3. 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 2019-20, 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 trends in the courts' data. Finally we look at the changes in legal aid sought in Scotland.
3.1 Scottish Crime and Justice Survey - civil justice module
The Scottish Crime and Justice Survey 2019-20 estimates that around 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 2019-20 SCJS shows that around three-in-ten adults (28%) 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 2018-19 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 36% of those who are disabled experienced a civil law problem compared with 26% of those who are not disabled. Those aged 60 years and over were less likely to experience civil law problems compared with other age categories (17%, compared with 34% for both 16-24 and 25-44 age categories and 32% for those aged 45-59). Victims of crime suffered a higher prevalence of civil law problems (40%) compared with non-victims (26%).
Among the problem areas listed above, 17% of adults had experienced problems with home or family living arrangements, 10% had experienced problems with money, finances or anything they had paid for, 7% had been treated unfairly in some respect and 5% had experienced health or well-being problems.
In line with previous years, the most common single problem was with neighbours, experienced by 11% of adults. The full breakdown is shown in Figure 4.
Among those who had experienced civil law problems in the last three years, 29% said a problem concerning neighbours was their most important or only problem to solve.
Just under three-in-ten (28%) of these problems began less than a year ago, a further 16% over a year but less than two years ago, 22% over two years but less than three years ago and 34% over three years ago.
Just under two-in-five (39%) had resolved the problem, while just over a third (34%) were still trying to resolve the problem. 17% had tried to resolve the problem but had to give up and 9% were not planning to do anything.
Scottish Crime and Justice Survey defined problems which correspond to those commonly handled by the civil courts are summarised in the following sections:
Debt (section 3.2.1) - An estimated 5% of adults in the 2019-20 SCJS reported having money and debt problems. Those with a disability had higher prevalence of money and debt issues (9%), in comparison with 4% of those without disability.
Family (section 3.2.3) - The 2019-20 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 3.2.4) - The 2019-20 SCJS found that an estimated 2% of respondents experienced a medical negligence issue and 1% experienced a personal injury problem in the last three years.
3.2 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 second year, this edition presents 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 craves analysis is based on cases initiated in 2019-20.
As shown in Figure 5, family cases are more likely to have multiple craves, compared to other case categories. For example for family-other and parental responsibilities and rights, at least 40% of writs have more than two craves. Divorce/dissolutions show a different pattern, with approximately 8% of writs having more than one crave in 2019-20, similar to most of the other case types. Outside family law, we note that 42% of eviction cases have more than one crave on their writ. Overall, 86% of initiated cases had a single crave on their writs.
In 2019-20, debt actions were the most common, constituting 45% of all civil court cases. Family and eviction actions were second and third most common, at 16% and 14% respectively (Figure 6) (percentages include summary applications).
There was an even split of case types either increasing or decreasing from the previous year. Increases were seen in damages (up 23%), repossessions (up 18%) and debt (up 16%). Decreases were recorded in evictions (down 15%), family and personal injury (both down by 6%) (Table 28).
Debt cases made up 46% of principal craves initiated at civil courts in 2019-20
Debt actions reversed the drop in volumes recorded last year when they made 41% of initiated cases
86% of debt cases initiated in 2019-20 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 2010-11 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 2019-20 increased by 16%, reversing the drop recorded last year, from 29,753 to 34,594.
Of these 34,594 debt actions initiated in 2019-20, 86% 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, the same proportion as in 2018-19.
Table A1 and Table A2 present the new statistics which show counts of all craves on debt cases initiated in 2019-20. The most common craves are payment of money (36,256), Expenses (241) and delivery of movable goods (236).
Eviction actions initiated made up 14% of principal craves initiated at civil courts in 2019-20
Eviction actions initiated fell to their lowest in the decade, similar to the previous record low in 2012-13
Eviction cases involve the taking of property by the owner from an occupier, usually a tenant. Landlords can apply to the civil courts 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.
In the earlier part of the last decade, there was a consistent fall in the number of evictions initiated as principal craves, falling around 26% over that period from 14,160 to 10,532 in 2012-13. This followed recovery from the financial crisis of 2008-09. These figures increased in 2013-14 through 2015-16 to 14,690 then flattened off.
In 2019-20, eviction actions initiated recorded their lowest level in a decade, dropping by 15%, from 12,407 to 10,520. Private rented sector eviction action initiated cases have however been dealt with by the First Tier Tribunal Housing and Property Chamber since 1 December 2017 which is likely to account for a large part of this reduction. In addition, the Ending Homelessness Together Action Plan was published by the Scottish Government in November 2018 which has increased the focus in the social rented sector on eviction prevention. Around 58% of eviction cases were found "for pursuer", and 94% of "for pursuer" cases were undefended (Table 24).
All evictions are brought to the sheriff court as summary cause actions.
Table A1 and Table A3 show a count of all craves for eviction cases initiated in 2019-20. The most common craves sought are Recovery of heritable property (6,813), Payment of money (4,379) and Repossession (2,402).
Divorce and dissolution made up 72% of family cases initiated in 2019-20
Nearly all of the 7,883 divorces granted in 2019-20 were heard in sheriff courts, and 60% 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 second year, we are publishing 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 (8,751), Expenses (227) and Capital Sum (173). On parental responsibilities and rights cases, the most common are Contact (1,354), Residence of child (1,168) and Parental responsibilities and rights (593). Family-Other has Interdict (309), Declarator (142) and Residence of child (132) 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 2010-11, with the decline in divorces being the biggest contributor. There was a 15% fall from 14,496 in 2010-11 to 12,251 in 2019-20 (Table 5). Family has seen an decrease in initiations in the last year (down 6% or 738 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 93% of family cases initiated.
Only a small proportion of family cases are heard in the Court of Session (85 or 1% in 2019-20), representing 9% of cases in the General Department of that court (Table 2 & Table 6). Of these 85 cases, divorces and dissolutions accounted for 68 or 80%.
In 2019-20, the vast majority (93%) 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 2019-20, there were 465 adoption petitions initiated, a decrease of 8% on the previous year. The number of applications initiated for permanence orders with authority to adopt decreased slightly, down 3%, to 367 in 2019-20.
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 5.6 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 where they are available, are published as supporting files alongside the relevant bulletin on the website within the Civil Justice Statistics section. Equivalent statistics for 2019-20 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, for the second year we have published, 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 7,800 in 2019 (Figure 10). This decrease could be linked to the general downward trend in marriages across the same period as shown by the chart. The mainexception 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 2019-20 was 7,883, 7% higher than in 2018-19 (7,379) (Table 9). In 2019-20, 60% of divorces granted used the simplified procedure. Fifty-seven divorces were granted to same sex couples.
There were 52 civil partnership dissolutions granted in 2019-20, 22% down from 67 in 2018-19 (Table 10). The vast majority of dissolutions granted in 2019-20 (87%) used the simplified procedure.
Figure 10: Downward trend for both divorces and marriages since 1985
1. Divorces Data prior to 2008 is for illustrative purposesonly, please see quality of statistics section 5.6
2. Marriages data is from the National Records of Scotland's Vital Events Reference Tables
3.2.4 Personal injury
There was a 6% decrease in personal injury cases initiated in 2019-20 compared to 2018-19
Just under two-fifths (38%) of personal injury cases were raised in the national Sheriff Personal Injury Court
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 3.2.5.
Since 2010-11 there has been between 7,500 and 9,500 personal injury cases initiated as principal craves each year. There were 8,576 in 2019-20, down 6% from 2018-19 (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 down one percentage point from 2018-19, to 12%.
There has not been a large change in the procedures used to hear personal injury cases since 2018-19. Around 30% are brought to the sheriff courts as summary cause, and 38% to the Sheriff Personal Injury Court. Just over a quarter (26%) 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 at least 80% of these cases using the specialised court.
The majority of asbestos cases in 2019-20 (down 23 to 615) were initiated at the Sheriff Personal Injury Court. Eighty per cent of asbestos related cases were raised at this court, around the same proportion as in the previous year (81%) (Table 18).
There has been a decrease in accident at work cases since the previous year (down 183 to 1,385). A larger proportion of these were brought to the Sheriff Personal Injury Court, increasing from 83% to 85%.
The number of clinical negligence cases initiated in 2019-20 has settled back to the 2013-14 levels. Their number has stabilised since 2018-19 following an unusually high volume of summary cause clinical negligence initiations at Edinburgh Sheriff Court in 2017-18 (Table 14). There were 273 cases in 2019-20, a 20% decrease from the 342 cases last year.
Table A1 and Table A7 show counts of craves associated with personal injury cases initiated in 2019-20. The most common craves sought are Damages (7,845), Payment of money (291) and Expenses (267).
The number of damages cases rose by 23% from 2018-19
60% of damages cases were initiated under simple procedure in 2019-20. 52% of the simple procedure cases disposed of were dismissed.
Nearly 80% 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 3.2.4.
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 2010-11 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 in the previous four years has continued in 2019-20, coming close to 4,000 for the first time since 2011-12. In 2019-20, there were 3,838 initiated cases, a 23% increase from last year.
This latest increase is mainly driven by an 81% rise in ordinary cause initiations, which rose from by over 600, from 748 to 1,351 in 2019-20. There was an unusually high number of Equality Act damages cases initiated during this period for the second year in a row.
Of the 3,838 damages actions initiated, 60% were brought to the sheriff court under the simple procedure, down from 70% in the previous year, partly due to the increase in ordinary cause actions explained above. Nearly all summary cause actions were absorbed by the simple procedure. Thirty-five per cent were brought to the sheriff court under ordinary cause procedures, up from 24% in 2018-19 (Figure 13).
Table A1 and Table A8 show the counts of all the craves associated with damages cases initiated in 2019-20. The most common craves sought are Damages (3,647), Payment of money (139) and Expenses (45).
The number of repossession cases initiated have fluctuated in recent years, they were up 18% compared to 2018-19.
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 3.2.2).
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.
Repossessions started the decade at around 5,200 in 2010-11. However, in 2011-12 we saw an increase of 29% (to 6,752) (Table 21).The lower 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 to their lowest number of 1,753 in 2016-17. Since then, there have been year on year fluctuations. In 2019-20, initiated cases rose to 2,204, increasing by 335 cases or 18%.
As in the previous year, in 2019-20, all repossessions were brought as summary applications to the sheriff court, with none filed under ordinary cause.
In 2019-20, 59% 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 2019-20. The most common specific craves sought were Repossession (2,191), Declarator (165) and Expenses (103).
3.3 Civil legal aid
In 2019-20, there were 14,825 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.
The number of legal aid applications have been relatively stable in the last six years. This followed a peak in 2009-10 then a gradual decrease since. Grants have been more stable over the last decade, meaning more applications being approved for funding. The last two years have seen successive increases in grants of civil legal aid, with 2019-20 nearly matching the peak recorded in 2009-10.
In 2019-20, there were 14,825 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 2019-20.
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 2019-20 these programmes enabled 6,560 new clients to access help, including representation at court or tribunal on 4,358 occasions.
Further information and data on legal aid is available from the Scottish Legal Aid Board Annual Report 2019-20.
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