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Questions about Small Claims procedure

This information only applies to small claims actions that were raised before 28 NOVEMBER 2016.

As from 28 NOVEMBER 2016, if you are raising a claim which has a monetary value of £5000 or less which seeks payment, delivery or recovery of possession of moveable property, or an order for someone to do something specific , you should use the
SIMPLE PROCEDURE

 

How do I raise a small claim? 

[NOT APPLICABLE FROM 28 NOVEMBER 2016 onwards]

 

Do I need a solicitor?

If you are acting as an individual you do not need to employ a solicitor to raise or defend a small claim. However, you can if you wish, particularly if you think your case is more complicated than usual or involves some point of law which the court may have to consider. A list of solicitors can be found in the yellow pages of the telephone directory or online at the Law Society of Scotland website. Legal aid is not available for small claims cases, except for appeals, so if you do employ a solicitor, you will be liable to pay the solicitor’s fees.

You can also be represented by any other person you authorise to do so (referred to as a lay representative), for example:

  • A friend
  • A relative
  • A representative of a Citizen’s Advice Bureau, Consumer Protection/Trading Standards Department or other advice agency, who may be able to do this for you free of charge.

More information in respect of this and also the option of ‘lay support’ can be found in the guide ‘Going to Court’ – see section 4.04.

If you are a corporate body (e.g. a company, firm etc.) an authorised lay representative can conduct the case on your behalf. This includes appearing at any hearing and asking the court for a final order (known as minuting for decree). However, the presiding sheriff can find that a lay representative is not authorised to appear or is not a suitable person and in those circumstances, he/she can no longer continue representing your company and you may need to employ a solicitor.


What are my options if I want to settle out of court?

If you wish to consider settling out of court, information on the various options, including how alternative dispute resolution (ADR) may help solve a consumer problem, is available on the Citizens Advice Scotland website.

 

Where do I send my application for a small claim?

[NOT APPLICABLE FROM 28 NOVEMBER 2016 onwards]

 

Am I the pursuer or defender?

The pursuer is the person who brings the case to court, ie. the person that is suing.

The defender is the person who has the case brought against them, the person who disputes the claim of the pursuer.

How does the defender get sent the application?

If you are raising a claim as an individual, or as a sole trader, then the sheriff clerk can usually serve the summons, if you want them to do this for you. If not, then you can ask a solicitor or sheriff officer to do this on your behalf.

The sheriff clerk cannot serve the summons for you in any other case and you will need to arrange for a sheriff officer or solicitor to do this for you. You can get contact details for sheriff officers operating in the area that the summons is to be served from the Society of Messengers at Arms and Sheriff Officers. You can get contact details for solicitors from the Law Society of Scotland.

Further information in relation to service of the summons can be found in the guide Taking a Claim to court

How do I defend a small claim action?

You will need to complete the relevant sections of the form that you will have received. More detailed guidance on how to defend the action and how to complete the form can be found in the guidance note Responding to a Claim . You need to make sure that you return your completed form to the court before the return date. The contact details for the court and the return date can both be found on the front page of the summons.

How long will it take?

It is very difficult to estimate how long the process will take; it will depend on the complexity and circumstances of the individual case and also whether or not the case is defended.

How do I find out what is happening in a case?

You will need to contact the court where the case is being dealt with. Contact details for all the courts can be accessed on the Court Locations page

What do I do once I have the court order?

It is the responsibility of the successful party to have the court's order enforced. The court cannot do this on your behalf. You will also be responsible for any costs involved in enforcing the order, although you may be able to recover this from the other party. More detailed information on this point can be found in the guide "Going to Court".

The Society of Messengers-at-Arms and Sheriff Officers (SMASO) have produced a leaflet "Enforcement of Small Claims Decrees" that is available on SMASO's website.

The defender lives in England/Wales, what do I do when I get the order enforced?

Guidance can be found under Serving or Enforcing a Court Order FAQs page and on the Society of Messenger at Arms and Sheriff Officer's website

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