Going to court

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Should I raise a claim?
There are several things you might wish to consider before deciding to start court proceedings, such as:

• Is the person or company likely to be able to pay?
• Do you have a note of their correct name and their present address?
• Are they bankrupt or insolvent?
• Are they on the Debt Arrangement Scheme (DAS)? (For information visit moneyscotland, or phone the DAS Administrator helpline on 0845 6126425, or ask at the Citizens Advice Bureau)
• Do they have any money or other items of value?
• If a company, has it ceased trading?
• Are you raising the action against the correct party?
• Can you afford to go to court?
• Can you afford the time to prepare your case for the court hearing if the claim is defended?
• Can you afford to pay the cost of having any order made in your favour enforced if it is not complied with?

You should also consider whether you will be able to prove your claim. Considering the following questions may help you to decide this:

• Do you still have any faulty goods?
• Is there a written agreement you can produce?
• Are there any witnesses who would be able to come to court to support your claim?
• Do you have any receipts for payment?
• Is their any photographic evidence available which might assist your case?

Please note that if you are successful in your claim, you will have to arrange to have the court’s order complied with yourself. The court cannot do this for you. Further information on this can be found in the 'Going to Court' guide on the Scottish Court website.

Value of claims
The upper limit for a claim for payment of money is £3000. There is no lower limit. If the claim is for a sum greater than £3000, an alternative form of procedure must be used.

What will it cost?
The procedure is designed to be cheap, but some expenditure will be necessary. The current fees are available on the Scottish Courts website.

There are two areas of expenditure to consider:

Court Fees:
If you raise a claim, a court fee will be payable, unless you are in receipt of certain benefits or tax credits to claim fee exemption. Further information and a fee exemption form can be obtained from the Scottish Courts website).
If, as occasionally happens, the summons has to be served (sent) on the defender by a sheriff officer (when the first attempt by post by the sheriff clerk has been unsuccessful), an additional fee will be payable. There is also a fee for making an appeal against the court’s decision, although this may be recovered as part of an award of expenses if the appeal is successful. There is no fee payable for defending an action, or for applying for a time to pay direction or a time order.

Court expenses:
As a general rule, any court expenses are awarded to the party who succeeds in the claim. These expenses must then be paid by the unsuccessful party. There is normally a limit on the amount of expenses which can be awarded.

• If the value of the claim is £200 or less, and the case has been defended, there will normally be no award of expenses. In this situation, any court fees paid will not be recoverable.
• If the value of the claim is between £200 and £1500, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is £150.
• If the value of the claim is between £1500 and £3000, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is 10% of the value of the claim.

There are exceptions to the normal limits on awarding expenses where:

• The defender has not stated a defence
• The defender does not proceed with his defence
• The defender has not acted in good faith in defending the action
• The sheriff has found that either the pursuer’s or the defender’s conduct in the case has been unreasonable

The limits on expenses do not apply to the hearing of appeals. Expenses are normally calculated at the end of the case either by the sheriff, or by the sheriff clerk, who then has his/her calculation approved by the sheriff.

Expenses which you may incur include:

• The cost of any solicitor, if you choose employ one
• Loss of wages and travelling expenses for yourself and any witnesses you may require to bring to court to give evidence
• The cost of having any order made by the court complied with by the other party.

Even if you win your case, you may not necessarily be able to recover all of the money you have spent in bringing the case to court by means of an award of expenses.

Do I need a solicitor?
You do not need to employ a solicitor to raise or defend a small claim. However, you can if you wish, and it may be advisable to consider this if you think your case, as occasionally happens, is more complex than usual or involves some point of law which the court may have to consider. A list of solicitors can be found in the yellow pages of the telephone directory. Legal aid is not available for small claims cases (except for appeals) so, if you do employ a solicitor, you will be liable to pay the solicitor’s fees. However, you may be entitled to some general legal advice on debt recovery free of charge. Any solicitor will be able to advise you further about this.

Sometimes, if you are successful, you may be able to recover all or part of any solicitor’s fees by means of an award of expenses from the court. However, complete recovery is unlikely in most cases, as the amount of expenses which can be awarded is limited.

You can also be represented by any other person you authorise to do so, for example:

• A friend
• A relative
• A representative of a Citizen’s Advice Bureau, or other advice agency, who may be able to do this for you free of charge.

If you decide to raise an action as an individual, the sheriff clerk will usually be able to send a copy of the summons to the defender for you. Sheriff clerks can also give you procedural advice. They cannot give you legal advice – for example, tell you if you have a good case or not, or tell you what to say to the court in support of it.

Types of claim
There are three types of claim which can be raised under the small claims procedure. These are:

• A claim for payment of money, e.g. compensation for damage caused by faulty workmanship, goods ordered and paid for but not supplied.
• A claim for delivery or recovery of moveable property, e.g. a car or washing machine that has been sent away for repair and not returned within a reasonable time. You would also have to include an alternative claim for payment. This would represent the value of the car/washing machine, and perhaps include something to compensate you for inconvenience caused.
• A claim for implement of an obligation, e.g. you employ a builder to put up a wall in your garden but he does not complete to job.

For further information please contact our partners, Consumer Direct on 08454 04 05 06, or visit their Consumer Direct website.

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