How to Counterclaim in Simple Procedure Scotland

There Is No Counterclaim Form in Simple Procedure

If someone has sued you in Simple Procedure and you believe they actually owe you money, your first instinct is probably to counterclaim within the same case. Under the old Summary Cause rules, there was a dedicated counterclaim procedure. Simple Procedure does not have one.

That does not mean you are stuck. You have two routes depending on the relationship between your claim and theirs: a defence of set-off within your existing response, or a separate claim for which you can ask the Sheriff to join the cases.

Option 1: Defence of Set-Off (Same Dispute)

A set-off is a procedural shield. You argue that the money the claimant wants is cancelled out — in whole or in part — by money they owe you from the same contract or transaction.

Example: A contractor sues you for £3,200 in unpaid fees. You argue that the work was defective and you paid £1,400 to another contractor to fix it. You are not seeking a separate decree against the contractor — you are saying the amount they can recover should be reduced by £1,400 because of their own breach.

You raise a set-off inside Section D of Form 4A. Describe what the claimant owes you, why it arises from the same contractual relationship, and attach supporting evidence (repair invoices, photographs, correspondence).

One warning: contractual terms can block set-off. In Ravensby Glass Company Limited v Lifestyle Glass Design Limited, the Sheriff Appeal Court held that the pursuer's standard conditions of sale excluded the defender's right to set off a counterclaim. If the contract between you and the claimant contains a "no set-off" or "no deduction" clause, you may need the separate-action route instead.

Option 2: Separate Claim + Consolidation (Different Obligation or Exceeds Their Claim)

If your cross-claim arises from a different legal obligation, or if the amount you are seeking exceeds what the claimant wants from you, set-off will not cover it. You need to raise your own Simple Procedure claim.

The process:

1. File a separate Form 3A — you become the claimant in a new case against the person who sued you. Complete it the same way any claimant would: identify the parties, state the facts, specify the amount, and pay the court fee (£23 for claims up to £300; £127 for claims over £300 up to £5,000 at rates effective from 1 April 2026)
2. Apply to consolidate the cases — once your new claim is registered and served, lodge an Additional Orders Application asking the Sheriff to conjoin the two cases under Rule 8.4. If granted, both actions are managed and heard together before the same Sheriff
3. Respond to the original claim — filing your own claim does not replace the obligation to submit Form 4A in the case against you. You still need to respond by the deadline

The Sheriff has discretion to grant or refuse consolidation. If both cases involve the same parties and arise from the same facts, explain why they should be managed together; consolidation is not automatic.

When Set-Off Is Enough vs. When You Need a Separate Claim

Cost Implications

Raising a set-off defence costs nothing — there is no court fee for filing Form 4A. Raising a separate claim requires the standard court fee, and if the claim is over £300 you are looking at £127. Court fee exemptions apply if you receive qualifying benefits (Income Support, income-based Jobseeker's Allowance, Pension Credit Guarantee Credit, and others).

If you win both cases and recover expenses, the capped expenses regime applies to each case separately. For claims at or below £300 the normal cap is £0, though exceptions can apply, including for unreasonable conduct; for claims over £300 up to £1,500 the cap is £150.

Getting Your Response and Cross-Claim Right

Whether you are raising a set-off in Form 4A or filing a separate counterclaim, the foundation is the same: a clear factual narrative, supporting evidence, and correct procedure. The Scotland Simple Procedure Response Guide covers all four Form 4A response options and how to structure Section D, including set-off defences.

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