Summary cause actions
This content applies to Scotland only.
Housing laws vary between Scotland and England. Get advice relating to England
Summary cause procedure deals with claims over £3,000 and up to £5,000. It can also be used for cases that are too complicated for small claims but not complicated enough for ordinary cause procedure. If your landlord is taking you to court to try and evict you, they must use the summary cause procedure.
If you're going through the court system you'll come across some legal words and phrases. Even if you have a solicitor representing you, it's easy to get lost with what's going on. If you need a hand, have a look at our jargonbuster - it explains what the key words and phrases mean.
What is a summary cause action?
It's a court procedure that deals with civil cases where the value of the claim is over £3,000 up to £5,000. It also deals with cases that are too complicated for small claims procedure. In housing law, if your landlord is taking you to court to try and evict you, your case will be dealt with under summary cause procedure.
If you are taking a case to court under summary cause procedure, there are standard forms you can use to make it easier for you - you don't have to draft any legal documents yourself. There are also Summary Cause Rules that set out the whole procedure. You can download the forms and the rules from the Scottish Court Service website.
If your claim (or the claim against you) is for more than £5,000 (or if your case is more complicated) you won't be able to use the summary cause procedure. Some types of case (for example, divorce cases) can't be dealt with under summary cause procedure. Have a look at our pages on ordinary cause actions for more information. If you're not sure whether summary cause procedure applies to your case get advice from the sheriff clerk's office in the court or from a law centre or solicitor immediately.
What can I use summary cause for?
Summary cause actions usually involve a claim for payment of money. Typical examples would be:
- if you haven't paid your bills
- problems with loans.
In housing, you're most likely to come across summary cause procedure:
- if your landlord is trying to evict you
- if you haven't paid your council tax and you owe between £3,000 and £5,000.
If you're behind with your rent then your landlord could take you to court to try and get the money back by selling your belongings (for example, your furniture). This kind of case is called an 'action of sequestration for rent' and can be dealt with by summary cause procedure, but only if the amount of rent you owe isn't more than £5,000. This kind of case isn't that common.
Can anyone use summary cause procedure?
Yes, as long as the claim is valued between £3,000 and £5,000 and the case isn't too complicated to be dealt with under summary cause procedure. Divorce cases, for example, cannot be dealt with under summary cause procedure.
Can the procedure be used in any court?
No. Summary cause cases can only be dealt with in sheriff courts.
Do I need a solicitor?
Technically speaking, no. Whether you are the one bringing the case to court (this is called 'raising an action') or defending it (if someone else has taken you to court), you don't need a solicitor to represent you in summary cause procedure. You can represent yourself in court at all stages. If you represent yourself you'll be called a 'party litigant'.
However, solicitors often deal with summary cause cases and, if you're representing yourself, it's worth bearing in mind that your opponent may have employed a solicitor who has more knowledge and experience of the court system than you do to represent them.
You can ask someone else (other than a solicitor) to represent you in summary cause procedure. If you can't get a solicitor to represent you, try to get a specialised adviser from an advice agency or an in-court adviser to speak on your behalf. They'll be described as a 'lay representative' and they'll need a letter from you to say that you're happy for them to speak on your behalf. A lay representative can only speak on your behalf at certain stages of the case. If you're taking someone to court and they're not defending the case then a lay representative can speak for you in court at any stage of summary cause proceedings
It's also worth bearing in mind that you might need legal advice if the case is quite complicated or involves some legal points. This may well happen in a summary cause case.
TIP! If your landlord is trying to evict you, it's advisable for you to get a solicitor to represent you. If you receive any official court papers and ignore them and your landlord is trying to evict you, the case will still go to court and you could be evicted without having your say. Even if you do respond and go to court, there are lots of things that can happen when your case is first heard in court (this is called the 'first hearing') and it can be quite complicated. If there is no argument about the facts of your case, you could be evicted. You might be able to get advice and representation from a solicitor in a law centre. You can read more about your options (including getting a solicitor) in our section on legal representation.
How much will it cost?
This will depend on whether or not you're getting legal aid (see below). If you are, it's likely that you won't have to pay any of the costs mentioned in this section.
Summary cause procedure is designed to be quite cheap. However, it will cost you some money to take the case to court in the first place and if you have a solicitor, you'll also have to pay their fees. If you lose your case, you might have to pay your opponent's costs as well as your own.
Will I be able to get legal aid?
First of all, it's important to be aware that you can only get legal aid if a solicitor is representing you.
Legal aid may be available to help with the costs involved in summary cause cases. Whether you are taking a case to court or defending it you might be entitled to legal aid.
Various factors are important when working out whether or not you are entitled to legal aid including:
- your income
- what your case is about (the 'merits' of your case).
Even if you are entitled to legal aid, don't assume that it will cover all your costs because it might not. You might have to pay a contribution towards your costs.
Your solicitor will be able to help you apply for legal aid, and can fill in the form on your behalf if you want them to.
Initial costs if you're taking someone to court
If you're raising the action (in other words, if you're taking someone to court) you'll have to pay an administration fee to the court (also known as 'court fees' or 'outlays'). You'll have to pay this charge upfront at the court before you can go any further. You can see the current court fees at the Scottish Court Service website.
The initial court papers (called a 'summons') are usually sent ('served') on your behalf by first class recorded delivery so you'll have to pay the postage costs. If you have to employ a sheriff officer to make sure that your opponent ('the defender') has received the necessary court papers you'll also have to pay a charge for this. You should find out how much this will be in advance.
You may also have to pay court expenses if you lose your case. There is more information on court expenses further down this page.
Defending a case
If someone has taken you to court (in other words, if they have 'raised an action' against you) under summary cause procedure, you won't have to pay any administration costs or court fees to defend yourself and have your say in court.
However, if you have a solicitor, you will have to pay their fees. Even if you are entitled to legal aid, this may not cover all the fees so make sure you understand what you'll have to pay.
If your case has been heard in court and a decision has been made but your aren't happy with it, you might be able to appeal against it. It will cost you a small fee to appeal against the court's decision, although you might get this back if your appeal is successful and your opponent is told to pay your court expenses (see below).
Bear in mind that you might not get this money back, so you should take this cost into account when deciding whether or not to go to court.
As well as court fees, you might have to pay court expenses to your opponent if the sheriff decides against you and you lose your case.
Court expenses are decided by the Law Society of Scotland. They can be quite significant so you should bear in mind that you might have to pay for this.
Courts use an approved table that lists approved levels of expenses. You can ask your solicitor more about estimated costs.
Whether you are raising a summary cause action or defending one, if you have a solicitor representing you, you'll have to pay their fees and this can be expensive unless you get legal aid (see 'how much will it cost' above). However, if your case is being dealt with under summary cause procedure (for example, if your landlord is trying to evict you), it's a good idea to have a solicitor representing you because your case could get complicated. Solicitors often deal with summary cause cases. In fact, your opponent may have employed a solicitor to represent them so you may benefit from having a solicitor to speak on your behalf as well.
Ask your solicitor for a written fee quote the first time you speak to them so you know roughly how much you'll have to pay and can budget for this cost.
If your case gets more complicated, your solicitor is entitled to charge for any extra work done. This means that their fees could increase. If your case is taking longer than expected, make sure you get regular updates on their fees so that you're not hit with a big bill later on. The page on solicitors' fees and costs has more information.
Even if you are entitled to legal aid, this may not cover all the fees, so make sure you understand what you'll have to pay for.
Whether you are taking the case to court or defending it, you'll probably incur extra costs that you might not think about at first. These costs are called 'outlays' and include things like:
- travelling expenses getting to and from court (for example, petrol, parking tickets or bus fares)
- medical reports. If you're suffering from illness or injury and this is part of your case then you might have to get a medical report as evidence. Doctors usually charge for this and it can be quite expensive.
It's important to think about all the money you might have to pay out, especially if you're on a tight budget. Make sure you keep all your receipts and tickets as proof of what you've spent in case you're able to claim it back from your opponent as court expenses (see above).
How do I raise a summary cause action?
The page on raising a summary cause action tells you what to do if you want to take someone to court using summary cause procedure.
How do I defend a summary cause action?
The page on defending a summary cause action tells you what to do if someone has taken you to court using summary cause procedure and you want to defend the case. That page also explains why you mustn't ignore the situation if you're being taken to court. The judge could still make a decision against you and it might cause you more hassle in the long run.
You can find lots more useful information on the Scottish Court Service website including:
- handy guidance on summary cause procedure
- examples of documents you might need
- the forms you'll need to get going
- links to the summary cause court rules
- how to get in touch with your local sheriff court.
You can also find lots more useful information on this website including: