There are many differences between Scots law and English law. One example is the use of caveats in the Scottish court system. They are a very handy tool, from a risk management perspective.
What is a caveat?
A caveat in Scotland is a formal legal notice lodged with a Scottish court to ensure that you, as an individual, partnership or business, is given advance warning that a court has been asked by someone to consider granting a certain type of urgent order against you, without you being given the chance first to make representations to the court as to why that urgent order should be not be granted against you.
If there is no caveat in place for you, no notice of a hearing would be given and you would have no opportunity to challenge the urgent order being sought against you. In those circumstances, the court can grant the order in your absence. The first that you may hear of it may be when enforcement of the order, already granted, is being sought.
What types of urgent orders do caveats apply to?
For an individual, the types of orders that they can be warned against are:
- An interim interdict (prohibiting you from doing something or taking some action);
- Certain orders relating to personal insolvency proceedings, such as a petition to wind up, or appoint an administrator to, a company in which the individual has an interest or in relation to the individual’s bankruptcy.
For a company, the types of orders that it can be warned against are:
- Interim interdict;
- Certain orders relating to corporate insolvency proceedings such as a petition to wind up a company.
- An application for permission to start group proceedings
Why should you instruct your solicitor to lodge a caveat on your behalf?
1. Advance warning of legal action
- Your solicitor will be notified by the court if someone applies for an interim order against you
- Prevents surprise interim orders being granted against you without your knowledge
2. Right to be heard
- Your solicitor will get an opportunity to present your side of the case before a decision is made on the interim order application
- Helps protect your interests in time-sensitive matters
3. Relatively inexpensive
- Lodging a caveat is a low-cost precaution compared to taking steps to challenge the order after it has been granted. We charge a fixed fee in addition to the court dues which are currently £58 for each caveat lodged in the sheriff court and £53 for a caveat lodged at the Court of Session.
How long does a caveat last?
Caveats require to be renewed on an annual basis, and we will contact you before the caveat(s) expire to seek your instructions to renew for another year.
So what are you waiting for?
We can arrange for caveats to be lodged at courts throughout Scotland. It is recommended that those with business and/or property interests in Scotland lodge caveats at the relevant courts.
To discuss a caveat being lodged on your behalf and to take advantage of this useful early warning tool, please contact Carolyn Morgan, Partner, in our Glasgow office (carolyn.morgan@weightmans.com).
