Procedures involved in Scottish claims

Small claims actions (under £3,000.00)

Following the Letters Before Action sent by Burnetts, we will need to provide either the invoices or statement to our Scottish agents to allow them to draft the summons.

The summons – equivalent to the claim form and particulars of claim – are then sent to the court. The court issues the claim and returns it to our Scottish agents within 7-10 days.

They return the warrant (Issued claim form) to our agents with a calling date, which will be up to 8-10 weeks from the date it was issued. The Scottish agents will then attempt to serve the warrant by recorded delivery on the debtor. If they are unable to serve the warrant by recorded delivery they will serve the warrant using the sheriff officers, would incur an additional fee.

As well as the calling date there is a return date, which will be 14 days before the calling date. When the matter reaches the calling date our Scottish agents will return the summons and warrant and check if any defence has been lodged at the court. If no defence has been lodged, the court will issue a decree – equivalent to county court judgment – approximately 3 weeks later (minimum period is 2 weeks).

Summary cause actions (£3,000.00 - £5,000.00)

Following the LBA sent by Burnetts, we will need to provide either the invoices or statement to our Scottish agents to allow them to draft the summons.

The summons – equivalent to the claim form and particulars of claim – are then sent to the court. The court issues the claim and returns it to our Scottish agents within 7-10 days.

They return the warrant (issued claim form ) to our agents with a calling date, which will be up to 8-10 weeks from the date it was issued. The Scottish agents will then attempt to serve the warrant by recorded delivery on the debtor. If they are unable to serve the warrant by recorded delivery they will serve the warrant using the sheriff officers, which would incur an additional fee.

As well as the calling date there is a return date, which will be 14 days before the calling date. When they reach the calling date our Scottish agents will return the summons and warrant and check if any defence has been lodged at the court. If no defence has been lodged the court will issue a decree – equivalent to county court judgment – approximately 3 weeks later (minimum period is 2 weeks).

Ordinary actions (over £5,000.00)

These are essentially quicker than the small claims and summary actions.

Following the LBA sent by Burnetts, we will need to provide either the invoices or statement to our Scottish agents to allow them to draft the summons.

The initial Writ (equivalent to the claim form and particulars of claim) is drafted and sent to court. The court issues the claim and returns it to our Scottish agents within 7-10 days.

They return the warrant (issued claim form) to our agents with a calling date, which will be up to 8-10 weeks from the date it was issued. The Scottish agents will then attempt to serve the warrant by recorded delivery on the debtor. If they are unable to serve the warrant by recorded delivery they will serve the warrant using the sheriff officers, which would incur an additional fee.

21 days after the date of service the Scottish agents would minute – equivalent to request – for a decree – equivalent to judgment. After another 3-4 weeks the Scottish agents would obtain the decree (minimum 2 weeks). When the extract of the decree – equivalent to judgment – is received the Scottish Agents can commence enforcement.

Insolvency

Liquidations (limited company) – for a debt over £2,000.00, the most effective way of prompting payment is to serve a short form demand which is cheaper and quicker than the equivalent English route (statutory demand). It gives the debtor 48 hours to pay the debt or make an arrangement to pay. If it is not paid by then liquidation proceedings can be started after the 48 hour period has expired.

One particularly helpful difference between the English and Scottish liquidation process is that as soon as the petition is sent to the court, the court will appoint a provisional liquidator. The provisional liquidator has the power, which he quite often uses, to freeze the bank account of the limited company. This means that if there is money available, a liquidation is dealt with very quickly and very often with the desired result.

Sequestration (personal bankruptcy) – first of all our Scottish agents would need to serve a statutory demand. A statutory demand allows the debtors 21 days to deal with the matter. If payment is not made within the required time frame, our Scottish agents can then present a petition for sequestration – equivalent to make an application for bankruptcy – on the basis of an expired statutory demand. The court will issue the sequestration proceedings and there will be a calling date of 4-6 weeks. This is served by the sheriff officers. Our Scottish agents will then attend to the necessary paperwork and attend the sequestration.