The Court Process

A writ is issued for the sums of money that the pursuer wants to be paid. UNLESS you settle up immediately this will include another large sum for the pursuers costs. Tho these are subject to certain rules. 

Nota Benissime: Issuing a writ is NOT about seeking justice. It is about attempting to force the other party to pay whether the money is due or not.

Representation

If you decide to defend the writ, guess what - you [innocent until proven guilty does NOT apply - that is for criminal prosecution] will have to pay a substantial fee to the court office for the privilege of sticking your neck out and challenging a falsely raised [in your opinion] writ.

When is a Lawyer needed? Answer: always. The late Lord Denning said that a lawyer who represents himself has a fool for a client. So despite your own perceived abilities - always appoint someone to represent you. It will save a lot of time and effort during the process. It also stops the other side from some of the trickery they can get up to. There is a book larger [and more complicated to read] than the bible - the White Book on Court Procedure - typically available from Sweet and Maxwell.

In fact the Court Rules now forbid the officers of a company from defending their company. It must be remembered that the "language of litigation" is determined by the White Book, and you have to obey the rules. Its not "Plain English" - in fact anything but.

There is no legal aid for [small and poor] limited companies. So you may just be forced into liquidation. If you are able to pay rent, and your landlord did NOT tell you about water charges, or the lease says that the landlord will for example pay "all charges except for rates" - divert money from rent to legal fees. Tell the landlord when you win you will get these costs back and pay him.

The argument put forward by the legal aid board is that as a business you could have taken out insurance. The problem is that many policies - such as that provided by the Federation of Small Business's - does NOT include cover for legal costs incurred opposing a water company. Other insurers charge so much that you night as well pay any [possibly false] demands - it would be cheaper.

Having appointed a solicitor, it is always advisable to get "Counsel's Opinion" on whether you can defend the writ. These do NOT come cheap, but will give you the confidence as to whether you should defend or simply give in and pay up. 

Now you are ready to proceed to successfully defend the writ. 

How the court process is abused by Scottish Water Business Stream's lawyers.

Being sued by a vexatious litigant - that is a firm who makes a habit of suing rather than being fair reasonable and operating strictly within the law - is not nice to put it mildly. An excellent paper on what a vexatious litigant is has been written by Eugene P. Creally, Advocate in Edinburgh. He concludes:

A vexatious litigation is, therefore, one that has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defender/respondent to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the pursuer/petitioner; and that it involves an abuse of the process of the court on the grounds that it is a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.

Note: Eugene P. Creally's Curriuculum Vitae under Lectures, includes the entry: 2010: What is “vexatious” – the legal perspectives. A copy of this document was downloaded on the 25th February 2016. The document may be downloaded from the Dundee University Web site at: https://www.dundee.ac.uk/media/dundeewebsite/centrefoi/docs/Eugene_Creally.pdf.

Although the man in the street [or as Lord Denning defined him "the man on the Clapham Omnibus"] might think that when a court case arises, it ought to be called and heard straight away, that simply does not happen. The question being posed here is whether or not the pursuer's lawyers failing to get the law right first time is unreasonable behaviour, and it is questioned whether this is deliberate or not.

So what are the abuses ? Well how long is a piece of string ? As long as the pursuer's lawyers can afford to "string things out".

Asking his client for instructions is a good one, or for more information like "is there actually a water supply to the defenders premises ?". This of course is a complete waste of time and money, and the sheriff should put a stop to these things happening - but they don't. A sarcastic view is that they are too busy to have the time to save themselves the time and hassle ....

So despite being given a timetable by the court staff which gives you reason to think that it will all be over in a month or so, and that justice will be done in the manner that you expect, and indeed at school you were taught that you had a right to expect, the party with the most money can carry on ad nauseam. [Which of course is why this article has been written].

The defence to the writ is lodged. But hey presto, the pursuers come back with a revised writ. 

Question: when they raised the original writ, did they not know what the law is? Apparently not.

Indeed you must expect that this trick is repeated several times. And you haven't even got the stage of "proof". By now of course the writ and your defence have become so long and, as they are constructed in a strange language possibly called "legal-ese", virtually unreadable.

Of course during this period you will continually get dates for hearings which but for your solicitor you would have to attend. Your solicitor is able to save a lot of time and effort by representing you "by telephone conference" with both the sheriff and the lawyers for the other side.

It is all about stringing things out until you give up, or are obliged yo give up. That put simply is neither just nor in the interest of justice - viz its an abuse of process.