Civil courts

There are six sheriffdoms in Scotland, having a total of 39 sheriff courts. The sheriff courts deal with the vast majority of civil cases in Scotland and the Court of Session deals with the rest. The judge in a sheriff court is called a sheriff. In each sheriffdom there is a sheriff principal who as well as being responsible for the efficient disposal of court business is also the first 'court' of appeal from the sheriff.

The sheriff court deals with three main types of civil business - simple procedure, summary cause actions and ordinary actions.

Simple procedure

Simple procedures are actions for payment of money or specific implement, for example, delivery of goods paid for, up to the value of £5,000. They involve a simplified court procedure and parties can represent themselves or use a lay representative.

Solicitors rarely take on such cases (although they can be involved in preparing them). This is because legal expenses are very limited and legal aid is only available where the action is in either in relation to a claim between £3000 and £5000 or a small number of exceptions.

An appeal can only be made from the sheriff to the sheriff principal on a point of law.

Summary cause

Summary cause is the form of action used for recovery of possession of heritable property (eviction).

Parties can represent themselves. Lay representatives can only appear at a first hearing or a continuation of a first hearing. Legal aid is available for representation and solicitors can and do appear in court.

An appeal can be made from the sheriff to the sheriff principal on a point of law only, and from the sheriff principal to the Inner House of the Court of Session on a point of law if the sheriff principal certifies the cause as suitable for such an appeal.

Ordinary cause

Ordinary cause actions are used for actions for more than £5,000 and most other actions that involve a decision other than an award of money, for example, divorce, custody, etc.

Parties can represent themselves but should be advised that it will be a difficult process as the action is in the form of a writ, which means there are no 'standard forms' and the procedure can often seem baffling. Lay representation is not permitted, unless the action is an action for repossession due to mortgage arrears raised after 30 September 2010.

An appeal can be made either to the sheriff principal or then to the Inner House of the Court of Session, or directly to the Inner House of the Court of Session.

The jurisdiction of the Court of Session is not restricted to one locality but extends to the whole of Scotland. The Outer House of the Court of Session is a court of first instance. This means that it decides cases brought before it originally rather than hearing appeals from other courts. It hears all types of civil cases except those specifically reserved to the sheriff court or another forum. Its importance in housing relates to the fact that it is the court responsible for judicial review.

Judges in the Court of Session are known as Lords Ordinary. In some cases, mainly damages claims, there is a jury of 12 people. The cases are conducted by advocates (or solicitor-advocates) who are instructed by solicitors on behalf of the client. Parties may not instruct advocates directly. Parties may represent themselves but lay representation is not permitted.

An appeal from the Outer House is made by way of a 'reclaiming motion' to the Inner House on a question of fact and/or law.

There are two Divisions in the Inner House: the First Division consists of the Lord President and three other Lords of Session; and the Second Division consists of the Lord Justice-Clerk and three Lords of Session. The Divisions are equal to each other in authority.

While in a very limited number of cases the Inner House is a court of first instance, it is principally a court of appeal from sheriffs, sheriffs principal or Lords Ordinary in civil cases.

Cases are conducted by advocates (or solicitor-advocates) who are instructed by solicitors on behalf of the client. Parties may not instruct advocates directly. Parties may represent themselves but lay representation is not permitted.

An appeal from the Inner House on a question of law or fact can be made to the UK Supreme Court.

The House of Lords heard appeals in certain civil cases from Scotland until 31 July 2009, after which date its judicial role ceased. In October 2009, the UK Supreme Court took over this judicial function although the House of Lords retains its legislative role. This is not a constitutional change but, rather, a very clear separation of the legislative and judicial facets of our legal system. 

After a judgement from the House of Lords (until 31 July 2009) and UK Supreme Court (from October 2009) has been made, the case is returned to the Inner House for the judgement to be 'applied'.