Civil Court Structure of Scotland

The Scottish legal system is divided into two distinct parts, the civil justice system and the Scottish criminal justice system, both of which have their own courts and system.

Broadly speaking, the civil courts of Scotland deal with legal disputes between two or more parties which arise in relation to their legal rights in day to day and business life.

In most respects, the Scottish legal civil justice system is individual in many ways to the rest of the United Kingdom, and highly devolved to the Scottish parliament.

The civil court structure of Scotland incorporates three courts nationally and two European courts. The court of first instance in civil cases is the sheriff court, which hears the majority of civil cases in Scotland. These cases tend to be small money and family claims. The second court to look at is the Court of Session which compromises of two separate houses, the outer and inner, and finally the highest ranking court in the United Kingdom, the newly established Supreme Court.

There are also two European courts to consider. The European court of justice which is based in Luxembourg and gives rulings on the application and the interpretation of EC law which are legally binding in national courts. The second European court is the European Court Of Human rights, which is based Strasbourg.

There are a total number of forty nine sheriff courts in Scotland which cover a specific sheriff court district. These courts are divided geographically into six sherrifdoms. These are: the Lothian and borders, South Strathclyde Dumfries and Galloway, Glasgow Strathkelvin, North Strathclyde, Tayside/central and fife, and finally Grampian highlands and islands [1] . Each of the six sherrifdoms (except Glasgow and Strathkelvin) is divided into sheriff court districts giving 49 sheriff court districts in total.

The first court to examine is the sheriff court. Sheriff courts are local courts with a very wide range of jurisdiction in respect of both civil and criminal matters in Scotland. There is a local sheriff court in every city which deals with the bulk of cases which are brought forward thus it has been stated that for many purposes, sheriff courts are the most important courts in Scotland [2] . Sitting below the 49 sheriff courts in Scotland are 149 sheriffs or judges [3] . These judges are divided throughout the courts not equally but depending on the number of cases brought forward to each court. The courts also have access to what is referred to as ‘floating sheriffs’ who are directed to sit in any of the 49 sheriff courts depending on demand.

There are three types of civil court procedures which are used in the sheriff courts.

The first of which is a small claims procedure. This type of procedure is one which is used when the claim in question is up to and including £3000. It is primarily used for resolving minor disputes which tend to be related to debts. The small claims procedure is a relatively informal and does not require representation by a legal practitioner.

The second type of procedure which is used in the sheriff courts is the summary cause procedure. This type of procedure, when related to money, is employed when the sum of money in question is over £3000 and up to and including £5000. Cases which use the summary cause procedure tend to be disputes involving rent arrears debts and delivery of goods.

The third and final type of civil procedure which is used in the sheriff court is the ordinary cause procedure. This procedure predominantly deals with cases involving divorce, children property and claims of recovery of debt and damage with the sum of money exceeding £5000. In an ordinary cause procedure, appeal is either made to the sheriff principal, which from there goes through to the inner house of the Court of Session or the appeal could also be made directly from the sheriff to the inner house of the Court of Session. There is also a third and final option for appellants and this is to appeal directly to the Supreme Court. It is important to note however that any appeal must be made on a point of law as opposed to appealing to a question of fact.

The system of appeals for summary cause procedures is relatively similar to the ordinary cause system of appeal. Appeal is to the sheriff principal on a point of law and then followed up to the inner house of the Court of Session and finally to the Supreme Court.

Finally in small claims appeals are made to the sheriff principal, again on a point of law.

The second court to look at in the Scottish civil legal structure is the Court of Session. The Court of Session is in itself both a court of first instance known as the outer house and also a court of appeal, also referred to as the inner house. The Court of Session has jurisdiction over most civil matters in Scotland and sits exclusively in the parliament house in Edinburgh.

The first house to concentrate on is the Outer house of the Court of Session which is the court of first instance only. It is made up of 24 judges who are referred to as lord ordinary. In some extra ordinary cases however specialist judges may be brought in to sit on some cases as there is a limited degree of specialisation within the Court of Session judges’.

The second division of the Court of Session is the inner house or alternatively the court of appeal.

There are two divisions of the inner house, the first and second divisions, each with equal jurisdiction and importance. The first of the two divisions consists of Scotland’s most senior judge, the lord president and the second division is headed by the second most senior judge, the lord justice clerk. There are 11 inner house judges within the inner house. The first division has five judges and the second division has six judges.

Where appeals are concerned a party to a case, determined in the outer house always has the right to appeals the inner house and this is referred to as the re-claiming motion.

The final British court to look at is the newly established Supreme Court. The first of October 2009 was a defining moment in the Scottish (and British) civil court history as judicial authority was steered away from the House of Lords and transferred to the new supreme court of the United Kingdom. “The Supreme Court is the final court of appeal in the UK for civil cases. It hears appeals in both criminal and civil cases from England, Scotland, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.” [4]

As the Supreme Court is an appeal court, it cannot consider any cases unless it has gone through at least one other court of first instance.

The Supreme Court has 12 acting judges, presided by Lord Philips of worth matravers [5] . In addition to the 12 judges appointed, the lord president may request other senior judges to sit in some cases as ‘acting judges’ according to the constitutional reform act 2005 [6] . Appeals heard in the Supreme Court are usually heard by five judges however this number can increase to 9 in some special cases.

As previously mentioned there are also two other courts to consider in the civil court structure of Scotland. The European court of justice and the European Court Of Human Rights.

The European court of justice which is situated in Luxembourg exists to make sure that European Community law is correctly implemented, interpreted and observed in the numerous partnering countries.

The court is made up of one judge from each member state, which are supported by 8 advocates who bring their legal opinion to the table and assist the judges.

The jurisdiction plectrum of the European court of justice falls under cases relating to judicial review of laws which have been passed by a nation with the European Community and failure of the European member states to fulfil its treaty obligations.

The European court of justice or ‘The COURT’ as it is also known is the highest ranking court in the European Union however only on matters of community law and not national law.

The second European court to look at is the European Court Of Human Rights, (not to be confused with The Court of Justice). The human rights act of 1998 [7] , in conjunction with the Scotland act 1998, gave an enhanced and updated status in Scottish law to the rights protected by the ECHR. When a question has risen under the act in connection with a right which is deemed to be protected by the European Court Of Human Rights, Scottish courts must take into account the decisions and opinions of the Strasbourg court. however, any decision which is made in the Strasbourg court, unlike the judgements of the EC and ECJ courts, they are not binding in Scots courts however , in practice the judgements of the European courts of human rights are highly influential.