Court of Session

"Clerk of Session" redirects here; not to be confused with Session Clerk, see Moderators and clerks in the Church of Scotland or Principal Clerk of Session and Justiciary.
Court of Session

Logo of the Court of Session
Established 1532
Country Scotland
Location Parliament House, Edinburgh
Composition method Judges are appointed by the monarch on the recommendation of the First Minister, who receives recommendations from the Judicial Appointments Board for Scotland[1]
Authorized by Act of James V of Scots, 1532
Decisions are appealed to Supreme Court of the United Kingdom[2]
Judge term length ad vitam aut culpam
Number of positions 34
Website www.scotcourts.gov.uk
Lord President
Currently Lord Gill
Since 8 June 2012
Lord Justice Clerk
Currently Lord Carloway
Since 15 August 2012
Entrance to the Law Courts, Parliament Square

The Court of Session (Scottish Gaelic: Cùirt an t-Seisein; Scots: Coort o Session) is the supreme civil court of Scotland,[3] and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a trial court and a court of appeal.[4] The Court of Session has coextensive jurisdiction with the Sheriff Court—the other Scottish civil court, which sits locally—and the pursuer is given first choice of what court to use. However, the majority of complex, important, or high value cases are brought in the Court of Session.[5] Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.[6]

The court is a unitary collegiate court, with all judges other than the Lord President and the Lord Justice Clerk holding the same rank and title—Senator of the College of Justice and also Lord or Lady of Council and Session.[4] There are thirty-four judges,[7] in addition to a number of temporary judges; these temporary judges are typically sheriffs, or advocates in private practice. The judges sit also in the High Court of Justiciary, where the Lord President is called the Lord Justice General.[8][9]

The court was divided in 1810 into an outer and inner house.[10] The former serves as the court of first instance; the latter is superior, and stands as an appeal court for civil cases as well as a court of first instance. Cases in the outer house are heard by Lords Ordinary who sit alone, though there may occasionally also be a jury of twelve. Cases in the inner house are heard by three Lords of Council and Session, but significant or complicated cases may be heard by five or more judges.

History

The Lords of Council and Session had previously been part of the King's Council,[11][12] but after receiving support in the form of a papal bull of 1531, King James V established a separate institution—the College of Justice or Court of Session—in 1532, with a structure based on that of the Parlement of Paris. The Lord Chancellor of Scotland was to preside over the court, which was to be composed of fifteen lords appointed from the King's Council.[13] Seven of the lords had to be churchmen, while another seven had to be laymen.[14] An Act of Parliament in 1640 restricted membership of the Court to laymen only, by withdrawing the right of churchmen to sit in judgement.[15] The number of laymen was increased to maintain the number of Lords in the Court.

The Court of Session is explicitly preserved "in all time coming" in Article XIX of the Treaty of Union between England and Scotland,[16] subsequently passed into legislation by the Acts of Union in 1706 and 1707 respectively.

Several significant changes were made to the Court during the 19th century. It was separated into two divisions, the Outer House and Inner House, by the Court of Session Act 1810.[17] A further separation was made in 1815 with the creation of a lesser Jury Court to allow certain civil cases to be tried by jury.[18] In 1830 the Jury Court was absorbed into the Court of Session along with the Admiralty and Commissary Courts.[14]

Structure

Institution of the Court of Session by James V in 1532, detail from the Great Window in Parliament House, Edinburgh. "The first Session was begun by Gavin Dunbar, Archbishop of Glasgow; Alexander Myln, Abbot of Cambuskenneth, Lord President; Master Richard Bothuile, Rector of Ashkirk; Sir John Dingwell, Provost of the Church of the Holy Trinity, near Edinburgh; Master Henry Quhyte, Rector of the Church of Finhaven; Master William Gibson, Dean of the Collegiate Church of Restlerig; Master Thomas Hay, Dean of the Collegiate Church of Dunbar, all elected by our Sovereign Lord the King." -- W Forbes-Leith, Pre-Reformation Scholars in Scotland in the 16th century, 1915

The court is divided into two houses. The Lords Ordinary sit in the Outer House, and usually singly. The Lords of Council and Session sit in the Inner House, typically in threes. The nature of cases referred to the Court of Session will determine which house that case shall be heard in. The court may set its own procedures and practices by Acts of Sederunt.[19][20] (These are generally incorporated into the Rules of Court, which are published by the Scottish Courts and Tribunals Service and form the basis for Scots civil procedure.[21]) Members of the Faculty of Advocates, known as advocates or counsel, and as of 1990 also some solicitors, known as solicitor-advocates, have practically exclusive rights of audience in the court.

Outer House

Main article: Outer House

The Outer House is a court of first instance, although some statutory appeals are remitted to it by the Inner House. Such appeals are originally referred from the Sheriff court, the court of first instance for low value civil causes in the court system of Scotland. Judges in the Outer House are referred to as Lord or Lady [name], or as Lord Ordinary. The Outer House is superficially similar to the High Court in England and Wales,[22] and in this house judges sit singly—and with a jury of twelve in personal injury or defamation actions.[4] Subject-matter jurisdiction is extensive and extends to all kinds of civil claims unless expressly excluded by statute, and it shares much of this jurisdiction with the Sheriff courts.[23] Some classes of cases, such as intellectual property disputes, are heard by an individual judge designated by the Lord President as the jurist for intellectual property cases.[24]

Final judgments of the Outer House, as well as some important judgements on procedure, may be appealed to the Inner House. Other judgments may be so appealed with leave.[25]

Inner House

Main article: Inner House

The Inner House is the senior part of the Court of Session, and is both a court of appeal and a court of first instance. The Inner House has historically been the main locus of an extraordinary equitable power called the nobile officium - the High Court of Justiciary has a similar power in criminal cases.[26] Criminal appeals in Scotland are handled by the High Court of Justiciary sitting as the Court of Appeal.[27][28][29]

The Inner House is the part of the Court of Session which acts as a court of appeal for cases decided the Outer House[30] and of civil cases from the Sheriff Courts, the Court of the Lord Lyon, Scottish Land Court, and the Lands Tribunal for Scotland.[31] The Inner House always sits as a panel of at least three Senators and with no jury.[32]

Unlike in the High Court of Justiciary, there is a right of appeal to the Supreme Court of the United Kingdom of cases from the Inner House. The right of appeal only exists when the Court of Session grants leave to this effect or when the decision of the Inner House is by majority. Until the Constitutional Reform Act 2005 came into force in October 2009, this right of appeal was to the House of Lords[2] (or sometimes to the Judicial Committee of the Privy Council).

Function

The primary task of the Court of Session is to decide on civil law cases. The court is also the Court of Exchequer for Scotland, a jurisdiction previously held by the Court of Exchequer. (In 1856, the functions of that court were transferred to the Court of Session, and one of the Lords Ordinary sit as a Lord Ordinary in Exchequer Causes when hearing cases therein.) This was restated by the Court of Session Act 1988.[33][34][35]

The Court of Session is also the admiralty court for Scotland,[36] having been given the duties of that court by the provisions of the Court of Session Act 1830.[37] The boundaries of the jurisdiction of the Court of Session in maritime cases is set out in the Scottish Adjacent Waters Boundaries Order 1999.

The Oath of Allegiance is taken by holders of political office in Scotland before the Lord President of the Court of Session at a meeting of the court.[38]

See also

References

  1. ↑ "Judicial Appointments – How are judges appointed?". Judiciary of Scotland. Edinburgh: Judicial Office for Scotland. Retrieved 27 May 2012.
  2. 1 2 "Role of the Supreme Court". Supreme Court of the United Kingdom. Retrieved 2009-09-02.
  3. ↑ "Courts and the Legal System – Civil Courts". Scottish Government. Retrieved 2009-11-06.
  4. 1 2 3 "Court of Session – Introduction". Scottish Court Service. Retrieved 2007-11-23.
  5. ↑ Balfour and Manson LLP (March 2008). "Scottish Civil Courts Review: Response to the Consultation Paper" (PDF). Scottish Court Service. Retrieved 2009-09-02.
  6. ↑ "Civil Legal Assistance: Many more people to get civil legal aid". Scottish Legal Aid Board. Retrieved 2009-09-02. Previously, you couldn't get civil legal aid at all if your disposable income was over £10,306... That limit has more than doubled to £25,000.
  7. ↑ "Judges' Divisions February 2013" (PDF). Judiciary of Scotland. February 2013. Retrieved 2013-02-16.
  8. ↑ "Section 2, Paragraph 1, Judiciary and Courts (Scotland) Act 2008", Acts of the Scottish Parliament 2008 (6), p. 2(1), retrieved 2009-08-29, The Lord President is the Head of the Scottish Judiciary.
  9. ↑ "Section 18, Court of Session Act 1830", Acts of the Parliament of the United Kingdom 69, 1830-07-23, p. 18, Office of lord justice general to devolve on lord president.
  10. ↑ Reid, Kenneth (2000-12-21). A History of Private Law in Scotland. Oxford University Press. ISBN 0-19-829941-9.
  11. ↑ Finlay, John. "Men of Law in Pre-Reformation Scotland". Scottish Historical Review (East Linton: Tuckwell Press) (Monograph no. 9). ISBN 1-86232-165-5.
  12. ↑ Smith, Thomas Broun (1961). British justice: the Scottish contribution. London: Stevens & Sons. p. 54.
  13. ↑ Lord Hope of Craighead (20 October 2008). "King James Lecture – "The best of any Law in the world" – was King James right?" (PDF). United Kingdom Parliament. Retrieved 2009-11-07.
  14. 1 2 Shand, Charles Farquhar; Darling, James Johnston (1848). "Chapter I. Of the institution of the Court". The practice of the Court of Session: on the basis of the late Mr. Darling's work of 1833. Edinburgh: T. & T. Clark.
  15. ↑ Beveridge, Thomas (1826). A practical treatise on the forms of process: containing the new regulations before the Court of session, Inner-house, Outer-house and Bill-chamber; the Court of teinds, and the Jury court. Volume I. Edinburgh: Bell & Bradfute. p. 28.
  16. ↑ "A General History of Scots Law (15th – 18th Centuries)" (PDF). Law Society of Scotland. Retrieved 2013-09-10.
  17. ↑ Reid, Kenneth (2000). A History of Private Law in Scotland. Oxford University Press. ISBN 0-19-829941-9.
  18. ↑ "Court of Session – other series". National Archives of Scotland. Retrieved 2010-08-09.
  19. ↑ Samuel Rosenbaum (1915), "Rule-Making in the Courts of the Empire", Journal of the Society of Comparative Legislation, New Series 15 (2), pp. 132–133, JSTOR 752486
  20. ↑ "Section 5, Court of Session Act 1988", Acts of the United Kingdom Parliament (UK Statute Law Database) 1988 (36), pp. II(5), retrieved 2009-08-29, The Court shall have power by act of sederunt
  21. ↑ "Rules of the Court of Session". Scottish Courts and Tribunals Service. Archived from the original on August 26, 2009. Retrieved 2009-08-31.
  22. ↑
  23. ↑ Robert Wyness Millar (1932). "Civil Pleading in Scotland". Michigan Law Review (The Michigan Law Review Association) 30 (4): 546–547. JSTOR 1280689.
  24. ↑ "Chapter 55 – Causes relating to intellectual property", Rules of the Court of Session (Scottish Courts Service) 2006, p. 55.2, archived from the original on 2008-02-07, retrieved 2009-09-02, All proceedings in the Outer House in a cause to which this chapter applies shall be brought before a judge of the court nominated by the Lord President as the intellectual property judge or, where the intellectual property judge is not available, any other judge of the court (including the vacation judge).
  25. ↑ "Section 28, Court of Session Act 1988", Acts of the Parliament of the United Kingdom (UK Statute Law Database) 1988 (36), p. V(28), retrieved 2009-09-02, Any party to a cause initiated in the Outer House either by a summons or a petition who is dissatisfied with an interlocutor pronounced by the Lord Ordinary may, except as otherwise prescribed, reclaim against that interlocutor within such period after the interlocutor is pronounced, and in such manner, as may be prescribed.
  26. ↑ Thomson, Stephen (2015). The Nobile Officium: The Extraordinary Equitable Jurisdiction of the Supreme Courts of Scotland. Edinburgh: Avizandum.
  27. ↑ "Part V, Court of Session Act 1988", Acts of the Parliament of the United Kingdom (UK Statute Law Database) 1988 (36), p. V, retrieved 2009-09-02, Appeal and Review
  28. ↑ "High Court of Justiciary – Introduction". Scottish Courts Service. Retrieved 2009-09-02. The High Court of Justiciary is Scotland's supreme criminal court… When exercising its appellate jurisdiction it sits only in Edinburgh.
  29. ↑ "Section 228, Criminal Procedure (Scotland) Act 1975", Acts of the Parliament of the United Kingdom (UK Statute Law Database) 1975 (21), p. V(228), retrieved 2009-09-02, Any person convicted on indictment may, with leave granted in accordance with section 230A of this Act, appeal in accordance with the provisions of this Part of this Act, to the High Court
  30. ↑ "Part V, Court of Session Act 1988", Acts of the Parliament of the United Kingdom (Office of Public Sector Information) 1988 (36), p. V, retrieved 2007-11-23
  31. ↑ "Civil Courts and Tribunals". Scottish Government. Retrieved 2007-11-23.
  32. ↑ "Court of Session – Introduction". Scottish Court Service. Retrieved 2007-11-23. Each division is made up of five Judges, but the quorum is three.
  33. ↑ "Exchequer Court (Scotland) Act 1856", Acts of the Parliament of the United Kingdom (UK Statute Law Database) 1856 (56), p. 1, retrieved 2009-09-02, The whole power, authority, and jurisdiction at present belonging to the Court of Exchequer in Scotland, as at present constituted, shall be transferred to and vested in the Court of Session, and the Court of Session shall be also the Court of Exchequer in Scotland.
  34. ↑ "Section 3,Court of Session Act 1988", Acts of the United Kingdom Parliament (Office of Public Sector Information) 1988 (36), p. I(3), retrieved 2007-11-20, One of the judges of the Court who usually sits as a Lord Ordinary shall be appointed by the Lord President to act as Lord Ordinary in exchequer causes, and no other judge shall so act unless and until such judge is appointed in his place
  35. ↑ "Chapter 48, Rules of the Court of Session". Scottish Court Service. Archived from the original on 2008-03-21. Retrieved 2007-11-20. Exchequer causes
  36. ↑ "Section 21, Court of Session Act 1830", Acts of the Parliament of the United Kingdom 69, 1830-06-23, p. 21, retrieved 2009-08-31, the Court of Session shall hold and exercise original jurisdiction in all maritime civil causes and proceedings of the same nature and extent in all respects as that held and exercised in regard to such causes by the High Court of Admiralty before the passing of this Act
  37. ↑ Shand, Charles Farquhar; Darling, James Johnston (1848). The practice of the Court of Session: on the basis of the late Mr. Darling's work of 1833. p. 65. Retrieved 2009-11-18.
  38. ↑ "Schedule, Promissory Oaths Act 1868", Acts of the Parliament of the United Kingdom 72, 1868, p. Schedule, retrieved 2009-09-01, The oath as to England is to be tendered by the Clerk of the Council, and taken in presence of Her Majesty in Council, or otherwise as Her Majesty shall direct. The oath as to Scotland is to be tendered by the Lord President of the Court of Session at a sitting of the Court.

Further reading

External links

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