2. The civil court structure in Scotland
Most civil law court cases involve disputes between people or organisations and are heard in a sheriff court or the Court of Session. Civil law court cases are carried out using one of three procedures:
Ordinary cause - This procedure is used where the case involves any monetary claim over £5,000, for cases involving family disputes or for many other cases where more complex legal issues arise. Cases carried out using this procedure may be heard in the Court of Session or the sheriff courts.
Summary cause - This procedure is used where the case involves any monetary claim over £3,000 and up to (and including) £5,000. It is also used for the recovery of rented property, for recovery of moveable property and for personal injury cases up to (and including) £5,000. Cases carried out using this procedure may be heard only in the sheriff courts at first instance.
Small claims - This is intended to be a relatively informal procedure for resolving disputes and is used where the case involves any monetary claim up to (and including) £3,000, except where the claim relates to aliment, defamation or personal injury. Cases carried out using this procedure may be heard only in the sheriff courts.
In addition to ordinary cause, summary cause and small claims cases, sheriff courts also handle applications which are made mainly under statutes (Acts of Parliament) and carried out under summary application procedure, so-called because these applications can be disposed of in a brief and informal (or summary) manner.
These procedures will be fundamentally altered by the new simple procedure introduced by the Courts Reform (Scotland) Act 2014 which will replace summary cause and small claims actions in the sheriff courts.
Sheriff courts are local courts of civil jurisdiction in Scotland. They also have jurisdiction in criminal law cases. For the 2013-14 period there were initially 49 sheriff courts, grouped into six sheriffdoms. Sheriff courts at Dornoch, Kirkcudbright and Rothesay closed in November 2013 (Figure 1). Most civil law cases are heard before a sheriff. Each sheriffdom has a senior judicial officer, known as a sheriff principal, who hears civil law case appeals, determines certain types of inquiry, performs statutory administrative functions and also has responsibility for the effective and efficient disposal of business in the sheriff and Justice of the Peace courts within the sheriffdom.
Sheriff courts also deal with commissary business relating to succession and access to a deceased person's estate. Commissary work mainly involves issuing confirmations, which are legal documents sometimes required by organisations such as banks, before they can release money and other property that belonged to someone who has died.
Appeals of civil cases which have been disposed in the sheriff courts can be made to the sheriff principal or the Inner House of the Court of Session, depending on the procedure used:
- Small claim appeals must be made to the sheriff principal whose decision is final
- Summary cause appeals must also be made to the sheriff principal in the first instance but the judgment of the sheriff principal may, if the cases is certified as suitable, be appealed to the Inner House of the Court of Session
- Ordinary cause appellants may in some circumstances appeal to either the sheriff principal or the Court of Session. Where the case is appealed to the sheriff principal it may, in some circumstances, be further appealed to the Court of Session.
Once the Sheriff Appeal Court (civil) is established in early 2016, all civil appeals from summary sheriffs, sheriffs and sheriffs principal (when sitting in first instance) will be to the Sheriff Appeal Court (civil) in the first instance. This includes appeals in simple procedure cases once simple procedure is commenced in Spring 2016. Once the Sheriff Appeal Court (civil) is established and until such times as simple procedure is commenced, small claims, summary cause and ordinary cause cases will be appealed to the Sheriff Appeal Court. The possibility exists for onward appeal for all civil appeals heard by the Sheriff Appeal Court (civil) to the Court of Session but only with the permission of the Sheriff Appeal Court (civil) or the Court of Session if permission is refused by the Sheriff Appeal Court (civil) and only if either court considers that the appeal would raise an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal.
Personal injury cases heard in the Sheriff Personal Injury Court, which is to be established on 22 September 2015, may be appealed to the Court of Session until such times as the Sheriff Appeal Court (civil) is established whereupon they will be appealed to that court.
1. The sheriff courts at Dornoch, Kirkcudbright and Rothesay closed in November 2013. Further information on court closures in May 2014 and January 2015 is available from the Scottish Courts and Tribunals Service.
Court of Session
The Court of Session is the highest civil court in Scotland. There are three departments within the Court of Session.
The General Department deals mainly with cases where one person wants to enforce a legal right against another. The General Department deals with a variety of case types including: personal injury, family, damages, interdict, intellectual property, debt and commercial.
The Petition Department deals with cases where the authority of the court is sought to deal with a variety of legal issues, other than disputes between people or organisations.
The Inner House and Extracts Department deals with all cases proceeding before the Inner House and the issue of official court documents allowing judgments of the court to be enforced, known as extracts.
Cases are heard either in the Outer House or the Inner House. The Outer House is where the majority of cases are first heard. In this court, single judges normally preside over cases. The Inner House deals primarily with appeals, although it does hear a small amount of first instance business. At least three judges sit to hear cases in this court, except where the business is procedural in nature when a single judge may sit for most classes of appeal.
Appeals from the Outer House of the Court of Session, known as reclaiming motions, are made to the Inner House. The Inner House also hears appeals from the sheriff courts and certain tribunals and other bodies. The Courts Reform (Scotland) Act 2014 provided the Court of Session power to provide by act of sederunt for a single judge of the Inner House to determine any applications to the Inner House for leave or permission to appeal to it and to consider any appeal proceedings initially. The act of sederunt also provides for a review of that decision by a Division of the Inner House.
Appeals against judgments of the Inner House of the Court of Session may be made to the Supreme Court of the United Kingdom, which was established on 1 October 2009 and replaced the House of Lords in its judicial function. A decision of the Inner House can be appealed to the UK Supreme Court. The general rule (with some exceptions) is that such appeals come to the UK Supreme Court without the requirement for permission by the Inner House but that they must be certified by two counsel as "reasonable" before they can be heard in the UK Supreme Court. As of 22 September 2015, the current provisions will be replaced by leave to appeal, only with permission of the Inner House or, failing such permission, with the permission of the UK Supreme Court. Statistics on appeals from the Court of Session to the UK Supreme Court are not published by the Scottish Government.
Figure 2 displays the main relationships between civil law court procedures and the civil courts but it should be noted that there may be differences in certain circumstances. Summary applications and commissary business aren't represented in the diagram as the processes for dealing with these procedures vary depending on the subject matter of the case. Statistics on appeals and reclaiming motions can be found in the Civil Justice Statistics in Scotland 2013-14 Supplementary Tables.
Email: Alasdair Anthony