What to do if you are being sued

When a dispute is getting out of hand you should take early legal advice on how to respond to it.

If you are threatened with court action there may be a straightforward answer which would prevent or deter it. If you are in the wrong you may be able to involve insurers or others (e.g. lenders) if goods or services provided to you have been defective. You may be able to offer a reasonable response requiring opponent to justify the need for any premature court action against you or else be told by the court to re-imburse your legal bill or part of it.

If he is entitled to a contractual payment but you have a counter claim your claim will need to be investigated and quantified early if it is to be synchronised as a defence to his claim and not left over to be a further action later. Don’t ignore the problem and leave it too late. It is difficult to reverse things, particularly if you have let a court order go against you unopposed.

How can people get money out of you?

They are restricted to certain defined procedures and must have a court order, usually obtained after you have had an opportunity to contest the case. There are exceptions to this, concerned mainly with taxes and power bills, which must be dealt with earlier because summary warrants can be granted by courts without you knowing about them.

The procedures usually involve having a court officer serve a charge or warning on you requiring payment to be made in a fortnight, after which earnings can be arrested or bankruptcy can be applied for. Attachment of goods is being reformed by Parliament. Earnings arrestments involve your employer making deductions on a sliding scale. Other arrestments (e.g. with banks) attach whatever is held at your credit up to the amount of the debt, but creditors are not entitled to information in advance. The procedures do not include imprisonment.

Bankruptcy puts a trustee in charge of your assets for three years (which can be extended) and he is required to realise them to best effect. He will usually sell your house and other assets but he cannot get at your pensions unless you have been investing heavily in them while facing insolvency. Property given away before bankruptcy can be reclaimed by the trustee.

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.

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