Ordinary cause actions
If your case involves a claim for more than £5,000 or is about an issue that involves complicated law (such as divorce) it'll be dealt with under ordinary cause procedure. This page explains more.
What is an ordinary cause action?
Ordinary cause action is a court procedure that deals with claims worth more than £5,000 or civil cases in the sheriff court that involve complicated law. So, if a case is too complicated for small claims and summary cause, it'll be dealt with under ordinary cause. For example, divorce is dealt with under ordinary cause procedure. The Ordinary Cause Rules set out the whole procedure.
If a case is too complicated for the sheriff court, or if a claim for a lot of money is involved, it'll go to the Court of Session. However, this isn't likely to happen if your case is about housing law.
If you're not sure whether ordinary cause applies to your case, get advice from the sheriff clerk's office in the court or from a law centre or solicitor immediately.
Read our page on courts in Scotland for more information on how ordinary cause actions fit into the court system.
How do I raise an ordinary cause action?
Unlike small claims or summary cause procedure, ordinary cause procedure is quite complicated and there are no standard forms. If you're taking a case to court using ordinary cause procedure, you have to do so by preparing a formal legal document called an initial writ. The download an example of an initial writ here - it will give you an idea of what to expect.
What can I use ordinary cause for?
Lots of different types of cases are dealt with under ordinary cause procedure including:
dissolution of a civil partnership
some compensation claims.
In housing, you're most likely to come across ordinary cause procedure if:
you own your home and have a mortgage, have fallen into arrears with your mortgage payments and your mortgage lender is trying to repossess your home, or
you're trying to apply for, or enforce, your occupancy rights either as an owner or a tenant to keep living in your home. You're most likely to be in this situation if you live with your partner and you're worried about losing your home because you're either splitting up or are experiencing domestic abuse.
what you can do to prevent court action
what you can do even if court action against you has already started
essential information about secured loans and second mortgages
a clear explanation of all the forms and notices involved in repossession cases so you don't feel bombarded with paperwork, and
the decisions the sheriff can make about your case and how this will affect you.
Can anyone use ordinary cause procedure?
Yes, as long as the case involves a claim worth more than £5,000 or is too complicated to be dealt with under small claims and summary cause procedure.
Some cases can only be dealt with under ordinary cause procedure, such as divorce.
Can the procedure be used in any court?
No. Ordinary cause procedure can only be used in sheriff courts.
Do I need a solicitor?
You can represent yourself in ordinary cause cases. However, it's worth bearing in mind that:
ordinary cause procedure is complicated
there are no standard forms to help you, and
you have to draft and prepare legal documents.
Therefore, it's always advisable to get legal advice and representation wherever possible.
Unless you have been legally trained and know what you're doing, representing yourself in an ordinary cause action could be a very stressful and intimidating experience.
If you don't already have a solicitor, you will be able to find one who knows about housing law either by contacting a law centre or the Law Society of Scotland.
You can't get a lay representative (in other words, someone who isn't a solicitor) to speak for you in court at ordinary cause, unless your case is about something under the Debtors (Scotland) Act 1987 (which is unlikely if your case is about housing).
How much will it cost?
The costs of raising or defending an ordinary cause case can quickly mount up. These could include:
the cost of serving various documents on your opponent
court fees to cover various administrative procedures (such as lodging documents with the court)
costs involved in getting evidence to help with your case (for example, medical reports)
if you have a job and you have to take time off work to go to court, you could lose some income
you might have to pay your opponent's costs and expenses if you lose the case
your solicitor's fees (make sure you get a fee quote in writing before any legal work is done on your behalf).
You should speak to your solicitor to get a more detailed idea of all the costs involved.
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 ordinary cause cases. Whether you are taking a case to court or defending you might be entitled to legal aid.
Various factors are important when working out whether or not you're entitled to legal aid including:
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, including filling in the form on your behalf if you want them to.
Going to court
Whether you're taking a case to court or defending a case against you, you must get advice on what to do. You can contact the sheriff clerk's office in the relevant court for information on ordinary cause procedure.
However, remember that you will need a solicitor to represent you. Your solicitor will:
speak to you about your case and find out what you want to do about it
tell you what your options are
negotiate with your opponent if that's possible
prepare all the necessary legal documents
deal with the legal procedures correctly, and
represent you in court.
The rest of this section contains useful information and handy tips that could help you including:
tips on arriving at court
what to expect when you get there
Speak to your solicitor if you need more advice or information.
Last updated: 24 January 2020