Actions of payment

Actions of payment – applications to pursue

In assessing reasonableness, we will consider several factors:

Value of the claim
Prospects of recovery
Attempts made to negotiate settlement of the claim without referral to court

Evidential requirements for actions of payment

Your client’s statement should specify:

The sum claimed to be due and the nature of the claim
Steps that have been taken to obtain payment before submitting the application

Supporting information should be produced including supporting statements from witnesses to show that work has been undertaken in accordance with the contract. If support is not available give an explanation why it is not.

Copies of all relevant documents including a copy of any contract where relevant, should be submitted.

Actions of payment – applications to defend

A bare denial is not sufficient or satisfactory for a legal aid application. Your client must produce evidence countering the pursuer’s averments and evidence supporting their defence.

Your client may also seek legal aid to cover a counterclaim, for which they would be expected to produce the same standard of supporting evidence as for raising an action.

Evidential requirements for defence of payment action

Your client may oppose the action on the grounds either that the pursuer is not due the sum sought, or that the sum sought is excessive. If quantum is being challenged your client should explain why the full sum sought is not due.
A supporting statement should be produced, if available, or an explanation why not.
A copy of the writ or summons with full answers to all averments
Copies of any relevant documents should be submitted, with relevant parts highlighted. Any reports obtained from experts on the standard of work should be provided.
Any statements from witnesses about the quality of work carried out should be submitted.
A copy of the offer and the pursuer’s response should be produced. If the defence is that payment has been made, a copy of the appropriate documentary evidence should be produced.

Actions for payment by HM Revenue and Customs

Your client may wish to defend actions for payment at the instance of HM Revenue and Customs in a situation where there is no defence.

The Taxes Management Act 1970 contains an appeal mechanism for aggrieved taxpayers:

If they are unable to settle appeals with the Inspector, they are entitled to appeal to the Special or General Commissioners.
Appeals then lie to the Inner House of the Court of Session

If your client chooses not to or exhausts appeal against any assessments they have no defence.

No appeal can be made against a tax liability which arises from such a return since it is based on the taxpayer’s own figures. If they have made an error in their return they are entitled to amend it.

If the issue cannot be resolved by your client and an Inspector it should be listed for hearing by the General or Special Commissioners. Again, any further appeal lies to the Inner House of the Court of Session and the courts have no jurisdiction to alter the liabilities in an action for payment.

Legal aid for judicial review of our decisions

Actions of reduction