Simple Procedure for Recovering Debt

Simple Procedure is a Court Procedure that is used in the Sheriff Courts for recovering debts worth up to £5,000.

As the name suggests it is supposed to be a simplified process, that is less formal, less expensive and faster than the other procedure that is used to recover debts, that is known as Ordinary Procedure.

When someone uses Simple Procedure, they do not need to use a solicitor, but they can.

The types of debts that Simple Procedure can be used for are:

  • Credit Cards;
  • Bank Loans;
  • Hire-Purchase Agreements;
  • Store cards;

It can also be used for any other debts that may arise out of a breach of contract, such as a failure to pay wages, or may arise because damage has been caused to property.

Simple Procedure can also be used to make someone return an item, such as a car, or to force them to do something; but in both cases, only when there is also a claim for money.

How is a Simple Procedure Action Raised?

When Simple Procedure is used to recover a debt, a claim form, known as Form 3A, is completed. This can be done online, or the form can be printed off and taken to a local Sheriff Court.

First, however, the person raising the action, must first try and resolve the dispute. This could be by writing to the person that owes the money and asking them to pay the debt and giving them a reasonable period to do so.

When choosing which Court to raise the action in, it should be raised in the Sheriff Court in the Sheriffdom where the person that owes the money is resident. 

In Scotland, there are 39 Sheriff Courts, in Six Sheriffdoms.  

You can find your local Sheriff Court here.

The Six Sheriffdoms are legal administrative areas, headed up by a  Sheriff Principal (Judge) who oversees the Sheriffdom and the Courts in the Sheriffdom.

The six Scottish Sheriffdoms are:

  • Glasgow and Strathkelvin;
  • North Strathclyde;
  • Grampian, Highland and Islands;
  • Lothian and Borders;
  • South Strathclyde, Dumfries and Galloway;
  • Tayside, Central and Fife.

What happens once a claim is made?

When a claim is made against you, you will formally be served several documents. These may be handed to you personally by a Sheriff Officer, or by delivered by first class recorded delivery or by a Sheriff Officer leaving it in your letterbox.

 The documents given to you should include:

The Timetable

The Timetable contains one important date you should take note of.  This is the Last date for a response. This is the date you must complete the Response Form (Form 4A) and return it to the court.

If you don’t respond then the case will not call in Court and instead the person who has raised the claim will apply for a decree (court order), as you have not responded. This will be granted against you without a Court Hearing.

Responding to the Claim

When you respond to the Claim, you only have three options. These are:

  • Admit the claim and offer to settle;
  • Deny the Claim; or
  • Admit the claim and ask for Time to Pay

Admit the Claim

If you admit that you owe the debt that has been claimed against you and are in a position to pay the debt, you can complete the form and admit you owe the debt and offer to settle it in full.

If you do this, it is best to settle the debt with the creditor before the case calls in court, as this will avoid a court order being registered against you, which will damage your credit rating.

To admit the claim, you should complete the Form 4A and Section C and return the Form to the Court before the last date for a response.

Deny the Claim

If you want to defend the debt, then you should deny the claim. You do this by completing Section C on the Form 4A.

You also must complete Section D. 

The first step in doing this is to first look at the Claim Form 3A.  This should outline the reasons why the person taking you to Court is doing so. It should also explain in Section D1, the reasons why they say you owe them money.

If you disagree with any of the facts that the Claimant has stated about the debt, you should state this in D1 of Form 4A (The Response Form).

You should also add any other relevant facts you believe have been missed out or you think are relevant.

In Section D2 you should then state why the claim against you should not be successful.

Apply for Time to Pay

If you accept you do owe the debt, but are not able to pay the debt back, you can apply for time to pay. You do this by using Form 5A.

When you apply for Time to Pay you are admitting you owe the debt but are just asking for more time to pay.

There are two Types of Pay you can apply for. These are Time to Pay Directions and Time Orders.

This does not mean, however, that a Court Order should be awarded against you depending on the type of Time to Pay procedure you use. Both can be used by completing Form 5A.

Time to Pay Direction

Time to Pay Directions are governed by the Debtors (Scotland) Act 1987.

It covers all types of debts providing they are for less than £25,000.

It cannot be applied for all debts, however.

It cannot be applied for:

  • Income Tax, Car Tax, VAT debts;
  • Divorce settlements; and
  • Maintenance debts.

Time Orders

The other type of time to pay you can apply for is a Time Order under the Consumer Credit Act 1974.

Time Orders are different from Time to Pay Directions.

They can only be applied for debts that are Consumer Credit debts, such as:

  • Credit Cards;
  • Bank Loans;
  • Hire Purchase/PCP Agreements;
  • Store Cards.

Time Orders, if granted, do not need to result in a court order being granted and instead the Court can be asked to Pause the action to monitor the repayment plan. This suspends the action.

Time Orders can be extremely useful when used for actions to enforce a Hire-purchase or PCP agreement, as the action will normally be asking for an item, such as a car, to be returned and for the debt to be repaid.

The Time Order addresses the payment of the debt, but also normally allows the car to be kept, so it can continued to be used. 

Going to Court                                           

If you go to Court, either because you are defending the claim, or you have applied for a time to pay and the person raising the court action has rejected it, then there will be a hearing in front of a Judge known as a Sheriff.

You can either attend Court yourself (and be what is known as a Party Litigant) or arrange for yourself to be represented by a solicitor. 

Alternatively, you can arrange for yourself to be represented by a Lay Representative or supported by a Courtroom Supporter.

Representing yourself in Court

If you are acting as a Party Litigant, this means you are representing yourself. You will be up against the other Party who may be represented by a Solicitor.

If you are representing yourself, you should turn up in plenty of time and if you don’t know what court your case will be heard in, speak to the Court Receptionists.

Once you are in the Court, you should sit in the Gallery. When the Sheriff comes in, the Court Officer will ask everyone to stand.

Once seated the Sheriff will be assisted by the Sheriff Clerk, who will sit in front of them. The Sheriff Clerk manages the paperwork and the cases that are in front of the Sheriff.

You should wait to your case is called and then approach the court and stand to the front and left of the Sheriff. The other party, who raised the case, normally stands to the right.

The Sheriff will then ask who you are, and you should identify yourself. The Sheriff will then ask the other Party why they have raised the action. You should remain quiet whilst the other Party explains why they are there and what they want, even if you disagree with them.

The Sheriff will then look to you and ask you what you want. You should always address the Sheriff, not the other Party. You can call the Judge, My Lord, or My Lady; but equally as a Party Litigant you can address them as Sir or Madam.

You should then explain clearly to the Sheriff what it is you want.

Where it is a Time to Pay Direction or Time Order, you should state this clearly at the outset. If you are disputing the claim, you should state to the Sheriff you are seeking for action to be dismissed. 

You should then explain to the Sheriff why they should you do what you want.

So, explain why you don’t owe the debt, or why the Time to Pay is reasonable, with possible reference to your income and expenditure, that you should have completed and returned with you Time to Pay Application.

If you have any additional paperwork that you want the Sheriff to look at, you should bring three copies with you. One for yourself, one for the Sheriff and one for the other Party.  You should give them to the Sheriff Clerk, and they will pass them to the Sheriff.

A good rule of thumb is to speak clearly, and if you see the Sheriff taking notes, stop speaking until the Sheriff looks up again.

If the Sheriff asks you a question, be prepared to answer it if you can.  If you can’t answer it, say so.

If the Sheriff asks the other party a question, wait to they are finished and the Sheriff addresses you again.

Lay Representation

Lay Representation is a person who is not a solicitor or advocate, who can represent you in Court in relation to civil matters, such as actions for payment of debt.

Lay Representatives are normally Citizen Advice Bureaux advisers or Local Authority Money Advisers.

They are not allowed to charge you for providing the service and can do everything you would be able to do for yourself, if you were acting as Party Litigant, with the permission of the Sheriff.

This means they can speak on your behalf and you can request they are the person the Court communicates with when you return the Response Form.

For a Lay Representative to act on your behalf they must ask the Court’s permission and submit a Form 2A to the Court.

Sheriff’s can remove permission for a Lay Representative to act, if they don’t believe they  are assisting the Court in dealing with your case.

Although a Lay Representative can do everything for you that you could do for yourself, you must still attend Court when a Lay Representative is acting on your behalf.

Courtroom Supporter

A Courtroom Supporter is usually a friend or family member who supports you during a court case. They are not allowed to speak on your behalf, but can speak with you during the case, advise you and give you moral support. They can also help you organise your paperwork.

When you want someone to act as your Courtroom Supporter, you should make the Sheriff aware of them and ask if the Court will allow them to support you. 

The Decision

Once the Sheriff has heard all the evidence, which may only happen after multiple hearings, he will make his decision and say what this is.

He may dismiss the action, or grant you time to pay, but equally he may grant the court order that has been requested by the Claimant.

Once the decision is made, you and the other Party have 14 days to appeal, but only on a point of law, which means it must be because it is alleged the Sheriff erred in law.

Where a Court Order has been granted, after 14 days the Decree can be extracted.

It can then be enforced using Diligence

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