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What to do if someone owes you money or compensation for faulty goods or services
This information applies to Scotland only
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What to do if someone owes you money or compensation for faulty goods or services
When someone owes you money or compensation for faulty goods or services the action you should take depends on how much money is owed or how much the goods or services are worth.
When the value of what you are claiming is below £3,000 and the case is not complex you can use the small claims procedure. You can use this procedure without having to employ a solicitor. The most common types of claim are:-
- compensation for faulty services' for example, by builders, dry cleaners, garages
- compensation for faulty goods, for example consumer goods like televisions or, washing machines which go wrong
- disputes between landlords and tenants, for instance, rent arrears or compensation for not doing repairs
- wages owed or money in lieu of notice.
If your claim is within the financial limits but legally complicated you may have to use different court procedures for which a solicitor will normally be required.
If you have a legally complicated case you should see an experienced adviser. If your claim is worth more than £3,000 you will have to use a solicitor to take any legal action. A solicitor may help you to solve the problem without going to court; by using alternatives like mediation.
Before applying to the court
You should not use the court to try to settle a small claim if there are other ways of settling it first. For example, if a television doesn’t work, there is no point in applying to the court immediately for compensation. You must contact the shop which sold you it first, to try to solve the problem. If you cannot get the problem solved by negotiation then you can make a claim in court.
Which court deals with the case
The application for a small claim should be made to the sheriff court nearest to where the person the claim is being taken against either lives or trades. Sometimes for example in the case of a motor accident, it should be made to the sheriff court for the area where the problem occurred. You can ask the court to check if it is the right one. Sheriff courts are listed in the phone book.
What happens when you raise a small claims action
A small claim is raised by completing a summons (Form 1). When the claim is not simply for money, the value of the claim must be within the financial limit of up to £3,000 for a small claims action. The forms are:-
- claim for payment of money
- claim for the delivery or return of goods, for example, getting a DVD player returned which has been sent away for repairs
- claim for the completion of some contract of service, for example completion of building work agreed in a contract.
Small claims forms are available from your local sheriff clerk’s office or on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk. The website also provides guidance about how to complete and submit the form.
The summons asks for details of you and the person you are claiming against and how much is being claimed. The summons also includes space for "the statement of claim". This should be used to set out the details of your claim.
You will also have to fill in a copy summons which can be sent to the person you are claiming against.
If you have difficulty in filling out the summons or copy summons you may be able to obtain help from the sheriff clerk.
If the details of the case are complicated you should consult an experienced adviser for example, at a Citizens Advice Bureau - where to get advice.
Lodging the claim
You should give the completed summons and copy summons to the sheriff clerk along with the court fee. This is also known as the booking fee. The court fee will depend on the amount being claimed.
The sheriff clerk enters the court reference number, a hearing date and the return date onto the summons.
Service of the summons
The sheriff clerk keeps the summons but gives you a copy. The sheriff clerk then sends the copy summons to the person or company you are claiming against. This is known as service of the summons. Usually this will be done by recorded delivery post. If the summons is returned undelivered the sheriff clerk can arrange for the summons to be delivered by a sheriff officer. There is a charge for this.
The person you are making the claim against can:
- do nothing. In this case you will be successful in the claim and the court will order the amount claimed to be paid by the person you have claimed against
- admit the claim and pay you in full. In this case it is up to you to notify the court that the claim has been settled
- admit the claim but ask for time to pay. In this case the person you have claimed against may write to the court applying for time to pay, or notify the court that s/he wants to go to court to make an offer to pay. The court notifies you that the person has admitted the claim and has asked for time to pay. If you object to either the written offer or the offer to pay over time then both you and the person you have claimed against or your representatives must attend the hearing on the hearing date. If you do not object to the application for time to pay the case will usually not call in court on the hearing date but you will be granted the court order on that date
- deny the claim or challenge the court’s right to deal with the case. In this case the person you are claiming against must write to the court stating why s/he is denying or defending the claim. S/he may also write a separate letter to the court stating her/his defence. The case will call in court on the hearing date.
When you have taken a claim against a company, it will receive a copy summons (Form 1b). The company can either:-
- do nothing
- admit the claim and settle the case
- dispute the claim and attend court.
A hearing will only be held (call in court) when:-
- the person or company the claim is being made against denies the claim or challenges the court’s right to deal with case; or
- the person or company wants to go to court to make an offer to pay; or
- you object to the application by the person or company you are complaining against for time to pay.
Both you and the person or company you are claiming against must attend the hearing although you may be represented by someone else, for example a friend or relative. If you do not attend, the case may be dismissed. If the person or company you are claiming against does not attend, s/he will lose the case and may also have expenses awarded against her/him.
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. When the decree is granted to you, if the person does not pay the claim, you can take further legal action to make her/him pay. 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 made up and delivered by a solicitor or sheriff officer.
An appeal 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 the person you claimed against loses and doesn’t pay, you will have to go back to court and ask for a sheriff officer to have the decree enforced. Only a sheriff officer can enforce the decree. A fee will be payable to enforce the court decree.
What will it cost
A small claim is designed to be a quick, low cost procedure. If you start a claim, you will have to pay a court fee. There will also be a charge to pay if the summons is served by a sheriff officer. The sheriff clerk can advise you of current court fees. You can also check fee rates on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk.
Apart from court fees other expenses may be incurred, for example loss of wages, expert reports, travel expenses and the cost of a solicitor if one is employed.
You may be entitled to exemption from certain court fees. You should seek further advice from an experienced adviser, for example, at a Citizens Advice Bureau - where to get advice.
The sheriff clerk will calculate expenses when the sheriff has made a decision on the claim. In cases where expenses can be awarded if you are successful you will have expenses awarded to you but there is a limit on what expenses can be awarded.
In undefended cases the only costs will be the booking fee and any charges for delivery of the summons. You will have to pay these initially, however these expenses are normally added to the value of the claim which the person or company you have claimed against must pay.
When the claim is defended the costs will be higher. There are special rules on the amount of expenses which can be awarded. When the claim is for under £200 no expenses can be awarded. For claims of £200-£1500 in most cases only limited expenses can be awarded to the successful party, but the maximum is £150. Where the claim is more than £1500 expenses up to 10% of the claim may be awarded.