What happens if you are taken to court for money you owe
This information applies to Scotland only
If you owe money to someone, they might take you to court to get it back. To do this, they have to fill in a claim form with details of the money you owe and then send it to court. If the claim against you is for less than £5,000, the court will almost certainly decide it can be started under the simple procedure. The information that follows applies to the simple procedure.
If you owe more than £5,000 you should get experienced advice immediately, for example at a Citizens Advice Bureau - where to get advice.
What happens when a claim using the simple procedure is made against you
An explanation of what happens first
When a claim is made against you, you'll receive a document from the court. It is called the Response Form. This usually comes by recorded delivery post or it may be delivered by a sheriff officer.
On the Response Form, there will be brief details of the claim and how much the other person is claiming you owe them. The person taking action against you is called the Claimant. You are called the Respondent. There might be fuller details of the claim, either on the form itself or in a separate document attached.
It's very important that you deal with the papers that the court sends you by the deadline given. This is called the last date for a response. If you don't deal with the papers, a court order called a decision can be made against you. If this happens, you might have to pay back all the money claimed.
You may also have to pay interest and extra costs on top of this. You can have a look at the guidance notes on the Scottish Courts and Tribunals Service website which explains how to respond to a claim .
When you get the papers, you may need help to decide what to do and what merit there may be in defending the action against you. It is very important that if you are going to defend your case you stick to this course of action. For example, if you want to defend your case then later change your mind and decide to settle the claim you could end up paying huge expenses. This is because the general rule about there being a limit on expenses under the simple procedure won't apply. The reasoning behind this being an exception to the general rule on expenses is that a lot of court time and effort will have been used to let you defend your case. If you then settle the case this may be viewed as wasted time and expense, hence you are asked to pay the expenses in full. Here is a court case on the Scottish Courts website where this happened.
A solicitor can give you legal advice, but you'll have to pay for it and you won't get this money back even if you win the case. You could consult an experienced debt adviser at a Citizens Advice Bureau - where to get advice. You may have other debts as well as this one, so it might be best to get advice about all of your debts at the same time.
What to do when you get the court documents
When you get the claim form, check how long you have to reply to the court. Look for a date called the last date for a response. You must have replied in writing to the court by that date. You can ask for a change to this date but you have to explain why you need it changed. For example, if you have some evidence that you do not owe the money but you are waiting for the evidence to be sent to you and you don't think you will receive it by that date, you can ask for a change of date on Form 3E .
You will have to complete this form 3E either by:
- downloading it to your own laptop or computer, completing it and printing it off then sending it to the court, or
- on the Scottish Courts and Tribunals Service website then print it off and send it to the court.
Civil Online case tracking
There is an online tracking tool called 'Civil Online' available once a case has a case number. You can find out more about this on the Scottish Courts and Tribunal Service website at www.scotcourts.gov.uk.
- do nothing
- admit the claim and pay the money to the claimant
- make an application to the court for time to pay on Form 5A - you don't need to fill in Form 4A as well
- dispute the claim.
If you do nothing
If you do nothing in response to the claim, the case will be considered in court by the sheriff and a court decision will be made against you. You may also have to pay interest and court expenses.
You can recall the court order but you will need to explain why you didn't respond to the court papers the first time.
You can check what the process is to recall a court order (a decision) on Form 13B at the website of the Scottish Courts and Tribunals Service but you may need some help, for example, from an experienced adviser, to do this.
Remember that if a court order for payment of a debt is made against you it can affect your credit rating for several years.
For information about credit rating see How lenders decide to give you credit.
Admit the claim and pay the claimant
When you admit that you do owe the money you will avoid having to go to court. You can contact the claimant, arrange to pay the money owed either to her/him or the solicitor. Do not send money to the court. Once the money has been paid you should contact the sheriff court to check that the claimant has told the court that the matter is settled.
Admit the claim and ask for time to pay
When you admit the claim but can’t afford to pay the debt straight away you can ask the court for time to pay the money. Form 5A is the application for time to pay. It is quite a detailed form. You can get advice about how to complete the form from an experienced adviser at a Citizens Advice Bureau - where to get advice. If you have a number of debts it may be helpful to get advice about all of them. Before you go for advice you can use our budgeting tool to look at your income and expenditure.
If the claimant accepts your offer to pay over a period of time you do not have to go to court. You will find out from the court if it has been accepted within two weeks. If your offer to pay over a period is not accepted you will have to go to court for a time to pay hearing with the sheriff.
You will have to explain again, this time in person, why you want time to pay. If you need advice about having to go to the hearing you can get help from a Citizens Advice Bureau.
Dispute the claim
If you do not admit the claim and want to dispute it, you, or a representative, has to go to court if there is a hearing. Before that happens the sheriff will consider your case for disputing the claim. You should be aware that if you dispute the claim then later change your mind and settle the case you could end up paying huge expenses because the court may take the view that you should have settled it at the beginning of the case.
Sheriff's options when there is a dispute
The sheriff has the following options when there is a dispute:
- refer both parties in the case for alternative dispute resolution
- arrange a case management discussion
- arrange a hearing
- consider whether or not to make a decision about the claim without a hearing
- dismiss the claim or make a decision because the claim is unlikely to be successful.
If the sheriff decides that the case should continue on to a case management discussion or a hearing you should get advice about what help you may need and whether you want to be represented perhaps by a lay person. You can get help from a Citizens Advice Bureau - where to get advice.
An appeal against the court decision can be made to the Sheriff Appeal Court within 14 days. A fee is payable to register the appeal. The help of a solicitor is usually essential and subsequent costs could be very high. Legal aid is available for an appeal against a decision under the simple procedure.
Enforcement of court order
If a court order is made against you the person or company who has the court order can take legal action to force you to pay. You may find it helpful to get the help of an experienced adviser for example at a Citizens Advice Bureau - where to get advice.
For more information about legal action to force you to pay, see Can I be forced to pay my debts?