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Allan McDougall

How to sue someone

Are you thinking of claiming something from someone?

The basis for the claim has to be thought out. Is it a matter of your ownership or contractual entitlement or some other basis?

The remedy also needs to be clearly identified. Is it money - and if so at what stage is the loss measured? Is it an order for delivery of something - or to declare some right? Are there protective early measures which can be taken because of risk of your opponent disappearing or his assets doing so? Has the claim been clearly put to the opponent, or have there been general complaints which lacked focus on what was wrong and what is required?

You also have to assess your chances of getting the remedy out of the opponent even with a court order. Money orders can be frustrated by people just not having any to pay.

What courts would you go to?

Usually you must sue where the opponent resides or carries on business although in consumer contracts the courts where you reside can help. The local Sheriff Court has three forms of process.

  • The Small Claims Court - currently able to deal with cases up to £750 which is likely soon to rise to £1500 - where the expense you may be told to pay your opponent if you lose is restricted to £70, and where solicitors are usually not involved unless it is a claim for personal injuries. You should take advice about the case but you will be expected to do it yourself and some help will be available from the Sheriff Clerk serving you summons and explaining procedure. The Court Advisor - at some courts - may be able to help with advice too.
  • The Summary Causes Court which deals with cases from £750 to £1500 - soon likely to be £1500 to £5000. Procedure is summarised and bills for this type of case reflect that.
  • The Ordinary Court for cases over £1500 (soon to be £5000) in which procedural rules are more complex. This court also deals with non-monetary applications including divorce.

There are also Summary Applications - as another distinct form of process - particularly in appeals against licensing decisions by local authorities and other statutory matters. Many of these must be started within 21 days from the decision complained about.

The Court of Session is the Supreme Court and counsel must be instructed for court papers and to appear before the court. It is expensive and suitable only for the most serious and valuable matters.

Can you appeal?

Some decisions during a case can only be appealed with leave of the judge. Final decisions can be appealed within 21 days in the Court of Session and 14 in the Sheriff Court. Appeal Courts do not re-hear cases usually but must be persuaded that the original judge made a serious error about:

  • the law
  • the facts, or
  • the balance of discretionary judgement.

Are there time limits?

There are many such limits during cases imposed by court rules and they will only be excused where there is a good reason. There are also a number of general time limits such as three years from the negligence/loss in personal injury claims or five years from a breach of contract. There are others. Take advice before it may become too late.

See also:

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APIL Senior Litigator Law Awards of Scotland 2013 Finalist: Scott Legal Awards 2014 Will Aid Solicitor