Decrees in the sheriff court - applying for recall

 November 2016

Fact sheet no. 07 SCOT Decrees in the sheriff court - applying for recall

Information:

changes to court procedures

On 28 November 2016, the court procedures for dealing with most debts of £5,000 or less changed to the simple procedure. The information in this fact sheet is based on our understanding of the new rules. It is not yet clear how the new rules will be applied in practice.

Use this fact sheet to:

  • find out what a decree is;
  • understand when you can apply for recall of a decree in simple procedure actions;
  • apply for recall of a decree within the correct timescales in simple procedure actions; and
  • get advice on companies who offer to remove decrees from your credit file for a fee.

Which court procedure do I use?

Since 28 November 2016 there are two different sheriff court procedures.

  • ‘Simple procedure’ for debts up to £5,000.
  • ‘Ordinary cause’ for debts over £5,000.

Claims for child support, personal injury, defamation and mortgage or rent repossession do not use the simple procedure. If a claim for a debt under £5,000 was started before 28 November 2016, the procedure may be different. Contact us for advice. This fact sheet explains how to recall a decree in simple procedure actions.

Extra advice:

ordinary cause

You cannot recall a decree in ordinary cause actions. Instead, you need draw up a ‘reponing note’. This is a much more formal process, so you will usually need legal advice. Contact us for advice about finding the right type of legal help.

Information:

rent arrears or mortgage repossession

If you are in arrears with your rent or mortgage and repossession action has been taken against you, it may be possible to apply to the sheriff court to reverse the court’s decision. This is a complicated area involving different procedures and timescales. Contact us for advice.

What is a court decree?

If you are in debt but cannot keep up with your repayments, you can try to negotiate with your creditors to pay the debts back in affordable instalments. However, your creditors may not always accept the offers that you make. If you cannot come to an arrangement with a creditor to pay back what you owe, they may make a claim through the sheriff court to get a ‘decree’ against you. This should be a last resort. A ‘decree’ is a court decision which confirms what you owe. A decree may tell you how the debt should be repaid. In the simple procedure, a decree may be granted when the sheriff makes their 'decision'.

  • You will receive a 'Claim Form' and 'Response Form' through the post telling you how much the creditor says you owe.
  • You have the opportunity to reply and ask the court for time to pay the debt back in instalments.
  • If you do not reply, your creditor could take further steps to get their money back.  However, it may not be too late to deal with the decree and to prevent further action being taken against you.

See our fact sheet:

Sheriff court action for debt.

If I didn’t reply to the claim

If you did not reply to a claim in a 'Simple Procedure' action and you have a decree against you, it may be possible to have the decree ‘recalled’ (that is reversed). A ‘recall’ is only possible in certain circumstances.

  • You did not return the Response Form in time.
  • You did not attend, and were not represented at, the hearing.

When can I apply for a recall?

The application to recall a decree in simple procedure actions is known as applying to ‘recalling a decision’. You can only apply for this after the decree has been granted. However, your application must be made no later than 14 daysafter you have been served with either:

  • a ‘charge to pay’; or
  • an ‘arrestment’ under diligence (whichever is ‘served’ first).

When a court document is ‘served’, it means that the document has been delivered in the correct way.

Information:

charge for payment

A ‘charge for payment’ is a formal request for you to pay the court decree. This is usually the first stage in the formal debt enforcement process known as ‘diligence’.

Why might I want to apply for a recall?

You might want to recall a decree if you want to pay off an old debt and improve your ability to get credit. If you make an application to recall the decree for this reason alone, the court will not agree to your application. However, if you show a valid ground applies and the court does agree to recall the decree, you can request that the information on your credit reference file be corrected.

You might want to recall the decree in order to dispute the case. If you wish to defend a case, you would usually need help from a legal aid solicitor or an advice agency such as a citizens advice bureau or law centre. National Debtline can help you to find some local advice. Contact us for advice.

Extra advice:

appeals

If you attended the hearing, but think that the decision was wrong, you may be able to appeal it. This must be done within fourweeks of the decision being sent. You will usually need legal advice. If you are thinking about making an appeal, contact us for advice.

How to recall a decree

You need to complete Form 13B Application to Recall. You need to send a copy of this to the claimant and keep evidence to show that you did this, for example proof of postage. You should send this evidence, along with another completed copy of the Application to Recall to the court at the same time.

In the application, you should explain why you did not originally respond or why you did not appear at the hearing. You should state what your defence (if any) to the action will be. You may want to get help from Citizens Advice bureau or law centre to complete the forms. National Debtline can help you to find some local advice. Contact us for advice.

The claimant has 10 days to make objections to your application.

Once this time has passed the sheriff will consider your application and the either:

  • recall the decision;
  • refuse your application; or
  • order you and the claimant to attend a discussion at the court, to help the sheriff  come to a decision.

Risk of costs

If you lose the case after it has been re-opened, the court may order you to pay further costs and expenses.

Can credit repair companies help me?

You may have heard of companies that offer to clear your credit record with credit reference agencies to allow you to apply for more credit. Credit repair companies charge varying fees and usually send you an information pack telling you how to clear decrees.  

Extra advice:

complain to your trading standards department

If you are not happy with a credit repair company, complain to your local trading standards department. This will be run by your local council.

Warning:

further costs

Be very careful before paying a fee to a commercial company to remove court orders from your credit reference file for you. If you apply to the court to recall a decree and do not have real reasons to do so, then your application could be refused and further costs could be added to the debt.