small claims
case digest

Slessor -v- Burnett-Stuart 1990 SLT (Sh.Ct.) 62


Issue - Extent of Sheriff's duty to ascertain disputed issues at the preliminary hearing (rules 13(5) and (6)). Failure to state a defence.

Solicitor appearing for D at a preliminary hearing advised the Sheriff that the sum sued for was admitted, but D wished to lodge counter-claim. Counter-claim is not competent in small claims - but the Sheriff superseded extract of decree to allow D to raise small claims. D appealed and contended that his solicitor appearing had made a mistake in admitting debt due. D argued Sheriff should have made more inquiries in terms of rule 13(5).

The Sheriff Principal affirmed the Sheriff's decision. He held that the Sheriff was not bound to make any further enquiries than he did when the parties were represented by solicitors. The case was not one for the exercise of the dispensing power. Appeal refused.