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Taking someone to court

This advice applies to Scotland

Taking someone to court

On this page there is information that explains how to start court action using a procedure called the simple procedure. It is meant to be a simple way for someone to get money back with a court decision or for someone to be ordered to do something, when the value of the claim is up to £5,000.

Going to court should be a last resort so check again if you have tried all the options you have to settle the dispute.

If your claim is worth more than £5,000 it would be wise for you to get advice about using a solicitor to take any legal action as the court rules can be complex. In most cases they will use the ordinary procedure rules and legal aid can be made available for cases that are worth more than £5,000. This means you may be able to use a solicitor and get some help with the costs.

You can also have a lay representative in the sheriff court for cases up to and over the value of £5,000.

Do you have to use a solicitor

You can use the simple procedure without having to employ a solicitor. You can have a solicitor to act for you if you want but it may be expensive as there may be limited financial help for paying for a solicitor. Not every solicitor is willing to work on a case funded by legal aid.

Civil legal aid is not available when the case is worth up to £3,000 under the simple procedure unless you are at the stage of making an appeal on a court decision.

Another form of legal aid is the advice and assistance scheme. It enables you to get help with the basic cost of legal advice, but does not normally include help with the cost of representation. You could get advice and assistance for a claim below £3,000 if you are eligible.

In certain limited circumstances, a solicitor can represent a client in court or at a tribunal. These circumstances are covered by Assistance by Way of Representation (ABWOR).

Civil legal aid or advice and assistance can be made available for handling cases and providing representation when the case is worth more than £3,000 if you are eligible on financial grounds.

If you have a legally complicated case you should see an experienced adviser to discuss what representation might be helpful.
 

Summary of making a claim - initial stages

Step 1 - Complete Form 3A . See detailed guidance below 

Step 2 - Send the claim to the court and pay the fee.

Step 3 - Sheriff clerk checks and registers the Claim Form.

Step 4 - Sheriff clerk issues a timetable for the case - Form 3D  (Form 3E can be used to apply to change the timetable).

Step 5 - Claim form is 'served' on the respondent – either by sheriff clerk, a solicitor or sheriff officers.

Which sheriff court deals with your case

A legal claim is normally started nearest to where the person you are taking action against lives or works.

The rules about which court to use for consumer cases is that you can use the court nearest to where the person you are taking action against lives or works but you can choose to start the legal action in the court nearest to where you stay.

Filling in the forms to raise an action under simple procedure

Simple procedure forms are available on the Scottish Courts and Tribunals Service (SCTS) website at www.scotcourts.gov.uk. The SCTS website provides guidance about how to complete and submit the form on paper to the appropriate sheriff court. The guidance is clear and helpful. We have provided some extra guidance below.

Extra guidance and explanation of the form

Find the correct form

  • get the correct form online. It is Form 3A  and is called the Simple Procedure Claim Form          
  • you are advised by the Scottish Courts and Tribunal Service to read the whole form before you fill it in.

It's a good idea to read through the whole form then you will know what details to put in each different section. It can be very easy to put the wrong details in the wrong box. Form 3A is quite a long form but there is guidance at each box to help you. You might not have to fill in every section depending on the details of your case.

If you need extra help to fill in the form because you are not confident about the language you might have to use you can get help from a Citizens Advice Bureau - where to get help, or other advice centre.

Before you start completing the form - get prepared

Make sure you have all the details to hand to complete the claim form. This might mean you have to create digital versions of paper copies of receipts, or orders or other types of agreement. If you can download the form to your own computer or other device you can then take your time to fill it in.

If you don’t know how to create a digital version of a paper copy you can get help from your local library or Citizens Advice Bureau - where to get help

Step 1 - Filling in the form

On a paper copy or on a laptop or other device

You have to print Form 3A from the Scottish Courts and Tribunals Service website then fill it in on paper or download it to your own device or the one you are using to complete the form. When you have completed the form you must send two paper copies to the court. This allows the court to send the copy to the person you are claiming against. This person is called the Respondent.

You might choose to send the documents through the post by recorded delivery or some other certified posting option. You should keep a third copy for your own records if you don’t have a copy on an electronic device.

You can hand deliver your Form 3A to the sheriff court that should be dealing with your claim. The sheriff clerk of any court can assist you if you don’t know which court to take it to. See also the general rule for which court should deal with your case. 

Section A – About you – the Claimant

You are the person raising the claim. You are called the Claimant. If you are a sole trader and choosing to use a lay representative to make the claim you have to say what position this person may hold in your business, for example, finance director.

This section should be straightforward. If more than one person is making the same claim you have to fill in Form 3B too.

At Question A5 you have to decide if you want to be contacted by post or by email. If you are unsure about technical and digital communications then it will be safer for you to use the postal service. If you choose to use email then you should make sure you have the correct equipment and skills to store and retrieve the messages. In the next section you can choose to have all communications put through your representative (Box B question 4).

Section B – About your representation

This section should be straightforward to complete. If you are choosing to have someone other than a solicitor to represent you there are issues to consider about how much you want them to do for you. In some cases you may only want a courtroom supporter. In other cases you may want your representative to do everything. A representative who is not a solicitor is called a lay representative. You can have a trainee solicitor as a lay representative.

At Question B4 you have to indicate if you want to channel all the information about the case directly to your representative instead of you. If you want to receive communications then you should say No in this box.

If you are the only person receiving communications from the court you will need to make sure your representative receives everything they need from you.

Form 2A has to be completed to apply for a lay representative for a case under the simple procedure. You need to understand exactly what you want the lay representative to do for you before you fill in the form.

Section C – About the person or company you are claiming against – the Respondent

This section of the form should be straightforward if you know the details of the person or company that you want to make the claim against. In the simple procedure this person or company is a called the Respondent. You should have the details of the company name on any paperwork or emails used to make a contract with you. The company address may be the Head Office if the firm has a number of branches.

If there is more than one person or company to claim against then you will need all of those details.

You don’t know the address or name for the respondent

If you don’t know the contact details of the person or company you will have to use Form 6B which is called the Service by Advertisement Application. You have to complete this at the same time as the claim form 3A.

You will have to explain at C1 on Form 6B what steps you have taken to try to find the contact details of the respondent and why this has failed to locate them. If the Scottish Courts and Tribunals Service agree to this application it will advertise your claim on its website because this is the only way you can make your claim public enough to try to locate the company.

When there are difficulties finding the person you want to make the claim against, you should be aware that even if the court finds in your favour it may be difficult to make the person pay the money back or do what the court asks them to do.

How you want the claim form to be formally 'served' on the Respondent

All formal ways of 'serving' the claim form are done on paper. The claim form will not be sent to the Respondent by email as part of the formal process.

You are asked in Section C at C10 if you want the claim to be sent formally to the Respondent by the Scottish Courts and Tribunals Service.

When you are dealing with the claim yourself, because you do not have a legal representative, it may be wise to let the court service do this and formal service will be completed by the sheriff clerk. There is a fee for this service both from the court service (£12) plus the sheriff officer’s fee.

Depending on your circumstances you might be eligible for an exemption from paying the fee. You have to apply for this exemption to the sheriff clerk of the court when you are raising the action at the same time as you are submitting the claim form. A copy of the form is available on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk.

If you are a company, limited liability partnership or partnership you will have to do this yourself and complete Form 6C called Confirmation of Formal Service. You will also have to fill in an address label with specific information. A sheriff clerk can help you with this.

If you have a solicitor it will be done for you but of course will form part of the costs to your legal representative.

Taking action against someone outside Scotland

When you have the contact details for the respondent the claim can be delivered to either their home address or business address by recorded delivery even when the person is outside Scotland.

Taking action against someone outside the UK but in the European Union (EU)

When you have the contact details for the respondent the claim can be sent by recorded delivery to either their home or business address:

  • using messengers-at-arms, or
  • using a formal body in the country that serves court documents - this is called direct service
  • using Secretary of State for Foreign and Commonwealth Affairs and serving it from the formal British Consular Service on a British national - this is called consular service.

Section D - About the claim you are making

This is a very important part of the form. Sections D1 to D8. Read all the boxes in section D to check which points you want to make in each box. You may think you are repeating yourself from section to section but if you try to answer just the question in that box it will be easier for the court to understand what has happened and what you want.

D1 – What is the background to your claim

Try to explain what your claim is and answer the following questions on your statement of claim. You need to have a legal basis for the claim to be successful, for example, that a contract you had with the respondent has been breached. This could be as simple as the fact that what you bought was not of saleable quality.

For example, you had a conservatory built and within the first year it started leaking. There was a three year warranty on the building work but the company have been unable to fix all the leaks. You are fed up and want the company to come to repair the building properly or refund your money.

You have to explain to the court and the person you are taking action against what your claim is about. There is guidance on the form. In summary:

  • what is your complaint
  • what should have happened that didn’t happen - provide dates if you can
  • what attempts have been made to fix the problem and why didn’t they work
  • whether any payments have been made already
  • what has the respondent failed to do.

D2 – Where did this take place

This part of the form is very important because how the event occurred, for example, you bought goods over the internet or you ordered something online from outside Scotland, will determine which court hears the case. This can be complicated. Generally cases will be heard in the sheriff court that serves the area where the respondent lives or the alleged act or event took place. However in a consumer case about goods or services you can raise the court action in the court nearest to where you live.

D3 and D4 - These questions both relate to a Consumer Credit Agreement

If your claim is about a credit agreement which is a consumer credit agreement regulated under the Consumer Credit Act 1974, you should state this on the form. It will say on your written agreement if it is regulated. You have to attach a copy of this to your Form 3A. 

D5 – If your claim is successful, what do you want from the respondent

You have options here to ask the court to order the respondent to do something, for example, you can say from the earlier example, that you have no faith that the respondent will be able to repair the conservatory properly so you want a refund rather than a repair.

This is also where you will be asked what interest you want to charge the person. This is possibly confusing if you don’t have a rate of interest stated in your agreement. There is a standard rate of interest that a sheriff has discretion to add to the sum of money you are claiming. It can be applied from the start of the incident that has led to the claim. You could say here that you want the sheriff to apply interest at the judicial rate from the start of the problem.

D6

This section allows you to ask the court to refund you the expenses of the claim.

D7

This part of the form is complicated because you need to be careful about how you explain what you would like to happen. It is not enough to explain that you are cross and frustrated with the problem. You need to explain what you think you are entitled to and why. This should be the legal basis of your claim. If you are not sure what to put into this box you can get advice for example, at a Citizens Advice Bureau -  where to get advice. 

D8 

Explain what you have done so far to try to resolve the problem and dispute. For example, you may have asked for a meeting but they refused to come or you had a meeting but they refused to agree to your proposal to solve the problem.

Section E – Details about witnesses and other evidence

At the early stage of the process for making a claim you only need to list what witnesses and evidence you would bring to the court if the case had to be heard in court. You might need to get more help with your case if you have several witnesses and a lot of evidence.

Solicitors are used to handling all the forms and timescales of the procedure that are required in bringing witnesses and evidence to court. It is important that you get advice if you think your case could be a complex one because of the number of witnesses and amount of evidence you will need to make your case.

A sheriff under the simple procedure can decide to settle the case without a court hearing. 

Step 2 - Claim form is sent to the court

You might choose to send the documents through the post by recorded delivery or some other certified posting option. You should keep a third copy for your own records if you don’t have a copy on an electronic device.

You can hand deliver your Form 3A to the sheriff court that should be dealing with your claim. The sheriff clerk of any court can assist you if you don’t know which court to take it to.

Step 3 - Claim form is registered

Once the form is complete the sheriff clerk will formally register the claim.

When the claim is registered this creates a formal court document giving permission to 'serve' the claim on the Respondent but also to call any witnesses that need to be called.

Step 4 - Timetable for the case – sent by sheriff clerk

The timetable has two dates:

  • the last date on which the claim must be formally served on the Respondent, and
  • the last date by which the Respondent must reply to the court.

There is normally a period of 3 weeks between these 2 dates.

What happens next

As the claimant you have to take care from now on to stick to the timetable for your case that was sent to you by the court and be aware of what the respondent has done or not done.

Step 5 - How the respondent replies to the form

What happens next depends on what the respondent does in reply to the claim form. You have a very important role to play in this part of the process because what you do now could settle the claim but if you don’t do anything then the claim could be dismissed.

  • respondent does not reply by the last date on the timetable - you now have two weeks to make an Application for a Decision to court – Form 7A . If you fail to do that then the case is dismissed. If you do submit the application then the Sheriff will usually make a decision on Form 13A in your favour. However because the respondent didn’t reply at all they could make a late application to the court to recall any decision made by the sheriff
  • respondent admits the claim and pays in full
  • respondent admits claim and asks for time to pay - the sheriff will ask you if you agree to time to pay
  • respondent admits claim but hasn't paid in full - sheriff makes decision
  • respondent denies claim -sheriff decides if there needs to be a case management discussion and/or a hearing. The Response form acts like a warrant and means the Respondent can call witnesses.

Sheriff’s power to settle the claim

When a respondent denies a claim under the simple procedure, the case can proceed in different ways.

When the respondent admits the claim and asks the court for time to pay the sheriff can make a decision in your favour and also ask if you agree for the respondent to have time to pay.

Parties are still in dispute

If the respondent disputes your claim the sheriff can call a case management discussion.

If you do not appear at any further proceedings like a case management discussion or a hearing the sheriff can dismiss your claim.

Case management discussion

A case management discussion will be held if the sheriff thinks it is needed to discuss the claim. One reason why this might be needed could be if the respondent has accepted part of your claim against them but disputes some of it.

Hearing

A sheriff can call a hearing if it appears that you and the other party in the case has evidence to present and witnesses to examine. 

Appeals – Form 16A

You may be able to appeal the court’s decision. If you do decide to appeal you must do so within 28 days of the decision letter being sent to you. You can get legal aid for an appeal under the simple procedure subject to conditions such as there are merits to your case. It may be worthwhile to get some legal help as an appeal can only be made on a point of law and it may not be clear whether the basis of your appeal is on a  point of law.

You can discuss your case with an experienced adviser for example, at a Citizens Advice Bureau -  where to get advice

Enforcement of a decision of the court

If the person or company you claimed against loses and doesn’t pay, you can use your court decision to ask a sheriff officer to have the decision enforced. Only a sheriff officer can enforce the decision.

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