DMBM678230 - Summary Proceedings (Sc): Small claims - answering defences: Answering a defence of 'cannot pay'
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Although not a defence this is the situation that is likely to arise most often. The court may
- treat it as an admission of the claim and a request for time to pay or
- grant decree and ask you to discuss the matter with the taxpayer afterwards: or
- ask you whether the defender’s proposals are acceptable.
Request for ‘time to pay’
You should be prepared to consider any request for time to pay using your knowledge of the case from either the information contained in the papers or obtained from questioning the defender.
Defender’s proposals unacceptable
If the defender’s proposals are not acceptable you should
- give your reason to the court and
- ask for decree for the sum sued plus outlays to be granted.
If necessary you should remind the court that time to pay directions are not appropriate for tax debts (paragraph 1(5)(d) Debtors (Scotland) Act 1987 refers).
Defender’s proposals acceptable
Where the defender’s proposals are acceptable you should
- ask the court to grant decree for the sum sued plus outlays and
- explain to them that you do not however intend to enforce this unless the defender fails to make a payment as agreed.
After the hearing you should write to the defender confirming the arrangement and warning of the consequences should default occur.