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This page explains how you'll know if someone is taking you to court using the small claims procedure. It also tells you what your options are and how to respond.

Legal jargon

Although small claims procedure is designed to be simple and easy to use, you will still come across some legal words and phrases when going through the court system. If you need a hand, have a look at our jargonbuster - it explains what the key words and phrases mean.

Why do people get taken to court using small claims procedure?

You may get taken to court under the small claims procedure if you owe someone money, or if you haven't done something you should have done. For example, you may be taken to court if:

• you owe your landlord rent
• your tenancy agreement says you are responsible for carrying out certain repairs or maintaining parts of your home and you haven't done so
• you live in a flat or tenement building and haven't paid your share of repairs to a common area such as the roof.

The amount of money you owe or the work you haven't done must be worth less than £3,000. Our page on small claims actions has more information.

How will I know if I'm being taken to court?

If someone is taking you to court using small claims procedure, they have to follow certain rules. You can download the rules from the Scottish Court Service website.

You will know that you are being taken to court if you receive a summons from your opponent. A summons is the legal form that is used to start the court case off and you have to be sent a copy of it (known as the 'copy summons').

The original summons (known as the 'principal summons') is kept in the court that is dealing with the case. Your opponent has to register (or 'lodge') it with the court before they can take you to court.

The copy summons will tell you what your opponent wants from you and their version of events. It has to be formally delivered to you (or 'served' on you) before anything else can happen.

The copy summons will probably either:

• be sent to your home, workplace or other known address by recorded delivery post, or
• be delivered to you personally (or 'served' on you) by sheriff officers.

What should I do when I get the copy summons?

Whatever you do, don't ignore it! If the copy summons has been properly delivered according to the small claims rules then it won't do you any good to deny that you received it because the court won't believe you. If you ignore the summons then the court will probably make a decision without hearing your side of the story and the decision won't necessarily be in your favour. You could end up having to do what your opponent wants anyway!

Stay calm and read the summons carefully. Make sure you understand what your opponent is saying and think about what you'd like to do next.

The first thing you should do when you receive a summons is get advice immediately , for example from a Citizens Advice Bureau or law centre. Our Advice Services Directory will help you to find an agency in your area. If necessary, most agencies will be able to put you in touch with a solicitor who can give you appropriate legal advice and representation. Even if you plan to represent yourself in court, make sure you know what you're doing before you take any action.

If can't contact an agency, or if you don't want to, the sheriff clerk in the relevant court can advise you on the procedure you'll have to follow. It's really important that you follow the small claims procedure correctly. If you don't, you might not get your say. Contact the sheriff court that's dealing with your case and they'll be able to put you in touch with the sheriff clerk.

What do I need to know?

If you aren't getting legal representation then you'll have to make sure that you know:

• which procedure applies to your case (in other words, make sure it's small claims procedure)
• which sheriff court is dealing with your case
• where the court is
• the deadline for your reply to the summons (the return day)
• the day that your case is due to be in court (the hearing date).

All this information should be provided in the copy summons. The return date and the hearing day are particularly important and you must not forget them. Our page on legal jargon explains more.

What do I do next?

When you decide what you want to do, you'll have to fill in the response form that should come with the copy summons. There is more information on how to fill in the form further down this page. However, before you fill in the form, you need to look at your options.

What are my options?

The papers you get with the copy summons should include information on what your options are and this will help you. However, if you're not sure what to do, get further advice before taking any action. Whatever you do, don't ignore the summons as that won't solve anything.

Whatever the case is about, you have a few choices. You can either:

• admit that you're in the wrong (this is called 'admitting liability')and agree to either pay your opponent or do what they ask
• if your opponent is claiming that you owe them money, admit that you're in the wrong but ask the court (either in writing or in person) if you can pay the money back in instalments or at a later date. You might want to do this if you've got a cash flow problem or if you can't afford to pay all the money back at once.
• argue that another court should be dealing with the case (this is called 'challenging the jurisdiction of the court')
• where your opponent says you owe them money, argue about the amount if you think it should be less
• explain your side of the story and claim that your opponent is in the wrong and not you (this is called 'making a counterclaim')
• explain your side of the story, argue that you're not in the wrong and have your say (in other words, defend the case).

These options are explained in more detail below.

Admitting liability

If you admit that you're in the wrong and you don't want to go to court, you'll have to get in touch with your opponent's solicitor or representative and 'admit liability'. You must do this on or before the return day (which is detailed on the copy summons you've received).

If you admit that you owe your opponent some money or that you have an obligation to do something, you'll have to either pay the money back or carry out the obligation to prevent a court order being granted against you. This is called 'settling the claim'.

If money is involved, you'll have to pay either your opponent or make sure that the money goes to his/her solicitor or representative. Don't send any money to the court. Ask for a receipt when you make the payment and make sure the receipt shows the full amount and the date it was paid.

If you admit liability and settle the claim, you won't have to go to court.

Asking for time to pay

If your opponent is saying that you owe them money and you have decided to admit to this but you're worried about how you'll pay it back, you can ask for time to pay the money off.

You can either:

• write to the court to ask if you can pay by instalments or pay the money back in one go at a later date (this is called a 'deferred lump sum'), or
• lodge a response and go to court on the day to ask if you can pay by instalments or at a later date.

Applying for time to pay in writing

When should I apply?

If you are applying in writing you should do so on or before the return day otherwise your case will go to court and the sheriff could make a decision that isn't in your favour. As a worst case scenario, you might be ordered to pay all the money back to your opponent, along with interest and court expenses.

Will I have to go to court?

If you're applying in writing and your opponent agrees to accept your offer to pay either by instalments or at a later date, you won't have to go to court. If your opponent doesn't agree then your case will still go to court and you should go along on the hearing date to have your say. Remember that someone else can represent you in court if you'd prefer. If you don't go to court then the sheriff will make a decision without hearing your side of the story. It could mean that you'll have to pay all the money at once immediately.

How do I make a written application?

To do this, you'll have to fill in the form called 'application in writing for a time to pay direction'. This should be attached to the copy summons.

When filling in the form, use a black pen and write as clearly as you can. If your handwriting isn't very good, or you need some help filling out the form, ask someone you trust for some help. You could also take the form to your local Citizen's Advice Bureau or to the sheriff clerk's office if you'd rather not ask someone who knows you.

If the money you owe relates to your house (for example to do with rent, council tax or deposit money), you'll be applying for a 'time to pay direction' so delete the words 'time order' at the top of the form. Our page on time to pay directions in the rent arrears section has more information.

On the next part of the form, you only have to fill in either part (1) or (2) depending on whether you want to pay by instalments or by deferred lump sum.

If you want to pay by instalments, make sure you complete part (1) stating how much you want to pay and how often (you have to pick either weekly, fortnightly or monthly). Make sure that you can definitely afford to pay the amount regularly as you won't be allowed to pay the money back as and when you can. If your application for time to pay is successful and you don't stick to it, your case might have to go back to court and the sheriff might decide that you have to pay all the money back at once. So make sure you can afford the payments before you even apply. Talk to an adviser at a money advice centre if you need help to work out what you can afford.

If you want to pay by deferred lump sum you'll have to fill in part (2). Make sure you write in the full amount you'll be paying and when you'll pay it.

Further down the form you'll also have to complete the chart detailing all your other regular payments (such as rent, council tax, credit card payments, etc) and what your income is. If you're on benefits, put in how much you get in the column labelled 'social security'. If you have any other sources of regular income (for example, if your ex-partner pays child support to you or if you get interest from a bank account), include this in the column labelled 'other'.

Arrestments

At the bottom of the form, you'll find a sentence that says 'application for recall or restriction of an arrestment'. An 'arrestment' is when your money is 'frozen' so you can't use it any more (this could be, for example, any money you have in your bank account or your wages). If your opponent is taking you to court to claim money from you, they can ask to 'arrest' your money until the court case is finished and a decision has been made. This is called 'arrestment on the dependence' of an action. Your opponent might arrest your money to make sure you can pay them back if the court decides you have to. For example, an arrestment will stop you spending your money to avoid paying it to your opponent.

If your money has been frozen in this way and you want this to stop, you'll need to provide details of the arrestment at the bottom of the page and insert the date on which your money was frozen from. If there is no arrestment then delete the sentence. If you're not sure, speak to the sheriff clerk or get legal advice.

Where do I send the form?

Once you've completed the form, double check it and return it to the sheriff clerk's office in the court, along with your completed response form on or before the return day. It would be best to hand the completed forms into the sheriff clerk's office personally. Sheriff clerks' staff will stamp your response form with the date that you handed it in as proof that you've done it on time. If you don't want to go into the court yourself, ask someone you trust to deliver the forms for you.

If you have to post the forms to the court, send them by recorded delivery and keep the slip from the post office. You can make sure that it's been delivered by going to the Royal Mail tracker website. You might be able to email the forms to the court but you must check with the individual court before trying to do this.

How do I apply directly to the court for time to pay?

You can also ask the sheriff for time to pay in court on the actual hearing date. You, or your representative, will have to stand up in court and ask the sheriff for time to pay. The sheriff won't necessarily agree to this so you should be prepared to convince them and back up your reasons with evidence if required.

If you're asking the court in person for time to pay, you won't have to fill in the 'application in writing' form (see above) but you'll still have to complete the response form and make sure it gets to the court on or before the return day . There is more information on how to fill in the response form further down this page.

Challenging the jurisdiction of the court

If you think that your case should be dealt with in another court, you might be able to defend the case by challenging the jurisdiction of the court. This can be done if:

• the court named in the copy summons doesn't have authority to deal with your case
• another court is nearer where you live
• the case is complicated and should be heard in a higher court or under a more complicated court procedure (for example, summary cause or ordinary cause procedure).

If you challenge the jurisdiction you (or your representative) will have to go to court to explain the reasons behind your defence so it's important to be prepared. The rules about jurisdiction are complicated and you must get legal advice if you think that this might apply to your case. Solicitors don't usually appear in court in small claims cases but issues of jurisdiction can involve complicated legal arguments so you should get legal advice if you think this might apply to your case.

If the sheriff agrees with you and decides that another court should be dealing with your case, your case will either be:

• referred to another court or
• dismissed.

What happens if my case is referred to another court?

It's up to the sheriff to decide which court the case should be referred to. They may decide that your case should be referred to another court in the same sheriffdom or a court in another sheriffdom. The case will then continue as if it had been started in that court in the first place. So another hearing date will be set and you'll have to decide how to respond to the claims being made by your opponent.

What happens if my case is dismissed?

If your case is dismissed this means that it has been brought to an end or closed. There is not a 'winner' or a 'loser' if your case is dismissed. However, there's nothing to stop your opponent from taking you to court again over the same issues if your case has been dismissed. To do that, your opponent will have to start from scratch and serve a new summons on you.

Making a counterclaim

What is a counterclaim?

If you feel that your opponent is the one who's in the wrong and you want to make a claim against them for the same thing then you can either:

• start a separate court case and raise the issue that way, or
• make a counterclaim.

You can make a counterclaim if there is another side to the story and you want to present your version of events to the court.

A counterclaim isn't necessarily a defence - it's a separate case by you against your opponent. By making a counterclaim, both cases will be dealt with at the same time.

Here's an example of a counterclaim that could crop up in a housing case. You haven't paid your rent for the last two months and your landlord is taking you to court to try and evict you. However, your flat is damp and you've got an insect problem. You've told your landlord about this but they've been ignoring the problem so you decided to take drastic action and stop paying your rent. Your counterclaim in this situation could be that the landlord has an obligation to carry out repairs to your flat.

How do I make a counterclaim?

If you make a counterclaim, both claims will be dealt with in the same court case. You don't have to make a counterclaim - you can start a separate court case if you prefer. However, it's usually quicker and easier to deal with everything in the same case.

To make a counterclaim, you'll have to complete the response form and make sure it's returned to the court on or before the return day.

If you're making a counterclaim you should:

• give details of what you're claiming (for example, a sum of money or some action to be taken), and
• give details of the facts that back up your counterclaim.

If you make a counterclaim, depending on the facts of your case, the sheriff might decide that the case is too complicated for small claims procedure. If this happens, your case might be postponed until another day. The court will still have to make a decision on your case but it will be dealt with on a different day and possibly in front of a different judge. If the judge says that the case has to be dealt with under another court procedure you must get legal advice from a solicitor as soon as possible.

Defending the case

If you disagree with what your opponent is saying and you feel that their claim is unfounded, you can defend the case in court.

To do this, you'll have to convince the sheriff that your opponent shouldn't win the case. You, or your representative, will have to go to court and explain your side of the story by presenting clear arguments. If you're representing yourself, make sure you think carefully about what you're going to say and stick to the point. Whatever you think about your opponent or however upset you are, don't insult your opponent in court or get into an argument with them.

If you want to defend the case, make sure you complete the response form and return it to the court on or before the return day. If you miss this deadline there's a risk that the sheriff will make a decision without hearing your side of the story and it won't necessarily be in your favour.

How do I fill in the response form on the copy summons?

Once you've decided what you want to do, you'll have to fill in the response form that is attached to the copy summons. Use a black pen to fill the form in. Use block capital letters and write as clearly as you can. If your handwriting isn't very good, or you need some help filling out the form, ask someone you trust for some help. You could also take the form to your local Citizen's Advice Bureau or to the sheriff clerk's office if you'd rather not ask someone who knows you.

First of all, you'll have to complete section A of the form by inserting the following information:

• the name and address of the sheriff court that's dealing with your case
• the summons number (you'll find this on the copy summons)
• the return day (you'll find this on the copy summons)
• the hearing date (you'll find this on the copy summons)
• your opponent's full name and address (put this in the box labelled 'pursuer')
• your full name and address (put this in the box labelled 'defender').

Section B is the part of the form where you give your formal response to the summons. Each of the boxes gives one option, so pick the one that applies to you and delete the other ones by scoring them out with a pen. If you're admitting liability (see above) either box 1 or box 3 will apply to you. If you're defending your case in any way then box 3 will apply.

If you're applying in writing for time to pay a sum of money (see above), make sure you fill in the correct application form and send it back to the court along with the response form. If you're going to stand up in court and ask the court for time to pay on the hearing date you won't have to fill in the application form. However, you'll still have to complete the response form. There is more information on how to apply for time to pay further up this page.

Regardless of what you've decided to do, you must complete the response form and make sure it gets to the court on or before the return day. If you miss this deadline, the court will probably make a decision without hearing your side of the story and it won't necessarily be in your favour.

How do I get the response form to the court?

Once you've completed the form, double check it and return it to the sheriff clerk's office in the court, along with your completed response form on or before the return day. It would be best to hand the completed forms into the sheriff clerk's office personally. Sheriff Clerks' staff will stamp your response form with the date that you handed it in as proof that you've done it on time. If you don't want to go into the court yourself, ask someone you trust to deliver the forms for you.

If you have to post the forms to the court, send them by recorded delivery and keep the slip from the post office. You can make sure that it's been delivered by going to the Royal Mail tracker website (see 'applying for time to pay in writing; where do I send the form?' above). You might be able to email the forms to the court but you must check with the individual court before trying to do this.

What if my circumstances change?

You can tell the sheriff about any change in your position when the case calls in court and it's your turn to have your say.

If a solicitor is representing you, they'll be able to give you more information. If someone else (whether a solicitor or a lay representative) is representing you, tell them about the change in your circumstances as soon as possible so you can discuss any options you may have.

What happens next?

Once you've responded to the summons you'll have to prepare your case and get ready for the actual hearing. It might also help you to do a bit of research to find out what to expect on the day, including who's who in the court and what decisions the sheriff might make. You can find all this information, plus loads of other useful hints and tips, elsewhere in this section.