2. Civil justice problems
In this chapter we examine the types of civil legal problems people experience in Scotland, as determined by the Scottish Crime and Justice Survey 2017-18, and what sorts of issues are presented at court.
First we look at information from the representative sample in the Scottish Crime and Justice Survey. We then examine the long-term trends in the courts’ data. Finally we look at the changes in legal aid sought in Scotland.
Our findings suggest that:
- According to the Scottish Crime and Justice Survey 2017-18, three in ten adults experienced civil law problems in the three years prior to interview.
- Family and eviction cases on average have multiple craves compared to other case categories.
- Debt cases made up 41% of principal craves initiated at civil courts in 2018-19. This year recorded the lowest number of initiated cases in the last decade.
- Evictions made up 17% of principal craves initiated at civil courts in 2018-19.
- Family cases made up 18% of principal craves, of which 74% related to divorce and dissolution in 2018-19.
- Just under 40% of personal injury cases were raised in the national Sheriff Personal Injury Court.
- 70% of damages cases were initiated under simple procedure in 2018-19. 48% of the simple procedure cases disposed of were dismissed.
- The number of repossession cases initiated decreased to 2015-16 levels, down 9% compared to 2017-18.
- In 2018-19, there were 13,561 civil legal aid grants, the vast majority of which were for cases in the sheriff courts.
2.1 Scottish Crime and Justice Survey - civil justice module
The Scottish Crime and Justice Survey 2017-18 estimates that three in ten adults experienced civil law problems in the three years prior to interview
The Scottish Crime and Justice Survey (SCJS) includes questions on experience of and response to civil law problems. Respondents are asked if they have experienced one or more of a list of problems or disputes in the three years prior to interview. They are then asked whether they have attempted to solve them.
The problem areas covered are:
- home or family living arrangements
- money, finances or anything paid for
- unfair treatment
- health and well-being
The 2017-18 SCJS shows that around three in ten adults (31%) were estimated to have experienced at least one of the civil law problems asked about in the previous three years. This is similar to both the 29% reported in 2016-17 and 30% reported in the 2008-09 SCJS.
Some groups in the population were more likely to experience civil law problems than the general population. For example, an estimated 38% of those who are disabled experienced a civil law problem compared with 28% of those who are not disabled. Those who lived in one of the 15% most deprived areas in Scotland suffered a higher prevalence of civil justice problems (40%) than those who did not (29%), as did victims of crime (45%) compared with non-victims (28%).
Among the problem areas listed above, 21% of adults had experienced problems with home or family living arrangements, 10% had experienced problems with money, finances or anything they had paid for, 8% had been treated unfairly in some respect and 6% had experienced health or well-being problems.
The most common single problem was with neighbours, experienced by 15% of adults. The next most common civil law problems involved faulty goods or services (5%) or money & debt (4%). The full breakdown is shown in Figure 4.
Among those who had experienced civil law problems in the last three years, over a third (35%) said a problem concerning neighbours was their most important or only problem to solve. The next most important problems involved faulty goods or services (8%) or discrimination (8%).
Thirty-one per cent of these problems began less than a year ago, a further 19% over a year but less than two years ago, 17% over two years but less than three years ago and 31% over three years ago.
Just over two fifths (42%) had resolved the problem, while just over a third (34%) were still trying to resolve the problem. One in ten had tried to resolve the problem but had to give up (11%) and a similar proportion (11%) were not planning to do anything about the problem.
Scottish Crime and Justice Survey problems which correspond to those commonly handled by the civil courts are summarised in the following sections:
Debt (section 2.2.1) - An estimated 4% of adults in the 2017-18 Scottish Crime and Justice Survey reported having money and debt problems. The prevalence of money and debt issues varied by tenure, for example, owner occupiers were less likely to have experienced such issues in the previous three years (2%) than social tenants (8%).
Family (section 2.2.3) - The 2017-18 SCJS found that an estimated 2% of adults experienced problems to do with the behaviour of a partner, ex-partner or other person harassing them, 1% experienced a problem to do with child contact, residence or maintenance and similarly 1% experienced problems to do with divorce or separation.
Personal injury (section 2.2.4) - The 2017-18 Scottish Crime and Justice Survey found that an estimated 2% of respondents experienced a medical negligence issue and 2% experienced a personal injury problem in the last three years.
2.2 Volumes and types of problems in the courts
In this section we examine the types of civil law problems recorded in court statistics, and any changes in their likelihood over time.
Previous editions of this bulletin presented statistics only relating to the principal crave of cases. An individual case can involve a number of different legal remedies sought by the pursuer. The requirement which is listed first on the writ is normally known as the principal crave, for example ‘divorce’, and is used to categorise the case type. The others remedies sought are described as ancillary craves, for example ‘contact’. By not including ancillary craves, our statistics were not capturing the full detail of orders the courts were being required to make under each case type. For the first time, this edition presents experimental statistics counting all craves associated with a writ. Table A1 to Table A10 show the counts, while Figure 5 shows a summary of the complexity of cases based on the number of craves attached to them. This new craves analysis is based on cases initiated in 2018-19. We will consider disposals analysis in our next bulletin based on user need.
As shown in Figure 5, family cases are more likely to have multiple craves, compared to other case categories. For example 98% of damages writs have a single crave on them. Divorce/dissolutions show a different pattern, with approximately 7% of writs having more than one crave in 2018-19. Outside family law, we note that over 40% of eviction cases have more than one crave on their writ. Overall, 87% of initiated cases had a single crave on their writs.
In 2018-19, debt actions were the most common, constituting 40% of all civil court cases. Family and eviction actions were second and third most common, at 18% and 17% respectively (Figure 6) (percentages include summary applications).
Decreases in case numbers were observed across most case types except for damages and family. The largest decreases were recorded for Debt (down 20%), Eviction (down 15%) and Repossession (down 9%), while Damages increased by 8% and Family by 3% (Table 28).
Debt cases made up 41% of principal craves initiated at civil courts in 2018-19
The number of debt cases decreased to 29,753, the lowest number of initiations in 10 years
85% of debt cases initiated in 2018-19 were under the simple procedure
Money owed to an individual or organisation is known as a debt and can include council tax, business taxes, hire purchase agreements, utility bills, bank overdrafts and loans. Where there is a dispute over a debt and a creditor wishes to enforce their right for payment, they can raise a debt case in court.
The Scottish Legal Aid Board, in their fifth monitoring report, found that: “Other routes to debt management or resolution of the debt issue, not involving court, are increasing in importance. Debt management companies and the not-for-profit sector appear therefore to be an increasingly important avenue for people seeking assistance with debt issues than solicitors.”
Debt actions have consistently been the most common principal craves over the past 10 years.
The number of debt actions fell in line with the overall trend for civil justice court proceedings initiated between 2009-10 and 2012-13.
There was an increase in the number of debt actions as principal craves in 2015-16 compared with 2014-15 (a 3% increase), followed by a large (12%) fall in 2016-17.
In 2017-18, the number of debt actions increased by 22% on the previous year. This was likely due to a rise in interest from the public following the implementation of simple procedure.
The number of debt cases in 2018-19 decreased by 20%, reversing the rise recorded last year, from 37,364 to 29,753.
Of these 29,753 debt actions initiated in 2018-19, 85% were brought to the sheriff court under the simple procedure, a similar proportion to the previous year. A very small number were small claims or summary cause proceedings. Fourteen per cent were brought to the sheriff court under ordinary cause procedure, up slightly from 13% in 2017-18.
Table A1 and Table A2 present the new statistics which show counts of all craves on debt cases initiated in 2018-19. The most common craves are payment of money (31,063), delivery of movable goods (230) and Expenses (124).
Evictions made up 17% of principal craves initiated at civil courts in 2018-19
Evictions initiated decreased by 15% from the previous year to 12,407 cases
Eviction cases involve the taking of property by the owner from an occupier, usually a tenant. Landlords can apply for an eviction order if they want their tenants removed from the property.
From 1 December 2017, all civil private rented sector eviction cases, including short assured, assured and private residential tenancies are dealt with by the First Tier Tribunal Housing and Property Chamber (criminal cases remain with the sheriff court).
Initiating eviction action for social housing (local authority and registered social landlord) rent arrears cases can only happen after the landlord has followed a set of pre-action requirements. By granting an eviction order, the courts permit the eviction process to proceed, but this does not mean that eviction will necessarily take place.
The eviction statistics in this bulletin relate to tenants of rented properties in social housing (local authority and registered social landlords) and private sector tenants prior to 1 December 2017. Detailed statistics on the eviction of local authority tenants are available from Housing Statistics for Scotland.
Between 2009-10 and 2012-13 there was a consistent fall in the number of evictions as principal craves, falling around 36% over that period from 16,528 to 10,532.
These figures increased in 2013-14 through 2015-16 to 14,690. A small dip in 2016-17 has been followed by a return to 2015-16 levels in 2017-18, when there were 14,604 evictions initiated.
In 2018-19, evictions recorded their first significant decrease in six years, dropping by 15%, from 14,604 to 12,407. Around 62% of eviction cases were found “for pursuer”, and 92% of “for pursuer” cases were undefended (Table 24).
All evictions are brought as summary cause to the sheriff court.
Table A1 and Table A3 show a count of all craves for eviction cases initiated in 2018-19. The most common craves sought are Recovery of heritable property (7,538), Payment of money (5,344) and Repossession (3,180).
Divorce and dissolution made up 74% of family cases initiated in 2018-19
Nearly all of the 7,379 divorces granted in 2018-19 were heard in sheriff courts, and 61% used the simplified procedure
Family law covers a wide range of areas related to families, couples and children. These include: divorces and dissolutions; applications relating to parental responsibilities and rights; and permanence and adoption cases.
Family law also covers interdicts preventing a party from making specific contact or coming within close proximity to another, and exclusion orders that suspend the rights of an individual to live in the family home.
This section also contains statistics on sheriff court summary applications relating to adoption and children’s hearings.
Previous editions of this bulletin presented statistics relating only to the principal crave of cases. This meant that the statistics on certain case types, such as contact and residence, did not reflect the true number of actions brought to court as these issues are often ancillary craves in a case where the principal crave is for divorce. For the first time, this edition presents experimental statistics counting all the craves associated with a writ.
Table A1, Table A4, Table A5, Table A6 and Table A10 contain counts of all craves relevant to family law cases. The most common specific craves on divorce/dissolution cases are Divorce (9,441), Capital Sum (215) and Expenses (199). On parental responsibilities and rights cases, the most common are Contact (1,377), Residence of child (1,123) and Parental responsibilities and rights (593). Family-Other has Interdict (429), Declarator (160) and Residence of child (112) as the most common specific craves sought.
Family law evidence summary
There has been a general downward trend in the number of family actions as principal craves since 2009-10, with the decline in divorces being the biggest contributor. There was a 12% fall from 14,733 in 2009-10 to 12,989 in 2018-19 (Table 5). Family has seen an increase in initiations in the last year (3% or 337 cases).
There have been no evident changes in distribution of types of case or the courts used.
Divorce / dissolution and parental responsibilities and rights are the biggest case types and together account for 94% of family cases initiated.
Only a small proportion of family cases are heard in the Court of Session (97 or 1% in 2018-19), representing 10% of cases in the General Department of that court (Table 2 & Table 6). Of these 97 cases, Divorces and dissolutions accounted for 84.
In 2018-19, the vast majority (90%) of applications to extend/vary an interim order disposed of were granted. Similarly, most children’s hearings (referral applications) were granted and established the grounds for referral, with the case being referred back to the Children's Hearing to dispose of the case (Table 8).
In 2018-19, there were 504 adoption petitions initiated, a decrease of 5% on the previous year. The number of applications initiated for permanence orders with authority to adopt decreased slightly, down 3%, to 377 in 2018-19.
Divorce and dissolutions statistics
Divorce is the formal procedure that ends a marriage, while the procedure for ending civil partnerships is known as dissolution. In addition to divorce and dissolution, the courts can also take decisions on where a child should live when parents separate; whether the non-resident parent should have contact with the child and who should have parental responsibilities and rights. Where children are involved, or there is a claim for financial provision, the ordinary procedure is used. However, the majority of divorces and dissolutions use a simplified procedure which is low-cost and simpler.
The divorce and dissolution statistics presented in Table 9, Table 10 and Table 11 are based on different Scottish Courts and Tribunals Service data from the other statistics in this bulletin. See the section 3.6 for more information.
Historical statistics, broken down by characteristics such as age at marriage/partnership, age at divorce/dissolution, duration and form of marriage/partnership, are available on the website within the Divorces & Dissolutions Supplementary Tables. Equivalent statistics for 2018-19 are available in Excel Tables published alongside this bulletin.
Divorce and dissolution of a civil partnership
The Civil Partnership Act 2004 came into force on 5 December 2005, allowing legal relationships between two people of the same sex to be formed. The first civil partnerships in Scotland were registered on 20 December 2005.
On 12 March 2014, the Marriage and Civil Partnership (Scotland) Act 2014 received Royal Assent. Following this Act, the first same-sex marriage ceremonies took place in Scotland on 31 December 2014. In addition, couples in civil partnerships are able to change their relationship into a marriage.
Following on from the Marriage and Civil Partnership (Scotland) Act 2014, this year we have published for the first time, divorces granted, split by sex (Table 9) and divorces granted by method of celebration, also split by sex (Table 11).
The latest data on marriages and civil partnerships registered can be found in the Marriages and Civil Partnerships section of the National Records of Scotland website.
Divorce & dissolution evidence
The number of divorces has been slowly decreasing from around 13,400 in 1985 to 7,300 in 2018 (Figure 10). This decrease could be linked to the general downward trend in marriages across the same period as shown by the chart. The main exception to this trend was a sharp rise in divorces in 2006. This rise can be attributed to the reduction in non-cohabitation periods required to prove irretrievable breakdown of a marriage brought into force by the Family Law (Scotland) Act 2006.
The total number of divorces granted in Scotland in 2018-19 was 7,379, 7% higher than in 2017-18 (6,869) (Table 9). In 2018-19, 61% of divorces granted used the simplified procedure. Thirty-five divorces were granted to same sex couples.
There were 67 civil partnership dissolutions granted in 2018-19, slightly down from 70 in 2017-18 (Table 10). The vast majority of dissolutions granted in 2018-19 (93%) used the simplified procedure.
2.2.4 Personal injury
There was a 3% decrease in personal injury cases initiated in 2018-19 compared to 2017-18
Just under 40% of personal injury cases were raised in the national Sheriff Personal Injury Court
Nearly three in five personal injury cases were in relation to road traffic accidents
Personal injury can be physical and/or psychological, and include disease or impairment. Personal injuries may result from a wide range of causes including an injury received at work, a traffic accident, or through negligence or a deliberate act on the part of another party. A person who has suffered an injury can seek redress through several routes, such as making a complaint against the person/organisation they consider to be responsible for the injury, seeking assistance with any financial problems they have as a result of their injury, or seeking counselling. Alternatively, they may wish to claim compensation, provided certain criteria are met to cover losses they have suffered as a result of the injury.
A personal injury case is a form of damages case that relates specifically to damages for, or arising from, personal injuries or the death of a person from personal injuries. Other cases, for example defamation, are covered under damages in section 2.2.5.
Since 2009-10 there has been between 7,500 and 10,000 personal injury cases initiated as principal craves each year. There were 9,146 in 2018-19, down 3% from 2017-18 and close to the number initiated in 2014-15 (Table 14). Personal injury has seen a high degree of variation over the last decade, and the latest figure is within the bounds of expectation, and not necessarily an indication of longer-term change.
The prevalence of personal injury cases as a proportion of all principal craves is up one percentage point from 2017-18, to 13%.
There has not been a large change in the procedures used to hear personal injury cases since 2017-18. Around 30% are brought to the sheriff courts as summary cause, and around 40% to the Sheriff Personal Injury Court. A quarter are brought under ordinary cause to the sheriff courts, and 6% to the Court of Session.
However, in some specific cases there are differences in how different types of Personal Injury are using procedures in the courts, as shown in Figure 12.
The Sheriff Personal Injury Court is increasingly likely to cover accidents at work and Asbestos-related cases, with over 80% of these cases using the specialised court.
The majority of additional asbestos cases in 2018-19 (up 70 to 638) were initiated at the Sheriff Personal Injury Court. Eighty-one per cent of asbestos related cases were raised at this court, around the same proportion as in the previous year (80%) (Table 18).
There has been a small increase in accident at work cases since the previous year (up 21 to 1,568). A larger proportion of these were brought to the Sheriff Personal Injury Court, increasing from 82% to 83%.
The number of clinical negligence cases initiated in 2018-19 has settled back to the 2016-17 levels, having risen sharply in 2017-18 due to an unusually high volume of summary cause clinical negligence initiations at Edinburgh Sheriff Court (Table 14). There were 342 cases in 2018-19, a 62% decrease from the 901 cases last year.
The number of damages cases rose by 8% from 2017-18
70% of damages cases were initiated under simple procedure in 2018-19. 48% of the simple procedure cases disposed of were dismissed.
Around 69% of damages cases disposed of in the Court of Session had a decree of absolvitor
Damages are a legal remedy that provide compensation for harmful actions suffered through the fault of another party, either an individual or an organisation. A claim for damages can arise from all sorts of circumstances and include (but is not limited to): defamation, breach of contract, damage to moveable property, negligence, breach of warranty or guarantee, breach of trust, wrongful diligence, wrongful interdict, malicious prosecution, wrongful apprehension or false imprisonment or fraudulent representation and personal injury. For the purpose of these statistics, the definition for damages does not include personal injuries, which are covered separately in section 2.2.4.
The purpose of a damages case is to provide a remedy by measuring, in financial terms, the harm suffered to restore an injured party, as far as practicable, to the position they were in beforehand. The court has responsibility for assessing the damage and agreeing or modifying the damages proposed by the pursuer as it sees fit.
Between 2009-10 and 2015-16 there was a steady fall in the number of damages claims initiated as principal craves. Between 2015-16 and 2016-17 there was a 22% increase from the low of 2,296 to 2,810.
In 2017-18 there was a further, but much smaller, increase of 3% to 2,883 (Table 19). The upward trend continued in 2018-19, going above 3,000 for the first time since 2013-14. In 2018-19, there were 3,127 initiated cases, an 8% increase from last year.
This latest increase is mainly driven by a 39% rise in ordinary cause initiations, which rose from by over 200, from 538 to 748 in 2018-19. There was an unusually high number of Equality Act damages cases initiated during this period.
Of the 3,127 damages actions initiated, 70% were brought to the sheriff court under the simple procedure, down from 76% in the previous year, partly due to the increase in ordinary cause actions explained above. All summary cause actions were absorbed by the simple procedure. 24% were brought to the sheriff court under ordinary cause procedures, up from 19% in 2017-18 (Figure 13).
The number of repossession cases initiated decreased to 2015-16 levels (down 9% compared to 2017-18, but down 77% compared to 2009-10)
Repossession involves the retaking of property when a borrower is in breach or default of a mortgage or loan secured on the property. Repossession should not be confused with eviction which, for the purposes of these statistics, refers to the removal of tenants from a rented property (see section 2.2.2).
Historically, repossession cases relating to mortgages and loans were dealt with under ordinary cause procedure. However, the introduction of the Home Owner and Debtor Protection (Scotland) Act 2010 on 30 September 2010 led to these cases being raised instead as summary applications. Where a repossession case relates to non-residential land or property, the action may be raised either as a summary application or as an ordinary action. If successful, the pursuer has the right to take possession of the property.
Between 2009-10 and 2010-11 the number of repossessions fell by nearly 37% (from 8,266 to 5,224). However, in 2011-12 we saw an increase of 29% (to 6,752) (Table 21). The low volume in 2010-11 coincided with the introduction of the 2010 Act and the transition to new procedures.
Between 2011-12 and 2016-17, there were consistent annual decreases in the number of repossessions. From the low of 1,753 in 2016-17, there was an increase of around 300 (17%) in 2017-18 to 2,056. In 2018-19, initiated cases fell to levels seen in 2015-16, decreasing by 187 cases or 9%.
As in the previous year, in 2018-19, all repossessions were brought as summary applications to the Sheriff court, with none filed under ordinary cause.
In 2018-19, 62% of repossession summary applications were granted (Table 22). It is important to note that the granting of a repossession case means the court has permitted repossession to take place, but the order may ultimately not be enforced.
Table A1 and Table A9 show the counts of craves associated with repossession cases initiated in 2018-19. The most common specific craves sought were Repossession (1,853), Expenses (62) and Declarator (49).
2.3 Civil legal aid
In 2018-19, there were 13,561 civil legal aid grants, the vast majority of which were for cases in the sheriff courts
The Scottish Legal Aid Board (SLAB) administers legal aid, which is paid for out of public funds and helps towards the costs of legal advice and representation for those who qualify. It is designed to help individuals who would be unable to pay on their own to gain access to the legal system.
There are two main types of civil legal assistance: advice and assistance (including assistance by way of representation) and civil legal aid. Advice and assistance helps pay for advice from a solicitor on any matter of Scots law. Civil legal aid helps pay for a solicitor to take the case to court.
Demand for and expenditure on civil legal aid has decreased in recent years. Figure 15 shows that the number of applications peaked in 2009-10. Demand then fell overall until 2014-15 when it stabilised for the next two years. It fell again in 2017-18, but has recorded a four per cent increase in the latest year.
In 2018-19, there were 13,561 civil legal aid grants (Table 29), the vast majority of which were for cases in the sheriff courts. After steadily rising for over 10 years, legal aid grants in relation to intervention orders and guardianship orders under Part 6 of the Adults with Incapacity (Scotland) Act 2000 now represent the largest category of legal aid certificates issued, at 35% of all grants. The next largest category is contact/parentage, which accounted for 20% of all grants in 2018-19.
SLAB manages three grant funded programmes for projects across Scotland, to enable support for people affected by repossession, eviction, debt problems and other financial needs. In 2018-19 these programmes enabled 17,084 new clients to access help, including representation at court or tribunal on 5,358 occasions.
Further information and data on legal aid is available from the Scottish Legal Aid Board Annual Report 2018-19.