The Civil Court Structure in Scotland

Although both are provided by the state and managed via the Scottish Courts Service, (utilising much of the same buildings and personnel), unlike the Criminal Court system where the state prosecutes the “accused" for an offence committed (such as murder or theft), seeking to prove guilt to the higher standard of “beyond all reasonable doubt" and impose punishment through sentencing (such as fines or imprisonment and a criminal record); the Civil Courts deal with non-criminal matters, primarily disputes of a private nature between individuals, companies and public bodies in diverse areas including Contract, Delict, Property, Employment and Family Law.

Through “litigation", the “pursuer" attempts to establish the liability of the “defender" to the action, under the less onerous “balance of probabilities", and to be granted a ruling in favour of the remedy sought to resolve the issue. Remedies include: damages & compensation, divorce, specific implement (force performance) and interdict (to prevent activity).

In contrast to the inquisitorial Continental system, as in criminal cases, the adversarial process allows both parties in turn to present their pleadings and submissions of fact and supportive law - both Common Law and Statute - to a judge normally sitting alone in ‘summary procedure’ without a jury (of 12 not 15 as in Solemn Criminal trials) and acting as a “referee". [2] When carrying out judicial duties, judges have immunity and protection from civil action under both common law [3] and statute. [4] 5

Three main courts have jurisdiction over civil proceedings in Scotland – the Sheriff Court, the Court of Session and the Supreme Court. Though there is some overlap in remit, the hierarchy of the civil court structure allows the separation of cases based on the nature of their legal or financial complexity and/or importance (and cost) such that this may be reflected in the level of court hearing the complaint and also for a progression to a superior court in the event of an appeal. The jurisdiction of the court follows the principle of Actor debet sequi forum rei. [6] 

The present mixed legal system retains elements of both Roman and Canon law but has been modified by Statute.

Sheriff Court

The Sheriff Court is the lower of the two native civil courts.

Scotland is divided regionally into 6 sheriffdoms, [7] each further divided (except Glasgow & Strathkelvin) into a total of 49 sheriff districts, all with their own sheriff court [8] .

Each sheriffdom is led by a full-time sheriff principal who is assisted by as many Sheriffs as necessary to deal with the workload.

All permanent [9] sheriff principals and sheriffs are appointed by ‘Her Majesty’ on recommendation from the First Minister after consultation with the Lord President [10] and must have been advocates or solicitors for at least ten years. [11] Once appointed they are disqualified from private practice. Both sheriff principals and sheriffs appointed after 1995 must retire at 70. [12] 

Starrs v Ruxton 2000 JC 208 ruled the appointment of temporary-sheriffs [13] by the Lord Advocate, a member of the Scottish Executive, [14] compromised judicial independence and was a breach of the European Convention on Human Rights. [15] The position was abolished and replaced with that of Part-time Sheriffs.

Jurisdiction of the court is governed by the Sheriff Courts (Scotland) Act 1907 c51, the Civil Jurisdiction and Judgements Act 1982 amended by the Civil Jurisdiction and Amendment Order 2001 SI 2001/3929. [16] These provide the remit of the principal within his sheriffdom and of the sheriff within his district.

Small Claim

Originally introduced in 1985 under the Law Reform (Miscellaneous Provisions) (Scotland Act) 1985 s18(2) modifying the Sheriff Courts (Scotland) Act 1971 s35, the “small claim" procedure is a form of “summary cause" pursuing a monetary claim to the value of £3,000 to recover a debt, for the delivery or recovery of property or to implement an obligation, that can only be raised within the sheriff court.

The process is designed to be simplified and informal so that a solicitor, advocate or authorised layperson is not required to assist in raising or defending a small claim. [17] Legal aid is not available to raise or defend a small claim excepting appeals.

Court fees are payable for raising a claim (£15 to raise an action under £200 and £65 for any value over this amount). [18] Exemptions are available for unemployed / low-income.

No initial fee is payable to defend a claim although costs can be awarded to the successful party in addition to any judgment.

< £200 no fees recoverable

> £200 < £1500 £150 expenses awarded where case is defended

> £1500 <=£3000 10% expenses awarded where case is defended

Claims are normally raised and heard in the court district where defender habitually lives or works or owns or is the tenant of land or buildings [19] . With Consumer contracts a claim against the business can be raised either at the consumer’s local court or where shop is located; however, the business can only raise a claim local to the consumer.

Claims “Summons" forms can be obtained from any sheriff court or downloaded and are submitted to the sheriff clerk.

The summons is then to the defender who must respond by the specified Return Date or the court will issue a decision in their absence. Otherwise a Hearing Date is set to attend and admit liability or defend the claim.

Appeals against a decision are made to the sheriff principal solely on points of law. [20] 21

Summary Cause

Summary cause action is governed by the Sheriff Courts (Scotland) Act 1971 and the Act of Sederunt (Summary Cause Rules) [22] for a monetary claim between the value of £3,000 and £5,000, to recover a debt, for the delivery or recovery of property or to implement an obligation. These can only be raised in the sheriff court. Claims over £5000 are be raised under a procedure called “Ordinary Cause".

Summary cause is a simplified process available only to the sheriff court and is designed to reduce both time and costs. A solicitor is not required but legal aid may be available to assist in raising or defending a summary cause depending on income. The person may be represented by a ‘lay representative’.

There is no fee payable for defending a summary cause action although expenses may be awarded to the person who succeeds in the case – payable by the unsuccessful party.

The cost of a solicitor, loss of wages & travelling expenses (including witnesses) and the cost of having an order made by the court complied with may be awarded but the court calculates expenses and reference is made to an approved table of costs.

In the event of a counterclaim making the claim more complex, the sheriff may move the case from summary cause to ordinary (see below).

There are several types of summary cause; most commonly for recovery of money and also include:

Recovery of heritable property

Action of multiplepoinding (wills)

Action of forthcoming – on a third party – e.g. wages arrestment

Action for delivery / recovery

Action for implementation of an obligation.

Damages for personal injury

A claim is raised using the same FORM1 as with a small claim. The defender must respond, if he intends to do so, by the Return Day or the court will make a decision in absence.

A “Calling Date" is set to hear the case where the defender should attend to admit liability or defend the claim.

Appeals against a decision are made to the sheriff principal solely on points of law and not fact. [23] 24

Ordinary Cause

Ordinary cause refers to all other claims, including divorce, [25] exceeding (without limit) £5000 made through the sheriff court and is regulated by the Act of Sederunt (Sheriff Court Ordinary Cause Rules). [26] These claims are much more significant in value or complex in content and the court process more formal. Ordinary cause may also be raised in the Court of Session although the requirements to use an advocate or solicitor-advocate will significantly increase costs. Action is commenced by “initial writ". [27] S9 covers the standard procedures to challenge the jurisdiction of the court, state a defence or make a counterclaim (adjustment).

Reponing allows the restoration of a defender against whom a decree has been granted in their absence to allow them to defend it. [28] 

Before “Proof" (the definitive hearing) an “Options Hearing" [29] is held to define points at issue.

Appeals from ordinary cause may be referred to either the sheriff principal [30] or to the Court of Session [31] 

Court of Session

The Court of Session [32] is the supreme civil court in Scotland. It is both a court of first instance of civil actions and of appeal, sitting permanently in Edinburgh [33] with jurisdiction over anyone who is domiciled or habitually resident in Scotland or owns property or has had goods seized here [34] .

The Court of Session has access to the equitable power of nobile officium [35] unavailable to the sheriff court.

Cases must be presented by an advocate or solicitor-advocate as solicitors do not have right of audience. As advocates must be instructed by a solicitor the expense of cases heard in the Court of Session is higher, but ‘the prestige’ and seniority of the court may make appeals less likely.

The court is divided into two sections – the Inner and Outer Houses. Having first been heard in the Outer House a decision could be appealed to Inner House.

Thus the Outer House is primarily a court of First Instance with 23 judges [36] referred to as Lords Ordinary who normally sit without a jury and consider both fact and law.

The Inner House, primarily a court of Appeal hearing cases referred from either the sheriff courts or passed from the Outer House, is split into 2 divisions of equal standing – the First Division headed by the Lord President and the Second led by the Lord Justice Clerk [37] .

Appeals to the Court of Session are passed from the sheriff courts and appeals from the Court of Session are referred to the Supreme Court in London.

Supreme Court

The Supreme Court was created by the Constitutional Reform Act 2005 [38] and sits permanently in London. [39] It commenced on 1st October 2009, replacing the appellate jurisdiction of the House of Lords and is the highest and final court of appeal in the UK; although from Scotland it will hear only civil appeals from the Court of Session [40] . It is also has jurisdiction on devolution issues. [41] 42

The twelve [43] current [44] judges of the court are appointed by the Queen and referred to as “Justices of the Supreme Court" [45] with the two most senior being appointed President and Deputy President by the Queen. [46] 

Despite article XVII of the Union with Scotland Act 1706 c11 [47] , the right of appeal to the House of Lords in civil matters was established by Greenshields v Magistrates of Edinburgh 1710 [48] where an Episcopalian [49] minister, persecuted for offending Presbyterians, had appeals refused by the Court of Session but was able, contentiously, to have an appeal heard by the House of Lords. There is no corresponding right in criminal matters.

Few Scottish cases reach the Supreme Court but a recent example is Grays Timber Products Ltd v Revenue and Customs Commissioners [50] dismissing an appeal against a failed appeal to the Inner House regarding income tax charged on shares sold for more than their market value.

The court presides with three or more justices and there is no jury

Other Courts

A number of other courts also have civil powers within restricted jurisdictions. These include: the Scottish Land Court, based in Edinburgh, which deals entirely with agricultural disputes involving tenancy and crofting, and has an appeal, on points of law, to the Inner House; [51] the Court of the Lord Lyon rules exclusively on heraldic matters, again can be appealed to the Inner House and then to the Supreme Court; [52] and the Lands Valuation Appeals Court deals with appeals on points of law only [53] relating to local rates valuations and its decision is final. [54] 

European Court of Justice

The European Court of Justice, based in Luxembourg, enforces EU legislation and treaties across all members of the union ensuring the compliance and enforcement of Regulations and Directives. If issues relating to treaties arise within the domestic courts EU law must be given consideration and previous decisions followed. [55] 

Conclusion

Through the civil court structure the state provides citizens an avenue to raise (and appeal) non-criminal actions and obtain restitution without resorting to taking the law into their own hands.