Law Society of Scotland Professional Education and Training (PEAT) PEAT 1: Civil Litigation and Dispute Resolution Flashcards

24 sample cards from the PEAT 1: Civil Litigation and Dispute Resolution deck

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

1. State the standard of proof in ordinary Scottish civil litigation.

   The balance of probabilities, i.e. the party bearing the burden must show that their version is more likely than not to be true.

2. Distinguish the 'legal (persuasive) burden' from the 'evidential burden' of proof.

   The legal burden is the obligation to prove a fact to the required standard (it does not shift). The evidential burden is the obligation to adduce sufficient evidence to raise an issue for the court's consideration, and it may shift between parties during a proof.

3. On whom does the burden of proof generally lie in a Scottish civil action?

   On the party who asserts the affirmative of an issue (he who avers must prove); typically the pursuer must prove the elements of the claim, while a defender must prove any special defence averred.

4. What is an 'interim interdict' and what must a pursuer show to obtain one?

   An interim interdict is a temporary prohibitory order restraining a party pending final determination. The applicant must show a prima facie case and that the balance of convenience favours granting the order.

5. Name three interim remedies available in Scottish civil litigation.

   Interim interdict (temporary prohibition), interim payment/interim damages, and arrestment or inhibition on the dependence (diligence to secure a claim pending decree); interim orders for delivery or specific implement are also available.

6. What is a 'decree in absence'?

   A decree granted in favour of the pursuer where the defender, having been served, fails to lodge a notice of intention to defend or appear; it can be granted without inquiry into the merits.

7. Distinguish a 'decree in foro' from a 'decree in absence'.

   A decree in foro is pronounced after the defender has entered the process and the cause has been contested or judicially considered; a decree in absence is granted where the defender does not appear or defend.

8. What is meant by a 'decree of absolvitor' and how does it differ from 'dismissal'?

   Absolvitor is a final judgment in the defender's favour on the merits, res judicata barring a fresh action. Dismissal disposes of the action without deciding the merits, so the pursuer may, in principle, raise the action afresh.

9. What is the general rule governing the award of judicial expenses in Scotland?

   Expenses follow success ('expenses follow the event'): the unsuccessful party is normally ordered to pay the successful party's judicial expenses, subject to the court's discretion.

10. What is 'taxation' of an account of expenses, and who conducts it?

    Taxation is the judicial assessment and adjustment of a party's account of expenses to determine the sum properly recoverable; it is carried out by the Auditor of Court.

11. What is 'diligence' in Scots law?

    The collective term for the legal procedures by which a creditor enforces a decree or document of debt against a debtor's property or earnings, e.g. arrestment, inhibition, attachment, and earnings arrestment.

12. Distinguish 'arrestment' from 'inhibition' as forms of diligence.

    Arrestment attaches moveable property or funds of the debtor held by a third party (e.g. a bank). Inhibition is diligence against heritable property, prohibiting the debtor from selling or burdening their land.

13. What is an 'earnings arrestment' and what does it attach?

    A diligence that attaches a debtor's net earnings in the hands of their employer, requiring the employer to deduct and remit sums to the creditor according to statutory tables under the Debtors (Scotland) Act 1987.

14. What is the route of appeal from a Sheriff's final judgment in an Ordinary Cause?

    Appeal lies to the Sheriff Appeal Court (Civil), and from there, with permission, to the Court of Session Inner House; appeal generally requires the decision to be a 'final judgment' or one of the appealable interlocutors.

15. What is the difference between an appeal 'as of right' and one requiring 'leave/permission'?

    An appeal as of right may be taken without the court's prior consent for certain final judgments; other interlocutors may be appealed only if the court grants leave (permission), filtering unmeritorious or premature appeals.

16. In settlement negotiation, what is the effect of a 'tender' (judicial offer) by a defender?

    A tender is a formal offer lodged in process to settle for a stated sum plus expenses to date; if the pursuer rejects it and ultimately recovers no more, the pursuer is normally liable for the defender's expenses from the date of the tender.

17. What does 'without prejudice' mean in settlement correspondence?

    It marks communications made in a genuine attempt to settle as protected from being founded on or disclosed to the court as admissions, encouraging frank negotiation.

18. What is mediation, and is its outcome binding in Scotland?

    Mediation is a voluntary, confidential process in which a neutral third party helps the parties reach their own negotiated agreement; the mediator does not impose a decision, and any settlement becomes binding only when the parties enter a contract (settlement agreement).

19. Under the Arbitration (Scotland) Act 2010, what are the 'founding principles' that govern Scottish arbitration?

    That the object of arbitration is to resolve disputes fairly, impartially and without unnecessary delay or expense; that parties should be free to agree how disputes are resolved subject only to safeguards in the public interest; and that the court should not intervene except as the Act provides.

20. Under the Arbitration (Scotland) Act 2010, what status do the Scottish Arbitration Rules have?

    They are set out in Schedule 1 and apply to every arbitration seated in Scotland; some rules are mandatory (cannot be disapplied) while others are default rules that parties may modify or exclude by agreement.

21. How does arbitration differ from mediation as a dispute-resolution method?

    In arbitration the arbitrator hears the parties and issues a binding, enforceable award (adjudicating the dispute), whereas in mediation the neutral merely facilitates the parties' own settlement and imposes no decision.

22. What is 'adjudication' and in what context is it most commonly used in Scotland?

    A statutory, fast-track dispute-resolution process (notably under the Housing Grants, Construction and Regeneration Act 1996 for construction contracts) giving a binding interim decision pending final resolution by litigation or arbitration.

23. What is 'expert determination' and how does it differ from arbitration?

    Expert determination refers a dispute (often technical or valuation) to an expert who decides it using their own knowledge; unlike an arbitrator, the expert is not bound by judicial-style procedure, the Arbitration Act does not apply, and challenge to the decision is far more limited.

24. What characteristic makes an arbitration award 'binding and final' compared with an adjudicator's decision?

    An arbitral award is final and enforceable, subject only to limited grounds of challenge (jurisdiction, serious irregularity, point of law), whereas an adjudicator's decision is binding only on an interim basis until finally resolved by court, arbitration, or agreement.

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PEAT 1: Civil Litigation and Dispute Resolution flashcards FAQ