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Going to court in Scotland - advice required please!
Thread poster: Stéphanie Denton
Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
Mar 7, 2012

Evening everyone!

I hope you are all well and busy and thank you for taking the time out to read this post and potentially for offering your advice.

Here is the situation.

I recently worked for an agency based in Scotland. The relationship started off well, slowly but surely, with small projects, gradually building up.

They sent my company, another LSP, a large volume of translations, notably English to Danish (which you shall see from my profile that I personally do not cover), as such, the projects were outsourced to service providers.

The first invoice was paid a couple of days late, and the subsequent invoices even later, with one invoice paid early to make up for others being paid late.

It is important to note here that we impose rather strict late payment fees: a £25 late fee with 5% interest chargeable on the outstanding amount(s) every 5 days. We also factor all of our UK invoices through Lloyds TSB Commercial Finance.

The company in question had accepted our terms and had paid a charges invoice issued for late payment.

I invoiced for the large project and two smaller projects which were sent around the same time. The large project invoice amounted to £4053.22 including VAT. This was due for payment on the 14/01/2012. To simplify matters, let's call this invoice 1.

Subsequently two further invoices were issues, amounting to £576.64 due 08/02/2012 and £456.62 due 09/02/2012, both including VAT. Let's call these invoices 2 and 3 to make life easier.

Invoices 1, 2 and 3 were factored via Lloyds TSB Commercial Finance.

The due date for invoice 1 came and went, and contact was still in place via e-mail. The owner promised payment by the end of January, stating that they hadn't yet been paid, but if they were paid early, she'd make sure that the money be sent straight to me. I mentioned the charges invoice, to which I received the response of yes, but it won't amount to much. Phone calls were made, and excuses came through thick and fast. A charges invoice was issued. The end of the month came and went. No payment was made. The charges issue continued to add up every 5 days. Payment was promised. The factoring company issued a letter, and payment was promised.

The due dates for both invoices 2 and 3 came and went. Charges were added. More promises of payment both via e-mail and on the phone, both to myself and the factoring company. I decided to wait a few days before pursuing legally as I wanted to ensure I could claim all invoices at the same time.

More e-mails sent. No response. Numerous phone calls were made and finally we got through, only to be told that (a month after invoice 1 was due), "it's only 2 weeks late".

Outraged (as overdue is overdue, no matter how long), I decided to threaten legal action. No response.

On the 21/02/12 I consulted my legal representative and subsequently wrote a letter, giving the company 14 days to pay.

I stated in my letter that in order to settle the issue at hand, I would temporarily freeze the charges invoice, standing at £2930.35 including VAT, and that if they did not pay by EOB 07/03/2012 then it would resume retrospectively and legal action would be taken.

On the 27/02/12 my factoring company were promised payment of invoice 1 by the end of last week or early this week. No payment has been made. This has been documented.

As I'm sure you can imagine, we are now the 07/03/2012 and NO payments have been made.

The total debt amounts to £5086.48.

The charges for all three invoices, including factoring charges and an increase in the interest of invoice 1 (for refactoring) from the 20/02 to 6.5% interest chargeable every 5 days amounts to: £4,527.78 including VAT.

Now I have been left with no choice but to pursue the matter through the courts, backed by Lloyds TSB Commercial Finance.

The debt is to my factoring company but I have to reclaim it.

I am not entirely sure how the Scottish Courts work, as in the UK, you have a small claims court for claims up to £5000. The County Court for claims between £5000 and £25000 and the High Court for claims over £25000. Yet all I can find in Scotland is the Sheriff. Could anyone kindly advise as to whether this is the right place for the claim to be sent to?

Also, in England, trials are held in the defendant's local court, is it the same in Scotland?

If I think of anything else, I'll repost.

Thanks again in advance.

S.


[Edited at 2012-03-07 22:59 GMT]


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Alison Sparks  Identity Verified
Local time: 14:15
French to English
+ ...
Oh dear Mar 8, 2012

What a rough time you're having.

I'm surprised that your legal advisor hasn't told you it needs to be the Sheriff court for small claims. I had the same problem about 25 years ago in Scotland and unfortunately although I won the case, with costs awarded, I got no money. Total loss of £7000, a lot of money back then!

What you MUST do is issue an "order for caution" ( pronounced cation). This obliges the defendant to depose sufficient money to cover the debt due, and the costs likely to be awarded, with the court.

Do this before you get really tangled up in the case, as if a counter claim is made against you, you will be told you need a legal representative in court to speak for you.

As to whether the court is at the defendant's local court, I honestly can't remember what the ruling is - your rep should know. In my case it was at my local court.

Make sure you get advice from a Scottish lawyer. The system in Scotland is different enough to be difficult to follow.

I got my own back on the people who cheated me by putting them out of business, as I called all their suppliers and had them blacklisted as non-payers, with the result they could no longer order anything on credit! It also meant that the suppliers they owed money to took proceedings against them as well.

By jove, revenge is sweet!!!

Good luck, hope you don't find it too stressful.


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Tom in London
United Kingdom
Local time: 13:15
Member (2008)
Italian to English
Small claims Mar 8, 2012

The Small Claims court, or its Scottish equivalent, may not produce the result for which you hope. See this article:

http://www.guardian.co.uk/money/2010/nov/20/small-claims-court-enforce-judgment

There's some info about Scotland at the end of the article.

But my caveat would be "Ordinary people have access to the courts in the same sense that Christians had access to the lions." Judge Earl Johnson Jr.

Once your "legal advisor" (not a lawyer?) gets hold of a case they will drag it out for years. I'd go for something quicker and perhaps more brutal, such as turning up at the offices of the people who owe you money, with a couple of friends, and refusing to leave until they write you a cheque. This has worked for me in the past.

[Edited at 2012-03-08 09:43 GMT]


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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
TOPIC STARTER
Thank you Mar 8, 2012

Both of you, for your advice, support and sympathy.

The biggest problem is that I have paid the service providers for the work they did, obviously, because I don't pay people late and it has put me in an awkward position whereby I am going to struggle.

Tom's idea is tempting, but I'm not sure it is the correct way. Firstly, it will be costly to get to Scotland, and what if they call the police?


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Tom in London
United Kingdom
Local time: 13:15
Member (2008)
Italian to English
Police Mar 8, 2012

Stéphanie Denton wrote:

Firstly, it will be costly to get to Scotland, and what if they call the police?


Flights are cheap these days and Edinburgh is one of the world's most beautiful cities - certainly worth the trip.

And why would they call the police? Isn't that just what they *wouldn't* want to do?


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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
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Letter Mar 8, 2012

Tom in London wrote:

Stéphanie Denton wrote:

Firstly, it will be costly to get to Scotland, and what if they call the police?


Flights are cheap these days and Edinburgh is one of the world's most beautiful cities - certainly worth the trip.

And why would they call the police? Isn't that just what they *wouldn't* want to do?


But I've already sent a letter threatening legal advice and am backed by one of the biggest banks in the country...

Honestly, I'm struggling to pay my rent at the moment as I paid SPs out of my own pocket, so can't afford flights. Got a little 'un to put first...


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Sheila Wilson  Identity Verified
Spain
Local time: 13:15
Member (2007)
English
+ ...
Hold on a minute! Mar 8, 2012

This sounds like a classic case of a good company having financial problems - they want to pay but they can't.

Taking them to court, however strong your case, is going to bring you nothing but legal fees on top of the existing debt, if they are going under. At least make sure this company is solvent before you make any other moves. Even a House of Lords judgement can't get blood out of a stone.

Sheila


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Alison Sparks  Identity Verified
Local time: 14:15
French to English
+ ...
Don't try Mar 8, 2012

and go and visit them. It's what I did in the first instance and the police were on my doorstep the following day to warn me that if I went near them again they'd press for charges of harassment!

If the sum involved is so important to you, contact a firm of lawyers, explain the problem and ask their advice. That first step is usually free. If they advise you to proceed negotiate the terms and price.

In fact I suggest you contact a firm called Semple Fraser who have offices in England and Scotland. You'll find them on the web, and a phone call will suffice to find out if it will be worthwhile to proceed.

Please don't get yourself into even hotter water.

Just spotted Sheila's entry. She's right up to a point, but if the firm goes into receivership and you have an order against them, you'll be at least be near the top of the list of creditors.

Chin up. It'll all come out in the wash eventually, even if it's only a very hard lesson learned. My experience taught me always to ask for a deposit up front and never to hand over the goods until the final payment had cleared the bank!

[Edited at 2012-03-08 10:00 GMT]


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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
TOPIC STARTER
Checked Mar 8, 2012

Sheila Wilson wrote:

This sounds like a classic case of a good company having financial problems - they want to pay but they can't.

Taking them to court, however strong your case, is going to bring you nothing but legal fees on top of the existing debt, if they are going under. At least make sure this company is solvent before you make any other moves. Even a House of Lords judgement can't get blood out of a stone.

Sheila


They are still trading.


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Tom in London
United Kingdom
Local time: 13:15
Member (2008)
Italian to English
threats Mar 8, 2012

Stéphanie Denton wrote:

I've already sent a letter threatening legal advice


I hope you meant "threatening legal ACTION".

Rather than put yourself through this future trauma, with no real prospect of success, my suggestion would be to look for a good debt recovery agency. They will take a percentage, of course, but these people are like terriers and can put the fear of God (legally) into people who don't pay.

I have a good one in Italy that I occasionally have to use. The mere sight of this agency's website is usually enough to convince non-payers to cough up.

I'm sure there are similar agencies in the UK with equally terrifying websites. The advantage of these agencies over lawyers is that their website set out, up front, exactly what they would do.

The thing is, Stéphanie, that once you've said you're going to do something, you have to do it. Your non-paying clients probably get angry "threats" all the time, and just laugh at them.

And they are probably reading this thread. So act like you mean business !

[Edited at 2012-03-08 09:59 GMT]


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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
TOPIC STARTER
As tempting as turning up on their doorstep is... Mar 8, 2012

Alison Sparks wrote:

and go and visit them. It's what I did in the first instance and the police were on my doorstep the following day to warn me that if I went near them again they'd press for charges of harassment!

If the sum involved is so important to you, contact a firm of lawyers, explain the problem and ask their advice. That first step is usually free. If they advise you to proceed negotiate the terms and price.

In fact I suggest you contact a firm called Semple Fraser who have offices in England and Scotland. You'll find them on the web, and a phone call will suffice to find out if it will be worthwhile to proceed.

Please don't get yourself into even hotter water.


...it's not my style, means time away from work, and I don't have the energy to do it.

Not to mention the trouble I could gert myself in. It's not worth it, as Alison has pointed out.


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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
TOPIC STARTER
Ooops Mar 8, 2012

Tom in London wrote:

Stéphanie Denton wrote:

I've already sent a letter threatening legal advice


I hope you meant "threatening legal ACTION".

Rather than put yourself through this future trauma, with no real prospect of success, my suggestion would be to look for a good debt recovery agency. They will take a percentage, of course, but these people are like terriers and can put the fear of God (legally) into people who don't pay.

I have a good one in Italy that I occasionally have to use. The mere sight of this agency's website is usually enough to convince non-payers to cough up.

I'm sure there are similar agencies in the UK with equally terrifying websites.

The thing is, Stéphanie, that once you've said you're going to do something, you have to do it. Your non-paying clients probably get angry "threats" all the time, and just laugh at them.

And they are probably reading this thread. So act like you mean business !

[Edited at 2012-03-08 09:58 GMT]


Yes, I did indeed (little girl was up all night poorly so haven't had the best night's sleep).

Oh, I intend to go through with it. I'm just wondering how different Scottish courts are to English Courts.


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Tom in London
United Kingdom
Local time: 13:15
Member (2008)
Italian to English
Worked for me... Mar 8, 2012

Stéphanie Denton wrote:

...it's not my style


not mine either, but it's not my style to let people get away with not paying me. Sometimes you really do have to stop being nice.

In my case I went to my client's premises for a discussion about the job. I just sat there and sat there. In the end he took out his chequebook and paid. It was 9 PM and everyone was getting hungry.

I knew that this particular client had other dodgy business activies and would not be keen for a small thing to bring them out into the daylight. A small thing like not paying me a relatively insignificant amount of money. By paying me he got rid of me.


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Alison Sparks  Identity Verified
Local time: 14:15
French to English
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Very Different Mar 8, 2012

Scottish and English courts are not at all the same, certainly not at county or sheriff court level.

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Stéphanie Denton  Identity Verified
United Kingdom
Local time: 13:15
French to English
+ ...
TOPIC STARTER
I'd lose my rag Mar 8, 2012

Tom in London wrote:

Stéphanie Denton wrote:

...it's not my style


not mine either, but it's not my style to let people get away with not paying me. Sometimes you really do have to stop being nice.

In my case I went to my client's premises for a discussion about the job. I just sat there and sat there. In the end he took out his chequebook and paid. It was 9 PM and everyone was getting hungry.

I knew that this particular client had other dodgy business activies and would not be keen for a small thing to bring them out into the daylight. A small thing like not paying me a relatively insignificant amount of money. By paying me he got rid of me.



Honestly, after all the crap they've put me through, I'd lose my rag and wouldn't be able to just sit there...not that I'd hit anyone, but being put in a situation like this, whereby I'm struggling to provide for my daughter, who is the most important person in the world in my eyes, makes me feel like a ferocious mama lion. I don't think I could control what I'd say...


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