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Published: Fri, 02 Feb 2018
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. 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. 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. However where the defender has no fixed address the defender can be cited to appear in the court. 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
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
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