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.
Scottish Crime and Justice Survey figures for 2019-20 are used this year because the 2020-21 survey was suspended due to pandemic restrictions, and the 2021-22 survey will be published in November 2023.
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. There have been some question updates and additional answer categories in the questionnaire since 2008-09, but results are still broadly comparable.
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.
Since 2018-19, in addition to the principal crave of cases, we now publish statistics on ancillary craves. An individual case can involve a number of different legal remedies sought by the pursuer. The requirement that 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'.
In 2021-22, debt actions were the most common principal crave, constituting 49% of all civil court cases. Family and personal injury actions were second and third most common, at 22% and 14% respectively (Figure 5) (percentages include summary applications for repossessions similar to Figure 1. The rest of the statistics in the publication excludes them).
By including ancillary craves, our statistics capture the full detail of orders the courts are required to make under each case type. Table A1 to Table A10 show the counts of craves, while Figure shows a summary of the complexity of cases based on the number of craves attached to them by principal crave type. This craves analysis is based on cases initiated in 2021-22.
As shown in Figure 6, family cases (except divorce/dissolution) are more likely to have multiple craves, compared to other case categories. Family-other and parental responsibilities and rights have at least 34% of writs with more than two craves. Outside family law, we note that 33% of eviction and 10% of repossession cases have more than one crave on their writ. Overall, 91% of initiated cases had a single crave on their writs.
Debt cases made up 50% of principal craves initiated at civil courts in 2021-22
In line with overall cases, debts recorded increased from 2020-21 but were still lower than pre-pandemic
85% of debt cases initiated in 2021-22 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 cases in 2021-22 increased by 27%, reversing the decrease recorded in the previous year, from 21,175 to 26,978.
Of these 26,978 debt actions initiated in 2021-22, 85% were brought to the sheriff court under the simple procedure, a slightly higher proportion than the previous year (83%). A very small number were summary cause proceedings. Fourteen per cent were brought to the sheriff court under ordinary cause procedure, a reduced proportion from 2020-21 (16%).
Having generally decreased in the earlier part of the last 10 years, debts have seen a more fluctuating pattern in recent years. A sharp drop in numbers last year was followed by an increase for 2021-22 in line with overall case numbers, although levels are still below pre-pandemic (Table 12).
Table A1 and Table A2 present the statistics which show counts of all craves on debt cases initiated in 2021-22. The most common craves are payment of money (27,309), damages (258) and expenses (215).
Eviction actions initiated made up 3% of principal craves initiated at civil courts in 2021-22
Evictions initiated in 2021-22 are still very low due to emergency legislation protecting tenants during the pandemic
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).
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.
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.
Emergency coronavirus legislation was put in place from 7 April 2020 until 30 March 2022 to extend the period of notice social landlords were required to give their tenants before the landlord could raise eviction proceedings in court. This was a temporary public health protection measure, aimed at ensuring people could stay safe in their homes for as long as possible. In most cases, this extended notice period was 6 months. This measure and the increased commitment from social landlords to only take eviction action when absolutely necessary had a substantial impact on the number of eviction actions initiated in 2020-21 and 2021-22.
In 2021-22, eviction actions initiated rose by 200%, from 576 to 1,730 although they remain 84% lower than pre-pandemic levels (10,520) (Table 23). The low level of initiations is largely due to the emergency legislation which protected tenants during the pandemic, brought into force in April 2020 as part of Coronavirus (Scotland) Act 2020. In addition, the Ending Homelessness Together Action Plan published by the Scottish Government in November 2018 increased the focus in the social rented sector on eviction prevention. Around seven in ten eviction cases disposed of in 2021-22 were dismissed (Table 24).
From 2012-13, eviction initiations were increasing to a peak of 14,690 in 2015-16, followed by a levelling off until 2017-18. Since 2018-19, initiations have been falling, partly due to private rented sector statistics moving to the First Tier Tribunal Housing. However, the decrease was rapid during the pandemic. The latest year saw some recovery in initiations but they still remain far below their pre-pandemic volumes.
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 2021-22. The most common craves sought are Recovery of heritable property (1,204), Payment of money (595) and Repossession (276).
Divorce and dissolution made up 74% of family cases initiated in 2021-22
Nearly all of the 8,249 divorces granted in 2021-22 were heard in sheriff courts, and 57% 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. We now publish 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 (8,968), Expenses (252) and Capital Sum (120). On parental responsibilities and rights cases, the most common are Contact (1,271), Residence of child (1,077) and Parental responsibilities and rights (514). Family-Other has Interdict (348), Declarator (155) and Residence of child (107) 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 2012-13, with the decline in divorces being the biggest contributor. There was an 11% fall from 13,862 in 2012-13 to 12,314 in 2021-22 (Table 5). Family has seen an increase in initiations in the last year (up 17% or 1,768 cases).
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 (116 or 1% in 2021-22), representing 8% of cases in the General Department of that court (Table 2 and Table 6). Of these 116 cases, divorces and dissolutions accounted for 104 or 90%.
In 2021-22, the vast majority (96%) of applications to extend/vary an interim order disposed of were granted. Similarly, most children's hearings (referral applications) disposed were granted (88%) 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 2021-22, there were 452 adoption petitions initiated, an increase of 40% on the previous year. The number of applications initiated for permanence orders increased by 24%, to 301 in 2021-22.
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 2021-22 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. Following the Civil Partnership (Scotland) Act 2020, mixed sex civil partnership has now been introduced in Scotland and the first mixed sex civil partnerships took place in June 2021.
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, we are now publishing, divorces granted, split by mixed sex and same sex (Table 9) and divorces granted by method of celebration, also split by mixed sex and same 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 13,365 in 1985 to 7,718 in 2021 (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. Data prior to 2008-09 cannot be compared directly with later data, and is discussed here to provide historical context. See the Quality of statistics section.
The total number of divorces granted in Scotland in 2021-22 was 8,249, 45% higher than in 2020-21 (5,698) (Table 9). In 2021-22, 57% of divorces granted used the simplified procedure. 98 divorces were granted to same sex couples.
There were 62 civil partnership dissolutions granted in 2021-22, 68% increase from 37 in 2020-21 (Table 10). The vast majority of dissolutions granted in 2021-22 (82%) used the simplified procedure.
3.2.4 Personal injury
There was a 12% increase in personal injury cases initiated in 2021-22 compared to 2020-21
Over two-fifths (44%) of personal injury cases were raised in the national Sheriff Personal Injury Court
56% of 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.
With the exception of 2020-21, there has been between 7,500 and 9,500 personal injury cases initiated as principal craves each year. In 2021-22, there were 7,598, up 12% from 2020-21 (Table 14). Personal injury has seen a high degree of variation over the last 10 years, although the latest figures look relatively low compared to pre-pandemic levels.
The prevalence of personal injury cases as a proportion of all principal craves is down by two percentage points from 2020-21, to 14%.
There have been changes in the procedures used to hear personal injury cases since 2020-21. Just under one-in-five (18%) were brought to the sheriff courts as summary cause (down from 19% in 2020-21), and 44% to the Sheriff Personal Injury Court (up from 43%). 26% were brought under ordinary cause to the sheriff courts (down from 29%), and 12% to the Court of Session (up from 9%).
There are differences in how different types of personal injury are using procedures in the courts, as shown in Figure 11.
The Sheriff Personal Injury Court is increasingly likely to cover accidents at work and Asbestos-related cases, with at least 68% of each of these cases using the specialised court in 2021-22.
The majority of accident at work cases in 2021-22 (up 250 to 1,557) were initiated at the Sheriff Personal Injury Court. 81% of accident at work related cases were raised at this court, slightly higher than in the previous year (Table 18).
There has been an increase in asbestos cases since the previous year (up 17 to 570). A large proportion of these were brought to the Sheriff Personal Injury Court. However, this year the proportion decreased from 80% to 68%.
There were 343 clinical negligence cases initiated in 2021-22, a 43% increase from the 240 cases last year. The number of initiations have fluctuated over the years since 2012-13 (Table 14).
Table A1 and Table A7 show counts of craves associated with personal injury cases initiated at the sheriff courts in 2021-22. The most common craves sought are Damages (6,458), Payment of money (289) and Provisional damages (242).
The number of damages cases decreased by 4% from 2020-21
79% of damages cases were initiated under ordinary cause in 2021-22. 51% of the ordinary cause cases disposed of had a decree of absolvitor.
67% 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.
In 2021-22, initiated cases fell to 1,302, this is the lowest in the last 10 years and 4% decrease from last year (Table 19). Damages are the only case type to record a decrease from last year.
From 2012-13 until 2015-16, there was a steady fall in the number of damages claims initiated as principal craves. This was followed by a gradual increase in numbers until 2019-20 when they reached their peak for the 10 year period. There was a sharp drop during the pandemic and initiations have not recovered from the record lows.
Of the 1,302 damages actions initiated, 17% were brought to the sheriff court under the simple procedure, down from 36% in the previous year. The low volume of initiations for the second year in a row is due to the further reduction in simple procedure numbers. Nearly all summary cause actions were absorbed by the simple procedure. 70% of cases were brought to the sheriff court under ordinary cause procedures, up from 51% in 2020-21 (Figure 13).
Table A1 and Table A8 show the counts of all the craves associated with damages cases initiated in 2021-22. The most common craves sought are Damages (1,100), Payment of money (62) and Expenses (41).
After a large Covid-related fall in 2020-21, repossessions increased by 1,204%, bringing them closer to pre-pandemic levels. However, initiations are still 46% lower than 2019-20.
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.
During the pandemic, the Financial Conduct Authority and mortgage lenders also put temporary support measures in place such as payment deferrals which protected homeowners in financial difficulty from repossession. These measures had a substantial impact on repossessions initiated in 2020-21 which were the lowest on record.
After a large Covid-related fall in 2020-21, initiated cases rose to 1,187, increasing by 1,096 or 1,204%. This increase brings the initiations closer to pre-pandemic levels, but still 46% lower than 2019-20. Non-residential property were raised under ordinary cause and residential property used summary application.
Repossessions were at their highest (5,385) in 2012-13, and decreased consistently until 2016-17. Following the decrease, they fluctuated around 2,000 per year until the record low in 2020-21 (Table 21).
In 2021-22, 56% of repossession disposals 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 2021-22. The most common specific craves sought were Repossession (1,182), Expenses (83) and Payment of money (21).
3.3 Civil legal aid
In 2021-22, there were 13,502 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 six years prior to 2020-21. The fall in applications in 2020-21 can be attributed to general behavioural changes due to lockdowns. Additionally, there were procedural changes to ease pressure on the justice system, for example Coronavirus (COVID-19): adults with incapacity emergency provisions which were contained within Coronavirus (Scotland) Act 2020. Grants have been more stable over the last decade, meaning more applications being approved for funding. The high grant acceptance rate is partly due to a rise in applications for Adults with Incapacity cases which have a high success rate. The grants for 2019-20 nearly matched the peak recorded in 2009-10, before falling in line with applications in 2020-21. Grants awarded rose from 2020-21, but are still below the 2019-20 pre-pandemic level.
In 2021-22, there were 13,502 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 39% of all grants. The next largest category is contact/parentage, which accounted for 20% of all grants in 2021-22.
Applications and grants in any one year may not relate to the same cases because of the interval between an application and a decision to grant. Also note that granted cases may not always proceed.
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 2021-22 these programmes enabled 3,760 clients to access help and provided representation at court or tribunal on 809 occasions.
Further information and data on legal aid is available from the Scottish Legal Aid Board Annual Report 2021-22.
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