Civil courts and civil procedure rules in Scotland

The Sheriff Court is a first instance court, ie a court where legal proceedings begin, that deals with minor civil matters in a wide range of areas such as:

• personal injuries  

• tenant/landlord problems (including evictions)

• debt problems, eg a creditor seeking payment

• bankruptcy and liquidation

• parental rights and responsibilities

• wills

• discrimination-cases (including discrimination of race, sex, sexual orientation, religion and disability)

• divorce and civil partnership issues

• all actions with a value below £100,000

This is a Sheriff Court which hears all personal injury cases, provided they are eligible. A personal injury claim is heard here if:

• its value is greater than £5,000; or

• it is a workplace related personal injury with a value greater than £1,000; or

• it is a workplace related personal injury with a value less than £1,000 but it is sent to the All Scotland Personal Injury Court by an sheriff’s order made in a Sheriff Court anywhere in Scotland.

The Court of Session is the highest civil court in Scotland and hears more complex civil cases. It is divided into two parts:

• The Outer House: deals with complex family matters of divorce, dissolution of civil partnerships and separation. It also deals with claims where a large amount of money is being claimed. 

• The Inner House: deals with appeals raised after a Sheriff Court or Court of Sessions Outer House decision.

Alongside the Sheriff Court and the Court of Sessions, the Scottish Tribunal system handles a wide variety of day-to-day legal issues including title and land obligations, tax and mental health. These tribunals act outside the civil courts structure and investigate and deal with people’s lives. Tribunals in Scotland, as in England and Wales, operate under a two-tier system:

• First-tier Tribunal: is split into 5 Chambers according to practice area (the Housing and Property, Health and Education, Social Security, General Regulatory, and Tax Chambers). Each Chamber has a Chamber Specialist with expertise in the respective area.

• Upper Tribunal: reviews and hears appeals from the First-tier Tribunal with the  First-tier Tribunal’s permission and only on point of law. Where permission is refused the Upper Tribunal can still choose to accept the case. The Upper Tribunal is divided into Divisions.

The Court of Sessions hears appeals coming from the Upper Tribunal, with the permission of the Upper Tribunal, and only on points of law. The Court of Sessions can decide to hear and appeal even where this permission is refused.

Controversial and complex cases can go directly from the Upper Tribunal without first going to the First-tier Tribunal, however, in most cases, cases will first go to the First-tier Tribunal.

The Supreme Court is the most senior court into the UK. It is the final court of appeal for all UK civil cases. It hears appeals against decisions of the Court of Sessions Inner House. Either the Supreme Court or the Court of Sessions Inner House will have to permit an appeal to be heard. 

 The Supreme Court hears appeals on arguable points of law of general public importance. Decisions are taken by a majority.

In Scotland, the Sheriff Court and the Court of Sessions have different sets of rules governing civil procedure.

While there are several different procedures governing actions that can be raised in the Sheriff Court, an ordinary procedure is the main framework for most actions brought in the Sheriff Court (excluding summary cause, simple procedure and summary application).

First, the claimant (also known as the “pursuer” in Scotland) must drafts the initial writ using a Form G1, which must be signed by the claimant or their solicitor. The initial writ is then lodged with the sheriff clerk. The sheriff clerk will then issue a warrant for citation (usually with Form O1) which will then allows service of the writ. The initial writ can then be served on the defendant (also known as the “defender” in Scotland) and remains effective for one year and one day. Civil proceedings do not begin until the initial writ has been served on the defendant.

Within 21 days, if the defendant is resident or has a place of business within Europe, or within 42 days, if the defendant is resident or has a place of business outside Europe, the defendant must reply with a notice of whether they intend to:

1. challenge the jurisdiction of the court;

2. bring a defence; or

3. make a counterclaim.

Pleadings are drafted by counsels and exchanged between the parties. 

The Scottish legal system, as the English legal system, is an adversarial system, whereby the parties lead the legal dispute, and the judge tries to determine the truth but does not have the power to investigate the case. That means the parties have to present their arguments and submit evidence to the judge. To do so, they must disclose all documents they seek to rely on, as well as documents which support the other party’s case. They can also call and question witnesses and experts to support their claim. 

Precognition statements: if a party wants to provide oral evidence from a witness in court, they may have to record that evidence in a written precognition statement (known in England and Wales as a “witness statement”). The statement must be certified to be true by the witness, and the witness may be cross-examined (i.e. questioned) by the other party's lawyer at trial.

Expert evidence: upon authorisation of the court, the parties can ask for an independent expert’s opinion on certain issues. 

Judgement may be given immediately after the trial, or reserved to a latter date if the judge decides so. Usually, the losing party has to pay for the legal costs incurred by the winning party. 

While there are several different procedures governing actions that can be raised in the Court of Sessions, an ordinary procedure is the main framework for most actions brought in the Court of Sessions (some actions, such as commercial actions and personal injury have their own specific procedures).

To initiate the proceedings the summons must be drafted; this is usually done using Form 13.2-A (for actions other than petitions). An unqualified person may not draft a summons.

This summons must then be signed by an agent on every page, and there are further special rules for the party litigants. The summons must then be signetted at the General Department of the Court of Sessions. Once a summons has been signetted, it may be served on the defendant. The summons must be served within one year and one day of the signeting.

For the action to formally be brought into the courts, it must be lodged for calling within one year and of the expiry period of notice. The summons must be lodged no later than 12:30 pm on the second day before it is to be called.

The charge of the summons will state the period of notice which must have elapsed after the date of execution of service before the summons may be called in court. The summons may not be called before the period of notice has expired. This is usually either:

1. within 21 days, if the defendant is resident or has a place of business within Europe;

2. within 42 days, if the defendant is resident or has a place of business outside Europe; or

3. within 6 months, where service is by advertisement because the defendant’s address is unknown.

Once the case has been lodged for calling, the defendant must enter appearance if they wish to:

1. challenge the jurisdiction of the court;

2. bring a defence; or

3. make a counterclaim.

The defendant must do so within 3 days of the date on which the summons was called.

Pleadings are then drafted by counsels and exchanged between the parties.