Interdicts, power of arrest and non-harassment orders

Applications to pursue

To establish probable cause there must be evidence:

• Of a continuing or threatened wrong capable of being the subject of an interdict
• That your client has a reasonable apprehension of a repetition of the conduct complained of.

It should not be assumed that we would be bound to grant the application just because:

• A sheriff has granted an interim interdict.
• The police have been involved and have advised your client to see you about going to court for an interdict.

Minor Disputes

One of the factors we will consider is whether a privately funded litigant of moderate but not abundant means would raise such an action. An example would be a dispute between neighbours, which involves a series of fairly minor incidents which are not violent.  In such a case, your client must specifically address why it is considered reasonable to make public funds available.  You must address in detail the basis of your client’s fear that some physical action will follow on the threats.

Police Involvement

The involvement of the police in a dispute will be relevant. If your client did not involve the police, they must explain why not.  If they considered the matter was too minor to trouble the police, there will need to be a strong argument for seeking public funds to finance an action of interdict.

Where police have attended and taken no action this might, on the face of it, indicate that the conduct is minor. Where criminal proceedings have been taken, your client will have to address why a civil remedy is still needed. Details of any police action should be included together with why your client still requires an interdict.

Dispute Resolution

Your client should try any other avenues of dispute resolution before applying for legal aid.  If alternatives have not been investigated, your client must show why it is reasonable to proceed with a court action.

Evidential requirements

Your client’s statement must detail:

• The conduct for which the interdict is sought and why they believe that it will continue
• The actual or expected effect of the conduct on your client
• The terms of the interdict sought
• Date of any specific incidents
• Any involvement of other parties in resolving the dispute.

It should be clear all others steps have been taken including solicitors’ warning letters and involvement of the police.

Supporting evidence should be produced, such as:

• A statement from another individual who has witnessed some or all the conduct complained of or who has witnessed your client’s distress or injuries
• A statement from an agency such as a Social Work Department or police confirming the existence of the conduct complained
• A report from a doctor.
• Copies of correspondence with you about the conduct complained of

Applications to defend

To satisfy us on probable cause, we will expect your client to provide a full answer to all the pursuer’s averments with a clear explanation why the interdict must be resisted.

Where your client denies particularly serious conduct the test of reasonableness may readily be satisfied.

If conduct complained of is fairly minor, or the terms of the interdict narrow, the question of reasonableness must be addressed in some detail – would a private client of moderate but not abundant means incur the cost of a defence in these circumstances?

If your client fears the terms of an interdict would unreasonably interfere with the exercise of parental responsibilities, such as contact, it may be reasonable to allow legal aid for a defence.

If your client believes the pursuer is likely, through malice, to misuse the decree by bringing unwarranted actions for breach of interdict,, they should address why they believe this.

In some cases,, your client may not believe the interdict sought is justified but would be prepared to live with its terms were it not for the prospect of incurring unrestricted liability for the pursuer’s expenses.  If, in these circumstances, they are seeking to defend the interdict we should be given details of the steps that have been taken to reach agreement about expenses.

Evidential requirements

Your client’s statement should:

• Clearly state if they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence
• Explain fully how they will be affected by an order in the terms sought.

Supporting evidence should be produced, especially about any assertion that there is a real likelihood that the opponent will abuse the terms of the order sought. A copy of the initial writ seeking the interdict(s) should be provided.

Applications to pursue

Such actions are fresh proceedings so a fresh civil application is needed.

Your client must establish probable cause. Factors we will consider to address reasonableness include:

• Seriousness and degree of the breach
• The result of the alleged breach and the likelihood of reoccurrence

Evidential requirements

Your client’s statement must:

• Deal in detail with the nature of the alleged breach and its practical result
• Provide the date of the breach

Comment on the likelihood of the interdict being breached again

Supporting evidence should be produced such as

• a statement from someone who witnessed the breach, or your client’s distress. If none is available, you should explain why not.
• A letter from the procurator fiscal confirming that they concur in the raising of the proposed action.
• A copy of the (interim) interdict along with a certificate of execution of service to confirm that it has been served on the opponent.

Applications to defend

To establish probable cause, we will expect your client to provide a full answer to the pursuer’s averments with a clear explanation why the breach of interdict must be defended.  Sufficient information must be produced to show the alleged breach did not take place and that it would therefore be reasonable to defend the action.

Our evidential requirements are:

• Your client’s statement making it clear whether they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence.
• Supporting evidence. If no supporting evidence is available, you should specifically indicate this and explain why not.
• A copy of the (interim) interdict should be produced.
• A copy of the initial writ or minute should be produced.

Applications to pursue

The Protection from Abuse (Scotland) Act 2001 makes it possible for person applying for, or who has obtained, an interdict to apply to the court to attach a power of arrest.

A power of arrest can only be attached where it is necessary to protect your client from the risk of abuse. We will consider the degree of likely harm.

Where your client is applying for an interdict, they must specify in the statutory statement if they are also seeking a power of arrest.

Applications to defend

If your client wants to defend an initial writ seeking an interdict and power of arrest simultaneously and has shown probable cause to defend the interdict and that it is reasonable to grant legal aid to do so this is enough for probable cause and reasonableness to defend the power of arrest.  Your client’s statement does not need to address this further.

Our evidential requirements are:

• If an interdict is being sought simultaneously, we expect your client to state in their statutory statement that they seek to defend the power of arrest in addition to the interdict sought.
• If a power of arrest is being sought in relation to an interdict previously granted, your client’s statement should address in detail why it is necessary and reasonable to defend the power of arrest
• Supporting evidence should be produced, especially about any assertion made that there is a real likelihood the opponent will abuse any power of arrest now sought.
• A copy of the initial writ seeking the power of arrest (and interdict, if applicable) should be produced.

Applications to pursue

Protection from Harassment Act 1997 makes provision for protecting people from harassment and similar conduct.  The Domestic Abuse (Scotland) Act 2011 applies where the conduct leading to a pursuer bringing the action of harassment amounts to domestic abuse.

An actual or apprehended breach may be the subject of an “action of harassment” claim in civil proceedings by a person who is, or may be, a victim of the course of conduct in question.

The remedy sought in an action of harassment may include:

• An award of damages
• Grant of an interdict or interim interdict
• A “non-harassment order” requiring the defender to refrain from such conduct in relation to the pursuer.

Your client may seek legal aid to apply for (or defend) both interdict and a non-harassment order in the same terms.  This allows the court to grant whichever seems appropriate.

Where an action of harassment includes a claim for an award of damages, it may only be brought if it is commenced within three years after:

• The date on which the alleged harassment ceased
• The later date on which the pursuer became aware that the defender was the person responsible for the alleged harassment, or the employer or principal of such a person.

This three-year period does not include any time during which the victim of the alleged harassment was under legal disability.  Where the three-year period has expired if it seems equitable to do so, the court may allow action to be brought.

Evidential requirements

Your client’s statement should give:

• Specific details of the nature of the conduct complained of
• Detailed confirmation that the course of conduct complained of occurred on at least two occasions or why the conduct complained of amounts to domestic abuse
• The date of any specific incidents.
• Details of the remedies sought in the action for harassment

Where an award of damages is sought, it should be within the time limit.  If the time limit has expired, your client must provide full details that will be presented to the court to persuade it that allowing the action to proceed would be equitable.

Supporting evidence should be produced about the conduct. This can include:

• A statement from a witness to the conduct complained of or who has witnessed your client’s distress
• A statement from an agency such as a Social Work Department or police confirming the existence of the conduct complained of
• A report from a doctor.

Non-harassment orders – applications to defend

Evidential requirements

Your client’s statement should make it clear whether they deny the pursuer’s allegations in whole or in part and explain the nature and extent of the defence to be advanced.

Three statutory defences are that the conduct complained of was:

• Authorised by, under or by virtue of, any enactment or rule of law
• Pursued for the purpose of preventing or detecting crime
• In the particular circumstances, reasonable.

Supporting evidence from a third party about the defence should also be produced or an explanation why this is not available.

A copy of the initial writ seeking the non-harassment order should be provided.

The person against whom a non-harassment order has been made may apply to the court for revocation or variation of the order.  A fresh civil application must be made for this.

The minuter must produce:

• Full details of the justification for revocation or variation
• Supporting evidence about this or an explanation why it is not available
• A copy of the interlocutor granting the non-harassment order

The defender must produce:

• Full details and reasons why it is appropriate to defend such an application
• Supporting evidence about this or an explanation why it is not available
• A copy of the minute to revoke or vary the existing order
• A copy of the interlocutor granting the non-harassment order.