There are several choices open to you. If you are an individual person, you will have received Form 1a. The choices for you are:
If the defender is not an individual (for example a company), they will have received Form 1b. The choices then are:
We shall look at each of these options in detail shortly. First of all however, let us consider the importance of the return day and the hearing date. The return day, which is fixed by the sheriff clerk when the summons is lodged, is the day by which you must respond to the summons if you wish to do any of the following:
The hearing date is also fixed by the sheriff clerk at the time the summons is lodged. This date will be seven days after the return day. The case will only call in court on the hearing date if you:
If you do nothing in response to the summons, the court will almost certainly make an order against you on the hearing date. You will then be required to do what the pursuer has asked in the summons. You will also have to pay any interest and court expenses claimed. In an action for delivery or recovery of moveable property or implement of an obligation, the court may order you to make delivery or carry out the obligation within a specified period. If you do not comply with the court's order, the pursuer will be entitled to come back to the court and make an application for payment of the alternative amount claimed.
If you do not dispute the claim you should consider seeking advice on whether to make an application to the court for a time to pay direction or a time order.
Note: Orders for payment of debts contained in court records are regularly referred to as a way of establishing people's credit worthiness. Once a person's name is recorded, it may stay there for several years and it might be difficult for that person to obtain credit facilities in the future.
If you wish to avoid a court order being made against you, you should settle the claim (including any question of expenses) with the pursuer as soon as possible. If you intend to do this, but do not do so before the return date, it may then be too late to prevent a court order being made against you.
If you settle the claim in this way, the pursuer has to tell the court so that the claim can be brought to an end. It may be in your interests to contact the sheriff clerk's office yourself to confirm that the pursuer has told the court that the claim has been settled.
You may wish to admit the claim, and also to apply to pay any sum due by instalments, or within a specified period. To do this, you must apply to the court for a time to pay direction or a time order. If the claim is one for delivery, or implement of an obligation, you may decide that you wish to settle the claim by paying the alternative amount claimed and also apply for a time to pay direction or time order.
To apply for a time to pay direction or a time order, you should complete box 1 at section B on page 5 of the copy summons, and also page 6, giving details of the order for payment you wish the court to make and also details about your financial position.
You must return pages 5 and 6 to the court on or before the return date shown on the first page of the copy summons. If you do not, the court may grant the order sought by the pursuer, together with any interest and expenses claimed. The pursuer is allowed until the time the sheriff clerk's office closes for business on the day, two days before the date of the hearing, to tell the court if he/she is accepting your offer or not. You should check with the court as soon as you can after the day two days before the date of the hearing to find out how the pursuer has responded to your offer.
If the pursuer accepts your offer, the court will grant an order on the hearing date in terms of your application. You will not have to attend at court. If the pursuer does not accept your offer, the matter will then be considered by the court on the hearing date.
In this case, it will be in your best interests to attend the hearing so that the sheriff can hear both you and the pursuer on your application. If you do not attend, the court will decide the application in your absence.
Instead of making a written application to the court about payment, as discussed in the previous paragraph, you may prefer to appear in court personally to make your application, or to be represented by someone else to do so.
In this situation, you should complete box 2 at section B on page 5 of the copy summons. If you intend to appear in court, it is not necessary to complete the written application form for a time to pay direction, but it may be helpful to do this and send it to the court.
You must return your response to the court on or before the return date shown on the first page of the copy summons. You must also appear or be represented at the hearing. If you fail to do either, the court may grant the order sought by the pursuer, together with any interest and expenses claimed.
If you intend to dispute the claim, you must appear in court (or be represented) on the hearing date to state your position. To dispute the claim, you should complete box 3 at section B on page 5 of the copy summons. You must return page 5 to the court on or before the return date shown on the first page of the copy summons. If you do not, the court may grant the order sought by the pursuer, together with any interest and expenses claimed.
You should send the court a written note of any counterclaim you propose to state at the hearing. You may do this at any time before the return date. If you do so, you should also send a copy of it to the pursuer at the same time.
If you have any doubt as to whether the court has jurisdiction to hear the case, you have the right to challenge this. Jurisdiction is the term used to describe the authority of the court to hear the case. The rules on this are quite complicated and beyond the scope of this guide. If you have any concerns on this, you should seek advice before responding to the summons. Please note that the sheriff clerk can't advise you on this particular matter. If you defend the claim, you may make a written or oral application to the court for a time to pay direction or a time order
When a claim is raised for, or includes, payment of a sum of money, the pursuer is entitled to prevent anyone holding money (or certain other kinds of property) belonging to the defender from parting with it before the court proceedings are finished. The procedure used to achieve this is known as 'arrestment on the dependence' of a claim. The purpose of arrestment is to ensure that, if the pursuer is successful in his claim, the money or items will be available to cover any debt due from the defender. If the pursuer wishes to make use of this procedure, he must have the items legally arrested, so that they can't be disposed of until the case is finished. This is done by a sheriff officer on his behalf.
Once any items have been arrested in this way, the defender is entitled to apply to the court to have the arrestment recalled or restricted. The defender may do this either by completing the application provided on the copy summons or, if he wishes to make the application at a later stage of the case, by making an 'incidental application' to the court.
If you do not wish to make an application for recall of arrestment, remember to delete the application form on the copy summons before you return your response to the court.
The court will hear the parties to the claim on the application to have an arrestment recalled or restricted. If the application is made by the defender as part of his response to the summons, it will be considered by the court when the case calls on the hearing date. Sometimes, if the application to recall the order for arrestment is granted, it is done on condition that the defender pays into court a sum equal to the sum claimed, plus a sum to cover the expenses of the claim.
After you have lodged your response to the summons, you may wish to change something in it. For example, you may have forgotten to include some important information in any written defence you have sent to the court, or you may discover that something you have stated is wrong. If you wish to amend your response, you may apply to the court to do so at any time during the case before the sheriff finally decides it. You could do this by lodging a document known as an incidental application, or, if appearing personally in court for a hearing, you could ask the sheriff to allow the amendment at that time.
If, as an alternative to having the case continued, you wish the proceedings to be brought to a temporary halt, you may apply to the court to have this done. You might want this to happen if for example, you are trying to settle the case with the pursuer and you feel you need more time to come to a suitable arrangement with him. This procedure is known as sisting the case. You may apply to the court to have the case sisted at any time before the sheriff finally decides it. You could do this by lodging an incidental application, or, if appearing in court, you could ask the sheriff to allow the sist at that time.
The reason you wish the sist to be made must be stated in the application, or explained to the sheriff if you apply for it by appearing in court. The sheriff is not, however, obliged to sist the case as a result of your application.
When a case is sisted, no further steps can be taken until the sist is recalled. An application to recall a sist is made by incidental application. The pursuer is also entitled to apply to have the case sisted.
If the pursuer has raised a claim against you, and you have a claim against him arising from the same matter, then, instead of raising a separate action, you can raise your claim against the pursuer in the pursuer's own action. This procedure is known as making a counterclaim.
You do not have to use the counterclaim procedure. You are entitled to raise a separate action if you wish. However, it is often quicker and more convenient to state a counterclaim in the pursuer's action, rather than start a new claim altogether. The counterclaim can be for whatever sum of money you think appropriate. If a counterclaim results in the claim becoming more complex, the court may order that the case be removed from the small claim procedure and dealt with as a summary cause. (Guidance on summary cause procedure, similar to that for small claims, is also available.)
Please note that you can only make a counterclaim if your claim against the pursuer relates to the same matter as the pursuer's claim against you. Here is an example of when making a counterclaim might be appropriate:
The pursuers are a firm of plumbers. You purchase a new bathroom suite from them. However, soon after it is installed, water pours through your ceiling, causing extensive damage to your home.
You refuse to pay the pursuer's bill for the work done, and he makes a claim against you. In those circumstances, you could raise a counterclaim against the pursuer for the damage caused to your property by the pursuer's shoddy workmanship. Your counterclaim would then be joined with the pursuer's claim and both considered by the court as one case.
If, however, you wanted to sue the same pursuer because, say, he had damaged your car in a road accident, then you could not do this by way of a counterclaim (in the pursuer's claim for payment for work done to your bathroom) because this would be an entirely separate matter.
There is no specific form of counterclaim provided. However, a counterclaim should include:
You may also include in your counterclaim an application for warrant to arrest on the dependence of the counterclaim, in the same way as a pursuer may do in the claim.
If you know that you wish to make a counterclaim when you receive the copy summons, you must tell the court as part of your response to the summons that you intend to make a counterclaim in the case. Information about how to do this is contained in the copy summons.
The details of the counterclaim may be included in the form of response to the summons. If you do include these details, you must send a copy of the form of response to the other parties to the claim at the same time as you send it to the court.
Alternatively, you can tell the court the details when you appear at the hearing. If you wish to proceed in this way, you should indicate your intention to do so on the form of response. When you attend at the hearing, the court may, if necessary, continue the hearing to allow the pursuer time to answer the counterclaim.
The procedure is designed to be cheap, but some expenditure may be necessary.
There are two areas of expenditure to consider:
There is no fee payable for defending an action, or making an application for a time to pay direction or a time order. There is a fee (currently £32) for making an appeal against the court's decision.
As a general rule, court expenses are awarded to the person who succeeds in the claim. These expenses must then be paid by the unsuccessful party. There is normally a limit on the amount of expenses which can be awarded. If the value of the claim is £200 or less, and the case has been defended, there will normally be no award of expenses.
If the value is between £200 and £750, and the case has been defended, the maximum amount of expenses which can normally be awarded by the court to the successful party is £75. There are exceptions to the normal limits on awarding expenses. Full court expenses may be awarded if:
The limits for awarding expenses do not apply to the hearing of appeals. Expenses are normally calculated at the end of the case either by the sheriff, or by the sheriff clerk, who then has the calculation approved by the sheriff.
Expenses which you may incur include:
In certain circumstances, either the pursuer or the defender may apply to the court to have the court's final order (decree) recalled. This usually happens when one party or the other has failed to do something – for example, attend at court for a hearing or lodge a document in time.