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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12067
Experience:  30 years as a practising solicitor.
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Can I lodge an application for summary decree (as a defender)

Customer Question

Can I lodge an application for summary decree (as a defender) if the pursuer has failed to lodge a defence of my counterclaim within the seven day period after the return day?
Submitted: 3 years ago.
Category: Scots Law
Expert:  JGM replied 3 years ago.
Thank you for your question.
Is this an ordinary, summary cause or small claim action?
Has the court made an order for Answers to the Counterclaim?
Customer: replied 3 years ago.

This is a summary cause, no order has been made by the court, but seven days have passed (today) since the return day.

Expert:  JGM replied 3 years ago.
The rule says that the pursuer should lodge answers to a counterclaim within seven days of the lodging of the response. You could therefore apply for decree on the basis that the Pursuer hasn't followed the correct procedure.
In practice the sheriff is likely to make a formal order for answers to the counterclaim rather than grant summary decree.