Summary cause actions

All summary cause actions have a return date and a calling date. If the defender wishes to defend the action, s/he must lodge a response form with the sheriff clerk at, or before, the return date. On the response form the defender must state the basis on which s/he is defending the action. The response form that the defender must return will be attached to the copy of the summons served on her/him. If there is sufficient time, the defender should always be referred to a solicitor so that the solicitor can prepare the statement of the basis of the defence. A lay representative can assist the defender in preparing the response form for lodging, if it is not possible for her/him to see a solicitor in time.

If a response form is not lodged, the action will not call in court, unless the action is for eviction. The pursuer must then lodge a minute seeking the order that s/he wants the court to grant, for example decree plus expenses. The pursuer must lodge the minute with the sheriff clerk by the end of the second day before the calling day, the day in which the action should call in court for a first hearing. If the pursuer does not lodge the minute the case will be dismissed. However, the pursuer can recall the decree for dismissal.

The statement of the basis for the defence need not be detailed. It must however summarise the issues the defender wishes to raise. If the eviction action is on the grounds of rent arrears for example, the defender's statement could be that the eviction would not be reasonable in terms of the appropriate statutory provision. The statement would also contain a brief indication of the defender's personal circumstances and the proposals for repayment. If the defender has been unable to see a solicitor before the response form has to be lodged, the statement of defence can be amended with additional information at a later date if a solicitor is subsequently instructed.

If the action is one for eviction, described in the summary cause rules as: 'actions for recovery of possession of heritable property', it does not matter if a response form is not returned. The case will call in court for a first hearing in any event. Consequently, the pursuer does not have to lodge a minute before the calling date to advise the court of the order sought. The pursuer will simply advise the sheriff at the hearing of the order sought.

If the defender is seeking advice from a lay adviser after the return date, but prior to the case actually calling in court, the adviser must determine whether a response form has been lodged. If it has not, the adviser should assist in preparing this so that it can be lodged with the sheriff clerk. When the case calls in court the defender's representative can then ask for the response form to be received late.

Lay representatives can represent parties at the first hearing and any continuations thereof. They will most commonly appear in actions of recovery of heritable property, known as eviction actions. Lay representatives should have a letter of authorisation from the client if the client will not be present although they will rarely be asked to show this

Sheriffs have to determine whether a lay representative is a 'fit and proper person' and if they decide that a lay representative may not appear on behalf of a party, then the client will have to represent themselves. Most courts allow lay representation but advisers should contact the sheriff clerk's office to check the court's practice.

At the calling date the sheriff hears what both sides have to say in turn, starting with the pursuer.

If the representative is making an offer to pay the arrears at the first calling in a summary cause action for eviction for rent arrears then they should have the following with them:

• evidence of receipt of or application for housing benefit

• rent book or copy of rent account

• details of income and expenditure to show what offer can reasonably be afforded

• copies of any relevant correspondence between landlord and client, particularly where proposals to repay arrears have been accepted

• any evidence as to why arrears accrued, for example, sickness certificates

• any evidence as to arguments as to reasonableness.

If a response from has been lodged, then it is advisable to arrange for the defender to see a solicitor before the hearing if possible. If this cannot be arranged in time then explain that the defender needs legal advice (and that this has not yet been possible to arrange) and ask for a continuation for a couple of weeks in order to arrange this.

At the request of either party, the sheriff can continue the first hearing to such other date as s/he thinks is appropriate. In many cases where there is a payment proposal, the hearing will be continued to allow repayment by the defender. Where both parties are present or represented at the first hearing, and the sheriff does not continue the case, s/he has to decide whether the pursuer's action is competent.

If s/he is satisfied on that point, s/he has to ascertain the legal and factual basis on which the action is being defended. That will be apparent from the summons and the response form that contains the defender's defence. If the defence is unclear, the sheriff may seek clarification from the representatives of pursuer and/or defender.

The sheriff then has to seek to negotiate and secure settlement of the action. It is not always clear how the courts will interpret this obligation in actions for eviction on the grounds of rent arrears. It may be that, where a repayment proposal is made, the sheriff will probably continue for repayment.

If the sheriff cannot secure settlement of the action, s/he must note the disputed issues of fact and law, and any matters that are agreed, on the summons. The sheriff must then decide whether the pursuer's claim or the defender's defence are soundly based in law. If s/he is satisfied that they are, she must then fix a proof hearing if the dispute depends upon the resolution of a disputed issue of fact. If there is no dispute of fact, the sheriff must decide upon the case at the first hearing.

As a result, the provisions regarding the disposal of a case at first hearing are fairly complex. Given the importance of the case to the defender, it is suggested that it will probably be inappropriate for lay representatives to appear in cases where the pursuers are definitely seeking an eviction order.

Procedural guidance 2022

New guidance from the Court dated 13th July 2022 seeks to limit the number of continuations / adjournments to one, for a maximum of twelve weeks. It’s important to note that Sheriffs have discretion to grant any number of continuations in such cases, however. The guidance suggests that sists and further continuations should only be granted where there are exceptional circumstances, but what constitutes ‘exceptional circumstances’ is not explained.

It may be possible to re-open a case where decree has been granted by lodging a minute for recall of decree.

There are two situations in which a decree can be recalled in a summary cause case: [1]

• where a decree of absolvitor has been granted because the pursuer failed to appear or be represented at a first calling or any continuation

• where decree has been granted at a first calling or a continuation of a first calling against a defender and s/he failed to appear or be represented.

See the pages on Minute for recall for more information

• Minute for recall forms (PDF, 55.9 KB)