What to do if someone owes you money or compensation for faulty goods or services
When the value of what you are claiming is below £5,000 and the case is not complex you can use the simple procedure. You can use this procedure without having to employ a solicitor. The most common types of claim are:
compensation for faulty services, for example by builders, dry cleaners, garages
compensation for faulty goods, for example consumer goods like televisions or washing machines which break down
disputes between landlords and tenants, for instance, rent arrears or compensation for not doing repairs
wages owed or money in lieu of notice
If your claim is within the financial limits for the simple procedure but legally complicated, because it is hard to get evidence to prove your case, you may have to use different court procedures for which a solicitor will normally be required.
If you have a legally complicated case you should see an experienced adviser. If your claim is worth more than £5,000 it is advisable to use a solicitor to take any legal action. A solicitor may help you to solve the problem without going to court by using some form of alternative dispute resolution (ADR).
How is a small claim made?
In Scotland claims can be made to the Sheriff Court. The Sheriff Court has jurisdiction for all claims with a monetary value of up to £100,000. There are two ways to bring a claim in the Sheriff Court:
through the simple procedure - where your case is worth less than £5,000 and isn’t complicated. A claim can usually be made in the sheriff court closest to you. It may also be made in the sheriff court in the area where the trader has its business (but this may not be convenient if it is somewhere else in the UK)
through the ordinary cause - where your case is worth more than £5,000 and is complicated
To bring a claim by simple procedure, Form 3A needs to be completed and given to the sheriff clerk along with the court fee. The sheriff clerk will check your form and register your claim.
Where the claim is not simply for money, the value of the claim must be within the £5,000 financial limit to be brought via the simple procedure.
To bring a claim by ordinary cause, it is advisable to seek legal advice in the form of a solicitor.
In either case, fees must be paid - see the Scottish Courts and Tribunals Service website for the full range of up to date fees
What is the process after making a claim?
After the sheriff clerk registers the claim, a timetable will be issued using Form 3D. This timetable will state the following two dates:
the date by which your claim form must be served on the person or business you are claiming against (the respondent)
the date by which the respondent must respond
You must then send the claim on the respondent. The claim form can either be sent by your solicitor or by the sheriff clerk and both methods will involve a fee. When the claim form is officially delivered it has been served on the respondent. This must be done by the date specified in Form 3D.
The respondent then has to respond by the deadline specified on Form 3D. This can take one of the following four forms:
no response - if the respondent does not respond, your claim will be successful and the court will order the respondent to pay the amount you claimed for. You will have to ask the courts to make this order on an Application for a Decision Form 7A. If you do not send this form within the time limit your claim will be dismissed
satisfactory payment is received - this should be acknowledged and the court updated
satisfactory response without payment - the respondent admits the claim but asks for time to pay
unsatisfactory response - if the defendant refuses to pay or disagrees with the amount, the respondent must write to the court stating why they are denying or defending the case
How does the hearing proceed?
When the respondent disputes the claim, the sheriff will decide what is to happen next. The sheriff may:
refer both parties (yourself and the respondent) for alternative dispute resolution
arrange a case management discussion
arrange a hearing
consider whether or not to make a decision about the claim without a hearing
dismiss the claim or make a decision because the claim is unlikely to be successful
You can appeal the sheriff’s decision, by making an appeal to the Sheriff Appeal Court within 14 days of the day the decision was made. You must pay a fee to register this appeal. You should be aware that legal costs on appeal can be high and that you are encouraged to seek professional legal advice.
How is a judgment enforced?
If a defendant does not comply with a court order for payment relating to the claim, you will have to return to court and ask for a sheriff officer to have the decree or decision enforced.
A fee will be payable to have the decision or decree enforced.
Can I enforce a judgment on an overseas debtor?
If a respondent has gone abroad you can still sue them in the Scottish courts for money they owe.
For a claim to be worthwhile, the claimant needs to address two issues:
serving the respondent with the papers, and
actually getting the money from them
Serving the papers
The claimant must prove to the court that they have served the papers on the respondent before the court will deal with the claim. Different rules apply depending on the country that the respondent lives in.
If the respondent lives in England and Wales, Northern Ireland, the Isle of Man or the Channel Islands, there are two ways to formally serve a document:
postal service - the document may be served by being posted to the respondent’s home or business address using a postal service that records delivery
personal service - the document may be served using the rules of personal service under the domestic laws of the country in question
The sheriff clerk may serve the Claims Form on the respondent by postal service if the claimant is not a company or partnership, and not legally represented. Aside from this, the Claims Form may only be served by either the claimant’s solicitor or a sheriff officer instructed by the claimant.
A Claims Form may only be served on the respondent by personal service by the person authorised to do so under the domestic law of the country in question.
If the respondent lives in an EU Member State or in another country, the Claims Form can still be served on them. However, there are different requirements. To find out more, please visit the Scottish Court and Tribunal website and read Formal service outside Scotland.