(Updated 13 June 2018) Simple Procedure is far from simple, but that doesn’t mean you shouldn’t use it

IMG_3285Simple Procedure is the new name for the small claims court. Over the past four months I’ve been through the process to recover money owing from a former landlord who failed to return a rental deposit. I won my case, but it was handled so poorly by the court that it might serve as a warning to others, and could help you be prepared for the challenges you may face.

I also learned a thing or two about how the process is stacked against the person making the claim, so I’ll mention those too as they’re not obvious.

In theory, to claim money through Simple Procedure you just fill out a form, pay a modest court fee, and the debtor either pays up or chooses to fight the case in court.

This is the first bit that’s stacked against you. The debtor can simply ignore the court letter and not reply to it. If they do that then the Sheriff will automatically dismiss the case and you’ll get nothing. (See section 7.4)

To avoid that happening you have to be super-vigilant and check with the court to find out if the debtor has responded to the claim or not. The court won’t make any effort to tell you, you have to ask. If the court doesn’t hear back from the debtor then you have to write to the sheriff and request a judgement. If you don’t then the case is over, you’ve lost your money, and your court fee is gone too. You can formally ask the sheriff to re-open the case, but the debtor can formally ask him not to, so you really don’t want to let it get to that stage.

Anyway, that didn’t happen in my case. The debtor responded, saying that she didn’t owe the money, and a court date was set. Not a trial date though, no, that would be too simple. Instead the Sheriff ordered a “case management discussion“. This is supposedly an opportunity for the Sheriff to listen to both parties, consider evidence, and mediate a discussion in the hope that a compromise can be reached.

This is the next bit that’s stacked against the claimant. Consider that someone owes you money: You try to get it back, you wait, you wait more, they still don’t pay, so eventually you give in and take them to court. The court now asks you to “compromise” and accept a lower amount. In other words, the court wants the debtor to be rewarded for making you wait. And if you do accept their offer then you don’t get your court costs back.

In my case, the Sheriff simply wasn’t interested in the case. He refused to participate in the discussion. He refused to look at the evidence. He told us to go in to the corridor outside the court and reach a settlement. So out we went, but there was no chance of any compromise. The debtor unleashed a load of abuse and accusations, some weird racial comments, then offered to pay about a quarter of what she owed. I didn’t accept, and that was exactly what she wanted. Next thing I knew we were back in court and she was turning on the waterworks, telling the Sheriff how I was being unreasonable and just trying to waste her time and waste the court’s time.

Here’s another thing that’s stacked against the claimant. A key aspect of Simple Procedure is that it’s an inexpensive and relatively risk-free way to get a debt resolved, and expenses are capped – in this case at £150. However, if either person can show that the other side has behaved “unreasonably” then they can ask the Sheriff to remove the expenses cap and claim an unlimited amount. Not accepting a settlement offer is taken in to account when the Sheriff decides if someone has behaved unreasonably. As far as I’ve been able to establish, the debtor making a low offer is not taken in to account. In my case, the debtor made three low offers, the highest being only half of the debt. I rejected all three offers, so I had “three strikes” against me. It seemed pretty clear that she knew how the system worked and she was trying to play it. She told me she’d be claiming £2,000 in expenses. It was a blatant attempt to intimidate me.

Unfortunately, the Sheriff bought in to it, hook, line and sinker. I was put under a crazy amount of pressure to accept the low offer. He warned me that it could be “very expensive” for me to go to trial. He warned me again. And again, and again, and again. The whole tone of the proceeding was that he’d already decided I’d lose at trial, and had already decided to remove the expenses cap. Of course, he had no idea how aggressive the debtor had been out in the corridor. All he saw in front of him was an elderly woman pretending to cry and talking about how she needed to get home to her mother. I stood my ground and told him that I wanted to go to trial.

(By the way it’s not actually a “trial” as such, that was the Sheriff’s word. It’s an evidential hearing, much less scary sounding.)

Following the farce of the case management discussion, I was very concerned by the Sheriff’s behaviour. I wrote to the court and complained that he seemed minded to remove the expenses cap, which made it financially more dangerous to proceed with the case. At this point I was wondering if I should just cut my losses and accept the debtor’s offer. The court didn’t even show me the courtesy of a reply.

A couple of weeks later I followed up the letter, and got a shocking response: I was right. The Sheriff had already removed the expenses cap. Now, under the Simple Procedure rules, that’s not even allowed. The expenses cap can only be removed if either the claimant or the debtor requests it after the case has been decided. The cap can’t be arbitrarily removed ahead of time. But for some reason, the Sheriff had decided to do that. Why? The court wouldn’t explain.

(The Simple Procedure Rules do allow the Sheriff some leeway to deviate from normal procedure. See section 1.8. However this Sheriff seemed to be a law unto himself, making major changes to the procedure and declining to explain why he was doing it.)

The next month was nerve-wracking. I’d already done extensive research to make sure there wasn’t some obscure legal nuance that the debtor might be using to undermine my claim. I was sure there wasn’t. Her entire defence was that the case was statute barred, meaning the debt was more than five years old, but even her own paperwork showed that it wasn’t. Yet still I kept thinking, should I risk it? What if there’s something I’ve missed? What if she just outright lies in court and the Sheriff believes her? The whole debt was for less than £500 but if I lost then I fully expected the Sheriff to award thousands of pounds of expenses against me. It was a frightening prospect.

I spent every night on Google, researched similar cases, read every bit of advice I could find, found legal precedents about debt recovery and when debts become active. I was 100% sure my case was watertight. It felt like going all-in at poker – I knew I’d got the winning hand… but what if I hadn’t? By this point I was fairly sure my debtor must have a trick up her sleeve. I also had to work on the basis that she may spin a yarn. It was such a black-and-white case that really her only chance of winning was to lie. My partner and I discussed it a lot, and we both knew that I had to see it through. If I lost then I lost. We actually started putting money aside ready to give it to this awful person if she won. The money wasn’t even the main issue anymore, it was the principle.

When the day of the evidential hearing came, things seemed very different. It was a different Sheriff, and the whole tone was much fairer and more balanced.

Within a few seconds the debtor had found a way to talk about how her mother was seriously ill and she’d had to leave her and struggle through the snow to get to court. That didn’t seem to sway the Sheriff at all. Maybe he believed her, but I didn’t get any sense of it influencing him.

The hearing itself went how I thought it would, only much better. I told my side of the story, choosing to do it under oath. She told her side of the story, refusing to swear an oath. I kept my story brief and factual. Hers was a pack of lies from beginning to end. The Sheriff listened to it, took notes, and let her finish. Then he tore it apart. It was beautiful to watch.

She tried to persuade him that the debt was statute barred and it took him maybe five seconds to work out that it wasn’t. She tried to tell him that I’d breached the terms of the lease, and showed him a copy of the lease to prove it, but the Sheriff quickly established that the lease was fake. She claimed that I’d damaged the property, claimed that I’d stolen from her, claimed that photos I presented as evidence had been “airbrushed” to hide thousands of pounds worth of damage. The Sheriff didn’t entertain any of it.

When the ruling went in my favour, there was one final surprise: It turned out that the original Sheriff hadn’t removed the expenses cap at all. My debtor wanted it removed though, because she wanted to claim over £1,000 in expenses. The Sheriff told her it doesn’t work that way — the winner gets the expenses. I asked for the court costs and nothing else, and that was awarded in full.

Hopefully what you’ll take away from this is that a Simple Procedure case can be the very opposite of simple. It can be complicated and traumatic. But, the bottom line is that I won. I fought an unrepentant and dishonest debtor, and I had to fight the system a bit too, but justice was done in the end. Our debtor now has a County Court Judgement decree against her, which will affect her credit rating, and affect her landlord’s insurance. She has caused herself goodness knows how many financial and business problems, and ultimately ended up having to pay back more than the original debt due to court costs.

If someone owes you money, I wholeheartedly encourage you to use the courts to get it back. The system isn’t perfect, but ultimately it worked for me. Good luck 🙂

Update: 9 April 2018. The debtor has appealed the ruling, claiming that the Sheriff didn’t properly explain to her why he reached his decision. I’ll update this blog post once the outcome of the appeal is known.

Update: 19 April 2018. The appeal hearing went as expected. The debtor had appealed on four counts of what she claimed were failings by the Sheriff to explain legal reasonings for his judgement. At the appeal she ignored all of those points and instead tried to introduce new evidence about unpaid rent, an unpaid electricity bill, costs of £200+ for cleaning and redecorating, and theft of a table and “a stand”.

The appeal Sheriff explained to her that respondents aren’t allowed to dispute or introduce new evidence at an appeal hearing. An appeal hearing is only to dispute the legal correctness of a ruling. (That is explained clearly on the appeal form, so really there’s no excuse for the debtor not knowing that, and I’m quite sure she did.)

Concluding, the Sheriff upheld the original ruling.

As with most of this sorry tale, though, there was something quite strange about the appeal hearing: I wasn’t allowed to respond to anything the debtor was saying. I could have easily produced paperwork to disprove everything she was saying (apart from the allegation of theft) but I wasn’t allowed to. Indeed, having listened to the debtor for around 25 minutes, the Sheriff simply said to me: “I don’t think I need to hear from you.”

Now I assume the reason he didn’t need to hear from me was because he was going to rule in my favour. But in doing so, he ignored a key part of the appeal process: The process allows the claimant to also challenge legal aspects of the ruling, and I had done so. The original Sheriff had deducted small amounts of money from the claim without any legal reasoning, and had refused to apply interest to the debt due to his apparent misunderstanding of how interest is calculated. These were clear legal challenges, but the appeal Sheriff ignored them entirely.

Finally, the Sheriff asked if I wanted to claim expenses. I said that I did. He said that I wasn’t entitled to. As far as I can tell that’s simply wrong, and if I can confirm that then I’ll have to start a new Simple Procedure to claim back the costs of fighting this case, which are so far over £400. And so it continues…

Update: 13 June 2018. I made a complaint to the Scottish Courts service, as the appeal hearing had been conducted incorrectly. They wanted £300 to re-hear the appeal.

In the meantime, the debtor still refused to pay. After 34 days passed, I paid an £80 fee to have the debt enforced, which required Sheriff Officers to visit the debtor at her home. She then paid in full, including reimbursement of the enforcement fee.

 

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4 thoughts on “(Updated 13 June 2018) Simple Procedure is far from simple, but that doesn’t mean you shouldn’t use it

  1. Couple of errors in your ‘piece’ I would like to point out to put the record straight…..1. ‘If they do that then the Sheriff will automatically dismiss the case and you’ll get nothing. (See section 7.4).’ The sheriff will dismiss the case if the claimant does not send in the correct form asking for their decree-not if the respondent doesn’t reply to the court in response to the claim
    2.’Our debtor now has a County Court Judgement against her, which will affect her credit rating, and affect her’. No such thing as this in Scotland, that is an English term as they have County Courts, Scotland does not. In scotland it is called a decree recorded against a debtor.
    I could pick holes with your perception of how you were allegedly treated but I won’t as it is your perception and not what should happen when a party litigant submits a claim. I also agree with some of what you said about the system being anything but simple. It’s been a huge change for staff in the courts too!

    • Hi Elaine. Thanks for putting me right about the county court judgement. I realise now that I was wrong about that. Thank you for taking the time to supply the correct information. I’ll edit the blog post to make this clear.

      I think my point on 7.4 stands. If a claimant is waiting for a response, and there is no response, then the Sheriff will automatically dismiss the case. It isn’t at all clear (in my opinion) that the claimant has a small window of time in which they must send another form. It makes no sense for the process to work that way. If someone makes a claim then it should be obvious that they want the Sheriff to make a ruling in the absence of any response. The respondent shouldn’t be “rewarded” for ignoring the claim.

      • You are correct that the claimant gas a small window in which to send in their form asking for the sheriff to grant the decree. They have 2 weeks which the court advises-by letter- of the date so the claimant is kept informed. They dont have to guess it. Cases can and do get recalled by either side if dates are missed and they have a good reason. Solicitors also follow the same rules and miss key dates too.

      • The issue is that the respondent replies (or doesn’t) to the court, not to the claimant. The court doesn’t advise the claimant if the respondent doesn’t reply. I was caught out by this in another claim. The respondent didn’t reply to the court, and the first I knew of this was in a letter from the court telling me that the case had been dismissed. (I was able to get the case recalled though.)

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