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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12177
Experience:  30 years as a practising solicitor.
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The landlord is a party litigant who made a written offer to

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The landlord is a party litigant who made a written offer to settle without prejudice at the beginning of the action to avoid the stress and cost of going to court but did so unaware of the Tender process so did not lodge it with the court; can the offer which was turned down by the tenant still be used in anyway by the landlord at the Evidential Hearing to try to mitigate any potential losses (expenses)?If the tenant won’t supply any of the documents which the landlord has requested necessary to aid the case for defence what options are open to the landlord? Can the landlord apply to the court for recovery of documents; would there be a fee and how long would this process take as the Evidential Hearing is in a couple of week times?Is a defender restricted to what documents they can ask for from the pursuer or can they ask for anything that they consider necessary to aid their defence; would the defender have to prove to the court that the documents are necessary?When does a defender in a summary application have to lodge productions with the court? Do they have to be lodged before the Evidential Hearing or are summary application rules silent regarding lodging productions?Thank you
Productions should be lodged not later than 28 days before the hearing or as directed by the sheriff In a summary application where there is no specific rule it is normal to follow the related provisos in the Ordinary cause rules unless the sheriff says otherwise. Similarly recovery of relevant documents in the hands of another party can be applied for by using the specification of documents procedure in the ordinary cause rules. If a formal tender was not made then any previous offer is not relevant to the mitigation of expenses.
Customer: replied 2 years ago.
Thank you for your answer.The Evidential Hearing is in a couple of weeks so I just want to clarify that although it would be normal to adhere to the Ordinary cause rules in summary cases (summary application) in law they are silent unless ordained by the sheriff? As a party litigant, I’ve been given a mixture of no help to contradictory answers to simple procedural questions by the court. However, the last person I spoke to at the court seemed to be saying that the rules were silent.Regarding tender, yes I understand however as a party litigant do you think the court would show any latitude and let me produce the offer at the hearing to be considered to try to at least mitigate any expenses should the sheriff find in the tenant’s favour, as the tenant has had a solicitor from the outset?Thanks
If you are going to tender then do it before the hearing so as to attempt to mitigate costs if you lose. There is no latitude by just making an offer. As regards ***** ***** not in the summary application rules, you can follow the ordinary cause rules as a general guide but the sheriff really should be, not advising, but instructing the parties on the procedure he intends to follow. You are running out of time for an order for recovery of documents, however, u less you apply to have the hearing postponed.
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Customer: replied 2 years ago.
Ok thank you again.