Step 2: Decide what you're asking for and what type of court action you’ll take

You can use the Simple Procedure and continue to follow the advice on these pages about how to take a claim. You should be aware that if you lose the case, you might be ordered to pay the other side’s legal expenses, although these are capped in Simple Procedure.

If you start a claim in Simple Procedure and ask for specific implement, or the sheriff thinks the case is too complex, they could also decide to refer you to Ordinary Cause. In this case you would need to get a lawyer to represent you.

If you think you should start your claim in Simple Procedure you should continue to work through Steps 3 - 10. You can take a Simple Procedure claim yourself but it can still be beneficial to get legal help or advice - you'll decide whether you need this in Step 3.

If you think your claim is worth more than £5,000 you would start a claim using Ordinary Cause rather than Simple Procedure. You could also ask for another remedy like a declaration that a policy or practice is unlawful or an interdict to order the defender to stop infringing your rights.

Ordinary Cause is more complex than Simple Procedure and it’s not designed for people to take claims without legal representation. The process can be difficult to understand for a non-lawyer. You could represent yourself in Ordinary Cause actions but most people don’t and get help from a lawyer instead.

If you represent yourself you’ll be expected to follow the court rules on court action, like how to start a claim and how evidence should be presented. The Ordinary Cause rules are available on the Scottish Courts website. If you don’t follow these rules you might find that:

• your case won’t be heard or might be dismissed

• you’re not allowed to rely on certain evidence or arguments

• you’re ordered to pay the other side’s legal expenses if you run up costs unnecessarily or act unreasonably.

You should work through Step 4 to decide how strong your case is. If your case is weak or you don’t have a lot of evidence, starting Ordinary Cause action or legal action at all might not be the best option. This is because the side who loses an Ordinary Cause claim can be ordered to pay the other side’s legal expenses, which can be very high. Your own legal fees can also be very high, although you might be able to get civil legal aid. You would need to find a solicitor who does legal aid work.

The rest of this advice is about taking legal action through Simple Procedure, so if you want to start a claim under Ordinary Cause you should find a solicitor and read more about Ordinary Cause on the Scottish courts website.

If the remedy you want is a declaration, for example, that a policy or rule was unlawful because it discriminated against people, but you don’t want any compensation, you’d raise this under a court procedure called Summary Application. 

Summary Application is more complex than Simple Procedure and can be difficult to understand for a non-lawyer. Most people don’t represent themselves and get help from a lawyer instead. If you’re taking action under Summary Application you start the court action with a document called an Initial Writ. A lawyer usually prepares this for you.

If you represent yourself you’ll be expected to follow the court rules on court action, like how to start a claim and how evidence should be presented. The Summary Application rules are available on the Scottish Courts website. If you don’t follow these rules you might find that:

• your case won’t be heard or might be dismissed

• you’re not allowed to rely on certain evidence or arguments

• you’re ordered to pay the other side’s legal expenses if you run up costs unnecessarily or act unreasonably

It’s worth thinking carefully about whether you should make a claim for compensation because if your claim is worth more than £5,000 you could ask for a declaration or another remedy at the same time as seeking compensation - you would do this by taking Ordinary Cause action.

You might also be able to take a different type of legal action called Judicial Review if you want a declaration that a public authority has breached its public sector equality duty, for example.

The rest of this advice is about taking legal action through Simple Procedure, so if you're certain you don't want compensation up to £5,000, don't continue through the steps and get help from a lawyer instead.