9 February 2010
This information applies to Scotland only
| Some common terms used | - |
| Pursuer | the person making the claim |
| Defender | the person against whom the claim is made |
| Summons | the principal court document which gives details of who is claiming what from whom, and why |
| Service | sending a copy summons to the defender |
| Return date | the date in claims for payment of money when the defender must send a written reply to court and, where appropriate the pursuer must return the summons to court |
| Hearing date | the first time a claim is discussed and may be dealt with in court |
| Decree | the final judgement of the court. |
A small claim in the sheriff court is meant to provide a simple, quick, informal and inexpensive way to settle claims worth up to £3,000. It allows you to take legal action without having to use a solicitor.
It is a do-it-yourself procedure although a friend or adviser can act as your representative. Some legal aid may be available but it is not available for a solicitor to represent you.
A special feature of the small claims procedure is that in most cases there is a limit to the legal expenses which can be awarded.
A small claim can be used when the value of what you are claiming is below £3,000 and the case is not complex. The most common types of claim are:-
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.
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.
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.
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:-
Small claims forms are available from your local sheriff clerk's office or on the 
Scottish Court Service website. 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. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
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.
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.
When you are claiming against a person and s/he receives the copy summons (Form 1a) there is a number of ways in which s/he can respond, these are:-
When you have taken a claim against a company, it will receive a copy summons (Form 1b). The company can either:-
A hearing will only be held (call in court) when:-
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.
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:-
An appeal can only be made on a point of law to the sheriff principal within 14 days. A fee of £32 (2006) 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.
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.
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 Court Service website at www.scotcourts.gov.uk by going to the sheriff courts page and clicking on 'amendment orders'.
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. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
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 - £1,500 in most cases only limited expenses can be awarded to the successful party, but the maximum is £150. Where the claim is more than £1,500 expenses up to 10% of the claim may be awarded.
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