22nd December 2014

PROTECTION ORDERS, MEDIEVAL STYLE – ARE THE OLD CURES THE BEST? (1)

In today’s world, if you think another person is planning to harm you, you might see your solicitor about it.  Your solicitor will probably say that the best way forward is to send a strongly-worded letter, warning the opponent to stay away.  If that does not work, you are likely to be advised to go to court and get an interdict, that is, a judgment addressed to your opponent ordering him not to carry out the harmful act.

However, there are two problems about interdicts.  The first is that you could be in court for a year or more, with all the delay, worry, and expense that involves.  The second is that if your opponent breaks the order, the method of enforcement is not very satisfactory.  In family cases a power of arrest can be attached to the interdict, which is very effective, but in many cases such powers are not available, so a whole fresh action for breach of interdict has to be raised, asking the court to hold that the interdict was broken, and to impose a penalty.  Fines and imprisonment are possible, but in reality are not usually imposed.  Often the trouble involved seems hardly worth it.

Enter, clanking its medieval chains, the ancient law of Lawburrows.  The fifteenth century Act which codified it is seldom referred to, possibly because its medieval Scots wording is nowadays more picturesque than understandable.  However, the effect is that if you believe a particular person intends to harm you, your property, or your family, you present a writ to court.  The expected harmful act does not have to be physical violence, and a threat to slander you is enough.  The court orders you to serve the writ on the opponent forthwith, and fixes a trial to take place pretty much immediately, perhaps within weeks.  This is summary justice with a vengeance.

On the day of the trial each side shows up with its witnesses, and the sheriff decides the matter there and then.  If he considers your fears to be well-founded, he orders the opponent to give some security within a specified period of time that he will not carry out his threats.  In its simplest form this might be an order to pay a certain sum into court, or to take out an insurance bond.  If the opponent fails to do so, he may be imprisoned for up to six months.

If he later harms you, another action is brought to forfeit the money.  Half of it is paid to you and half to the Crown.  It is possible to sue the opponent for damages in addition, as the Lawburrows application does not cut across any other remedies you may have.

Although Lawburrows is pretty rare, it should not be thought that it is simply a quaint relic, never nowadays used.  There were applications coming before the courts as recently as 2011.

Obviously it is of little use against somebody with no money at all, as they will not be able to give any financial security, nor can it be forfeited.  But in every other case, the advantages of the quick trial and the fact that the opponent is hit straight in the pocket are very considerable, and might be enough to convince many people that this old remedy is certainly worth a second look.

Richard Godden
Partner – Dispute Resolution
@The_PIMan
www.blackadders.co.uk

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