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Scottish Legal System
- Module
- Law in Business
- Institution
- Glasgow Caledonian University (GCU)
Overview of The Scottish Legal System including courts, court system and procedures.
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Structure of The Scottish Legal SystemScotland has its own system of courts, legal professions, judges and law of cers.
All of these existed prior to the treaty of union with England in 1707 and have been
maintained since and developed separately from the other jurisdictions in the UK.
Jurisdictions
A court can only hear cases that fall within its jurisdiction (within the limits of its
powers). Jurisdiction can be limited by geographical location, subject matter of the
legal issue or the type and size of award the court can offer.
In Scotland the civil courts can hear civil law cases following civil law procedure.
Criminal cases are issues for the criminal courts who will follow criminal procedure.
Fact and La
In both civil and criminal cases, both parties will submit arguments of fact and law.
They present evidence as to the facts in the case and set out legal arguments
based on their interpretation of the rules of law with which the case is concerned.
The true facts of the case are decided by a jury or in the case of no jury the judge.
Decisions of law are always made by the judge.
The Civil Court System
Civil law covers a wide range of legal issues relating largely to the issues of rights
and duties between persons. The term ‘person’ can mean an individual, a company
or another legal entity. The person bringing the legal action is called the pursuer
and the person whom the action is against is the defendant. The civil courts of
Scotland are the Sheriff Court, the court of session and the supreme court of the
UK. The Sheriff Court and the Court of Session are divided into jurisdictions and
procedures. The Sheriff court includes small claims, summary cause procedure and
ordinary case procedure. The Court of Session includes the Inner House and the
Outer House.
Sheriff Court
The major part of the civil judicial business in Scotland is conducted in the sheriff
court and is the only inferior court exercising rst instance jurisdiction in civil
matters. The sheriff court operates a civil jurisdiction within their respective
territories which is very wide.
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, Organisation
Scotland is divided into six sheriffdoms
- Glasgow and Strathkelvin
- Grampian Highland and Island
- Lothian and Border
- North Strathclyd
- South Strathclyde, Dumfries and Gallowa
- Tayside, Central and Fif
Each sheriffdom is presided over by a principal sheriff. Sheriffdoms are sub divided
into districts which are served by a sheriff court.
Jurisdiction
The civil jurisdiction of each sheriff court can be de ned by three criteria - location,
persons and subject matter.
Location - The location of the particular sheriff
Persons - The sheriff must have jurisdiction over the defendant (the pursuer will
follow the court of the defendant). The sheriff will have jurisdiction over a defendant
if they are resident or domiciled within the sheriffdom, carry a business in the
sheriffdom or own heritable property within the sheriffdom which is the subject of
the action.
Subject Matter - The jurisdiction of the court can be determined by the subject of
the case. In cases concerning contracts the court for the place the contract is to be
performed has jurisdiction. In cases relating to delict, the court for the place where
the harmful event took place has jurisdiction. In ordinary cause cases the sheriff
has discretion whether or not to refer the cause to the court of session.
Certain actions are reserved for the court of session including applications for
judicial review, actions for reduction and petitions for winding up of a company if the
paid up capital exceeds £20,000. Also certain actions are reserved for specialist
courts.
The jurisdiction of the Sheriff court regarding actions for debt and damages is
without nancial limit. In the case where the value does not exceed £5000, the
sheriff court’s jurisdiction is privative i.e must be heard in the sheriff court and
cannot be heard in the court of session.
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, Procedure
In most cases there is no jury and the trial is by a sheriff sitting alone. However in
cases relating to employees seeking damages from an employer due to injury there
will be a jury present.
There are different types of procedures in the sheriff court differentiated largely by
the nancial value of the case.
Ordinary cause - The standard form of process for any civil case brought to the
sheriff court which cannot be heard as a summary case. As the sheriff court is very
wide in terms of the cases it can hear and powers it has actions taken to the sheriff
court cover a wide range including debt repayment, claims for damages, orders
relating to parenting, divorce and custody, actions of bankruptcy and
implementation of a contract. The sheriff has the discretion to refer the matter to the
court of session.
Summary cause - This procedure was introduced to simplify and quicken
proceedings taken over relatively small amounts of money. It applies to any civil
action for payment not exceeding £5000 and actions relating to implementing an
obligation or recovery of heritable property. Summary actions do not typically
involve written pleadings and evidence and in undefended actions, the parties are
not required to attend court. Summary causes can be raised by any person
however are usually taken by commercial organisations or public sector creditors.
Small claims - This is used for summary actions that do not exceed £3000. It is a
more simple process which is less formal and allows for non-lawyers to easily
access. It is meant to encourage persons to represent themselves rather than be
represented by a solicitor. Legal aid is not provided for small claims.
Imminent change: Simple procedure - Summary cause procedures and small
claims are due to be replaced by simple procedure. This will apply to actions not
exceeding £5000
Appeals
There are two routes of appeal that can be taken from a decision made by the
sheriff court. The route will depend on the type of procedure that was used. The
judgement made by a sheriff may be appealed to a principal sheriff unless excluded
by statute. If the case is not a summary cause it can be heard by the sheriff
principal from whom appeal lies with the court of session or it can be made directly
to the inner house. Most appeals are made to the sheriff principal initially as this is
speedier and less expensive.
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