Going to Court because of Debts - Carrington Dean

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13.05.2019

Going to Court because of Debts

When someone you owe money takes you to court, this can be a worrying time, particularly if you have never been in a court.

However, it doesn’t need to be.

A little knowledge of the various legal processes involved and what your options are can make a significant difference, not only to your piece of mind, but also how things eventually work out.

What court do creditors take you to?

The main court that will deal with any action raised in Scotland for consumer debts will be the Sheriff Court. Sheriff Courts in Scotland have exclusive jurisdiction over all claims for payment of money up to the value of £100,000.  This means no other court has jurisdiction to hear an action to recover a debt where that debt is worth less than £100,000.

What Sheriff Court hears your case will depend on where you live

There are 39 Sheriff Courts in Scotland and these are situated within 6 Sheriffdoms. These are:

  • Glasgow and Strathkelvin
  • Grampian, Highland and Islands
  • Lothian and Borders
  • North Strathclyde
  • South Strathclyde, Dumfries and Galloway
  • Tayside Central and Fife
What Procedures are used?

The court procedures that the lender will use when they are raising an action against you will depend on how much you owe them.

So, for example, if you owe less than £5,000, the type of procedure used is known as Simple Procedure. Where the amount you owe is over £5,000, the type of procedure is known as Ordinary Cause.

The main differences between these procedures is the Simple Procedure is supposed to be, as the name suggests, simple. The idea being is if you are raising a Simple Procedure action, you should be able to do so without the assistance of a solicitor and equally, you should be able to defend the action, if you wish, without a solicitor.

Simple Procedure actions are also supposed to be faster and less expensive.

Ordinary Cause actions are more complex, more expensive and normally a solicitor is required.

How are you notified?

How you are notified that an action has been raised against you, is you will receive a summons that is normally delivered by a sheriff officer.

Unlike with criminal cases, however, it should be noted an action for payment of money is a civil law matter and, therefore, unlike in criminal cases, you do not need to attend unless the Judges orders you to. However, if you don’t attend it is likely a court order (also known as a decree) will be granted against you.

Where the action is under Simple Procedure, the form you receive will contain a date known as the last date for response. This is the date you have to submit a response to the action. Where the action raised is under the Ordinary Cause procedure, you have 21 days to respond from receiving the summons.

What can you do in response to a Summons?

You have a number of options open to you when you receive a summons. These are:

  • Admit the claims;
  • Deny the claim;
  • Admit the claim and apply for a Time to Pay Direction or Time Order

If you admit the claim and return the form, you do not need to do anything, as the creditor will obtain a court order (decree) against you and this will be awarded by the Sheriff without a court hearing. Alternatively, if you do not respond, this is also what happens, so if you do want to admit the claim and do not want to defend the action, you do not need to do anything.

However, if you deny the claim, you will need to outline in your response why you are denying the claim and give your reasons. There will then be a court date set and a hearing will be scheduled in front of a sheriff to hear the arguments of both parties.

What happens at a court hearing?

At the court hearing, the lender will normally be represented by a solicitor. You also have the option of instructing your own solicitor to represent you, but you can also be represented by what is known as a lay representative from your local Citizen Advice Bureau. Alternatively you can represent yourself and, if you wish, be accompanied by a Lay Support, also commonly known as a McKenzie Friend. McKenzie Friends are not normally allowed to speak during the hearing, but can assist you by helping you organise your paperwork and provide you with moral support. They can also give you advice during the hearing.

The Pursuer’s representative will then tell the court what they want: an order for payment of the money that they say you owe them. They will also give some background information as to why you owe the money.  It is important to not speak until the Sheriff asks you to, even if you disagree with what the Pursuer’s agent is saying. The Judge will then give you an opportunity to have your say.

Once both parties have spoken, if the Sheriff thinks he has sufficient information to decide the case, he will do so.  Alternatively, he may decide more time is required and schedule another date when more time is available to hear all the arguments and consider all the evidence.

What happens if you apply for a Time to Pay?

If you apply for a Time to Pay direction you are essentially admitting you owe the money and want more time to pay by instalments or a lump sum. If the creditors agree to this, it will be granted by the Sheriff without a hearing and a court order will be granted against you.  The he lenders won’t be able to enforce the Court Order whilst you comply with the terms of the Time to Pay.

Where the lenders don’t agree with what you are proposing in your Time to Pay application, a court hearing date will be set and you will have to appear in front of the Sheriff to explain why your proposal is fair.

You can be represented, as outlined above, by a Lay Representative or supported by a Lay Support.

Seeking advice first

It cannot be emphasised enough how important it is, if you are being taken to court, to first seek advice.

Many debt actions cannot be defended, as the money is owed and there is no defence.

Also where people have multiple debts, a Time to Pay Direction is not always the appropriate course of action. Applying for a Debt Payment Programme under the Debt Arrangement Scheme or granting a Trust Deed may be more advisable.

Also lenders only take you to court, not because that is their end objective, but instead because this is the first step to formally recovering their debt from you, which could mean making you bankrupt, or carrying out a wage arrestment or a bank arrestment.

Often, therefore, obtaining advice on how you can protect yourself from these outcomes is more important than it is to try and stop the lender getting a decree against you.

If you have received a court summons and need advice on what to do next call a Carrington Dean Adviser on 0808 2085 195. More information on going to court can also be obtained from the Scottish Courts website.