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Summary cause process

• The summons
• Lay representation

If the landlord is a council or housing association and they take the client to court, the case is dealt with:1s36 H(S)A 2001

•under the summary cause procedure if the arrears are under £5,000;
•under the ordinary cause rule if the arrears are over £5,000. Get special advice.

 

1     s36 H(S)A 2001 »

The summons

The proceedings start with a summons being served on the tenant. This is only served once the notice period has passed. Usually, the case cannot be called into court until 21 days have passed from the summons being served.1Sch 1 r4.5 Summary Cause Rules This period may be shorter in specific cases.

The summons lists who the parties are, the address of the property the landlord is seeking to repossess and the grounds for seeking repossession. It includes a ‘statement of claim’, the part of the summons where the landlord outlines the case and gives the tenant fair notice of the case against them. This often contains details such as the period the rent has remained unpaid and how much is due. If basic information is not provided, the summons may be dismissed as incompetent.

The original summons is registered with the court by the landlord. A copy of the summons is formally delivered to the client. This summons explains what the pursuer (landlord) wants from the client. For example, if the landlord is attempting to evict the client, the summons explains it is an action for recovery of possession of heritable property.

The summons is sent to the client’s home, workplace or other known address by recorded post or delivered personally by sheriff officers.

 

Responding to the summons

The summons contains a section called ’the claim’. This explains what the landlord is looking for and why – eg, recovery of the property due to rent arrears or antisocial behaviour. The client should respond to the summons before the return date if they dispute any of the facts of the claim. Applying for a time to pay direction is not an appropriate action as it only allows time to pay the debt, but a decree may still be awarded for eviction.

If the client fails to respond before the return date, they can go to court on the court date (the calling date) to explain why they should not be evicted.2Sch 1 r7.1 Summary Cause Rules

 

1     Sch 1 r4.5 Summary Cause Rules »

2     Sch 1 r7.1 Summary Cause Rules »

Lay representation

A lay representative is a person authorised by a client to help them prepare and conduct a civil legal action.

Lay representatives are allowed to do anything a client can do to prepare and conduct their case. Lay representatives cannot accept payment for this service.1Sch 1 Ch 2A Summary Cause Rules

Points to remember

All parties should turn up in plenty of time and check with the court officers to find which court the case will be heard in.

Always wait to be addressed by the sheriff and address them as ‘My lord’, ‘My lady’, ‘Sir’ or ‘Madam’. Lay representatives must use ‘My lord’ or ‘My lady’.

Generally, a sheriff asks the pursuer why they have raised an action (the defender must not interrupt).

If the sheriff asks the defender a question, be prepared to answer it if able to. If they cannot answer, tell the sheriff.

If the sheriff asks the pursuer a question, wait for them to finish speaking.

If the sheriff is taking notes while you are speaking, stop and wait for them to look up from the bench before continuing.

 

1     Sch 1 Ch 2A Summary Cause Rules »