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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11564
Experience:  30 years as a practising solicitor.
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As a Company, raised a small claim against another company

Customer Question

As a Company, raised a small claim against another company for £1k. At court other company came back with counterclaim and so we now go to proof. However counterclaim is well above £3k small claims figure, so at proof can I ask that this not be allowed, and that other company should raise seperately as a summary cause?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
You can ask for this. However the more normal procedure is that he sheriff will order that the whole claim and counterclaim proceed under summary cause procedure under Rule 15.2 of the small claim rules.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

So have I been outmanouvered here? If I do raise the matter, the issue will be kicked into the long grass by means of another 10 week delay, or if I dont raise the issue , the defender has got a summary cause hearing against my company, but I have had to pay all the fees and do all the chasing?

Expert:  JGM replied 2 years ago.
If you simply go to proof they will also have fees to pay to pursue the counterclaim. The only difference is that you have paid the court warrant fee.
The downside of summary cause procedure is that the loser pays expenses on a statutory scale as opposed to a token basis as is th case under small claim procedure.
Customer: replied 2 years ago.

Does the statutory scale come in to effect even if neither side are using lawyers but are presenting their own cases? At present my costs are £73 court fee and £60 sheriff officers serving fee, but if I were to gain more expenses than that it may be worth the additional wait to have the case re-called. Can you tell me what scale fees would be, original claim £1000, counterclaim £6000 please?

Expert:  JGM replied 2 years ago.
The court can make an award based on the statutory scale even where no lawyers are involved.
I can't tell you what the fees would be. The scale isn't based on the sums at issue. It's based on the various stages the action passes through and there is a fee for each stage in procedure.
You should look online for chapter IV of the Schedule to Act of Sederunt (Fees of Solicitors in the Sheriff Court)(Amendment and Further Provisions) 1993 together with the latest update to that schedule giving the most up to date fees.
Remember that non solicitors will only be given a percentage of this scale at the discretion of the court based on the nature of the case, the perceived preparation, number of witnesses etc.
Do not expect to make a profit out of judicial expenses because you won't.
Customer: replied 2 years ago.

Its not that I am.looking to make a profit, it is more to put off defender from raising a frivilous counter claim because costs when awarded will be greater. It would now look to me that the counterclaim of £6000 even takes this out of the scope of Summary Cause and into an Ordinary Cause action.

It does seem extraordinary to me that the Sheriff will hear a counterclaim for such a larhe amount when the initial claim is small. There are no risks to meon the counterclaim, it is totally unprovable (if thats a word!) , but I want to be 100% sure they cant come back and say it was held in wrong court if I just turn a blind eye and proceed with case in small claims.

Expert:  JGM replied 2 years ago.
I was thinking about that myself. The distinction between small claim and summary cause procedures is not so great that the court would not allow elevation to the summary cause roll. However, going to the ordinary roll is a different matter altogether because it's a lot more than a form filling exercise. Pleadings have to be drafted from scratch and the procedure is far more costly and difficult for a person who is not legally qualified (and even then some lawyers make a mess of it!)
Read small claim rule 15.2 please. As you know you will get it at www.scotcourts.gov.uk.
Thereafter can you advise what direction the sheriff has made here. At the preliminary hearing he has to state what procedure is going to be followed, ordinary or small claim. If he hasn't done so you should contact the clerk of court and ask for their guidance as to what procedure the sheriff intended would be followed. This is not an issue that can be left until the proof as an ordinary proof has additional things that have to be done, such as the booking and paying for a shorthand writer for example.
Customer: replied 2 years ago.

What the Sheriff Court are saying this morning is that it is up to the Sheriff on the day of proof to decide if matter should be remitted elsewhere. They say they have not verified counterclaim and that Sheriff will not have had time to look at figures at the preliminary hearing. They also say they wont punish the defender if he doesnt lodge his defence in time. he may just turn up on the day of the proof with his paperwork!

Wow, this is a faily one sided system, but I am sure you have heard that before!

Unless you have any other suggestions, I think I just need to lodge all my paperwork as if it is a Small Claims Hearing and turn up on the day prepared to proceed on that basis?

Expert:  JGM replied 2 years ago.
That is what you will have to do but the sheriff clerk is wrong. If you read the rule, the sheriff should have dealt with this at the preliminary hearing. The fact that he or she hasn't done so is just laziness, not a question of time. The sheriff should know what the issues are and have read the papers at the preliminary hearing.
I'm sorry you're in this situation. It is also not the case that the defender can just turn up on the day with his paperwork. There are rules about lodging things and if those rules are broken you are entitled to some redress, whether by way of adjournment or an award of expenses for any additional work you have to do.
I suggest you go to the court and try to speak to one of the more senior clerks about your concerns.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.

Thought I was finished with this one, but latest thing is they have served an Incidental Application on my client today seeking to defer case from May until August because Defender has hospital appointment for Orthapaedic Surgery the day before proof hearing . Surely the Court is more important than a hospital appointment, which says on the admissions note to contact them should they be unable to attend appointment? Is it worth me attending Court on Thursday to oppose this Incidental Application or is it a formality that it will be accepted? Final date for lodging Evidence for Proof is tomorrow, and I think Defender wont make that and is looking for as many delays as possible.

Expert:  JGM replied 2 years ago.
You can oppose this, but the court would generally be sympathetic to a surgical appointment. On balance it will be granted even if you do oppose the incidental application.