In Scotland, interim relief proceedings are subject to statutory and court rules. The relevant court procedure depends on the type of relief sought and the court in which the application is made. Both the Court of Session and the sheriff court may grant interim relief.
In Scotland, there are four broad categories of interim relief available:
- measures to preserve evidence (for further details on preservation of documents, see Disclosure and discovery);
- measures to secure assets in relation to money claims (for further details see Prejudgment attachments and freezing orders);
- preservation of assets in the event of insolvency; and
- measures to protect a party's right against a wrongdoing (also referred to as interim interdict).
Remedies in respect of interim relief decisions, including appeal processes, are available but they vary depending on the category of interim relief involved and the court making the decision
Natural parties can represent themselves in interim relief proceedings (and other proceedings). Corporate entities must ask the court for permission for a director or partner to represent them. If permission is refused, then the entity would require to be represented by a solicitor.
Preservation of assets in the event of insolvency
An ex parte (i.e. without notice) application may be made as part of insolvency proceedings for an interim order to appoint an insolvency practitioner to preserve assets pending a formal appointment being concluded. This measure is only available where there is a risk that those in control of the company or organization concerned may dissipate assets if they are given advance notice of the insolvency proceedings. The procedural requirements vary depending on the insolvency process being pursued and the court in which the application is being made.
Interim interdict
An interim interdict is a court order requiring a person not to do something pending the resolution of a claim for interdict. It is the equivalent of an interim injunction in England.
The party seeking an interim interdict must demonstrate to the court that there is a prima facie case and that "the balance of convenience" favors the granting of the order. The order can be sought and obtained on an urgent basis by making an application to the court. If an order is sought urgently, these can usually be heard by the court within 24 hours. It can also be granted without notice.
However, if the defender to an interim interdict application has lodged a caveat at court (effectively an early warning device) the court will require that the defender be made aware of the application and be given a right to be heard by the court before the order is granted.
If the order is granted ex parte, then the defender may apply at anytime to have the order recalled (withdrawn). If the order is granted with both parties in attendance at the hearing, the defender must show a material change in circumstances to have the order recalled. If the defender wishes to appeal, on the facts or the law, then the timeframe is within 14 days of the decision.
It is not necessary for a party to be represented by a solicitor at interim relief proceedings, but given the legal arguments necessary, legal representation is normal. Individuals can represent themselves and companies and other business vehicles can apply for permission to be represented by a lay representative (such as a director).