Taking a summary cause action to court
If you want to take someone to court using summary cause procedure, you'll have to 'raise an action' by filling in specific forms and following certain rules. Summary cause is more complicated than small claims so you might prefer to get a solicitor to represent you. In housing law, summary cause procedure is used in eviction cases. This page explains more.
Although summary cause procedure is supposed to be relatively simple to use, you'll still come across legal words and phrases when going through the court system. Solicitors are more likely to be involved in summary cause actions than they are in small claims procedure and they may well use more legal terms than you're used to. If you need a hand, look at our jargonbuster - it explains what the key words and phrases mean.
Which court do I go to?
You'll have to find out which sheriff court will deal with your case. This will usually be the court that is geographically closest to your opponent (the 'defender') but you'll also have to check that the court has authority ('jurisdiction') to deal with the case.
In most cases, you'll be in the same area as your opponent and it'll be clear which court you'll have to go to. However, this won't always happen. So, for example, if you live in Aberdeen but your landlord lives in Perth and you want to take them to court, Perth sheriff court will probably deal with the case.
It's usually quite easy to work out which court will deal with your case but you should get advice if you're not sure. The section called 'further information' at the bottom of this page tells you where to get advice and how to contact individual sheriff courts.
How do I start the court action?
To start a summary cause action, you'll have to fill in an official form called a summons. Many of the forms used in summary cause procedure are numbered and the summons is also known as Form 1. Everyone who raises a summary cause action has to fill in the same form.
Where can I get the summons form?
First of all, you'll have to get a copy of the Form 1 summons by either:
- downloading it from the Scottish Court website, or
- getting a copy from the sheriff clerk's office in the relevant sheriff court.
What does the summons form look like?
There are two parts to the summons form, namely:
- Part 1 - the principal summons
- Parts 1a, 1b, 1c and 1d - the copy summons
Part 1 is the same in every case and you must complete it. This is the official part that is registered ('lodged') with the court.
You'll also have to complete either Part 1a, 1b, 1c or 1d. This is the part that is sent to your opponent ('the defender'). Which part you have to complete will depend on who your opponent is and what the case is about. Here's some guidance on which form you'll have to use:
- if your opponent is an individual and a claim for money is involved use Part 1a
- if your opponent is a company or another organisation and a claim for money is involved use Part 1b
- for all cases where no money is involved use Part 1c
- you'll only have to use Part 1d if your case is an 'action for multiplepoinding'. You won't come across this if your case is about housing.
The copy summons consists of:
- a form you'll have to fill in, and
- information for your opponent on what to do when they get the summons.
How do I complete the principal summons?
The principal summons is split into seven sections. If you get the summons from the sheriff clerk's office or from the Scottish Court Service website some parts may already be filled in but you should make sure they're correct. The sections have to be completed as follows:
Section 1 - name and address of the court dealing with the case
This part may be completed already if you've obtained the form from the Scottish Courts website or the relevant sheriff clerk's office. If not, you'll have to complete this yourself. Details of all the sheriff courts in Scotland are available on the Scottish Court Service website.
Section 2 - name and address of person raising the action (pursuer)
Put your details in here because you're the person taking the case to court. You'll be known as 'the pursuer' in the case.
Section 3 - name and address of person against whom action raised (defender, arrestee, etc.)
Put the details of your opponent in here. They'll be known as 'the defender' in the case.
If you're trying to 'arrest' your opponents money, they'll be called an 'arrestee'. You can find out what an arrestment is on the page called 'defending a small claims action'. Arrestment can only be carried out by a sheriff officer and they'll charge a fee for this.
Section 4 - claim (form of decree or other order sought)
This means that you have to specify what you're claiming in court. For example, are you trying to get money back from your opponent or are you trying to get them to do something? In housing law, summary cause procedure is most important in eviction cases because it's the procedure that's used if your landlord is taking you to court to try and evict you.
If you need help to fill this section in, contact the sheriff clerk's office in the relevant sheriff court. If you got the form from the sheriff clerk's office in the first place, this part will probably already be completed but just check that it's correct.
There may be a space on the form for you to write in how much interest you're claiming, if any. There is a 'judicial rate' of interest that is commonly used and which has been approved by the courts. So, if you're claiming interest, you should put the judicial rate in here, which is 8%. If you want to use a different interest rate, get advice first. The interest rate will usually run from the date when you send the summons to your opponent but if you want to change this get advice first.
If you don't want to claim expenses, make sure that any reference to expenses in this deleted. You can just score it out.
Section 5 - full contact details of pursuer's solicitor or authorised representative (if any) acting in the claim
If a solicitor, or anyone else, is representing you in court, you have to put their details in this box. If you have a solicitor, they'll probably be filling in this form for you anyway.
Section 5a - fee details
You only have to fill this bit in if you're sending your form to the court ('lodging' it) electronically.
Section 6 - return day/hearing date
You don't have to fill this bit in, the sheriff clerk will do that when you hand it in. You'll then be able to copy these dates across to box 6 in the copy summons (see 'how to complete the copy summons' below). Staff in the sheriff clerk's office will usually do this for you.
Section 7 - statement of claim
You'll have to put details of the case in here so that your opponent knows what the action is about. Include as much detail as possible. Try to stick to the space on the page but, if you need to, you can continue on a separate sheet of paper. There are some examples of claims on the summons form. They show you the kind of information you should include but get advice if you're still not sure.
How do I complete the copy summons?
Make sure you have the correct version of the copy summons form first of all (see 'layout of the summons form' above).
Most of the information that goes into boxes 1 to 5 of the copy summons is the same as what you've already put in the principal summons so it should be quite easy to copy it across. However, if you have any problems, speak to the sheriff clerk in the relevant sheriff court.
You'll be able to copy the 'return day' and 'hearing date' across to box 6 on the copy summons when you've handed the principal summons into the sheriff court and the sheriff clerk has inserted the necessary dates into it. Staff in the sheriff clerk's office will usually do this for you.
Just ignore section 8 of the copy summons. This will be done by whoever sends (or 'serves') the copy summons to the defender (see 'how does my opponent know I'm taking them to court' below).
How do I lodge the summons?
When you've completed the principal summons, you must formally lodge it at the sheriff clerk's office in the court that's dealing with your case. It's easy to do this; in most courts you'll just have to go into the office and explain that you're lodging a summons for a summary cause action. The court official will then check that all boxes have been filled in, give your case a number, stamp it and give it back to you so you can arrange for the copy summons to be sent to ('served on') your opponent ('the defender'). Staff in the sheriff clerk's office may keep a copy of the principal summons.
How does my opponent know I'm taking them to court?
Once the summons has been lodged, your opponent will have to be told that you're taking them to court so that they can respond appropriately and decide whether to defend the case. To notify your opponent properly, the copy summons has to be officially 'served' on them. This is usually done by sending the copy summons, along with the appropriate forms, to your opponent by recorded delivery post.
You'll have to get a solicitor or sheriff officer to serve the copy summons on your behalf even if you're representing yourself in court. You can't do it yourself. Both solicitors and sheriff officers charge a fee for this service so make sure you know how much it's going to cost.
What if the summons can't be delivered?
If the post office can't deliver the summons (for example, if your opponent refuses to sign for the letter), it'll be returned to the court and they'll tell you what's happened. You'll then have to get a sheriff officer to either:
- deliver it personally to your opponent, or
- deliver it to your opponent's address.
Remember that sheriff officers charge a fee for this service so make sure you know how much it's going to cost.
You can look in the phone book to find sheriff officers in the right area. If you have a solicitor, they will be able to tell you about sheriff officers they deal with.
What happens if I don't know my opponent's address?
In this case, the court may give you permission to serve the summons by either:
- putting an advert in a newspaper, or
- displaying a notice in the court building.
If you're serving the summons this way, you'll have to give a copy to the sheriff clerk.
If you're advertising in a newspaper, you'll have to pay for the advert yourself. You'll also have to hand a copy of the newspaper to the court and formally lodge it as evidence.
If you're displaying a notice in the court building, you'll have to fill in a form 14 notice. You'll have to include details of your opponent's last known address on the form. You can get this from the sheriff clerk's office, or from the Scottish courts website, too.
If you need more help or advice, speak to a solicitor as soon as possible. You might be able to get advice from a law centre or our Advice Services Directory can point you in the direction of agencies who can help.
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: