Why is this important?
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 £3,000, the court will almost certainly decide it is a small claim. The information that follows applies to small claims. If you owe more than £3,000 you should get experienced advice immediately, for example at a Citizens Advice Bureau - where to get advice.
Table of contents
What happens when a small claim 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 copy summons. This usually comes by recorded delivery post or it may be delivered by a sheriff officer.
On the copy summons, 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 pursuer on the summons. You are called the defender. There might be fuller details of the claim, either on the summons 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 return date. If you don't deal with the papers, a court order called a decree 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 Court Service website which explains how to respond to a claim at www.scotcourts.gov.uk.
When you get the papers, you may need help to decide what to do. 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 in one go.
What to do when you get the court documents
When you get the claim form, check how long you have to reply to the summons. Look for a date called the return date. You must have replied in writing to the court before that date. There will also be a hearing date. This is the day the case will come to court if the matter is not resolved.
- admit the claim and pay the money to the pursuer
- admit the claim and make an application to the court for time to pay by instalments or a lump sum at a later date
- admit the claim and attend court on the hearing date to ask for time to pay
- dispute the claim and attend court on the hearing date to argue your case.
If you do nothing in response to the summons, the case will be heard in court on the hearing date and a court order will be made against you. You will also have to pay interest and court expenses. You can recall the court order but 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 decree) at www.scotcourts.gov.uk 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 pursuer
When you admit that you do owe the money you can avoid having to go to court. You can contact the pursuer, 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 pursuer has told the court that the matter is settled. If you don’t manage to settle the claim before the return date the case will come to court and an order will be made against you.
Admit the claim and ask in writing 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. One of the pages of the court form has the application for a time to pay direction or a time order. If you do not know which one to apply for you should get advice from an experienced adviser at a Citizens Advice Bureau - where to get advice.
If the pursuer accepts your offer to pay over a period of time you do not have to go to court. You should be able to find out from the court a couple of days before the hearing date whether or not your offer has been accepted by the pursuer. If your offer to pay over a period is not accepted you will have to go to court.
The case will come to court on the hearing date. A court order will be made against you and if the pursuer didn’t accept your offer the court will make a decision about your application for time to pay.
Admit the claim and ask the court on the hearing date for time to pay
You can admit the claim and decide to attend court to put forward your argument for needing time to pay. You must reply to the summons before the return date. You may choose to have a representative to go to court for you. It does not have to be a solicitor who represents you but either you or your representative must attend the court on the hearing date.
Dispute the claim and attend court
If you do not admit the claim and want to dispute it, you, or a representative, has to go to court on the hearing date. You must let the court know before the return date that you intend to appear. If you do not win the case you can ask the court for time to pay the debt at the hearing.
A hearing will only be held (call in court) when:-
- you deny the claim or challenge the court's right to deal with case, or
- you want to go to court to make an offer to pay, or
- you ask for time to pay but the person you owe money to objects to your offer.
Both you and the person or company claiming against you must attend the hearing although you may be represented by someone else, for example a friend or a relative. If the person or company claiming against you does not attend the court hearing the case may be dismissed. If you do not attend you will lose the case and may also have expenses awarded against you.
At the hearing both of you should have the opportunity to discuss the claim with the sheriff. In most cases the claim will be settled at this hearing. The sheriff will make a final judgement on the claim, known as the decree. If the case is not settled on the hearing date it can be continued.
A continued hearing
At a continued hearing the court will usually require to hear evidence from witnesses. It is important to prepare the case carefully. The following points are a general guide to what preparation should be made. Someone who is not confident should consider taking someone else along to help, and/or getting specialist advice first. The main points are:-
- all letters, evidence and any other documents about the case should be lodged in court no later than 14 days before the continued hearing
- damaged or faulty goods should be lodged as evidence, if possible, for instance, clothes ruined by a washing machine. If this is not possible, photographs could be used instead and lodged in court
- evidence of expenses should be prepared, and any receipts lodged in court
- if there are going to be witnesses, check that they will not have difficulty attending, for example, getting time off work. It may be helpful to send the witness a formal request to attend. This is known as a citation and can only be produced and delivered by a solicitor or sheriff officer.
An appeal against the court decision can only be made on a point of law to the Sheriff Principal within 14 days. A fee of £56 (2014) is payable to register the appeal. The help of a solicitor is essential and subsequent costs could be very high. Legal aid is available for an appeal against a decision from a small claims action, although it is not available for the small claims action itself.
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 Action the creditor can take.