Simple Procedure
Simple procedure actions
The simple procedure replaced small claims on 28th November 2016. It has been designed to be a reasonably quick and inexpensive way to settle disputes. It can be used to recover money owed or to enforce delivery or recovery of moveable property or for implement of an obligation, for example to make someone carry out repairs. The monetary value of the claim cannot exceed £5,000.[1]
Points to consider
Before raising a simple procedure, consideration should be given to whether there is any alternative method to settle the dispute.
The First Tier Tribunal Housing and Property Chamber would be the appropriate route for most claims in relation to most residential tenancies in the private rented sector.
To enforce repairs in the private rented sector
Where illegal fees have been charged by a letting agent or landlord during or after a tenancy
Where there is a dispute over a tenancy deposit
Where damages or compensation is being sought in relation to repairs in the private rented sector a tenant may raise civil proceedings at tribunal. See the section in relation to the particular tenancy type on the section on the tribunal. Action at tribunal should be always be considered in first instance as there are no fees to make a claim via this route.
In addition some disputes are suitable for Alternative Dispute Resolution
However, the simple procedure may be a suitable route:
To enforce some repairs in the social rented sector. The court could make an order that the landlord should implement its repairing obligations as set out in the tenancy agreement.
Where damages or compensation is being sought in relation to repairs in the social rented sector
To enforce repairs or seek damages or compensation in relation to a tenancy not covered by the tribunal rules. (Where there is any uncertainty about this seek advice from a housing law specialist.)
Where a landlord has kept a 'holding deposit' for a property that, for whatever reason, was not let to the applicant
Where a claim has been raised at the tribunal but the tribunal have dismissed the action.
It should be noted however that:
Where the claim includes damages for personal injury the action may have to be raised as a summary cause or ordinary cause depending on the level of the claim. Seek specialist legal advice if this may be the case.
Other considerations
It is one of the principles of the simple procedure that parties must try to settle the dispute without court action. This means for example, writing to the other party to try and settle the issue.
Consideration should be given to whether there is enough information and evidence to potentially prove the case. Copies should be kept of any letters sent and it is of course useful to have receipts, tenancy agreements or other evidence.
In disrepair cases, you may need to be specific about what the landlord should do. Expert evidence, such as from an architect, may be required. If you are also seeking compensation more than £5,000 then the claim would have to be raised as an ordinary cause action.
It should also be noted that there may be little point in raising an action if the other party cannot afford to settle the claim or, where it’s a company, they have ceased trading.
Fees
There will be a court fee to pay to lodge a simple procedure action. Applicants on a low income may be entitled to a fee exemption.
There may also be costs associated with serving paperwork.
For up to date information on fees and exemptions check the Scottish Courts website or contact the sheriff court directly.
Making a claim
Usually the claimant must raise the action in the court that has jurisdiction over the other party (called the respondent). This is generally where the defender lives or conducts business.
The claimant should complete Form 3A available online from the Scottish Courts website or from the local sheriff clerk’s office. The claim form asks for both parties details, the background of the case and whether the claimant intends to represent themselves or be represented. If the claimant is an individual without representation there is a section on the claim form where they can ask the sheriff clerk to formally serve the paperwork.
The form also asks the claimant to state whether they are asking for an order:
To make the respondent pay the claimant a sum a money
To make the respondent delivery something to the claimant
To make the respondent do something for the claimant
The form asks what steps have been taken so far, and whether the claimant has evidence or witnesses.
Provisional orders
A claimant can also ask for provisional orders to be made to protect or secure the claimants position using Form 9G. See the guidance notes on the Scottish Courts website for more details about this.
There are three types of provisional order:
an arrestment on the dependence under section 15A(1) of the Debtors (Scotland) Act 1987 (this is an order freezing the respondent’s goods or money held by a third party),
an inhibition on the dependence under section 15A(1) of the Debtors (Scotland) Act 1987 (this is an order preventing the respondent from selling their home or other land, or taking out a secured loan), and
an interim attachment under section 9A(1) of the Debt Arrangement and Attachment (Scotland) Act 2002 (this is an order preventing the respondent from selling or removing their goods)
The claim form(s) should be copied and both copies either taken in person or posted to the appropriate Sheriff Court along with the correct fee. See the Scottish Courts page on court fees for current amounts. Some Sheriff Courts may allow the form to be sent via email, but check with the court first.
Once the claim form is received by the court
If there are no issues with the form and the fee has been paid the sheriff clerk will register the claim. The sheriff clerk will send the claimant a Timetable. This will include:
the last date for service
the last date for a response.
Either party can request a change to these dates by sending a Change of Timetable Application available from the Scottish Courts website.
Service
The claim form needs to be formally served on the respondent by the last date for service and this must normally be 3 weeks before the last date for a response (or 6 weeks for respondents outwith the EU)
Formal service of a simple procedure document on someone within Scotland can only be carried out by:[2]
The party’s solicitor
A sheriff officer instructed by the party
The sheriff clerk – this is allowed only when the party is an individual without legal representation.[3]
The first attempt to serve the document must be by next day postal service recorded delivery and the envelope which contains the document must have the following label written or printed on it:
THIS ENVELOPE CONTAINS A **NAME OF DOCUMENT** FROM
**NAME OF SHERIFF COURT**
IF DELIVERY CANNOT BE MADE, THE LETTER MUST BE RETURNED TO THE SHERIFF CLERK AT
**FULL ADDRESS OF SHERIFF COURT**
If service by post has not worked the document must be served by a sheriff officer.
Once the document has been served a Confirmation of Formal Service must be completed, with any evidence of delivery attached. This must be sent to the sheriff court within one week of service.
What happens next
On receiving the claim, the respondent can:
do nothing
admit the claim and pay in full before the last day for a response.
admit the claim and ask for time to pay
dispute the claim
If the respondent does not respond
The claimant has two weeks to make an Application for a Decision using Form 7A. If the claimant fails to do this the case is dismissed, so it is important that the claimant checks with the court to see whether a response has been given. The sheriff is likely to find in the claimant’s favour.
Please note, because they didn’t reply at all the respondent could make an application to recall this decision.
If the respondent admits claim and asks for time to pay
The sheriff will write to the claimant and ask if they agree to this.
If the respondent admits the claim but hasn’t paid in full
The sheriff will decide whether payment must be made.
If the respondent denies the claim
The sheriff has a great deal of discretion over what happens next. She/he may make a decision on the case or may decide there needs to be a case management discussion and/or a hearing. She/he may decide to refer the parties to alternative dispute resolution. If the sheriff does not think there are prospects for success or if the claim is incompetent then they can dismiss the claim.
Case management discussion
This is a more informal process and can be held in court or in the sheriff’s chambers or even via the phone. The sheriff can decide the claim or refer the parties to Alternative Dispute Resolution. If the dispute cannot be solved the sheriff may still order a hearing.
Before the hearing
If the case goes to a hearing, both the respondent and the claimant must complete a List of Evidence form Part 10A and send this to each other and the court at least 14 days before the hearing.
If either party wishes to call witnesses at a hearing they must provide a list of witnesses (Form 11A) to the court, and to each other, 14 days before the hearing.
All documents and physical evidence must also be physically lodged at the court at least 14 days before a hearing
If a witness is not willing to attend court they can be issued with a witness citation notice (Form 11B) to compel them to attend. There are special rules about how vulnerable witnesses should be treated during the process.[4]
At the hearing
Both parties should attend the hearing. If they do not, the action could be dismissed or a decision made against them. Where a party does not attend the hearing they may be able to recall the decision.
The sheriff may look at evidence and question any witnesses.
Decision
The sheriff can decide the case at the hearing, or take up to 4 weeks to make a decision.
The decision will be issued in writing using Decision Form (Form 13A), also called an “extract decree”.[5] The sheriff must provide reasons for the decision either during the hearing or as part of the written decision.
The sheriff has the power to make any decision which resolves the dispute between the parties. They may:[6]
order the respondent to pay the claimant a sum of money
order the respondent to deliver something to the claimant
order the respondent to do something for the claimant
dismiss the claim or part of the claim
absolve the respondent of the claim or part of the claim.
If the respondent is absolved this means the same case cannot be raised against them again.
Expenses
There are different rules about expenses depending on the value of the claim.[7]
Claim is up to £3,000
Up to £200 (£300 from 1st April 2019) no expenses can be awarded
greater than £200 (£300 from 1st April 2019) but less than or equal to £1,500 the expenses awarded by the sheriff may not exceed £150
greater than £1,500 but less than or equal to £3,000 the expenses awarded by the sheriff may not exceed 10% of the value of the claim.
Claim is worth more than £3,000
The amount is usually calculated by the sheriff clerk.
The sum awarded will depend on the amount and nature of the work which has been done in the case. At the conclusion of the final hearing of any case each party has to tell the court what their expenses are. In some cases a special hearing may have to be set to discuss expenses in full.
Exception - Where respondent states a defence but does not proceed with it
Whilst in general the claimant may not therefore be entitled to expenses in excess of 10% of the value of the claim, this restriction on expenses shall not apply in such a case where the defender, having stated a defence, does not ultimately proceed with it. [8]
In some cases the expenses could end up being higher than the claim itself because the general rule about expenses being limited under the simple procedure won’t apply. [9]
Recalling a decision
Either party may apply to have a decision recalled, whereby the original decision is set aside and the case is heard again. It can only be recalled when:[10]
where the sheriff dismissed a claim because the claimant did not send the court an Application for a Decision within 2 weeks from the last date for a response
where the sheriff made a decision because the respondent did not send the court a Response Form or a Time to Pay Application by the last date for a response
where the sheriff dismissed a claim because the claimant did not attend a discussion or hearing
where the sheriff has made a decision because the claimant did not attend a discussion or hearing
where the sheriff dismissed a claim because neither party attended a discussion or hearing
If the case was dismissed there is a two week time limit to apply for a recall. [11]
For all other reasons the case a recall can be applied for up to the point where the decision has been fully implemented. [12]
A party may apply to have a decision of the sheriff recalled by completing an Application to Recall and sending it to the court. If the sheriff made a decision following an Application for a Decision and the respondent wants to dispute the claim or part of the claim, the respondent must include a completed Response Form with the Application to Recall.
The sheriff clerk will check whether the Application to Recall is the first Application to Recall in the case by the party making the application.
If it is the first Application to Recall by that party, the sheriff must send the parties an order arranging a discussion in court at which the sheriff will consider whether to recall the decision.
The party making the application must send a copy of the Application to Recall and any Response Form to the other party at least 5 days before the date of the discussion in court.
A party may only make an application to recall a decision once in a case.
Appeals
Appeals against the decision of the sheriff who heard the simple procedure case may be made to the sheriff appeal court only on a point of law or if they conducted the case improperly.
Legal aid may be available for appeals.
An appeal must be lodged within 28 days of the court sending the Decision Form.
A further appeal can be made to the Court of Session but only with the permission of either the Sheriff Appeal Court or the Court of Session. The appeal can only be heard if it raises an important point of principle or practice or there is some other compelling reason why it should be allowed. This appeal should be lodged within 14 days of the judgement
Last updated: 30 November 2020