Step 9: The respondent replies
This step applies only to Simple Procedure cases. If you have started your case as an Ordinary Cause action, you should already have a solicitor to represent you. They should receive information from the court and will be able to advise you of the next steps.
If the respondent replies
The respondent could:
- choose not to reply
- reply and admit all of your claim and ask the court for time to pay
- reply and admit all of your claim and settle it with you
- reply and dispute all or part of your claim.
Which one will determine what happens next with your case.
If they reply disputing your claim
The respondent will send a response form to the court and to you. They should send the response form in line with the Sheriff's timetable. This will explain their version of what happened.
Check what they've said if they reply and make a note of anything you disagree with. They might be disputing different aspects of your case, for example they might argue that:
- you don't have a protected characteristic
- the discrimination didn't happen or what happened wasn't discrimination
- the discrimination happened but they can justify it, for example they had a legitimate aim.
Think about if you have any evidence that proves they're wrong - you can use this to defend yourself in court. You should also check whether their understanding of the law and their duties are correct.
If they make a counterclaim against you
The respondent could take legal action against you if they think you owe them money or that they have another claim against you - this is called a 'counterclaim'. Their claim might not be about discrimination but the claims usually have to be connected in some way. It will be up to the sheriff whether they'll allow the claims to be heard within the same case.
For example, you're asking your landlord to compensate you for discriminating against you, but you owe them rent. Your landlord could make a claim against you for the amount of rent you owe.
If you disagree with their claim, you should takes notes of what you disagree with and any evidence you have to dispute their counterclaim. You should be prepared to argue against it at a case management discussion or hearing.
What happens next
The sheriff (judge) has lots of discretion to decide how to deal with your case so they can adapt to individual circumstances. The sheriff will consider your claim and the response and then send you what's called First Written Orders.
In the Orders the sheriff will state how they've decided to progress your case. This could be:
- dismissing the case
- deciding the case in your favour or the respondent's
- referring you to mediation - to resolve the situation outside of court
- arranging a case management discussion
- arranging a hearing at court - so the sheriff can hear your evidence
- referring the case to a higher court or different legal procedure - the sheriff might decide the case is too complex for Simple Procedure and refer it to Ordinary Cause. If this happens it's important to get advice from a lawyer
- that the respondent's counterclaim can be heard with your case or has to be taken as a separate claim.
A case management discussion is a conversation between the sheriff and both sides to discuss the case. The sheriff might ask you to clarify some evidence or explain your side of the story. The sheriff might decide the case during this meeting, refer you to mediation or arrange a hearing for later.
The sheriff can also appoint an assessor to consider your evidence, and how much compensation you should get. They might also be asked to provide expert information to the court.
If the respondent admits the claim
The respondent might admit the claim and pay what you've asked for by the time given for the response form from the Sheriff or ask for more time to pay. The Sheriff will write to you to see if you if you'll agree the extra time to pay.
Under Part 15 of the Simple Procedure rules, if they don't pay, you can get a sheriff officer to serve them with a written demand for payment, known as a 'charge'. The charge gives them a last chance to pay within a set time (2 weeks if they're in the UK). You’ll have to pay a fee to the sheriff officer.
If they still don't pay, you can get a sheriff officer to take further action to get the money, like taking money from their earnings or taking money or belongings they have.
If the respondent doesn't reply
You should send an Application for a Decision to the court within 2 weeks from the last date for a response asking the sheriff to decide your case.
Make sure you send an Application for a Decision to the court within 2 weeks, otherwise your case will be dismissed. The application form is available on the Scottish Courts website.
The sheriff has a lot of discretion in Simple Procedure cases to make any decision that resolves the dispute between you and the respondent. The main decisions they might make are to:
- find your claim is valid and order the respondent to pay you all or some of the compensation you’ve asked for
- find your claim is valid and order the respondent to do something for you, like make a reasonable adjustment for your disability
- dismiss your claim (or part of the claim)
- absolve the respondent of the claim (or part of the claim) - this means that you can’t make a claim about the same subject against the respondent again.
You'll get a letter telling you what the decision of the court is - this is called a 'decision form' or an 'extract decree'. The sheriff might award you less compensation than you asked for.
If the court awards you compensation you probably won't get the money right away. The respondent might ask for Time to Pay, for example. If they don't pay, you will have to go back to court and ask for a sheriff officer to have the decree or decision enforced. Only a sheriff officer can enforce it. You'll have to pay a fee to enforce the court decree or decision.
If the sheriff schedules a hearing for your Simple Procedure claim
As soon as you get a date for your hearing, you should begin to prepare your case by:
- preparing to explain your argument to the court
- following the rules on evidence and witnesses
- reviewing the respondent's evidence and list of witnesses
- arranging for witnesses to come to court for the hearing.
Preparing your case for court
Use your claim form as a guide to make sure you set out your case to the court in a structured way.
Refer back to what they said in the response form and the notes you made of anything you disagree with. If you have witnesses or evidence that proves they're wrong, even if you didn't list it on the original claim form, you should gather it now to use it at the hearing.
Make sure you're able to say in court:
- why you think you were discriminated against - you'll need to give the protected characteristic
- all the types of discrimination you're claiming - you can check if you're not sure
- the effect it's had on you - this could be money you’ve lost or the emotional impact
- if it's direct discrimination, who your comparator is
- if it's indirect discrimination, which provision, criterion or practice is discriminatory and why it puts you and other people with your protected characteristic at a particular disadvantage compared to other people. If you're not sure you can read more about how to show your evidence
- if it’s discrimination arising from a disability, explain how you're being treated unfavourably because of something linked to your disability. If you're not sure you can read more about how to show your evidence
- if it's a failure to make a reasonable adjustment for your disability, explain that the respondent is a person who needs to make the adjustments and what provisions, criterion or practice, feature of your home or lack of an auxiliary aid puts you at a substantial disadvantage compared to someone who isn't disabled. You'll also need to show that you asked them to make reasonable adjustments.
You'll need to be able to say which part of the law covers your circumstances - it might be more than one.
You should make sure you’re familiar with which part of the law covers your claim.
Also be ready to tell the court what type of discrimination happened:
|
What you're claiming for |
Which part of the law it comes under |
|
Direct discrimination |
S.13 Equality Act 2010 |
|
Discrimination arising from a disability |
S.15, Equality Act 2010 |
|
Indirect discrimination Failure to make reasonable adjustments |
S.19, Equality Act 2010 S.21 and S.36 (1)(a) or (b), Equality Act 2010 |
|
Harassment Victimisation |
S.26, Equality Act 2010 S.27 Equality Act 2010 |
Preparing witnesses and evidence for the hearing
You need to prepare by following the Simple Procedure rules for witnesses and other evidence. If you don’t follow the rules you might not be allowed to present some of your evidence. You can apply using Civil Online or by using the paper forms available on the Scottish Courts website.
So that the evidence will be considered by the court you must:
- arrange for witnesses to come to court on the day of the hearing
- formally serve a Witness Citation Notice at least 3 weeks before the hearing on any witnesses who aren’t likely to turn up
- send a List of Witnesses Form to the court and the respondent at least 2 weeks before the hearing
- send a Vulnerable Witness Application or Child Witness Notice at least 2 weeks before, if applicable
- send a List of Evidence Form to the respondent and the court at least 2 weeks before
- lodging copies of all the evidence you've listed in your claim form with the court at least 2 weeks before by sending them to the sheriff clerk.
All forms are available on the Scottish Courts website.
If you get evidence too late to include it on the List of Evidence form or lodge it with the court, you can bring it to the hearing but the sheriff might refuse to look at it. You need to collect all the evidence from the court after the case is over.
You don't need to write a witness statement or ask your witnesses to write statements but it can help to take notes on what they saw and heard.
They probably won't be allowed to look at these notes when giving evidence so it's best to warn them of this.
If there's evidence you want to use but you don't have it
If there's evidence that's important to your case but it's in the hands of someone else, like the respondent or their employer, you can send a Recovery of Documents Application to the court and the respondent. There are rules about this in Part 10 of the Simple Procedure rules on the Scottish Court website.
You can apply using Civil Online or by using the paper form available on the Scottish Courts website.
Reviewing the respondent's evidence
You'll get a list of evidence and witnesses from the respondent and they'll have to lodge evidence with the court. You can go to the court to look at their evidence and make copies. Make notes about any evidence you have that contradicts theirs and any evidence they have that isn’t correct. You can make these arguments to the sheriff at the hearing.