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The Summons

The first in our series of articles on Litigation.

The first step in the pre-litigation process is usually the sending of a letter of demand to someone. Apart from being contractually or statutorily required, the purpose of this letter is to gently bring the person back in line before you begin more severe measures.

Common examples where you'll send a letter of demand first:

  1. your counterpart has breached your contract;

  2. your client has failed to make payment on time; or

  3. someone has acted in a way that has caused financial or reputational damage to your or your company.

If you've engaged your attorneys to call and send a letter of demand to your opponent, but it fails to produce the required result, you may need to commence Litigation with a Summons.

A Summons is a document that warns your opponent that they're being sued, and that you will seek a Court Order against them if they do not comply.

A Summons is usually a combination of two documents:

  1. The Summons itself, which explains that the Defendant must indicate within a specified time period the case will be defended, and that if no defence is received, the Plaintiff may apply for default judgement, and

  2. The Particulars of Claim, where the facts of the claim are set out and the relief being sought is identified.

How does the Defendant receive notice of the Summons?

The Sheriff must serve the summons on the Defendant or on a person who must be older than 16, at the premises where the Defendant works or lives.

If the Defendant is a company the summons must be served at the company’s registered place of business.

Can the Defendant ignore a summons?

Whereas a Defendant can ignore a Letter of Demand without drastic consequences, ignoring a summons is a terrible idea. If the Defendant does not defend against a summons, the Plaintiff may seek Default Judgment without further notice to the Defendant. A Default Judgment appears on the Defendant's credit record, and entitles the Plaintiff to instruct the Sheriff of the Court to seize the Defendant's assets to satisfy the judgment debt. In extreme cases, ignoring a summons can lead to arrest.

What to do when you have received a summons?

  1. Contact us immediately to discuss your options.

  2. We will discuss the legal process with you and advise you on the formulation of a defence.

  3. Make sure you have all the documentary evidence that proves your defence and bring it with to your consultation.

When is a Summons not the appropriate legal step?

There are instances where a summons may not be the appropriate action - for instance where workers are threatening to embark on an illegal strike, or where your spouse is about to board a flight to leave the country with your child. In such cases, you may need to institute an Urgent Application. Contact us for advice on your legal situation.

Look out for our next article on what happens next in the Litigation process.


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