26. October 2010 23:11
A lot of what we’ve written about up to now has been aimed at keeping Scottish businesses out of court. Court should always be the last option. However from time-to-time you may find you have no option but to go to court. So we’d like to give you a little introduction to that side of the business.
In Scotland there are three different types of court action depending on the debt value:
Small claims - debts up to £3,000
Summary Cause – debts £3,001 to £5,000
Ordinary Actions – debts over £5,000
The small claim is, in fact, a species of the summary cause.
Generally all straightforward debt actions will be taken in the Sheriff Court of the defender’s residence or the court where the defender trades.
If court action has to be taken it should be taken as soon as possible. This is because if the debt is less than £5000, it can take between 6-8 weeks to get to judgment. For debts greater than £5000, the period should be 4-5 weeks.
Summary Cause Actions
A court action is commenced by the claimant preparing a summons on a pre-printed form. Supporting invoices or a statement of account should be produced to the court along with the summons.
A copy of the summons will require to be served (issued) on the defender. This is done by the claimant’s lawyer – usually by recorded delivery post – and thereafter by sheriff officer if postal service is unsuccessful.
With any summons there will be two critical dates, being the return date and calling date. Generally the return date is the day when the defender must return any document to the court whilst the calling date (always 7 days after the return date) is the date the case will call in court for a hearing.
What happens if the claim is undisputed?
If in response to the summons the defender does nothing the pursuer can ask for judgment (known as minuting for decree) by completing a pre-printed form. Judgment will be granted at the ‘calling date’. The court takes about three weeks to send the judgment to the claimant’s lawyer. However, where appropriate (in cases where the defender is an individual or small trader) the defender may admit liability and offer to make payment of the debt by instalments or by a deferred lump sum – known as a Time to Pay Direction or Time to Pay Order.
Unlike summary cause there are no pre-printed forms. The writ will drafted and forwarded to the court. The defender has 21 days after service of the writ to decide what action to take.
There are various ways the defender can respond to the service copy writ. The defender does nothing – the claimant can, on the expiry of 21 days, minute for decree. If the defender admits the claim and makes a payment offer the claimant completes an appropriate form and sends it to the court. If the offer is unacceptable the case will call in court and the court will decide if the application should be granted. The court takes about three weeks to send the judgment to the claimant’s lawyer.