AA Legal Documents
Law guide

Making a claim for debt recovery

Contents

The first thing you will have to do is to get the necessary claim forms (the summons).

These can be obtained from:

Which Court?

There are 49 sheriff courts in Scotland. You will have to decide in which one your claim should be brought, although you can get forms and advice from the sheriff clerk at any court. In most cases, the court which will hear the claim will be the one within whose area the person the claim is to be made against (the defender) lives or has a place of business.

Sometimes, the court closest to where you live can be the one which will hear the case. A special rule applies, in most circumstances, to what are known as 'consumer contracts'. An example of a consumer contract would be where you have reached an agreement with a shop to purchase goods and pay for them by instalments. If you, as the consumer (the person purchasing the goods), wished to take court proceedings for any reason against the shop, you could choose to raise the proceedings either in the court within whose area you live or in the one within whose area the shop premises are situated. However, if the shop wished to take proceedings against you, it could only do so in the court within whose area you live.

It is possible, in certain circumstances, to raise a small claim in cases even where the defender does not live in Scotland, or when you do not know where he or she is. Deciding which court is appropriate is, in most cases, quite straightforward.

How to complete the summons

The form of summons to be used is basically the same in all cases.

You only have to complete the form up to section 6. All other parts of the form will be completed by the sheriff clerk's office. The court details required for section 1 can be entered automatically if you use the website to complete the form. If you obtain the form from the sheriff clerk's office where the summons is to be lodged, these details will be entered already. If you obtain it from any other source, the sheriff clerk will fill in these details for you when they register the summons.

Sections one to three will normally consist of the address of the court, the name and address of the person making the claim (the pursuer) and the name and address of the person against whom action is being sought (the defender)

Section four is marked 'form of decree or other order sought'.

Section 4 will vary depending upon which kind of claim you raise. . If you wish to raise a claim for delivery, or for implement of an obligation, section 4 will be different. However, you can obtain forms with this section partially completed for you from the sheriff clerk or from the website. You will only have to fill in the blank spaces.

You should note in particular that you can add interest to your claim using the blank space in section four. The normal judicial rate is 8%. Interest normally becomes due from the date the summons is sent to the defender.

Statement of claim

In the statement of claim on page 2 of the form, you must give the defender fair notice of what the claim is about. The statement should include:

  • The dates when any goods or services were ordered and supplied
  • A description of any goods or services complained of
  • Brief details of any agreement or contract
  • The circumstances which have made the claim necessary
  • A statement that the defender has refused or delayed to pay any sum of money claimed

The space on the form should normally be sufficient for you to complete the statement of claim. If not, you can add a separate sheet to the summons.

It is not necessary to produce any documents with the summons (although you may need to lodge them in court later if the case is defended).

Once you have completed the summons, you should go on to complete the defender's copy of the summons and take or send both to the sheriff clerk's office. A fee will be payable. Please note that you cannot send the forms to the court electronically unless you have a credit account with that court. The sheriff clerk will check that you have completed the forms correctly, complete section 6 of Form 1 and insert the summons number in the top right hand corner.

Please note that, if the case requires to call in court for any reason you must return the principal summons to the court at least two days before the hearing date if it is in your possession.

Arrestment of property belonging to the defender

You will see on the form of summons contains a 'warrant to arrest on the dependence'.

When you raise a claim for, or including, payment of a sum of money, you are entitled to prevent anyone holding money (or certain other kinds of property) which belong to the defender from parting with them before the court proceedings are finished. The procedure used to achieve this is known as 'arrestment on the dependence' of a claim.

The purpose of arrestment is to ensure that, if you are successful in your claim, the items will be available to you to help you to recover any debt due from the defender. If you wish to make use of this procedure, you will require to have the items legally arrested, so that they cannot be disposed of. You will have to ask a sheriff officer to do this on your behalf, as you cannot arrest property in this way yourself. Once any items have been arrested, the defender is entitled to apply to the court to have the order for arrestment recalled or restricted. The defender usually does this by making an 'incidental application' to the court.

The defender may also make such an application as part of the response to the summons. If this is done, the application will be considered when the claim is heard by the court on the hearing date.

The return day and the hearing date

The expressions 'return day' and 'hearing date' are mentioned on the summons. These dates will be inserted by the sheriff clerk when the summons is accepted by the court.

The return day is the day by which the defender must send a written reply to the court, if they intend to do so. When the return day will be depends on the situation at each individual court. On average, it is usually about six weeks after the date on which the summons is lodged.

The hearing date is the date set for the case to be heard, or otherwise dealt with, by the court. This takes place seven days after the return day.

Cases do not always need to be heard formally in court by the sheriff on the hearing date. Whether they have to or not depends very much on the defender's response to the summons.

Completing the defender's copy of the summons

There are two different types of copy summons:

  • Form 1a – for use when the defender(s) is/are an individual or individuals.
  • Form 1b – for use when the defender is a company or other organisation.

The reason why there are two different forms for defenders is that an individual defender can apply to the court for a time to pay direction or a time order (orders which regulate the way in which a debt is to be paid) whereas a company can't do this. The forms simply reflect the different procedures to be followed.

Fill in the details on pages 1 and 2 of the defender's copy of the summons.

The details required are the same, whether you are using Form 1a or Form 1b.

You have to copy the information contained in Form 1 (the principal summons) onto the copy summons (Form 1a or 1b).

You do not have to complete section 8 of the defender's copy. This will be done by the person sending the copy summons to the defender.

Sending the copy summons to the defender

You cannot serve (send) the copy summons to the defender by yourself. If you are raising a claim as an individual, or as a sole trader, the sheriff clerk, if you wish, can usually serve the summons for you.

The sheriff clerk will not do so in any other case. If the sheriff clerk is serving the summons, you will be given a copy of the summons for reference. The principal summons will be kept by the court. If necessary, or if you wish, a solicitor or sheriff officer can serve a summons on your behalf, but they will charge a fee for this service. If you are making your own arrangements to send the defender's copy summons, the forms will be given to you to take to a solicitor or sheriff officer. Service involves sending the copy summons to the defender. This is usually done by recorded delivery letter. If delivery by post is unsuccessful, the copy summons will be returned to the court, and you will be informed of this. The copy summons must then be served by a sheriff officer, who does this either by delivering it personally to the defender, or leaving it at the defender's address. If service by sheriff officer is necessary, the sheriff clerk can arrange for this on behalf of an individual pursuer. There is an additional fee (currently £26) payable to the sheriff clerk for this service.

If the defender's address is unknown, the sheriff may allow the summons to be served either by the publication of an advertisement in a newspaper, or by having a notice about the case displayed in the court house. In either of these situations, you will have to give the defender's copy of the summons to the sheriff clerk. If you are an individual or a sole trader and you wish the sheriff clerk to arrange service for you, you will have to pay the cost of any newspaper advertisement to the sheriff clerk. If you arrange for the advertisement yourself, you will also have to pay the cost, and lodge a copy of the newspaper containing it with the sheriff clerk.

If service is to be made by having a notice displayed in the court house, you will have to complete the notice and take or send it to the sheriff clerk. There is a form available for this, which you can obtain from the sheriff clerk or the Scottish Court Service website.

The defender's response to the summons

Once the defender has received the copy summons, there are several ways in which he or she can choose to respond:

If the defender is an individual, he/she will have received Form 1a. The choices for an individual are:

  • Do nothing
  • Admit the claim and settle the case
  • Admit the claim and make a written application about payment
  • Admit the claim and attend court to make an application about payment
  • Dispute the claim and attend court

If the defender is not an individual (for example, a company), they will have received Form 1b. The choices then are:

  • Do nothing
  • Admit the claim and settle the case
  • Dispute the claim and attend court

The return day, which is fixed by the sheriff clerk when the summons is lodged, is the day by which defenders must respond to the summons if they wish to:

  • Admit the claim and make a written application about payment; or
  • Admit the claim and attend court to make an application about payment; or
  • Dispute the claim and attend court

The defender responds by returning the appropriate pages of the copy summons to the court, outlining what he or she wishes to do

It is the pursuer's responsibility to find out from the court whether the defender has made a response. This should be done immediately after the return day. If the summons has been served by anyone other than the sheriff clerk, and the case is to call in court on the hearing date, the pursuer must return it – along with a certificate stating that it has been served on the defender – to the court at least two days before the date of the hearing. If the case is not to call in court, only the certificate of service needs be returned. (The certificate will be provided by the person serving the summons.)

The hearing date is also fixed by the sheriff clerk at the time the summons is lodged. This date will be seven days after the return day. The case will only call in court on the hearing date if the defender:

  • Has made an application about payment which you do not accept
  • Intends to attend court to make an application about payment
  • Wishes to dispute or contest the claim in any way
Defender does nothing in response to the summons

If the defender does not respond to the summons, you will have to let the court know what order you wish it to make. This should be done by lodging a written minute.

'Minute' simply means the order you wish the court to make. You should enter details of the order you wish. You must make your request at least two days before the date set for the hearing. In particular, you must do so by the time the sheriff clerk's office closes for business on that date. If you do not do so, the court will dismiss your claim, which means that the proceedings will be brought to an end. The following are examples of orders you might wish the court to make:

  • An order for the sum claimed, with interest and expenses.
  • Delivery of any item or performance of any duty in a claim for either of these. (If the defender does not comply with the court's order, you will be entitled to apply for payment of the alternative sum of money claimed by way of an incidental application.
  • A request for the case to be continued. You must state the period for which you wish the case to be continued, and the reason you wish the continuation.

An example might be:

'I request a continuation of the case for two weeks. The reasons for this request are that the defender has now paid the sum by cheque, and I am waiting for the cheque to clear.'

If you make a request for a continuation, and the request is granted, you must complete another copy of Form 11 and lodge it with the sheriff clerk at least two days before the date of the continued hearing, so that the court will know what order you wish it to make on that date.

Defender admits the claim and settles the case

If the claim is settled by the defender to your satisfaction, you should inform the sheriff clerk in writing at once. In this situation you should normally enter a minute, following the procedure requesting that the claim be dismissed.

Defender admits the claim and makes a written application about payment

The defender may admit the claim but make an application to the court to be allowed to pay the debt by instalments or by a lump sum within a specified period of time. (In a claim for delivery or performance of a duty, this may be the response where the defender wishes to pay the alternative amount claimed, rather than deliver the item or perform the duty.)

The defender does this by making an application to the court for a time to pay direction or a time order. A form to apply for this is contained in the defender's copy summons. The defender must lodge this application with the court on or before the return day. You should check with the court after the return day to find out if the defender has made an application for a time to pay direction or a time order. If an application has been made, you will then have to decide whether you are prepared to accept it or not, and let the court know of your decision. You should do this by lodging a written minute, using either Form 12 or 13.

Forms 12 and 13 can be obtained from any sheriff clerk's office. You must make your request by lodging the form at least two days before the date set for the hearing. In particular, you must do so by the time the sheriff clerk's office closes for business on that date. If you do not, the court will dismiss your claim, which means that the proceedings will be brought to an end. If you have not objected to the defender's application, the case will not call in court. The court will grant an order in terms of the defender's application on the hearing date.

In this situation, you do not need to appear in court. If you have objected to the defender's application, the case will call in court on the hearing date. In this situation, you must attend or be represented at court on the hearing date. The court will consider the defender's application on the hearing date and will wish to know the reasons why you are objecting to it. If you fail to attend or are not represented, your claim may be dismissed, or the court may grant the defender's application, and you may have to pay the defender's expenses.

Defender admits the claim and attends at court to make an application about payment

The defender may respond to the summons by indicating that he or she admits the claim but wishes to attend at court to make an application about paying any sum of money due. The defender will indicate this by responding to that effect to the court on or before the return day. You should check with the court after the return day to find out whether the defender has responded in this way.

In this situation, you may attend or be represented at court on the hearing date. The court will consider the defender's application and any response to it. If you do not attend or are not represented the court may grant the defender's application.

Defender denies or disputes the claim and intends to appear at court

Apart from attending at court to make an application about payment, the defender may also wish to attend court to do any of the following:

  • Challenge the jurisdiction of the court
  • State a defence
  • State a counterclaim
  • Dispute the amount claimed

The defender will indicate his or her position by sending an appropriate response to the court in writing on or before the return day. In this situation, you must attend or be represented at court on the hearing date. If you fail to attend or are not represented, your claim may be dismissed, and you may have to pay the defender's expenses. If attending court to state a counterclaim, the defender may send a note of the counterclaim to the court before the hearing date. If this happens, the defender is obliged to send a copy of it to you. If you receive a copy in this way, you should bring it with you to court on the hearing date.

Amending the claim

After you have lodged the summons in court and it has been served on the defender, you may wish to change something in it. For example, you may have forgotten to include some important information in the statement of claim, or you may discover that something you have stated is wrong. You may even wish to change the amount claimed.

If you wish to amend the claim, you may apply to the court to do so at any time during the case before the sheriff finally makes a decision. You could do this by lodging a document known as an incidental application, or, if appearing in court, you could ask the sheriff to allow the amendment at that time.

If an amendment is applied for and allowed in an undefended action, the court might ask that the summons, as amended, be served upon the defender again. If this happens, the sheriff clerk will fix a new return day and a new hearing date. The case would then proceed as if the original service had not been carried out.

Bringing the case to a temporary halt

If, as an alternative to having the case continued, you wish the proceedings to be brought to a temporary halt, you may apply to the court to have this done. You might wish this where, for example, you are trying to settle the case with the defender, and you feel you need more time to reach an agreement. This procedure is known as sisting the case.

You may apply to the court to have the case sisted at any time before the sheriff finally decides it. You could do this by lodging an incidental application, or, if appearing in court, you could ask the sheriff to allow the sist at that time. The reason you wish the sist to be made must be stated in the application, or explained to the sheriff if you apply for it when appearing in court. The sheriff is not, however, obliged to sist the case as a result of your application.

When a case is sisted, no further steps can be taken in it until the sist is recalled. An application to recall a sist is made by incidental application to have it granted, and it can be made by any party in the claim. The defender is also entitled to apply for the case to be sisted.

Defender makes a counterclaim

What is a counterclaim?

If you have raised a claim against the defender, and the defender has a claim against you arising from the same matter, then, instead of raising a separate action, the defender can raise his or her claim against you in your own action. This procedure is known as making a counterclaim.

The defender does not have to use the counterclaim procedure. He or she is entitled to raise a separate action if wished. However, it is often quicker and more convenient to state a counterclaim in the pursuer's action, rather than start a new claim altogether. The counterclaim can be for whatever sum of money the defender thinks appropriate. If a counterclaim results in the claim becoming more complex, the court may order that the case be removed from the small claim procedure and dealt with as a 'summary cause.' (Guidance on summary cause procedure, similar to this guidance on small claims, is also available.)

The defender can only make a counterclaim against you if it relates to the same matter as your claim. Here is an example of when making a counterclaim might be appropriate:

The pursuers are a firm of plumbers. The defender purchases a new bathroom suite from them. However, soon after it is installed, water pours through the defender's ceiling, causing extensive damage. The defender refuses to pay the pursuer's bill for the work done, and the pursuers make a claim for payment. In those circumstances, the defender could raise a counterclaim against the pursuers for the damage caused to the property by the pursuer's shoddy workmanship. The counterclaim would then be joined with the pursuer's claim and both considered by the court as one case. If, however, the defender wanted to sue the same pursuers because, say, they had been responsible for damage sustained to the defender's car in a road accident, then this could not be done by way of a counterclaim, because this would be an entirely separate matter.

What is included in a counterclaim?

There is no specific form of counterclaim provided. However, a counterclaim should include:

  • Details of the claim the defender wishes to make
  • A response to the pursuer's claim (if the defender has not already made one)
  • A statement setting out the facts upon which the defender relies in support of the counterclaim The defender may also include in the counterclaim an application for warrant to arrest on the dependence of the counterclaim.
At what stage can a counterclaim be made?

If the defender knows that he or she wishes to make a counterclaim when the copy summons is received, they must inform the court as part of the response to the summons that there is an intention to make a counterclaim in the case.

The details of the counterclaim may be included in the form of response to the summons. If the defender does include these details, he or she must send a copy of the form of response to the other parties to the claim at the same time it is sent to the court. Alternatively, the defender can tell the court the details when appearing at the hearing. If the defender wishes to proceed in this way, he or she should indicate the intention to do so on the form of response. When the defender attends at the hearing, the court may, if necessary, continue the hearing to allow the pursuer time to answer the counterclaim. If the defender decides at a later stage while defending the action that he or she wishes to make a counterclaim, details of the counterclaim, with the court's permission, may be lodged at any time before the case is finally decided.

You should note that, if the pursuer fails to appear at any hearing, or any continued hearing, fixed to consider the defender's counterclaim, a decree for the sum contained in the counterclaim may be granted in favour of the defender.

Enforcement of the court's order

If you are successful with your claim, you may wish information about how to enforce the court's order if the defender does not comply with it. It is important to note that the court cannot arrange for enforcement on your behalf. You require to attend to this yourself, and recover any costs involved from the defender.

Fees and expenses

The procedure is designed to be cheap, but some expenditure will be necessary.

Court fees

If you raise an action, a court fee will be payable. The fee is usually £39. However, the fee is only £7 where the claim is for payment of a sum of money below £50. If, as occasionally happens, the summons has to be served on the defender by a sheriff officer (usually because the initial postal service has not been successful), the fee for this will be £26. This fee will be payable to the sheriff clerk and will be in addition to the £39 (or £7) mentioned in the previous paragraph. There is also a fee of £32 for making an appeal against the court's decision. The fees mentioned above were current at the time of publication of this guide. You may wish to check with the sheriff clerk whether any changes have been made since then. Alternatively, you can check fee rates on the Scottish Court service website.

Court expenses

As a general rule, 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 is between £200 and £750, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is £75.

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 decides 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 calculation approved by the sheriff. Expenses which you may incur include:

  • The cost of any solicitor, if you choose to 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 court order made in your favour 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.

Recalling the decree of the court

In certain circumstances, either the pursuer or the defender may apply to the court to have the court's final decree (order) recalled. This usually happens when one party has failed to do something, for example, to attend at court for a hearing or lodge a document in time.

Electronic transmission of documents

Many documents can be sent electronically to and from the courts. Full guidance on this can be found on the Scottish Court Service website. Please note that you cannot transmit the summons to the court in this way unless you have an account with the court for paying any fees chargeable.

Disabled persons

If you have a disability, or have any special needs, and wish to attend at court, you should contact the sheriff clerk's office in advance to find out what assistance is available. The court will try to make your visit as comfortable as possible. It may, for example, be able to arrange for your case to be heard in a courtroom having a loop system (for those with hearing difficulties), or to arrange access for wheelchair users.

Language difficulties

If you have any difficulty in understanding English, the sheriff clerk may be able to put you in contact with someone who can assist you.