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Defending a summary cause action

If your landlord is taking you to court to try and evict you, this will be under summary cause procedure. But don't panic - this page tells you what to do if you're in this situation including how to defend your case and where you can get advice.

Legal jargon

Some summary cause cases are quite straightforward but some can be more complicated. Whatever your case is about, you'll come across 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 summary cause procedure?

You may get taken to court under summary cause procedure for many different reasons. In housing, the most likely reason will be if you've got rent arrears and your landlord is trying to evict you. This page will concentrate on what to do if your case is about rent arrears or eviction. You can go to the Scottish Court Service website for more information (including leaflets that you can download) on what to do in other cases.

If your case is about rent arrears, the amount of money you owe must be between £3,000 and £5,000. Our page on summary cause actions has more information.

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

If someone is taking you to court using summary cause procedure, they have to follow certain rules. You can download the summary cause rules from the Scottish Courts 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 will include an outline of their version of events. So, if your landlord is trying to evict you, the summons will say that's an 'action for recovery of possession of heritable property'.

The summons 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 summary cause 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 being evicted without having your say!

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. It might not be as bad as you think and there probably is something you can do about it. If your landlord is taking you to court to try and evict you, they have to prove to the sheriff that they have legal grounds for doing so (see 'what are my options?' below). Depending on your circumstances, you may be able to defend yourself successfully. Even if you've been having lots of problems in your life and you've built up rent arrears, you won't necessarily be evicted if you fight the case. When you first get the summons, it's not too late for you to do something to defend yourself so don't panic.

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.

Where can I get legal advice?

Some agencies (such as your local Citizens Advice Bureau) will be able to put you in touch with a solicitor, who can give you appropriate legal advice and representation. Our Advice Services Directory will help you find an agency in your area. Some advisers will have knowledge of the law themselves and will be able to arrange for a solicitor to represent you in court. Alternatively, some advisers will be able to represent you as lay representatives. Our section on legal representation has more information.

You might be able to get advice from a solicitor in a law centre and some courts have in-court advice services. If you are getting help from Shelter, they'll be able to put you in touch with our solicitors.

Can I represent myself?

Yes. If you're representing yourself in court, you'll be called a 'party litigant'. However, if you plan to represent yourself in court, make sure you know what you're doing before you take any action. The sheriff clerk in the relevant court can advise you on the procedure you'll have to follow.

Contact the sheriff court that's dealing with your case and they'll be able to put you in touch with the sheriff clerk. You can find the contact details for your local court on the Scottish Court Service website website.

The courts are used to dealing with people who represent themselves and will be able to guide you through the process if you need help. However, it's important to realise that neither the courts or the sheriff clerk can give you legal advice on your case - but they can tell you what the court procedure is and what the rules are. It's really important that you follow the summary cause procedure correctly. If you don't, you might not get your say.

If your landlord is taking you to court to try to evict you, it's a good idea to get some legal advice before you go to court if you can.

TIP! Summary cause cases can get quite complicated and it's likely that your opponent will have a solicitor representing them. Therefore, it's a good idea for you to get some professional help too - especially if your landlord is trying to evict you or you have lots of rent arrears.

What do I need to know?

If possible, you should get some legal advice if your case is being dealt with by summary cause procedure - especially if your landlord is trying to evict you. However, if you aren't getting legal representation you'll have to make sure that you know:

  • why your opponent is taking you to court (for example, is your landlord trying to evict you?)
  • which procedure applies to your case (make sure it is summary cause 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 calling date).

All this information should be provided in the copy summons. The return day and the hearing date are particularly important and you must not forget them.

If you have a solicitor representing you, they will tell you when your case will be heard in court and will keep you up to date with other important things as well. However, make sure you make a note of important dates and information and put things in your diary. If you have a solicitor, you might not have to go to court yourself.

How do I defend the case?

In most cases, you'll have to fill in the response form that should come with the copy summons (if it's an eviction case, read our 'tip' below). Filling in the response form allows you to defend yourself in the case, if that's what you want to do. If you're not sure what to do, get advice as soon as possible.

If you've left it for a couple of days, don't panic. As long as you get help before the return day (which is on the summons), you can still get your response to the court in time.

If you have a solicitor, they'll talk to you about this and fill in the form for you.

If someone else (other than a solicitor) is representing you, they may be able to help you fill in the form.

If no one is representing you, you can find more information on how to complete the form further down this page.

TIP! If your landlord is trying to evict you, it doesn't matter if you haven't returned the form - as long as you turn up at court you'll still get to have your say.

What if I don't fill in the response form?

What happens in cases that aren't about eviction?

In most summary cause cases (apart from eviction actions), if you don't fill in the response form, it means that you're not defending the action and the case won't be heard in court. Instead, your opponent will submit a formal written document (called a 'minute') asking the court to make a decision in their favour. They may also want you to pay their expenses. The court will then make a decision on the case and they may decide in favour of your opponent (this is called 'granting decree'). This means that your opponent will win.

Your opponent has to submit a minute within a set time limit and, if they don't, the case will be brought to an end or 'dismissed'.

What happens in eviction cases?

If your landlord is taking you to court to try and evict you, your case will still be heard in court at a 'first hearing' even if you don't fill in the response form and get it to court in time. In these circumstances, if your landlord can prove to the sheriff that they have legal grounds to evict you, the sheriff will probably grant a court order for your eviction (this is called 'granting decree'). This means that your landlord will win and will be legally allowed to tell you to leave your home.

However, even if decree is granted at the first hearing, it might be possible to get the case re-opened by lodging a 'minute for recall'. There's more information further down this page and on the page called what can I do if decree is granted? If you're in this situation you must get legal advice from a solicitor immediately.

What if I've already filled in the response form?

If you've already filled in the response form and returned it to the court but are now panicking about what happens next, it might not be too late to get help. You should try to see a solicitor or adviser before your case is heard in court.

If you can't get an appointment with a solicitor or adviser before your case is in court, either you or your representative should go to court and explain that you haven't had a chance to get legal advice or representation. Your case will be heard and you'll probably be asked about the grounds for eviction (see 'what are my options' below) and any defence you have.

Will I be evicted?

Even if your landlord has been threatening to get you evicted and is taking you to court, it doesn't necessarily mean that you will be. Your landlord has to prove to the sheriff that they have legal grounds for your eviction (see 'what are my options' below). Every case is different and it depends on your circumstances and what happens after you get the summons.

You probably will be evicted if:

  • your landlord has started an 'action for recovery of possession of heritable property' against you, and
  • they win the case against you and get a court order (known as a 'decree') against you.

However, your landlord can't legally evict you unless they have a decree for your eviction. If your landlord doesn't have a decree and tries to kick you out, this is an illegal eviction and you can do something about it.

It's more likely that your landlord will get a decree for your eviction if you don't appear at court or are not represented in court when your case is heard in court.

You won't necessarily be evicted if you've got rent arrears or some other problem with your tenancy. If you're in trouble or need some help or support with your tenancy, you should get advice as soon as possible.

What should I do if my landlord has already got a court order to evict me?

Even if the court decides to evict you, a solicitor might be able to get this reversed (by lodging a 'minute for recall' with the court) but only if you haven't been represented in court at the hearing where the court order ('decree') for your eviction was granted.

If you're in this situation you must get legal advice immediately.

What are my options if I'm sent a copy summons?

The papers you get with the copy summons should include information on what your options are. This is general information that can help you, whatever your case is about. If your case isn't about rent arrears or eviction and 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.

If your case involves rent arrears, or if your landlord is trying to evict you, you have the following choices:

  • if you've got rent arrears, go to court and explain the reasons for the arrears and ask for time to pay the money back in instalments, or ask for some time to sort out any housing benefit problems you have
  • defend the case and try to convince the sheriff that you shouldn't be evicted. Our section on eviction explains the grounds for eviction as well as your rights and other useful information.

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This content applies to Scotland only.
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