An Introduction to the Scottish Civil Court Structure.
Commercial Law [C18CL]
Joshua Pearson
HW ID- H00246732
MA Business & Finance – Year 2
Word Count-
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The Scottish legal system is one that draws influence from many countries and has a history spanning several centuries. While there are clear similarities to their neighbours in England, it is also possible to see the effects of taking ideas from mainland Europe including countries such as France, Italy and the Netherlands. Despite everything Scotland’s judicial system has remained independent and in many ways unique. The legal system in place can be described as a mixed jurisdiction (Thomson p.51), combining common law with Romano-Germanic (civil) law. It can be considered the oldest judicial system following this mixed jurisdiction (Palmer p.24).The common law side of the judicial system having spread over from England; with this tradition the law evolves on a case by case basis where previous court rulings can be applied. In comparison, the civil law tradition has codified laws and these are then applied. It can be seen as less flexible to the ever evolving needs of society. Specifically, this report aims to outline and describe the Scottish civil court system. To aid this a general background will be given with an explanation of the different levels of civil court before examples of cases at these different levels are given along with the details of the legal personnel involved.
The judicial system in Scotland is split in two; there is the criminal court system and the civil court system. These are both very different and handle different types of cases. This report is focused on the latter, the civil court system. The criminal court is the government prosecution of a crime whereas the civil courts in Scotland handle legal disputes involving private parties who bring their cases to the courts instead of the government pursuing it. In Scotland there are three levels of court, which court used is usually dependant on the type of dispute and the severity. The most common court for civil cases is the Sheriff Court, although it can handle a wide range of disputes it most commonly settles cases involving finances and family claims. Side by side with the Sheriff court is the Sheriff Appeal Court and the Sheriff Personal Injury Court. After this comes the Court of Session, which is technically Scotland’s supreme civil court. The Court of Session can hear all sorts of cases but some judges will have specialisations and there’s a different system for commercial cases. It consists of two houses, the outer and the inner. The Outer House settles cases that have been to court before and the Inner House handles appeals. Although it is a criminal court, it is also important to mention the High Court of Justiciary (Scotland’s supreme court) as it is the highest court of appeal for some civil cases.
The first court to describe is the Sheriff Court. These are local and can handle a wide variety of cases spanning civil disputes and criminal prosecutions. Every city will have a Sheriff Court and they are usually able to settle the majority of cases brought before it. As such they are the most busy. For every court there is roughly three judges in Scotland however these are not distributed as such. They are distributed by how busy the court is and how many cases are being brought forward. Currently there is 39 Sheriff Courts and 142 resident Sheriffs in the country (Scotland-judiciary.org.uk, 2018). Civil matters in Sheriff Court are heard by a sheriff sitting alone, there’s no jury. Other legal personnel that can be found at a Sheriff Court are Sheriff clerks and solicitors. The clerks are court officials who are responsible for the administration of cases. The solicitors are the lawyers for both parties. As well as the regular judges there are also ‘floating Sheriffs’, these move about based on demand and how busy the courts are. In Sheriff courts there are three types of procedures, these are small claims procedures, summary cause procedures and ordinary cause procedures. Small claims procedures is used for more minor disputes, such as debts, as the name suggests. It can only be used for disputes up to £3000. It is the least formal of the three and you don’t require legal representation. The summary cause procedure is used for slightly more serious disputes, in fiscal cases between £3000 and £5000. The ordinary cause procedure is the final type of civil procedure in use by Sheriff courts and handles claims of more than £5000 and as such it is more used for more serious disputes than the previous two. This can involve divorce or damages. Side by side with the Sheriff Court is the Sheriff Appeals court, this has jurisdiction over civil appeals from the Sheriff Courts. As well as the appeals court there is also the Sheriff Personal Injury Court, this is a more specialised court related to personal injury and depending on the case may or may not have a jury.
The next court to look at is The Court of Session, it is the highest civil court in Scotland and is both a court of first instance and a court of appeal, there are called the Outer House and the Inner House respectively. This court has jurisdiction over the Sheriff court and there is only one in Scotland, this is at the parliament building in Edinburgh. The outer house is made up of twenty-four judges who are called the lord ordinary. In some cases outside judges may be appointed when specialisation of certain expertise is required. Being only twenty-four judges there is sometimes a lack of specialisation. The inner house if the court of appeal for The Court Of Session. The inner house is split into two again, these are called the first and second divisions. They both have the same jurisdiction but the first division has the Lord President, this is Scotland’s highest judge, and the second division is presided by the Lord Justice Clerk who is the second highest judge in Scotland. The inner house is comprised of eleven judges, five in first division and 6 in second division. Cases can be presented by advocates, solicitor-advocates or practitioners from other countries in the European Union.
The highest court in Scotland is the High Court of Justiciary, Scotland’s Supreme Court. Less detail will be given as it is technically a criminal court, however it is the highest court of appeals in civil cases. It is relatively new, only introduced in October 2009 (“Supreme Court History” 2018), before this the power resided with the House of Lords. The High Court is presided over by the Lord Justice General and the Lord Justice Clerk. It is a court of first instance as well as being an appeal court. The court handles appeals in both criminal and civil cases from the whole of the United Kingdom. All cases considered by the High Court of Justiciary must have gone through one of the other courts first. It is comprised of twelve judges although in some special cases some senior judges from other courts can be appointed, usually for their expertise.
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References
Stephen Thomson, Mixed Jurisdiction and the Scottish Legal Tradition: Reconsidering the Concept of Mixture, 7 J. Civ. L. Stud. (2014)
Vernon Valentine Palmer, Mixed Jurisdiction Worldwide: The Third Legal Family 5 (Cambridge Univ. Press 2001); Mauro Bussani & Vernon Valentine Palmer, The Liability Regimes of Europe.
Scotland-judiciary.org.uk. (2018). Sheriffs – Judicial Office Holders- About the Judiciary – Judiciary of Scotland. [online] Available at: http://www.scotland-judiciary.org.uk/36/0/Sheriffs [Accessed 3 Oct. 2018].
History- The Supreme Court (2018). Supremecourt.uk. Available at: https://www.supremecourt.uk/about/history.html [Accessed 3 Oct. 2018].