Things to consider before court action

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					                    Things to consider before court action

Alternatives
Court action should always be the last resort, so be sure that you have tried all
possible routes to resolve the complaint.
(see fact sheets ‘What to do when things go wrong’)

Be sure that you notify the trader, in writing by recorded delivery post, that you
intend taking court action, giving 7 days from the date of the letter to respond
with an offer.

Court Procedure
In Scotland, the Small Claims process provides an inexpensive way to settle
claims up to £3000 and allows you to take action without the use of a solicitor
(you can have a friend or lay representative if required)

If your claim is higher than the small claims limit, we would recommend that you
seek the advice of a solicitor as representation in court will be required.
The procedure for claims between £3000 and £5000 is a Summary cause and for
claims over £5000 it would be an Ordinary cause.

Explanatory leaflets and forms on the Small Claims procedure are available from
Edinburgh Sheriff Court, Chamber Street, Edinburgh or can be accessed and
downloaded from www.scotcourts.gov.uk.
(see separate fact sheet)

Evidence
Make sure that you have sufficient supporting evidence to substantiate that you
have a legal claim against the trader
         Check that you have any relevant paperwork such as receipts, invoices,
          contract, guarantee
         If your complaint is about faulty goods, do you still have them?
         Do you have proof that you are making your claim against the correct
          person, business or company?
         Do you have witnesses to support the claim?
         Would photographs help to show what the problem is?
         Do you have copies of letters sent to the trader notifying them of the
          complaint and copies of any responses
         Take into account the trader’s response to your complaint - Do you
          need to obtain an expert opinion?

Is court action appropriate?
         will it be worthwhile – check what it will cost you in total to take any
          action
         consider whether or not the trader is likely to be able or willing to pay
          if you win your case.
         Do you have their correct name and present address for the summons
          to be served
          Check their financial and trading status (e.g. are they still trading, are
           they bankrupt or insolvent, have they been sued before and failed to
           pay when decree/judgement obtained)

Checks you can make
        If pursuing a company (ltd or plc after their name) details can be
         accessed from Companies House, 4th Floor, Edinburgh Quay 2, 139
         Fountainbridge, Edinburgh EH3 9FF. Tel no. 0303 1234 500 or on the
         website www.companieshouse.gov.uk. Information on the company
         index can be accessed free of charge. There is a fee to access
         company reports, accounts and annual returns)
        To check if a person is bankrupt or if a company is in compulsory
         liquidation contact Accountant in Bankruptcy (AIB), 1 Pennyburn Road,
         Kilwinning, Ayrshire KA13 6SA tel 0845 762 6171 or 0845 612 6460 or
         by visiting their website www.aib.gov.uk. AIB is responsible for
         administering the process of personal bankruptcy and recording
         corporate insolvencies in Scotland (Register of Insolvencies) There is
         a fee to access the register
        The Register for England and Wales is available from The Insolvency
         Service Tel No 0845 602 9848 website www.insolvency.gov.uk
        The Edinburgh Gazette www.edinburgh-gazette.co.uk publishes notices
         concerning appointment of administrators/liquidators, meetings of
         creditors, petitions to wind up companies, sequestrations and
         protected trust deeds. Copies of the Gazette are available for
         reference at The City of Edinburgh Council Central library Edinburgh
         Room, George IV Bridge
        If the other party has been sued before and failed to pay when the
         person suing has won their case it may not be worth going to court.
         To find out if they have unpaid decrees/judgements write to Registry
         Trust Ltd, 173-175 Cleveland Street, London W1T 6QR, website
         www.trustonline.org.uk telephone 0207 380 0133 there is a search fee

Jurisdiction – which court would deal with your case
         if in doubt check with the Sheriff Clerks office at Edinburgh Sheriff
          Court
         information is also available on the Scottish Court Service website,
          www.scotcourts.gov.uk and also website for County Court information
          www.hmcourts-service.gov.uk

Small Claims in the County Court – England and Wales
         Fact sheet – Thinking of Suing in a County Court - can be accessed on
          the Trading Standards Central website, www.tradingstandards.gov.uk
         More detailed information and guidance on pursuing an action in the
          County Court is available on the website www.hmcourts-
          service.gov.uk/infoabout/claims/index.htm


This leaflet is not an authoritative interpretation of the law and is intended only
for guidance

				
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