Diploma in Professional Legal Practice (DPLP) Civil Court Practice and Litigation Flashcards

24 sample cards from the Civil Court Practice and Litigation deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is the general standard of proof in civil cases, and how does it differ from the criminal standard?

   The civil standard is proof on the balance of probabilities (more likely than not). The criminal standard is proof beyond reasonable doubt — a higher threshold. Civil cases require the pursuer to establish their case as more probable than not.

2. On whom does the burden of proof generally rest in a civil action, and what maxim expresses this?

   The burden of proof generally rests on the pursuer (the party making the assertion). The maxim is 'he who avers must prove' — each party bears the burden of establishing the facts essential to the propositions they advance.

3. In Scots civil cases, is corroboration of evidence required?

   No. Since the Civil Evidence (Scotland) Act 1988, corroboration is not required in civil proceedings — a fact may be established by the evidence of a single witness if the court accepts it. (Corroboration remains relevant in criminal cases.)

4. What change did the Civil Evidence (Scotland) Act 1988 make to the hearsay rule in civil cases?

   It abolished the general exclusionary hearsay rule in civil proceedings — evidence is not inadmissible solely because it is hearsay. Such evidence is admissible, with its weight a matter for the court.

5. What is the distinction between competence and compellability of a witness?

   Competence concerns whether a person is legally permitted to give evidence at all. Compellability concerns whether a competent witness can be forced (by the court) to attend and testify. In civil cases nearly everyone is both competent and compellable, subject to limited privileges.

6. How is a witness compelled to attend court in a Scottish civil case?

   By citation (a witness citation), and ultimately by service of a warrant. A witness who, having been duly cited and offered expenses, fails to attend may be found in contempt and dealt with accordingly.

7. What is the difference between 'recovery of documents' by commission and diligence and a 'specification of documents'?

   A specification of documents is the written list specifying the documents (or categories) a party seeks to recover from another party or a haver. Commission and diligence is the court-granted authority/procedure enabling that recovery, including, where necessary, appointment of a commissioner to take evidence or recover the items.

8. What is the difference between a 'haver' and a party in the context of document recovery?

   A haver is any person (party or non-party) who has custody or control of documents sought to be recovered. Recovery procedures (specification, commission and diligence) can be directed at havers who are not parties to the action.

9. What is an interim interdict?

   An interim interdict is a temporary court order, granted pending final determination of the action, prohibiting a party from doing (or continuing to do) a particular act (e.g. a threatened wrong). It is the Scots equivalent of an interim injunction.

10. What is the test the court applies when deciding whether to grant interim interdict?

    The court considers (1) whether the pursuer has shown a prima facie case (a stateable case on the merits), and (2) where the balance of convenience lies — weighing the relative prejudice to each party of granting or refusing the order pending final decision.

11. What is interim diligence, and name two key forms?

    Interim diligence is a protective measure to secure a defender's assets pending decree, granted to prevent dissipation. Key forms are arrestment on the dependence (attaching moveable property/funds, e.g. bank accounts, held by a third party) and inhibition on the dependence (preventing the defender from disposing of or burdening heritable property).

12. What is 'diligence' in the enforcement context, and name the principal forms for enforcing a money decree against moveables and earnings.

    Diligence is the legal process of enforcing a decree (or document of debt). Principal forms include: attachment (of corporeal moveable property), arrestment and action of furthcoming (attaching funds/moveables held by a third party), and earnings arrestment (deduction from wages). For heritable property, inhibition is used.

13. What is an 'earnings arrestment' and how does it operate?

    An earnings arrestment is a diligence served on a debtor's employer requiring the employer to deduct a calculated sum from the debtor's net earnings on each pay day (according to statutory tables) and remit it to the creditor, continuing until the debt is paid. A conjoined arrestment order can combine multiple creditors' claims.

14. What is the difference between an arrestment and an action of furthcoming?

    An arrestment freezes funds or moveable property of the debtor held by a third party (the arrestee), but does not by itself transfer them to the creditor. An action of furthcoming is the follow-up court action that orders the arrestee to hand over the arrested funds/property to the creditor to satisfy the debt.

15. What is the general rule on liability for judicial expenses in Scottish civil litigation?

    Expenses generally 'follow success' — the unsuccessful party is normally ordered to pay the successful party's judicial expenses (party-and-party expenses). The award of expenses is, however, ultimately in the discretion of the court.

16. What is 'taxation of accounts' of expenses, and who carries it out?

    Taxation is the process of judicially assessing and fixing the amount of expenses recoverable under an award. It is carried out by the Auditor of Court, who examines the account of expenses lodged, hears objections, and issues a report fixing the taxed amount allowed.

17. Distinguish 'party and party' expenses from 'agent and client' expenses.

    Party-and-party expenses are those one party is ordered to pay the other under an award — covering work reasonably necessary for the proper conduct of the litigation. Agent-and-client expenses are what a client owes their own solicitor, which are usually higher and include work not recoverable from the opponent.

18. What is a 'tender' (judicial tender) and what is its effect on expenses?

    A tender is a formal written offer by the defender to settle the action for a stated sum plus expenses to date. If the pursuer rejects it and ultimately recovers no more than the tendered amount, the pursuer is generally liable for the defender's expenses from the date of the tender, providing strong settlement pressure.

19. What are the main sources of funding for civil litigation in Scotland?

    Private fee-paying, civil legal aid (means- and merits-tested, administered by the Scottish Legal Aid Board), 'speculative fee' (no win, no fee) arrangements with a possible success uplift, damages-based agreements, trade union or insurance (e.g. legal expenses / 'before-the-event' insurance) funding, and third-party/litigation funding.

20. What is a 'speculative fee agreement' in Scotland?

    A 'no win, no fee' arrangement where the solicitor is paid only if the case succeeds. On success the solicitor may charge an uplift (success fee) on their normal fee; if the case fails, the client pays no fee to their own solicitor (though may still be exposed to the opponent's expenses).

21. What is a 'success fee agreement' under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018?

    A statutory form of agreement under which the provider's fee is payable only on success and is calculated as a percentage of the financial benefit (e.g. damages) obtained, subject to statutory caps. It regulates damages-based and speculative funding to protect clients.

22. Distinguish mediation from arbitration as forms of alternative dispute resolution.

    Mediation is a facilitative, non-binding process in which a neutral mediator helps the parties negotiate their own settlement; the mediator has no power to impose an outcome. Arbitration is an adjudicative process in which an independent arbitrator hears the dispute and issues a binding, enforceable decision (an award).

23. What statute governs arbitration in Scotland, and name two of its founding principles?

    The Arbitration (Scotland) Act 2010, which sets out the Scottish Arbitration Rules. Its founding principles are: (a) to resolve disputes fairly, impartially and without unnecessary delay or expense; (b) party autonomy (parties should be free to agree how to resolve disputes, subject to safeguards in the public interest); and (c) limited court intervention.

24. What is the legal effect of an arbitration award, and on what limited grounds may it be challenged in court?

    An arbitration award is final and binding on the parties and enforceable like a court decree. Under the Scottish Arbitration Rules it may only be challenged on limited grounds: a substantive jurisdiction challenge, a serious irregularity, or (if not excluded by the parties) a legal error appeal — reflecting the policy of minimal court interference.

What this deck covers

Civil Court Practice and Litigation flashcards FAQ