorded for guardianship hearings, and if this is stated anywhere in legislation?
Can't do any more, yes. Answers are generally lodged by any party who opposes an application for a guardianship order.
In a Scottish Court, it is for each party to prove his case or not having regards ***** ***** judge's view of the credibility and reliability of the evidence. There is no shifting of the onus of proof u less the law provides for it, which it doesn't in this scenario. Your example of the employment law in Quebec is in fact the same in UK employment law but that is a specific instance provided for in the employment law statutes.
The law in respect of guardianship is contained within the Adults With Incapacity (Scotland) Act 2000 and the rules of procedure are laid down in the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 as amended by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) Amendment (Adults with Incapacity) 2001.
You can get all of these online. You should not be engaging in litigation of this nature if you do not have a working knowledge of all of these pieces of legislation.
Transcripts are not recorded as these cases are treated as Summary Applications and As Inhave already explained, the only types of cases that are recorded in th sheriff court are ordinary civil proofs and jury cases. Summary Applications are neither of these.
I hope this helps. Please leave a positive rating so that I am credits for my time.
Customer: replied 2 years ago.
Hi, Sorry I disappeared for a few days. I just need to know one last thing and I promise I'll give you a rating. I just want to be sure, I have lodged my "objections" under the heading, "objections" they are lengthy and detailed and I have evidence to produce when necessary. Will that be considered as "answers"?
Yes it will. The Objections should be renamed Answers but of they deal with the points it will be OK.
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