Outline and Describe the Scottish Civil Court Structure

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Outline and describe the Scottish Civil Court Structure. Indicate the types of cases which might be heard hear and which legal personnel you are likely to find participating in the proceedings.

Scotland’s legal system, also known as the Scot’s Law, has been seen to have its own independence and also its own judicial system within its own jurisdiction.  Scotland’s law is seen as a mixed system and not purely the common law system and this due to scot lawyers preferring to take ideas from Roman Law and other continental legal systems rather than the English Law. However, due to its geographical proximity to England, the influence of English law has passed over the borders and now Scot’s law draws from the common law tradition (English). Within the Scottish legal system, there are two different types of systems; the criminal justice system and the civil justice system. Both systems have their own court structures and legal personnel. Within this essay, the main focus will be on the Scottish Civil Court Structure and the type of cases that might appear within. Furthermore, the legal personnel that might be found within the structure. (too long)

The criminal justice system has been seen to be the best-known justice system in Scotland out of the two. This is because its main purpose is to maintain law and order by prosecuting those who commit crimes. However, the civil justice system also plays a big role in the Scottish legal system. This is mainly because it primarily focuses on protecting the legal rights of individuals and organizations and also on resolving disputes in respect of the legal rights. It can be also said that the main function of the civil justice system is to compensate individuals who have suffered a loss due to someone’s/a party’s wrongful actions. The civil justice system can be split further into public and private law. Public civil law mainly controls the action of public bodies in their relationships with private individuals. On the other hand, private civil law mainly deals with the rights of individuals and bodies such as companies towards each other.

The Scottish Civil Court Structure is split into three national courts. These are; the Sheriff court, court of sessions and the UK supreme court. The Sheriff court is the first court of instance in civil cases. The Sheriff courts hear the majority of civil cases in Scotland. Most of these cases are small claims, summary procedure, and ordinary procedure.  The next court is the Court of Sessions, sometimes it is argued that it can also be a court of first instance. However, it’s still higher than the Sheriff courts. The last court and also the highest ranking in the UK is the UK supreme court.

The Sheriff courts are also known as the local civil courts in Scotland are in every city and some towns. There is a total of forty-nine Sheriff courts in Scotland with each covering a specific Sheriff court district. These court districts are further divided into six sheriffdoms. These are Glasgow and Strathkelvin, Grampian Highland and Islands, Lothian and borders, North Strathclyde, South Strathclyde/Dumfries/Galloway and finally Tayside/Central and Fife. Within these Sheriff courts, the Sheriff principal is considered as the judge who hears all cases presented. There are approximately 142 sheriffs in Scotland. These sheriffs are divided across the Sheriff courts within each court district and the amount within one court district is determinant on the amount of case the court receives. There are also a handful of floating Sheriff who can sit in the courts depending on the demand from each court. The main purpose of the Sheriff whose considered as the head is to listen to appeals in civil cases and manage the Sheriff Court in his or hers Sheriffdom. Furthermore, there is also Sheriff clerks whose main duties are to manage day to day administrative duties within the courts in each Sheriffdom. There are three different types of procedures in the Sheriff courts. These are small claims, summary procedure, and ordinary procedure. The small claims procedure is seen as an informal procedure whereby minor disputes are settled such as debts. Furthermore, the value of the claim can be up to £3000. Another procedure is the summary cause procedure this procedure is linked with the payment of money and is used to resolve disputes involving the delivery of goods and rent payments. Most claims that are made within this procedure have a value of over £3000 and up to £5000. Finally, there is the ordinary cause procedure which handles cases that involve divorces, property, children, and claims on damages that have exceed £5000. Within the Sherriff Courts, solicitors and advocates represent parties involved in the civil cases. An example of a case brought up in one of the six Sheriffdoms particularly the Glasgow Sheriffdom is that of Mrs. Evelyn Mitchell. She filed a case against Babcock Mission Critical Services Onshore Limited the operators of the helicopter which she believes cause the death of her half-brother Mr. Traill. She simply wanted to participate in the inquiry of the death to know exactly what happened, that lead to her brother’s death. However, a claim was refused by the sheriff. (Sheriffdom of Glasgow and Strathkelvin at Glasgow, 2018).

Furthermore, there is the Sheriff appeal court this court is a new recent court that commenced in September 2016. Within this court, civil appeals are heard by three appeal sheriffs in Edinburgh. However, if it’s a really small claim it can be done by one sheriff in a local sheriffdom.

The second type of court within the Scottish Civil Court Structure is the court of sessions. The court of sessions is designated as Scotland’s Supreme Civil Court and sits in the Parliament House in Edinburgh. This court is seen as a court of first instance and also a court of appeal. The court of sessions has jurisdiction in all civil cases presented across Scotland. The court is divided into two houses; the outer house and the inner house and is headed by the Lord President and the Lord Justice Clerk. The Outer house headed by the Lord President is the court of first instance only and consists of 22 Lords who sit alone or in some special cases with a civil jury. Some of the cases heard are of a wide variety such as cases based on delict and contract or commercial cases. An example of a case presented in the Outer House is that of Harpreet Singh, who was trying to get a judicial review of a decision made by the Secretary of State of the Home Department that he’s not allowed to reside in the UK. (Outer House, Court of Session, 2018)

On the other hand, there is the Inner House which is the appeal court or the ‘court of appeal’ headed by the Lord Justice Clerk. With the Inner house, there are two divisions; the first division and the second division both of equal importance and jurisdiction. Each division has a quorum of three judges, however, there are 6 judges in each. If a difficult case arises or if an overruling is required a larger court of five or more judges can be convened. Most of the appeal cases that are heard are usually from the Sheriff courts or passed from the Outer House. If further appeal is required, the cases are now taken to UK Supreme Court which is the highest-ranking court.  There was a recent appeal that was made by an individual named Ohran Merindez to the inner house regarding the Home Office’s decision to not grant him a leave to remain visa in the UK despite being married to a lady who is UK citizen and has been living in Scotland for 8 years. However, he went to the First-tier tribunal to try and get the appeal but was denied hence this appeal. In the end, his appeal was accepted, and his case is to be remitted in front of a different first-tier tribunal.

The last and highest court is the UK Supreme Court. Initially, the House of Lords was the highest Civil appeal court in the UK until 2005 whereby the constitutional reform act created the Supreme Court for the UK. It commenced in October 2009 whereby it replaced the appellate committee of the House of Lords and its permanent residence is on the western side of Parliament Square in London. The supreme court hears appeal cases of greatest public and constitutional importance for the whole of UK. Due to the fact that the supreme court is the final court it only considers cases that come directly from the court of sessions only. The supreme court consists of 12 judges or also known as justices of the supreme court who are appointed by the queen. The two most senior out of the 12 Justices are appointed as the President and Deputy president of the Justices. When to comes to hearing appeals the court usually presides with 5 or more members and there is no jury involved. In some cases, 9 members can be used if the case is difficult or special. Appeal cases made within the supreme court by individuals can be presented by an advocate or solicitor. However, few cases from Scotland actually make it to the UK supreme court, the recent one being the UK’s withdrawal from the European Union.

To conclude, the Scottish Civil Court Structure is there for individuals and parties to make an appeal or raise any non-criminal actions without them resulting to take the law into their own hands. Also, it’s there to protect their legal rights and also to point out any breach to those rights. However, individuals can result in taking the alternative dispute resolution way as it helps both parties if in disagreement to come to an agreement short of litigation.

References

  • Court, T. (2018). The Supreme Court – The Supreme Court. [online] Supremecourt.uk. Available at: https://www.supremecourt.uk/about/the-supreme-court.html [Accessed 12 Oct. 2018].
  • Court, T. (2018). Role of The Supreme Court – The Supreme Court. [online] Supremecourt.uk. Available at: https://www.supremecourt.uk/about/role-of-the-supreme-court.html [Accessed 12 Oct. 2018].
  • EXTRA DIVISION, INNER HOUSE, COURT OF SESSION. (2018). [online] Available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csih65.pdf?sfvrsn=0 [Accessed 12 Oct. 2018].
  • McLaren, Y. (2016). Commercial Law. Goodfellow Publishers Ltd, pp.15-37.
  • OpenLearn. (2018). Scottish courts and the law. [online] Available at: http://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68112&section=1.2 [Accessed 12 Oct. 2018].
  • Outer House, Court Of Session. (2018). [online] Available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh96.pdf?sfvrsn=0 [Accessed 12 Oct. 2018].
  • Scotcourts.gov.uk. (2018). About the Court of Session. [online] Available at: https://www.scotcourts.gov.uk/the-courts/supreme-courts/about-the-court-of-session [Accessed 12 Oct. 2018
  • Scotland-judiciary.org.uk. (2018). Sheriffs – Judicial Office Holders – About the Judiciary – Judiciary of Scotland. [online] Available at: http://www.scotland-judiciary.org.uk/36/0/Sheriffs [Accessed 12 Oct. 2018].
  • Scottishlaw.org.uk. (2018). Sheriff Courts and Sheriffdoms in Scotland – Scots Law. [online] Available at: https://www.scottishlaw.org.uk/scotlaw/sheriff.htm [Accessed 12 Oct. 2018].
  • Sheriffdom of Glasgow and Strathkelvin at Glasgow. (2018). [online] Available at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018scgla55.pdf?sfvrsn=0 [Accessed 13 Oct. 2018].
  • SPICe: The Information Center. (2018). The Scottish Civil Court System. [online] Available at: http://www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_14-15.pdf [Accessed 12 Oct. 2018].
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