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TRADING STANDARDS
Consumer Information - Small Claims
A brief guide to using the small claims procedure in
the sheriff court
You may be considering a small claims action in the Sheriff
Court and this guide will hopefully help you to follow the procedures
used and the steps to take to ensure that the claim will proceed without
delay and that you have considered all aspects of such an action prior
to filling in the paperwork needed to process.
If you are PURSUING an action there are three types of claim.
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A claim to recover money up to a maximum of £750.
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A claim to have goods returned to you.
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A claim to have a contract completed as agreed.
In 2 and 3 above if the goods can’t be returned or the work
is incapable of completion then there is normally an alternative claim
for a sum of money to cover the loss sustained.
If you are DEFENDING an action we can assist you with your
defence. It is very important to get proper advice and not to delay.
In certain circumstances our assistance may be limited to
advice only and in other circumstances we may be able to represent you
in court on your behalf.
What to do before making a small claim
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You must be able to prove that money is owed to you
and that you have evidence to support your claim.
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Has the person who owes you money the ability to pay
you back? If they have no money it is not worth taking further action.
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Write to the other party asking them to pay and advise
them that if they don’t you intend to take court action. Give then
a time period to respond.
What to do next
Obtain the small claims summons from your local Trading
Standards Office or local Sheriff Clerk’s office, they will advise you
which forms you will need.
Deciding on which court to use
The powers of a court to deal with cases in their area is
known as Jurisdiction. A court will normally have jurisdiction if the
Defender is resident in that area. This means that if the Defender resides
in North or East Ayrshire, Kilmarnock Sheriff Court will have jurisdiction.
If the Defender resides in South Ayrshire then Ayr Sheriff Court would
have jurisdiction. In the case of a consumer contract the case may be
heard in the court in the area where the consumer resides.
What to do with the forms
The completed forms should be taken to the Sheriff Clerk’s
office with the appropriate fee. They will keep Form 1 and arrange to
serve Form 2, or Form 3 on the Defender. They will give you a number and
two dates, a return date and a preliminary hearing date. Care should be
taken to keep a note of this number and these dates. The number will be
required should you need to contact the court regarding your case. The
return date is the date by which the Defender should respond to the summons.
The preliminary hearing date will be 7 days after the return date and
will be the first date the case calls in court.
Time Limits
In order to move on, small claims like other legal procedures
imposes time limits for response at certain stages. The time limits will
be advised to you. Remember to respond in time and to be aware of what
you should do next.
The return date
The court will advise you of the Defender’s response to
the summons shortly after this date. If you have not heard from the court
by two working days after the return date it will be advisable to telephone
to the Sheriff Clerk’s office, quoting the case number and asking what
response there has been.
Response
|f there has been no response you will not have to attend
the court but will be able to make a written application for Decree (the
court order stating the Defender owes you money). This must be done by
the day before the preliminary hearing date.
If the Defender is an individual he may apply to the court
for time to pay the debt. If you accept his offer you do not have to attend
court but you must notify the Sheriff Clerk by noon the day before the
preliminary hearing date.
The Defender may respond that he intends to appear to state
his defence or send a written defence to the court. In the latter case
he should send you a copy. In either event you must both attend the preliminary
hearing.
Preliminary Hearing
If the Defender’s response has been such that a preliminary
hearing is necessary you will need to attend court on the day and at the
time that has been given to you. The Sheriff Clerk will call your case
and you should approach the bench and say who you are (eg Mr Brown, the
Pursuer). The Sheriff will ensure that you have a case to state and that
the Defender has a defence. He may want to narrow the case to issues in
dispute between you. He will only settle the case at this time if the
Defender does not appear or if a time to pay order is made to resolve
the case. If the case is not settled a date will be set for a full hearing.
If at the preliminary hearing the Sheriff decides that he can decide the
matter there and then he will award decree (judgement) in your favour.
(See information under EXPENSES and DECREE)
If the Defender has stated his intention to appear in court
and does not turn up then you can ask for a decree.
If the Defender does not turn up but has submitted a Defence
then a date will be set for a Special Hearing under Rule 23.
Recall
Rule 27 allows for the recall of a decree granted in the
preliminary hearing or any continuation thereof.
A Defender can lodge a Minute of Recall (Form 14) at anytime
up to 14 days after the service of a charge. (The service of a charge
is the commencement of civil diligence – the charge informs that a payment
of money is due).
A Pursuer can lodge a Minute of Recall up to 14 days after
the granting of decree of absoluitor.
A Recall can only be sought once.
The time limits must be adhered to as it is unlikely that
the courts will exercise dispensing power other than in very limited circumstances.
Full hearing or proof
This is an opportunity for you to introduce evidence and
witnesses to support your case. If you wish to produce any written or
physical evidence then they should be lodged at the court at least 7 days
before the hearing together with a list of the items lodged. The list
and copies of any documents should be copied to the Defender.
Productions lodged in court can be inspected by both sides
in the claim in the Sheriff Clerk’s office during normal business hours.
A private individual cannot borrow productions, unless permission to do
so has been granted by the Sheriff. However, it will normally be possible
to get copies from the Sheriff Clerk on payment of a charge for photocopying.
It is important that parties comply with the rules regarding
the lodging of productions. Not only is it necessary to give the other
side in the claim fair notice of the productions, but if they are not
lodged in time it might not be possible to put them in as evidence at
the hearing.
At the hearing you will be asked to present your case. You
should go into the witness box, take the oath and state the facts of your
case using any of the productions you have lodged at the court in support.
The Defender can then cross-examine you. Answer his questions as concisely
as possible and DO NOT enter into an argument. Call your witness (if any)
and ask them questions to support your case. They can also be cross-examined
by the other side.
The Defender will then give and introduce evidence to support
his defence. You can then cross-examine. You both will be asked to sum
up your evidence. Usually the Sheriff will give his decision at the end
of the Hearing. At this state, if he finds in your favour, you should
ask for expenses.
If our Department is lay representing on behalf of the Pursuer
we would ask the Pursuer to go into the witness box, take the oath and
state the facts of their case using any productions lodged. We would then
ask questions of the Pursuer. We would then call any witnesses and ask
questions of the Pursuer. The Defender can then cross-examine the Pursuer.
We would then call any witnesses and ask then questions to support the
case. The Defender could then cross-examine the witness. The Defender
would then give and introduce his evidence. We could then ask him questions.
We would then do a summing up and so would the Defender. The Sheriff would
then give his judgement.
Witnesses
At the hearing of the small claim the Pursuer and the Defender
may give evidence and call other witnesses to give evidence. The person
(either the Pursuer or the Defender) calling the witness is responsible
for ensuring the attendance of the witness and is personally liable for
witness expenses. These expenses will, however, form part of the overall
expenses of the claim, but will be subject to the limits on expenses.
In the case where witnesses are friends or relatives all
that may be necessary to ensure that they attend court is to ask them
to turn up on the day of the hearing. However, a witness can also be formally
cited to attend by sending to the witness a document known as a "citation".
This can only be done, however, by a Solicitor or a Sheriff Officer.
Expenses
Generally there are no expenses awarded in claims under
£200. If you have succeeded in your claim and it was for over £200 you
may be awarded expenses. These should include the initial court fee, expenses
of your witness, travelling expenses and the cost of any necessary reports
you have used in presenting your case. However, in normal circumstances,
there will be a maximum of £75 awarded. The cost of any report obtained
before issuing the summons can be added to the initial principal sum.
Decree
If you are successful the Sheriff will award Decree in your
favour. After 14 days have elapsed from the hearing the Sheriff Clerk
will send to you an extract Decree. This will be written on page 4 of
the original Form 1 you lodged at Court. This is your authority to enforce
the judgement. It is a good idea to send a copy of this to the Defender
and ask him to pay to avoid further expenses. If they do not respond it
will be necessary for you to employ Sheriff Officers to enforce your decree
and obtain payment. This will involve you in extra expense but the Sheriff
Officers will collect this with your debt. This brings you back to the
things to do before taking action. "You should consider the ability
of the other party to meet their obligations". It may be necessary
for you to enforce your court order if the Defender does not pay up. You
will have to contact the Sheriff Officers who for a small charge can legally
try to recover money under court orders. This type of action is called
diligence.
Current costs of actions
Claims of up to £50 are £6.00
Claims from £50 to £750 are £35.00
Please read section in notes regarding
expenses.
NB These notes
are issued for general guidance. They are based on experience gained by
Officers of this Service in dealing with Small Claims. Every small claim
is different therefore please seek our advice or the advice of a solicitor
prior to proceeding with an action. It is important to assess the merits
of your claim as well as the correct procedures to be used with small
claims actions.
If you require further advice or assistance please contact
the Trading Standards Service.
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