13. Civil courts and procedures in Scotland
Up until 27 November 2016, civil law cases could be carried out using one of four procedures:
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 £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.
Summary cause - This procedure is used where the case involves any monetary claim over £3,000 and up to £5,000. It is also used for the recovery of rented property, for the recovery of moveable property and for personal injury cases up to £5,000. Cases carried out using this procedure may be heard only in the sheriff courts at first instance.
Ordinary cause - This procedure is used where the case involves any monetary claim over £5,000, for cases involving family disputes and for many other cases where more complex legal issues arise. Cases carried out using this procedure may be heard in the sheriff courts or the Court of Session. Since 22 September 2015, cases up to a value of £100,000 are within the exclusive competence of the sheriff courts, as set out by the Courts Reform Act. More information can be found under the Courts Reform section.
Summary application - This is a less commonly used procedure, designed to be quick and informal. It is generally used for statutory applications (in other words, processes set out in legislation). For example, appeals from decisions of licensing boards are heard under summary application. Actions for the repossession of homes because of mortgage arrears also take place under summary application.
Note that a new simple procedure was introduced by the Courts Reform (Scotland) Act 2014 , amalgamating summary cause and small claims actions in the sheriff courts from 28 November 2016. The statistics presented in this bulletin pre-date and are unaffected by this change. More information can be found in the Courts Reform section.
Sheriff courts are local courts of civil jurisdiction in Scotland ( Figure 15). They also have jurisdiction in criminal law cases.
Most civil law cases are heard before a sheriff. Each sheriffdom has a senior judicial officer, known as a Sheriff Principal, who determines certain types of inquiry, performs statutory administrative functions and also has responsibility for the effective and efficient disposal of business in the sheriff courts (as well as the criminal 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.
From 22 September 2015, litigants can choose to raise personal injury actions valued up to £100,000 either in their local sheriff court or in the new Sheriff Personal Injury Court . More information can be found in the Courts Reform section.
Since January 2016, appeals of civil cases which have been disposed of in the sheriff courts (whether by summary sheriffs, sheriffs or Sheriffs Principal (when sitting in first instance)) go to the new Sheriff Appeal Court (civil), except in some specialised pieces of legislation where direct appeal may be made to the Inner House of the Court of Session:
- Small claims appeals must be made to the Sheriff Appeal Court whose decision is final.
- Summary cause appeals must also be made to the Sheriff Appeal Court in the first instance, but the judgment of the Sheriff Appeal Court may, if the case is certified as suitable, be appealed to the Court of Session.
- Ordinary cause appellants will generally appeal to either the Sheriff Appeal Court. Where the case is appealed to the Sheriff Appeal Court it may, in some circumstances, be further appealed to the Court of Session.
In some cases, legislation provides that challenges to administrative decisions can be taken directly to the Sheriff Principal. One example would be alcohol licencing decisions made by licensing boards. In these cases, onward appeal from the decision of the Sheriff Principal is to the Court of Session rather than to the Sheriff Appeal Court.
Personal injury cases heard in the Sheriff Personal Injury Court could be appealed to the Court of Session until the Sheriff Appeal Court was established on January 2016. They are now appealed to that court.
In most cases, an appeal can be made to the Sheriff Appeal Court without the permission of the sheriff hearing the case. However, some decisions made by sheriffs can only be appealed with the sheriff's permission.
Onward appeal of decisions of the Sheriff Appeal Court (Civil) to the Court of Session require the permission of the Sheriff Appeal Court, or, failing such permission, the permission of the Court of Session. Permission will be granted 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. This is sometimes known as the "second appeals test".
Figure 15: Location of the sheriff courts in Scotland in 2015-16
1. 10 sheriff courts closed between November 2013 and January 2015. Further information on court closures are available from the Scottish Courts and Tribunals Service.
Court of Session
The Court of Session is the highest civil court in Scotland.
Cases before the Court of Session are normally initiated in either:
- 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.
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 the Inner House, except where the business is procedural in nature when a single judge may sit for most classes of appeal.
Appeals from the Outer House, known as reclaiming motions, are made to the Inner House (which also hears certain appeals from the sheriff courts and certain tribunals and other bodies).
Judgments of the Inner House of the Court of Session can be appealed 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. Since 22 September 2015, such appeals require the permission of the Inner House or, failing such permission, the permission of the UK Supreme Court. Before that date, permission by the Inner House was generally not required, but appeals had to be certified by two Scottish counsel as "reasonable". Statistics on appeals from the Court of Session to the UK Supreme Court can be found in Table 26 Since 22 September 2015, of the 12 applications disposed of, one was granted to appeal to the UK Supreme Court.
Specialist courts and tribunals
A number of specialist civil courts and tribunals also operate in Scotland. Examples of specialist courts include the Scottish Land Court, which deals with agricultural and crofting matters, and the Lands Valuation Appeal Court, which deals with rateable value issues. Appeal from specialist courts is usually to the Inner House of the Court of Session.
Some tribunals in Scotland operate in areas of devolved competence and are administered by the Scottish Courts and Tribunals Service. Examples include the Mental Health Tribunal for Scotland and the Additional Support Needs Tribunals for Scotland.
There are also a number of tribunals in Scotland which deal with areas of reserved competence - for example social security tribunals and the Employment Tribunal. These are currently administered by Her Majesty's Courts and Tribunals Service.
Statistics on specialist courts and tribunals are not included in this bulletin. They can generally be found in those courts and tribunals' annual reports ( Mental Health Tribunal for Scotland annual reports, Additional Support Needs Tribunals for Scotland annual reports, Scottish Land Court reported decisions).
Note that the structure of devolved tribunals is currently being reformed, and the Scotland Act 2016 put in place arrangements to devolve the administration of reserved tribunals to the Scottish Parliament. More information can be found in the Courts Reform section.
More information on civil courts and procedure in Scotland can be found in the Scottish Parliament Information Centre ( SPICe) briefings Civil Justice - Civil Courts and Tribunals and Civil Justice - Going to Court.
Email: Jeremy Darot