constitutional law

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The Civil Court In Scotland

The civil courts in Scotland are provided by the state for citizens to resolve any disputes they may have in a fair and respectable manner. Whereby the one party (the pursuer) will raise an action in front of the relevant civil court against another (the defender). The court will then hear the arguments of both parties and rule in favour of one of the parties and grant a remedy accordingly. This is known as litigation. The court procedure in Scotland is adversarial; the parties must bring forward not only an argument of facts but of law as well. The sitting judge in the court will decide the remedy in any case.

In Scotland a civil court must have the jurisdiction to hear a case. The two ways in which the courts are deemed by jurisdiction are: the court must have the jurisdiction to hear the type case that has been brought forward and secondly they must also have jurisdiction over the parties. In Scotland the doctrine actor sequitur forum rei must be adhered to, this is where the pursuer is bound to follow the defender.

In Scotland there are three main civil courts in order of hierarchy; the Supreme Court (formally known as the judicial committee of House of Lords), the Court of Session, which consists of the inner and outer house and the sheriff courts. Each court has its own personnel and appeals processes.

The Sheriff Courts

In Scotland the sheriff courts are organised into six sheriffdoms, set out by there geographical areas ( Grampian, highland and islands; Tayside, central and fife; Lothian and borders; Glasgow and Strathkelvin; north Strathclyde; south Strathclyde, Dumfries and Galloway) . Each sheriffdom is headed by a sheriff principle, who is responsible for the overall administration and organisation of all the sheriff districts that falls into their sheriffdom. In addition the sheriff principle hears the appeals of decisions made but the sheriff in civil matters and can also sit as a sheriff. The sheriffdoms are broken into 49 sheriff court districts; each sheriff district has a sheriff court and a number of sheriffs who sit there. There are currently 142 sheriffs in post in Scotland.

Under the sheriff courts (Scotland) act 1877 the sheriffs are appointed by the crown, and have to be advocates or solicitors for a minimum of 10years standing. However the queen acts on the recommendation of the first minister who is bound to consult the lord president [1] . Temporary sheriffs where also appointed to sit in sheriff courts to help with the workload of the sheriffs until recently where in stars v ruxton 2000 JC 208, 1999 SCCR 1052, 200 SLT 42. It was found that temporary sheriffs didn't give way to the right to a fair trial [2] . Now 12 full time and many part-time sheriffs have been appointed to help with the workload since the abolishment of temporary sheriffs. There may be more than one sheriff in each court and some courts have access to floating sheriffs, who are solicitors or advocates however they are not allowed to sit as a sheriff in a district where they practise.

For a case to be heard at the sheriff courts or any court the court must hold jurisdiction. The sheriff court can exercise jurisdiction over the defender if the defender holds residency in the sheriffdom where the sheriff court is situated or be there for at least 40days or alternatively if the defender has resided there for less than 40days but has no other known address in Scotland [3] . However where the defender has no fixed address the defender can be cited to appear in the court [4] . The defender can also be cited at the court where his business or property is resided if the action is in relation to that business or property [5] .

The sheriff court has jurisdiction over a wide range of cases that can be heard, it also holds exclusive jurisdiction over certain types of cases than cannot be auctioned in any other courts in contrast to the limited category of cases that must be brought directly to the supreme court of session.

There are three main types of procedures in the sheriff civil courts; small claims, summary cause and ordinary cause. Small claims procedure is for claims up to £3000, and is the most informal of all court procedures, there is no legal representation required and is the speediest and cost efficient. The sheriff can treat a small claim as a summary or ordinary cause if there is a complex question of law or on the joint motion of the parties [6] . Summary cause is for claims of £3000-5000, the process is normally the pursuer fills a pre-printed claim form- the defender has to fill and return his section of the form by the return date- date of proof is set for later date, however if the forms are not returned by defender in time set then decree will be granted automatically by court. Again the party(ies) can motion for case to be moved to ordinary cause or the judge can move it at his own accord if he sees fit. All other actions must be brought as ordinary cause for claim of £5000+ (no upper limit). The pursuer would file an initial writ then the defender will state there argument, then a period of adjustment will follow if the matter is not resolved a court date is fixed whereby the suiting sheriff will favour one party.

Small claims can only be appealed to the sheriff principle as with summary causes however there may be a right to appeal to the inner house at the Court of Session in summary cause if the sheriff principle grants leave. In ordinary causes the appeal may be made to the sheriff principle however an appeal can be made directly to the inner house at the court of session, thus leap-frogging the sheriff principle; all appeals have to be made on the point of law of the stated case.

Court of Session

The Court of Session is split into two sections (houses) the outer house known as the court of first instance where cases are heard for the first time and the inner house which acts as the appeal court.

The Court of Session has jurisdiction over the whole of Scotland as long as the defender is resides in Scotland or has a business or heritable property relating to the action brought forward. Although there a special rule of jurisdiction regarding to matrimonial actions. If action is for a claim of over £5000 the pursuer can decide to go straight to the court of session and skip the sheriff court.;

The outer house

The Outer House of the Court of Session is a court of first instance only. A case is heard by a single judge known as lord ordinary, and 24 lord ordinary sit in the outer house. A jury of 12 may also sit to determine the facts of the case compared to the 15 that would sit in a criminal case. Queens counsel with suitable experience, former sheriffs of 5years standing or solicitor-advocates of 5years standing are eligible to be appointed as a lord ordinary.

Appeals from the outer house would go to the inner house, they are known as reclaiming motion and are usual appeals heard on point of law, rarely will an appeal be heard on the facts of a case.

The inner house

The inner house is primarily a court of appeal from the outer house, sheriff court and other tribunals. The inner house will rarely sit as a court of first instance only when its case of taxation ect. There are two divisions in the inner house the first and second division. The first division consists of the lord president (Lord Hamilton) Scotland most senior judge and three other session judges. The second division consist of the lord justice clerk (lord Gille) depute to the lord president and three other judges of session. The minimum number of judges that will sit at one time is three but in some case a full bench of seven will sit and in cases of extreme importance and difficulties they may bring in more judges from the outer house. The inner house rarely hears the fact of the case but concentrate on the arguments of the points of law. They will either give a verbal result there and then or take to adjourn, and send a writing judgement. Appeals will be heard by raising a petition seeking the supreme court to reverse the decision made, and will only be heard on points of law. The right to appeal will only arise if the Court of Session grants leave whereby there was not a unanimous decision reached by the inner house.

The Supreme Court

The Supreme Court [7] acts as the final appeals court in the whole of u.k. but will only hears case of a civil nature from the court of session, in Scottish cases as it does not hold jurisdiction over Scotland’s criminal procedure. The lord president of the supreme court (lord Philips) and the deputy President of The Supreme Court (lord hope) sit in the supreme court alongside 9 other justice of the supreme court judges, only two of which are Scottish [8] . The quorum of judges is three however normally five will sit, only two of them will be of Scottish origin and experience. Once a decision has been made there is no further appeal process. However The Court must take account of any decision of the European Court of Human Rights in Strasbourg. No national court should “without strong reason dilute or weaken the effect of the Strasbourg case law” (Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26). [9] If an individual however is contesting that there human right have not been respected [10] they can bring a case against the united kingdom to the European Court of Human Rights.



Scots law: a student guide, 3rd edition, Nicole busby, clark, et al. tottel publishing