Glossary

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Abandonment A procedure by which a party gives up civil proceedings or an appeal.

Absolute discharge Where a person has pleaded guilty or been convicted of an offence, in certain circumstances the court may, instead of imposing a sentence (and on summary complaint instead of convicting), discharge that person absolutely. No penalty is imposed, and in summary proceedings no conviction is recorded.

Absolvitor The judgment pronounced when a court decides in favour of a party against whom an action has been raised.

Access A court order allowing a person to see a child. Such an order is now called contact. See Contact order.

Accountant in Bankruptcy The administrative supervisor of sequestrations and personal insolvency. See also Bankruptcy.

Accountant of Court An officer of court who formerly supervised the conduct of judicial factors and persons appointed as guardians of adults with incapacity. See now Accountant in Bankruptcy; Public Guardian.

Acquittal A verdict of a jury or a decision of a judge finding an accused person not guilty or the case not proven.

Accused A person charged with committing a crime or offence. The formal term in solemn proceedings (on indictment before a jury) is "panel" or "pannel". The word "defendant" is not used in Scotland.

Act and warrant The interlocutor in sequestration proceedings which confirms the appointment of the trustee.

Action Proceedings raised by a person in a civil court seeking enforcement of a legal right against another (the defender). See also Summons and Petition

Acts of Adjournal Rules about court procedure made by the High Court of Justiciary for proceedings in criminal courts.

Acts of Sederunt Rules passed by the Lords of Council and Session (the judges of the Court of Session) relating to civil procedure.

Ad factum praestandum For the performance of a certain act.

Ad fundandam jurisdictionem For the purpose of founding jurisdiction.

Ad hoc. Referring only to a particular case or to a specified set of circumstances.

Ad infinitum Without limit.

Ad interim In the meantime. For example, in an action for an interdict, an order may be made ad interim before a final or perpetual order is made.

Adjourned diet A date to which a hearing has been put off.

Adjournment An interruption to the proceedings when the court stops the hearing of the case for part of a day or for a longer period.

Adjudication An action used to take possession of heritable property, i.e. where a seller of land refuses to give a conveyance to the buyer, or as a means of taking a debtor's land to satisfy his creditor's claim for debt. This procedure has now been abolished.

Adjust To alter the written pleadings of an action or its defence in its early stages.

Ad longum At length.

Administration order A court order appointing an administrator for a company in financial difficulties.

Admonition Where a person has pleaded guilty or been convicted of an offence, In some circumstances the court may admonish the offender not to do it again and impose no other penalty.

Adoption The statutory process whereby the parental rights and duties of natural parents in relation to a child are extinguished and vested in adopters.

Advising The occasion when a judgment of the High Court of Justiciary or the Court of Session is delivered.

Advocate A member of the Scottish Bar.

Advocate depute A person appointed by the Lord Advocate to prosecute in the High Court of Justiciary.

Advocate General A UK Government Minister and the UK Government's chief Scottish legal adviser.

Advocate, Lord See, Her Majesty's Advocate, Lord Advocate.

Affidavit A signed statement made on oath. Some cases or evidence may be dealt with by affidavit evidence.

Affirmation The undertaking and propose by a witness, who does not wish to swear an oath, to tell the truth when giving evidence in court.

Aliment Financial support of a spouse or child enforceable by law.

Animus Will or intention.

Answers A statement setting out the factual and legal response of a party to proceedings raised against him or her.

Antisocial behaviour order An order which prohibits a person a person indefinitely or for a fixed period from doing anything described in the order which is necessary to protect others from that person's anti-social behaviour.

Appeal An appeal is a re-hearing of a case by a higher court than the court which first heard the case. A re-hearing means re-consideration by the appellate court of the evidence led and the legal issues considered by the court below.

Appearance The formal act whereby the defender in an action intimates his intention to defend.

Arrestment Legal attachment of money or moveable property in the hands of a third party.

Articles of roup Conditions of sale by auction.

ASBO See Antisocial behaviour order.

Assignation The transfer of a right from one party to another.

Assize This word is occasionally and formally used to mean a trial by jury.

Assoilzie In civil law it means to find for the defender or respondent in respect of the claim(s) made by the pursuer.

Auditor of Court A person responsible for examining legal accounts. The Auditors of the Court of Session and sheriff courts, Respectively, examine and "tax" accounts of expenses incurred by parties in civil actions in the respective courts.

Aver To state or allege.

Avizandum To be considered. Judgment is deferred, an oral or written decision to be given later.

Bail (1) In Admiralty proceedings the security given to obtain the release of a ship.

(2) In criminal proceedings, an arrangement for the release of an accused person pending trial or sentence subject to conditions.

Bankruptcy Where a person is unable to pay his or her debts, a creditor may apply to the court for that person's sequestration, that is to have that person declared bankrupt.

Bill of Advocation The original function was to remove a criminal case from an inferior court to a superior court on account of partiality or incapacity of the judge or intricacy of the case. It is now also a means of review for errors by an inferior judge during a criminal case up to sentence. It is available to either the prosecutor or the accused; and now extends to criminal trials in solemn proceedings in the High Court but only on the application of the prosecutor. It is the means by which a prosecutor seeks to have the High Court review an error in a court of summary jurisdiction. See Bill of suspension.

Bill of suspension This is an application by the person affected to the High Court of Justiciary from a court of summary jurisdiction (a sheriff sitting alone, a stipendiary magistrate or a Justice of the Peace Court) seeking to review and set aside an illegal or improper warrant, conviction or decision. Such an application by a prosecutor is by bill of advocation. Where it is sought to appeal against conviction on a question of fact or law the usual method of appeal is by application to the court of summary jurisdiction for a stated case. See also Bill of Advocation; Stated Case.

Bond of caution Where the court appoints a party or other person to find caution (a sum of money as security), this may be done by depositing cash, or by arranging a bond with an insurance company. It ensures that money is available in the event that the security is required. Note 'Caution' is pronounced to rhyme with station. See also Caution.

Books of Adjournal The books or records of the Justiciary Office in relation to criminal proceedings.

Books of Council and Session A popular title for the Registers of Deeds and Probative Writs in which, according to the directions they contain, deeds, etc., may be registered for preservation or preservation and execution.

Books of Sederunt Records of the Acts of Sederunt in the Court of Session.

Brevitatis causa For the sake of brevity.

By order A hearing of a case put out for the hearing at the instance of the court and not on the motion of a party.

Calling list The list of cases calling in ther Court of Session on a particular day.

Cause A case before a court.

Caution Security (pronounced 'Kayshun'; it rhymes with station). (1) A party or other person may be required to find caution, that is security, against the occurrence of a certain event, e.g., for the expenses of an action or for the protection of an estate.

(2) A sum of money ordered to be lodged by an offender convicted of a criminal offence as security for good behaviour for a specified period of time. If the offender is of good behaviour the money is returned.

Caveat "Warning". A legal document lodged in court by a party so that no order or ruling affecting him or her passes in his or her absence or without receiving prior notice and an opportunity to be heard by the court before any order is made.

Charge A demand made to a person to pay a sum of money in, or comply with, an order of the court.

Child welfare hearing A hearing before a sheriff in the sheriff court in family proceedings in which issues of residence and contact are discussed. The parties to the action are expected to appear personally.

Circuit Court The court held by the judges of the High Court of Justiciary when they sit outside Edinburgh.

Cite / Citation (1) To summon to court a party, witness or juror.

(2) To refer in argument to some authority such as a statute or decided case.

College of Justice Created in 1532, it consisted of the Lords of Council and Session (the judges of the Court of Session) who are the Senators of the College of Justice, the Faculty of Advocates, the clerks to the Signet (later the Writers to HM Signet, a Society of solicitors) and the macers (the court officer who carried a mace before the judges). It may now be said to consist of the senators, Advocates, Writers to the Signet, Solicitors to the Supreme Courts, Macers and Supreme Courts staff.

Commercial action Civil proceedings defined in rules of court heard in a Commercial Court in the Court of Session or a specified Sheriff Court.

Commissary Relating to establishing the succession rights and disposal of a deceased person's estate.

Commissary Court The court which grants a title to executors or administrators of a deceased persons' estate.

Commissioner of Justiciary, Lord See, Lord Commissioner of Justiciary.

Community payback order An order, as an alternative to a custodial sentence, requiring an offender convicted of an offence punishable by imprisonment to perform unpaid work for the community, to be supervised, to pay compensation, or to undertake various kinds of treatment. It replaces community service orders, probation and supervised attendance orders.

Community service order An order, as an alternative to a custodial sentence, requiring an offender convicted of an offence punishable by imprisonment to perform a specified number of hours of unpaid work in the community.

Compensation order An order requiring an offender convicted of an offence to pay compensation to a person for personal injury, loss, or damage caused directly or indirectly, or alarm or distress caused directly against whom or against whose property the acts constituting the offence were directed.

Complaint A document starting summary (minor) criminal proceedings in a sheriff court, before a stipendary magistrate or a Justice of the Peace Court setting out the crime or offence charged.

Compearance The appearance of a defender or respondent in civil proceedings.

Conclusion The statement of the precise order sought in a civil action in the Court of Session.

Condescendence A written statement in an action setting out the factual and legal grounds of action of the pursuer in a civil action.

Confirmation The authority obtained from a sheriff authorising a person (an executor) to gather and distribute the estate of a deceased person.

Confiscation A court order made in criminal proceedings, after conviction or absolute discharge, where money or other property is taken from the offender because he or she benefited by it from criminal conduct.

Consignation The deposit in court or with a third party under court authority of money or an article in dispute.

Consistorial Relating to certain family matters, including actions of divorce , nullity of marriage, and legitimacy.

Contact order A formal order of the court allowing one person to see a child for residential or non-residential access. Formerly called access.

Continued diet A hearing in a case which has been continued from an earlier date.

Counsel A member of the Faculty of Advocates practising at the Scottish Bar. An advocate has the right to appear before any court in Scotland or the UK Supreme Court.

Counterclaim A claim made by a defender against a pursuer in a civil action raised against him or her.

Court of Criminal Appeal The High Court of Justiciary when sitting to hear appeals in solemn proceedings (cases heard on indictment before a jury) is sometimes called the Court of Criminal Appeal.

Court of Session The supreme civil court. The judges of the Court of Session are also the judges of the High Court of Justiciary, the supreme criminal court.

Court of summary jurisdiction This is a court sitting without a jury hearing summary criminal proceedings on summary complaint. The courts are the sheriff court when hearing criminal proceedings on summary complaint, a stipendary magistrate or a Justice of the Peace Court.

Crave The statement of the precise order sought in a civil proceedings in the sheriff court.

Creditor A person to whom another person (or debtor) is obliged in some monetary or other obligation.

Criminal appeal An application to the High Court of Justiciary sitting as an appellate court to set aside the decision of a court that heard a case at first instance. A criminal appeal from a court of summary criminal jurisdiction is formally called a justiciary appeal. See also Court of Criminal Appeal and Justiciary Appeal Court.

Cross-examination Questions asked of a witness on behalf of a party who has not led the witness are referred to as cross-examination.

Curator (not 'curaytor') A person either entitled by law or appointed by the court or an individual to administer the estate of another, as of a young or a person with mental incapacity. See now Guardian.

Curator ad litem A person appointed by the court to look after the interests of a party to proceedings who is under legal disability but has no guardian.

Curator bonis The person formerly appointed by the court to manage the estate of a young person in place of his legal guardian or to manage the estate of an adult suffering from a mental disorder.

Curatory Where a person was too young, or infirm, to look after his or her own (financial) affairs, a curator or judicial factor was appointed to do so (a curator or judicial factor). See now, Guardian.

Custody order Now known as a 'residence order' by which a court states with whom a child will live.

Damages A sum of money awarded by a court as compensation for a wrong or injury.

De facto According to the fact; in point of fact.

De fideli administratione Of faithful administration. This phrase is used to describe an oath taken, for example, by an interpreter for a witness.

De jure According to law.

De novo Of new.

De plano Immediately, summarily, without attention to forms. A decree de plano is one in which the court grants a decree or order in the terms sought.

Debate Intermediate step in procedure when legal points are considered in a civil action before the facts are determined, and which can result in the conclusion of a case or a part of it without evidence being led. The word is sometimes used for a hearing on a preliminary legal issue in criminal proceedings.

Debtor A person obliged to pay some monetary or other obligation to another (the creditor).

Decern A formal word meaning to give (final) decree or judgment and authorises an extract of the decree or order.

Declarator An order declaring that some right exists or does not exist which has legal consequence.

Decree The common term for a final judgment. (The word is accented on the first syllable).

Decree by default A final order granted to a party against another party who has failed to appear, to lodge a document or do something required by the court or rules of court.

Decree in absence A final order granted to the pursuer in a civil action where the defender has not lodged a notice of intention to defend or has not lodged defences.

Defences The statement by way of defence lodged by a defender in a civil action, being the party against whom a civil action is raised.

Defender A person against whom a civil action is raised. The word "defendant" is not used in Scotland.

Deferred sentence A form of sentence in which the final decision about any punishment is deferred or put off to another date, usually some three to 12 months later. Where sentence is put off for a few weeks for further information, such as social enquiry reports, this is not a deferred sentence, but is properly called an "adjourned diet".

Delict A civil wrong.

Desert pro loco et tempore To stop the particular indictment or summary complaint proceeding further without the facts being determined.

Desert simpliciter To bring prosecution for a crime or offence on indictment or summary complaint to an end without the facts being determined.

Detention A sentence of imprisonment in a young offender's institution on a person under 21 years of age.

Diet The date fixed by the court for hearing a case for any one of a variety of purposes.

Diligence Procedure for enforcing an order of the court, or for recovering documents from an opponent or other person; or for obtaining the evidence of witnesses before a commissioner. It also applies to an order to preserve money or property of a party until civil proceedings have been concluded.

Discharge Release from an order or obligation.

Domicile Where a person lives or a company or body has its registered address or seat.

Drug treatment and testing order An order requiring an offender convicted of a criminal offence to undertake a programme to get him or her off drugs and from further offending.

DTTO See Drug treatment and testing order.

Eodem die (eo die) The same day.

Et sequentes paginate (Et seq) And the following pages.

Evidence At a criminal trial or a proof in a civil proceedings, witnesses take the oath or affirm to tell the truth and given oral evidence in court in answer to questions . Sometimes written evidence (affidavit evidence) is allowed.

Evidence in chief This is the evidence first given by a witness on behalf of a party to proceedings, e.g, the prosecutor, accused (defence), pursuer or defender. Questions asked of a witness by the other party are referred to as cross-examination.

Ex facie On the face of it; evidently.

Ex officio As holder of a particular office or appointment.

Ex parte Proceedings are ex parte when the party against whom they are raised does not have to be heard, e.g. in an application for interim interdict where the defender has not lodged a caveat which entitles him or her to be heard before the interim order can be granted.

Ex proprio motu On the court's own initiative.

Ex tempore At the time. For example, an ex tempore judgment given there and then.

Execution The procedure for enforcing an order of the court.

Executor dative A person appointed by the court to gather and distribute a the estate or property of a deceased person.

Executor nominate The person named in the will of the deceased to gather and distribute the estate or property of a deceased person. .

Exoner To discharge from liability. Thus, a judicial factor may seek exoneration and discharge by the court.

Expenses The costs of the proceedings that the court may order a successful party to recover from an unsuccessful party to proceedings.

Extended sentence A sentence consisting of a custodial element (imprisonment or detention in a young offender's institution) and a period of supervision in the community on release.

Extra Division A Division of the Inner House of the Court of Session other than the First or Second Division.

Extract/extract decree A written instrument signed by a clerk of court containing a statement of a decree or order of the court and, if necessary, a warrant to charge the debtor and to execute all competent diligence against person or property.

Extrajudicial settlement. This refers to an agreement between the parties to settle the case without the court having to decide the case.

Fatal accident inquiry An inquiry before a sheriff into the circumstances of a death of a person. Such an inquiry must be held where the person died at work or in legal custody.

First deliverance This is the first order in petition proceedings such as lpetitions for liquidation of a company and sequestrations (personal bankruptcy).

First diet A date on which an indictment calls in the sheriff court in solemn proceedings to determine whether the prosecutor and defence are ready to do to trial.

First Division The Division of the Inner House of the Court of Seesion presided over by the Lord President.

First hearing The first time a case calls in court.

Fixed diet A date fixed by the High Court of Justiciary for a trial to proceed.

Floating sheriff A full-time or permanent sheriff who is not resident at a court but may sit at more than one sheriff court. See also Resident sheriff.

Forum non conveniens The court, although having jurisdiction is not the appropriate court for the matter in dispute.

Fund in medio The property or money in the hands of the holder of the Fund (money or property) in an action of multiplepoinding.

Guardian A person appointed by a parent or a court to act as the legal representative of the child in the event of the parent's death, or a person appointed by a court to act as guardian in relation to the property, financial affairs or personal welfare of a person with incapacity.

Haver The person in possession of a document or property from whom a party to proceedings wishes to obtain it for the purposes of the proceedings. See also Recovery of documents and Specification of documents.

Hearing Any proceedings called before a judge.

Her Majesty's Advocate The senior Law Officer responsible for the prosecution of crime and investigation of deaths and the principal legal adviser to the Scottish Government. Referred to as "Her Majesty's Advocate" in criminal matters and the "Lord Advocate" in civil matters.

Heritable estate/property The term for property in the form of land and houses,as distinct from moveable property such as jewelry or an animal.

High Court of Justiciary Usually referred to as "the High Court". Consists of two appellate courts (the Court of Criminal Appeal and the Justiciary Appeal Court) and a court of first instance (i.e. a court trying persons on indictment with a jury). The judges of the High Court are formally called Lords Commissioners of Justiciary. The judges of the court are also the judges of the Court of Session.

Ibidem (Ibid) In the same place.

In foro As applied to a decree of the court signifies that it has been granted against a party for whom defences or answers have been lodged, as opposed to decree in absence.

In hoc statu For the time being, at this stage.

In litem In the case or action.

In meditatione fugae About to leave the country.

Incapax As applied to a person, signifies legal, mental, or physical incapacity. The term now used is "adult with incapacity".

In praesentia dominorum In the presence of the Lords. Usually abbreviated to "IPD" after the signature of the chairman of the court where more than one judge of the court is sitting. The "Lords" refers to the Lords of Council and Session, or Lords Commissioners of Justiciary, i.e. the judges of the Supreme Courts, the senators of the College of Justice.

In retentis Evidence taken to lie in retentis is evidence laid aside until the proper time arrives for putting it before a court.

Indictment A document setting out the charge(s) of crimes or offences against an accused in more serious cases. It runs in the name of Her Majesty's Advocate (the public prosecutor). A case on indictment is tried by judge sitting with a jury in the High Court (in the most serious cases), or the sheriff court. Cases tried on indictment are known as solemn proceedings. For less serious crimes, see Summary proceedings.

Inhibition A procedure which prohibits a debtor from burdening his heritable property or parting with it, or part of it, to the detriment of a creditor.

Initial writ The document by which civil proceedings in the sheriff court are normally initiated. See also Petitions; Small claims; Summary applications; Summary causes.

Inner House The appellate division of the Court of Session (one of the Supreme Courts of Scotland). Originally so called on the historical and topographical ground that their courts lay further from the entrance to the court house than did the Outer House.

Insolvency The state of being unable to pay one's debts.

Insolvency practitioner An accountant or solicitor, qualified in terms of the Insolvency Act 1986 to act as liquidator or supervisor in relation to a company unable to payts debts, or as trustee or supervisor in relation to an individual unable to pay his or her debts.

Instance The part of a summons, writ, or other document initiating proceedings in court in which the parties to the proceedings are identified and designed.

Interlocutor A formal order made by a court containing its decision.

Intermediate diet A hearing in summary criminal proceedings which allows the court to check whether the case is likely to proceed on the date assigned for trial. A purpose is to minimise inconvenience to witnesses etc. if the trial is adjourned.

Inter alia Among other things.

Interdict A judicial prohibition or court order preventing someone from doing something. In an emergency, interim interdict can be obtained in the absence of the person against whom the order is sought (i.e ex parte).

Interim In the meantime. A temporary court order made until a final order is made.

Interrogatories Written questions adjusted by the court, to be put to witnesses examined under a commission to take that witness's evidence instead of the witness coming to court.

Inter vivos Between living persons.

Inventory of deceased's estate A list of a deceased person's estate or property, heritable and moveable.

Inventory of process A list of the documents in a court process.

Ipso facto By that very fact.

Ipso jure By the law itself.

Judge The judicial office holder who presides over proceedings, i.e. a senator of the College of Justice (a Lord Commissioner of Justiciary in the High Court, a Lord Ordinary in the Court of Session or a sheriff). A judge is addressed as "My Lord" or "My Lady", as the case may be.

Judgment (Not judgement.) The decision of a court setting out its reasons for the decision. In the High Court of Justiciary and the Court of Session it is called an "Opinion". In the Sheriff Court it is called a "Note" attached to the interlocutor.

Judicial Factor Usually a solicitor or accountant appointed by the court in specific matters.

Judicial review A remedy whereby the Court of Session may review and if necessary set aside or rectify the decision of public officials or bodies where no other form of appeal is available.

Jurisdiction The power of a court to entertain particular cases as determined by factors such as location or district, or the value or type of the case, or the residence or domicile of a person.

Jury A group of lay persons chosen to decide upon issues of fact in legal proceedings. In criminal proceedings, a jury has 15 jurors; in civil proceedings, a jury has 12 jurors.

Jus relictae/relicti The right of a widow/widower to one third or one half, as the case may be, of her deceased husband's/his deceased wife's personal estate.

Justice of the Peace A justice of the peace is a lay magistrate (ie. not a professional judge) who sits in the Justice of the Peace Court. A justice is addressed as "Your Honour".

Justiciary Appeal Court The High Court of Justiciary sitting as an appellate court hearing appeals from trials heard in summary cases (cases heard on summary complaint). See also Summary procedure; Summary complaint.

Justice Clerk, Lord See, Lord Justice Clerk.

Justice General, Lord See, Lord Justice General of Scotland.

Land Register The register of interests in land under the Land Registration (Scotland) Act 1979 which supercedes the recording of deeds constituting or transferring rights in land under the Register of Sasines. See also Register of Sasines.

Legal rights The rights of spouses, children, civil partners, to certain property of a deceased person.

Legitim The legal share (one half or one third, as the case maybe) of a parent's free moveable estate due on death to the children.

Life sentence A sentence of imprisonment for life. A mimimum period in custody will be set by the court before the prisoner will be considered for release on licence. A life prisoner, if released, will be on licence and subject to recall to prison for the rest of his or her life.

Liferent The right of a person during his or her life to use and enjoy property.

Liquidation The procedure for winding up and dissolving a limited company.

Liquidator The person appointed to collect the assets, adjust and settle claims of creditors of a company in liquidation.

Loco parentis In place of a parent.

Loco tutoris In the place of a tutor.

Locus Place.

Lord Advocate The senior Law Officer responsible for the prosecution of crime and investigation of deaths in Scotland, and the principal legal adviser to the Scottish Government. Referred to as "Her Majesty's Advocate" in criminal matters and the "Lord Advocate" in civil matters.

Lord Commissioner of Justiciary The formal title of a judge of the High Court of Justiciary. The judges of the High Court of Justiciary are also the judges of the Court of Session.

Lord Justice Clerk The second senior judge in Scotland. He or she presides over the Second Division of the Court of Session.

Lord Justice General of Scotland The most senior criminal judge, president of the High Court of Justiciary. The position is, in modern times, held by the Lord President of the Court of Session.

Lord of Council and Session The formal title of a judge sitting as a judge in the Court of Session. The judges of the Court of Session are also the judges of the High Court of Justiciary.

Lord Ordinary The title of a judge sitting in the Outer House of the Court of Session hearing a case at first instance.

Lord President of the Court of Session The most senior civil judge, president of the Court of Session and the head of the judiciary. Also holds the position of Lord Justice General.

Mace An ornamental staff of authority borne by a macer before a judge of the Court of Session or High Court of Justiciary and displayed in his or her court while it is sitting.

Mandatory (1) A person within the jurisdiction ordered by the court to be responsible for the conduct of a cause on behalf of a party who is not resident in Scotland.

(2) A requirement or provision that must be complied with.

Matrimonial home The home provided by one or both spouses or civil partners and forming a family residence.

Mens rea Guilty purpose.

Messengers-at-Arms Officers appointed by the Lord Lyon King of Arms, whose function is to execute civil warrants of the Court of Session, certain warrants of the High Court of Justiciary and warrants of the Court of the Lord Lyon.

Missives Letters passing between seller and purchaser setting out terms of agreement of the sale of property.

Mora Undue delay.

Mortis causa Deeds made in contemplation of death.

Motion An application made in court for an order during the course of court proceedings.

Moveable Estate Personal estate.

Multiplepoinding An action to determine the rights of parties to a fund or property in dispute and to release the holder of the fund from any claim.

Mutatis mutandis With the necessary alterations. For example, applying one provision to another set of circumstances.

My Lord/My Lady The proper form of address in court of a judge of the High Court of Justiciary, the Court of Session and the Sheriff Court.

Next of kin The person(s) nearest in degree to another person; e.g., the nearest ascendant or descendant of a deceased person.

Nobile officium The noble office or duty of the Court of Session. An equitable jurisdiction in virtue of which the court may, within limits, mitigate the strictness of the law and provide a legal remedy where none exists.

Non-harassment order An order of court prohibiting a person from conduct specified in the order in relation to another person for a specified period of time or an indefinite period.

Not proven A verdict or decision of acquittal of an accused person.

Note (1) A form of application to the court in existing proceedings. (2) A form of appeal. (3) The reasons for a decision attached to an interlocutor in the Sheriff Court.

Note of appeal The formal document by which an application to appeal is made from a decision of a judge to an appellate court. See also Stated Case.

Notification requirements A person convicted of certain sexual offences must be made subject to the notification requirements of the Sexual Offences Act 2003 by which he or she must keep the police informed of address and any change of name for a specified period of time. Sometimes referred to as the "Sex Offenders' Register".

Notional diet An informal reference to a diet of trial or proof in criminal proceedings at which it is not expected that evidence will be led.

Nullity Non existent or lacking legal force as applied to acts or writings which are null and void. Also applies to a marriage / civil partnership affected by an inherent defect such as existence of a prior marriage/civil partnership or relationship within a prohibited degree.

Oath In court proceedings the sworn undertaking by a witness to give truthful evidence. See also Affirmation

Obiter dictum Opinion given incidentally. In other words, the opinion or comment is not the reason for the decision in the case.

Obtemper To obey, usually of the decree or order of a court.

Opinion A statement by a court or judge of reasons for the decision in a case. In the Sheriff Court it is called a "Note" and is attached to the interlocutor containing the decision.

Options hearing A hearing in an ordinary action in the sheriff court to decide the next stage in the case. That could be a continuation of the hearing for up to a month to adjust the pleadings, the fixing of a debate on the law or a proof of the facts.

Order for lifelong restriction (OLR) A person convicted of a serious violent or sexual offence for which the maximum sentence could be life imprisonment where there is a likelihood that if at liberty he or she will seriously endanger the lives or well-being of a member of the public may be placed on such an order. The order consists of a sentence of imprisonment or detention for an indeterminate period. The offender will be subject to a lifelong risk management plan.

Ordinary cause All sheriff court civil actions other than small claims, summary causes and summary applications, are ordinary actions subject to the Ordinary Cause Rules 1993 in the First Schedule to the Sheriff Courts (Scotland) Act 1907. A claim for £5,000 or more must be by an ordinary action.

Ordinary, Lord The judge who hears cases at first instance in the Court of Session.

Outer House The part of the Court of Session which exercises a first instance jurisdiction. The supreme civil court, the Court of Session is divided into the Inner House (which deals mainly with appeals) and the Outer House. The udges in the Outer House deal with cases at first instance, that is cases started in the Court of Session, and also with some appeals from some tribunals. See also Inner House.

Panel (Sometimes "Pannel") The formal name for an accused person. The word "defendant" is not used.

Pari passu To share and share alike or ranking equally, e.g. in the case of claims or security rights.

Parole Where an offender is serving a sentence of imprisonment or detention of four years or more (other than a life sentence), he or she is eligible to be released after one half of the sentence on parole. He or she may be subject to conditions for release and may be recalled to prison.

Parole evidence Oral evidence of witnesses, as distinct from with documentary evidence including affidavit evidence. See also Affidavit.

Part-time sheriff A lawyer appointed to act as a sheriff on a part-time basis.

Per incuriam Through negligence, mistake or error.

Per stirpes By descent, i.e. through a parent and not in one's own right. (Where per stirpes the share which would have fallen to the predeceasing parent if alive is divided equally among the children).

Perjury The crime committed by a witness in court proceedings by lying on oath or on an affirmation. See Affirmation and Oath.

Petition (1) A writ by which civil court proceedings are initiated in which some administrative order of the court is required for something to be done which requires judicial authority. It is distinct from a summons in an action which is to enforce a legal right against a person (the defender). In the Court of Session civil causes are raised at first instance as either a summons or a petition as the case may be. In the sheriff court all civil proceedings are raised in same way, whether petitions or not, that is by initial writ. See also Summons.

(2) In criminal proceedings, the Crown (the prosecutor) may begin proceedings by petition before deciding whether to prosecute on indictment or by summary complaint. Only serious cases are begun by petition.

Petition and complaint The procedure in the Court of Session where the remedy sought is a punishment for failure to obtemper a decree.

Pleading diet Date assigned for a criminal case to call and for plea to be given, e.g., guilty or not guilty.

Plea-in-law A short proposition at the end of a written case showing exactly the legal remedy sought.

Precedent The decision of a court regarded as a source of law or authority in the decision of a later case. .

Precognition A formal statement of a witness taken or written by another person.

Precognosce To take a precognition.

Preliminary hearing A hearing in the High Court of Justiciary in solemn proceedings to decide if the case is ready to go for trial. Also preliminary legal or factual issues may be determined before trial at a preliminary hearing.

Preliminary plea A plea-in-law that raises a legal issue that does not relate to the merits of the proceedings but if sustained could result in the proceedings or a part of them being dismissed

Pre-proof hearing A hearing in civil action proceedings to determine whether parties are ready for the proof, whether more or fewer days for proof are required and to establish what the issues are or whether they can be reduced.

President, Lord The head of the judiciary. He or she presides over the First Division of the Inner House of the Court of Session, the supreme civil court. As Lord Justice General of Scotland he or she is the senior judge of the High Court of Justiciary.

Privitative jurisdiction All civil proceedings of £5,000 in monetary value exclusive of interest and expenses must be brought in the Sheriff Court. The civil jurisdiction of the Sheriff Court is not restricted to such causes; its jurisdiction extends to causes of any value. Certain types of action are competent only in one or other of the Court of Session or Sheriff Court.

Probation A form of sentence in criminal proceedings requiring an offender to be supervised by a social worker for a specified period of between six months and three years.

Procedure roll In the Court of Session, where the legal issues in a civil action are to be considered before proof of the facts, the case is appointed to a debate on the Procedure Roll.

Process The court papers relating to a cause.

Procurator fiscal Literally, the procurator for the fiscal or treasury; now the style and title of the public prosecutor in the sheriff court.

Production An article produced and lodged as evidence in court.

Pro forma A document used as a form or style.

Pro indiviso In an undivided state, usually in relation to property held by several persons.

Pro loco et tempore Without place and time.

Pro non scripto As not written, that is something is treated as if it had not been written.

Proof In addition to its general meaning, this word has the formal sense of a hearing of a case by a judge at which evidence is led orally or by affidavit.

Proof before answer Where evidence is heard on the facts before questions of law are determined, there may be a "proof before answer".

Prorogate Continue or extend. Where further time is allowed to do something required by the court before the time limit has expired, the time limit is prorogated.

Protective measure An order preserving money or property in civil proceedings before the case is concluded.

Public guardian The official responsible for supervising powers and orders in relation to adults with incapacity under the Adults with Incapacity (Scotland) Act 2000.

Punishment part Where a sentence of life imprisonment is imposed the period before which the offender may be considered for release on licence.

Pursuer The person suing in a civil action seeking an order against a defender.

QC See Queen's counsel

Quam primum Forthwith or as soon as possible.

Quantum How much, the extent. The amount of money sought in a claim for damages.

Quantum valeat For as much as it is worth.

Quasi As if; as though.

Queen's counsel A senior and experienced lawyer on whom the Queen has conferred this honour.

Quoad ultra As regards everything else. In pleadings, after the averments for the other party have been admitted or dealt with as not know and not admitted, the rest of those pleadings are dealt with. This is usually done by the statement "Quoad ultra, denied." There then follows an explanation as to why the rest of the other party's pleadings are denied.

Receiver A person appointed to enforce the rights and remedies of the holders of a floating charge over the assets of a company which is in default in relation to the claim or debt which the charge secures.

Record (The accent is on the second syllable.) The pleadings, that is the averments or statements, of the respective claims and answers by parties ion civil proceedings lodged in court. When finally adjusted between the parties it is closed by order of the court and becomes the Closed Record; up to then it is an "open" record.

Recovery of documents Where documents are sought to be used to prove a case and are in the possession of another party in the case or some person who is not a party, they may be sought to be recovered by that other person on application to the court. The person who is said to be in possession of the document is called a "haver". A motion for recovery of documents must be accompanied by a document called a specification of documents which sets out the documents or categories of documents sought to be recovered. See also Specification of documents.

Reduction To annul or set aside a decision or document by legal process.

Register of Inhibitions and Adjudications (Now just called the Register of Inhibitions, adjudiciations having been abolished.) The Register of Notices of personal diligence which affect the voluntary conveyance of real property.

Register of Sasines The Register of deeds constituting or transferring rights in land and heritable property. See also Land Register.

Relict A formal term used to refer to a widow or widower in relation to succession to a deceased's estate. .

Remit The transfer of some matter by one judge to another judge or court; or to a person named as, e.g. to an expert "a man of skill", in order that the latter may inquire and report.

Repel A court does not overrule a plea or an objection, it repels it. The opposite is to sustain (or uphold).

Repone To repone a defender is to restore him to his position as a litigant when decree in absence has been given against him. Also competent in, eg case of failure to lodge documents in appeal to Court of Session.

Reporter (1) A person appointed to conduct a public inquiry.

(2) A person, usually a lawyer or other professional person appointed by a court to investigate an aspect of a case.

(3) The officer responsible for bringing cases before children's hearings and proceedings from hearings before ths sheriff. (4) A person who compiles the published report of a case decided by the courts.

Residence Order A formal order by a court stating with whom a child of a relationship should stay.

Resident sheriff A sheriff who holds a commission to sit as a full-time or permanent sheriff at a particular sheriff court.

Res ipsa loquitur The thing done or the transaction speaks for itself. Proof of an event raises a rebuttable presumption of liability.

Res judicata A question decided in competent legal proceedings, which cannot again be raised.

Respondent (1) A person who enters the process of a petition to oppose it.

(2) The person against whom an appeal to a higher court from a lower court is made.

Restriction of liberty order (ROLO) An order imposed as an alternative to imprisonment restricting an offender's movements whereby he or she is to remain in or is excluded from a specified place for specified periods of time.

Review Revision by a higher court on appeal.

Rolls Official lists of cases as set down for hearing, depending on the type of case or the stage of the proceedings. For example, the Motion Roll, Single Bills, Summar Roll, Options hearing.

ROLO See Restriction of liberty order.

Roup Public auction.

Rubric A chapter heading.

Scottish statutory instrument (S.S.I.) The form in which subordinate legislation, that is orders, rules and regulations etc under an Act of Parliament are made by the Scottish Parliament. See also Statutory instrument.

Second Division One of the Divisions of the Inner House of the Court of Session presided over by the Lord Justice Clerk.

Section 76 indictment/letter An accused person charged with a serious offence may give notice in writing that he intends to plead guilty to an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995.

Senator of the College of Justice Judges of the Court of Session and the High Court of Justiciary, the supreme courts of Scotland, are appointed by HM Queen as senators of the College of Justice created in 1532. See also College of Justice.

Separatim Apart from anything already advanced or pleaded.

Sequestration (1) To render bankrupt. Strictly, it is a person's estate which is sequestrated or set aside for the use of his creditors.

(2)To sequestrate for rent is to take the furniture, etc., on leased premises to satisfy a claim for rent.

Service of heir The court process by which an heir proves and acquires a right or title to real estate of an ancestor.

Sex Offenders' Register The Sexual Offences Act 2003 does not use this expression, though it is used commonly. The Act refers to notification requirements for offenders convicted of certain sexual offences. See Notification requirements.

Sheriff The judge who presides in the sheriff court. There are 49 sheriff court houses.

Sheriff officer An officer of the sheriff court responsible for serving documents and executing orders if the sheriff court.

Sheriff principal A judge appointed to be in charge, and responsible for the speedy and efficient disposal of business, of a sheriffdom. He or she is also a judge to whom a litigant may appeal a decision from a sheriff.

Signet A summons in the Court of Session, the writ by which an action is raised in that court as distinct from a petition, must have the signet or seal of the Sovereign bearing the Royal Court of Arms embossed upon it to authorise execution, that is service of the writ on a defender. The Keeper of the Signet is the Lord Clerk Register who on 3rd May 1976 granted a commission to the Principal Clerk of Session (and clerks authorised by him) to signet summonses which was formerly done by members of the Society of Writers to HM Signet.

Sine die Indefinitely; without a day being fixed.

Sine qua non Without which nothing can be effectually done.

Single Bills A Roll for motions and some civil reclaiming motions or appeals in the Inner House of the Court of Session.

Sist (1) To stay or stop proceedings from continuing in the meantime.

(2) To summon or call someone as a party, e.g,sisting a mandatory, or a person seeking to become a party to civil proceedings.

Small claim Civil proceedings for payment, delivery, repossession, implement of obligation where the monetary claim does not exceed £3000.

Solatium The damages sought and awarded in actions for personal injuries or death of a relative primarily for pain and suffering.

Solemn proceedings Serious criminal offences are prosecuted on indictment befor a judge and jury of 15 persons. These proceedings are called "solemn proceedings" as distinct from summary proceedings befor a sheriff or justice(s) of the peace sitting without a jury.

Specific implement An order of court requiring a person to carry out an obligation under contract or at common law.

Specification of documents Where documents are sought to be used to prove a case and are in the possession of another party in the case or some person who is not a party, they may be sought to be recovered by that other person on application to the court. A motion for recovery of documents must be accompanied by a document called a specification of documents which sets out the particular documents or categories of documents sought to be recovered. See also Recovery of documents.

Starred motion A motion in the Court of Session for which appearance is required by or for a party to the proceedings.

Stated Case (1) Where an appeal is made against a decision to convict or not to convict a person on summary complaint, the judge must prepare a stated case which sets out the facts and questions for the Justiciary Appeal Court This is a formal document. If the offender wishes to appeal against sentence only (i.e. the severity) the appeal is by note of appeal.

(2) Where a party appeals to a sheriff principal against a decision in a summary cause or a small claim, which may only be on a point of law, the sheriff must prepare a stated case.

Statute An Act of Parliament.

Statutory instrument (S.I.) The form in which subordinate legislation, that is orders, rules and regulations etc made under a UK Act of Parliament are made superseding, since 1947, statutory rules and orders (S.R.& O.). See also Scottish statutory instrument which is a statutory instrument made by the Scottish Parliament.

Stipendary magistrate A legally qualified judge who hears criminal cases in summary proceedings on summary complaint.

Style A form of a document used as a model for similar documents.

Subordinate legislation This is an order, rule, regulation, etc., made under an Act of Parliament. See also Statutory instrument; and Scottish statutory instrument.

Summar Roll A roll in the Inner House of the Court of Session for the hearing of reclaiming motions and civil appeals.

Summary application This is form of application in the sheriff court for a variety of statutory applications, including certain kinds of statutory appeal to the sheriff as distinct from an initial writ, small claim or summary cause.

Summary cause This is the form of simplified procedure applicable to civil cases in the sheriff court with a limit of £5000 in the case of monetary claims. Certain actions for the recovery of heritable property must also be by summary cause.

Summary complaint Less serious criminal offences are prosecuted on summary complaint before a court of summary jurisdiction, that is a sheriff sitting alone, a stipendary magistrate or in a Justice of the Peace Court. More serious cases are prosecuted on indictment under solemn proceedings, that is before a jury. See also Solemn proceedings; and Indictment.

Summary decree A final decision on part or all of a defence to an action or defence to a counterclaim on the basis that the defence does not in fact disclose a defence.

Summary warrant This is a warrant issued by the sheriff to, e.g, a local authority authorising diligence for the recovery of arrears of council tax.

Summons The form of writ initiating an action in the Court of Session. It is issued in name of the sovereign, containing a royal mandate to messengers-at-arms to cite the defender to the court.

Supervised attendance order (SAO) A sentence in stead of a fine on an offender convicted of an offence of not more than 100 hours supervision by a social worker.

Supervised release order An order on an offender convicted on indictment of an offence other than a sexual offence who is sentenced to imprisonment or detention for less than four years where it is necessary to protect the public from serious harm from the offender on his release.

Supra citatum (Sup cit or supra) Above cited.

Taxation As applied to solicitors' or advocates' fees, including those incurred in court proceedings, means the scrutiny of the account by the Auditor of Court to exclude or amend items unjustifiably included or excessively charged.

Teinds Tithes – the tenth part of the annual produce of land out of which a minister's wage was originally payable.

Temporary judge A lawyer, sheriff principal or sheriff appointed to sit as an additional judge on a temporary basis in the High Court of Justiciary or the Court of Session.

Terce The widow's legal right of dower in real estate.

Third party (1) The name of a party brought into civil proceedings by a defender because that third party may be liable in addition to or instead of the defender to the pursuer.

(2) Someone other than the parties to a transaction.

Tithe The tenth part of the increase annually arising from the profits of land and stock, allotted to the clergy.

Trial Criminal proceedings (when an accused person has pled not guilty) where the court hears the evidence of witnesses to the alleged crime(s).

Trial diet The day on which a trial on indictment or on summary complain in criminal proceedings at which evidence is to be led will be heard.

Tribunal A person or body of persons other than a court of law, having power to determine claims or disputes of some particular nature.

Tutor  or tutrix The former title of the guardian of an infant.

Ultimus haeres Last heir. The Crown is ultimus haeres.

Ultra vires Without authority.

Vitious intromission The taking of possession of property of a deceased without authority. A person who does this is liable for all the debts of the deceased.

Verdict The decision of a jury on the matter or matters submitted to it by the court.

Vest (seised) A person is seised or vested in property when it becomes that person's property by legal right or authority.

Vexatious litigant A person who takes proceedings primarily for the annoyance or embarrassment of the defender and whose activities in raising actions may be restrained by the Court of Session.

Volenti non fit injuria Accepting the risk of injury.

Warrandice Absolute warrandice is a warranting or assuring of property against all claims whatever.

Warrant A written authority, e.g. from court, authorising certain actions such as an arrest of a person, a search of premises or an eviction of occupiers. Also used to signify a document evidencing a right of some kind, e.g. in a title to heritable property. Also the formal authority by the court to cite a person to appear before it.

Writs (1) Documents of title to heritable property. (2) Initiating documents in court proceedings are sometimes called writs, e.g., the initial writ by which certain civil actions are raised in the sheriff court.

Your Honour The proper form of address in court of a stipendiary magistrate or justice of the peace.

JULIE ANNE PHILLIPS or ZELENT against ALAN SAVAGE

Decision of SHERIFF MARGARET M. NEILSON Sheriffdom of Grampian, Highland and Islands at Inverness

This is an action in which the pursuer seeks payment of a capital sum from the defender in terms of section 28(2)(a) of the Family Law (Scotland) Act 2006.  

The pursuer having sustained no economic disadvantage in the interests of the defender and the defender having derived no economic advantage from financial or non financial contributions of the pursuer, the pursuer is not entitled to payment of a capital sum in terms of Section 28(2)(a) of the Family Law (Scotland) Act 2006

The Sheriff concluded that the pursuer deliberately misled a number of people including the court, the defender, her own solicitors and her experts in her prosecution of this action. 

For these reasons a copy of this judgment is to be passed to the Scottish Legal Aid Board for consideration. 

 The full decision is available here.

 

 

 

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