Finding the Right Debt Recovery Process for You – When Should You Use Court Action?
Over recent years court action procedures to recoup unpaid debts have evolved and there are several options available for raising action where you have outstanding debts including: Court of Session action; sequestration; liquidation; and the Simple & Ordinary cause procedures in the Sheriff Court. Simple and Ordinary Cause cases account for the vast majority of debt recovery actions in Scotland and it is therefore worthwhile looking into their processes further.
Where your case is worth £5000 or less the simple procedure process provides a speedy, inexpensive and informal way to resolve disputes. Its introduction in November 2016 saw it replace the small claims procedure as well as, in some cases, the summary cause procedure.
The process allows a claim to be made in the sheriff court by a claimant (formerly called a pursuer under the small claims procedure) against a respondent (previously named a defender). The final decision in a claim is made by a sheriff or a summary sheriff. You do not need to use a solicitor for the simple procedure but can do so if you wish.
How to make a claim
It is important before you make a claim that you have tried to settle the dispute by exploring various avenues, including contacting the company or individual in writing to try and agree a settlement. Prior to making a claim it is also worth considering circumstances such as the debtors ability to pay; a company’s trading status; the time involved in preparing a case if the action is defended; and if you can afford the cost to enforce the court’s decision should the decision be made in your favour.
If you choose to go ahead with a claim you will be required to complete a claim form (Form 3A) which you should then print out and post or hand deliver it to the sheriff court that will be dealing with your claim. In most cases this will be the court that is closest to the respondent. When the form is submitted you will need to pay a fee to the court, unless you are eligible for a fee exemption if you receive certain state benefits.
During your case
Depending on the response to your case you may or may not be required to go to court. You may not need to attend court if:
- The respondent has not sent back a response form
- The respondent has settled the claim before the last date for a response
- Both parties have agreed payment terms about the payment involved in the claim
Should you need to attend court you will be made aware of the reasons, day and time of any hearing or discussion the court has fixed. You may need to attend court if:
- You do not accept the offer of payment detailed in the response form
- The responder wishes to defend all or part of the claim
- The sheriff of summary sheriff wishes to discuss the claim
If you choose to go to court without representation there are lots of helpful resources on the
Scottish Courts & Tribunals website
Where the decision has been made in the claimants favour appropriate enforcement should then commence. If you would like guidance on this matter please
Contact our team
The Ordinary Cause procedure can be used in the sheriff court where the value of the claim is over £5000. This procedure is more complex than the Simple Procedure outlined above so we would strongly advise applicants to seek legal advice when using this procedure.
It is also worth noting that court fees are payable for lodging ordinary cause applications in court, however you may be entitled to fee exemption should you claim certain state benefits. Please be aware that these fees do not include the fees that you will pay to instruct a solicitor.
There is no set application form to be completed when applying using the ordinary cause procedure; instead the claim is raised using an initial writ.
You can represent yourself in ordinary cause cases. However, it's worth bearing in mind that the procedure is very complex and legal documents will need to be prepared for the claim which is best completed by someone who is legally trained. Therefore, it's always advisable to get legal advice and representation from a professional that can guide you through the ordinary cause process.