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Questions about Summary Cause procedure

As from 28 NOVEMBER 2016, if you are raising a claim which has a monetary value of £5000 or less which seeks payment, delivery or recovery of possession of moveable property, or an order for someone to do something specific, you should use the
SIMPLE PROCEDURE.

The information below applies to all other summary cause actions
(i.e. actions for recovery of possession of heritable property and damages resulting from personal injuries).

It also still applies in respect of summary cause actions which have a monetary value of £5,000 or less, which were raised before 28 NOVEMBER 2016.

 

How do I raise a summary cause?

The summary cause procedure is used where the value of the claim is over £3000 up to £5000. There are some circumstances where this procedure is to be used however, even if the value of the claim is less than £3000; for example, actions for recovery of possession of heritable property and damages resulting from personal injuries.

To raise a claim against an individual you will need to complete Form 1a and to raise a claim against a company or a voluntary association (for example, a golf club) you will need to complete Form 1b. In both circumstances, you will also need to complete Form 1 which is the court copy of the summons. Form 1 will appear when you click on Form 1a or Form 1b.

If your claim is against a voluntary association, you should also include any known office-bearers as defenders. A court order against the association alone cannot be enforced against an official unless he/she is named in the action.

We would recommend that you read the guidance notes that are available to assist you.

There is no on-line facility available in Scotland at the moment; therefore applications have to be sent to the court in paper form.

In order for a summary cause action to be raised in Scotland, one of the sheriff courts would need to have jurisdiction to deal with the case. You can find more information in relation to jurisdiction in the guide Raising an Action in the section 'Which court do I go to?' You will note from this section that jurisdiction is normally based on the address of the defender; however there are special rules for consumer contracts and some other actions. Contact details for all of the sheriff courts in Scotland can be accessed on the Court Locations page.

Information about court fees can be found in the 'Sheriff Court Fees' section.

Do I need a solicitor?

If you are acting as an individual you do not need to employ a solicitor to raise or defend a summary cause. However, you can if you wish, particularly if you think your case is more complicated than usual or involves some point of law which the court may have to consider. A list of solicitors can be found in the yellow pages of the telephone directory or on-line at the Law Society of Scotland website.

At certain stages of the court proceedings, you can also be represented by any other person you authorise to do so (referred to as a lay representative), for example:

  • A friend
  • A relative
  • A representative of a Citizen’s Advice Bureau, Consumer Protection/Trading Standards Department or other advice agency, who may be able to do this for you free of charge.

More information in respect of this and also the option of ‘lay support’ can be found in the guides ‘Going to Court’ and ‘Going to Court – Personal Injury Action’.- see sections 4.04.

If you are a corporate body (e.g. a company, firm etc.) an authorised lay representative can conduct the case (other than a personal injury case) on your behalf. However where the action is defended this is only up to the point of appearing at the first calling of the case in court, after which you would have to employ a solicitor to represent your company.

The presiding sheriff can find that a lay representative is not authorised to appear or is not a suitable person and in those circumstances, he/she can no longer continue representing your company and you may need to employ a solicitor.

However, in a personal injuries action the rules of court do not allow a company at any stage to represent itself at court or to be represented by a director, secretary or other office holder, unless he/she is a qualified solicitor. 

 

What are my options if I want to settle out of court?

If you wish to consider settling out of court, information on the various options, including how alternative dispute resolution (ADR) may help solve a consumer problem, is available on the Citizens Advice Scotland website.

 

Where do I send my application for a summary cause?

Unfortunately there is no on-line facility available in Scotland at the moment, therefore applications have to be sent to the court in paper form.

In order for a summary cause action to be raised in Scotland, one of the sheriff courts would need to have jurisdiction to deal with the case. You can find more information in relation to jurisdiction in the guide 'Raising an Action ' in the section 'Which court do I go to?' You will note from this section that jurisdiction is normally based on the address of the defender; however there is a special rule for consumer contracts and some other actions. Contact details for all of the sheriff courts in Scotland can be accessed on the Court Locations page.

How much does it cost?

You can access information about the fee for lodging an application in the 'Sheriff Court Fees' section.

There may be further costs incurred thereafter, depending on the circumstances of the particular case.

Am I the pursuer or defender?

The pursuer is the person who brings the case to court, i.e. the person that is suing.

The defender is the person who has the case brought against them, i.e. the person who disputes the claim of the pursuer.

How does the defender get sent the application?

The sheriff clerk cannot serve the summons for you in a summary cause action so you will need to arrange for a sheriff officer or solicitor to do this for you. You can get contact details for sheriff officers operating in the area that the summons is to be served from the Society of Messengers at Arms and Sheriff Officers.

You can get contact details for solicitors from the Law Society of Scotland.

Further information in relation to service of the summons can be found in the guide 'Raising an Action '.

How do I defend a summary cause action?

You will need to complete the relevant sections of the form that you will have received. More detailed guidance on how to defend the action and how to complete the form can be found in the guidance note Responding to a Summons

You need to make sure that you return your completed form to the court before the return date. The contact details for the court and the return date can both be found on the front page of the summons.

How long will it take?

It is very difficult to estimate how long the process will take; it will depend on the complexity and circumstances of the individual case and also whether or not the case is defended.

How do I find out what is happening in a case?

You will need to contact the court where the case is being dealt with. Contact details for all the courts can be accessed on Court Locations page.

What do I do once I have the court order?

It is the responsibility of the successful party to have the court's order enforced. The court cannot do this on your behalf. You will also be responsible for any costs involved in enforcing the order, although you may be able to recover this from the other party. More detailed information on this point can be found in the guide "Going to Court".

The defender lives in England/Wales, what do I do when I get the order enforced?

Guidance can be found under Serving or Enforcing a Court Order FAQs page and on the Society of Messenger at Arms and Sheriff Officer's website


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