Court Of Session
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The Court of Session is the highest national court of
Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...
in relation to civil cases. The court was established in 1532 to take on the judicial functions of the royal council. Its jurisdiction overlapped with other royal, state and church courts but as those were disbanded, the role of the Court of Session ascended. The Acts of Union which established the
Kingdom of Great Britain Great Britain, also known as the Kingdom of Great Britain, was a sovereign state in Western Europe from 1707 to the end of 1800. The state was created by the 1706 Treaty of Union and ratified by the Acts of Union 1707, which united the Kingd ...
on 1 May 1707 provided that the court will "remain in all time coming" as part of Scotland's separate
legal system A legal system is a set of legal norms and institutions and processes by which those norms are applied, often within a particular jurisdiction or community. It may also be referred to as a legal order. The comparative study of legal systems is th ...
. Cases at first instance are heard in the
Outer House The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted ...
by a single judge. The
Inner House The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is th ...
hears appeals from the Outer House and all other courts and tribunals in Scotland. Only Scottish advocates and solicitor-advocates may argue cases before the court. The Court of Session has sat at Parliament House since 1707. The
Scottish Courts and Tribunals Service The Scottish Courts and Tribunals Service (SCTS) () is an independent Public bodies of the Scottish Government, public body which is responsible for the administration of the Courts of Scotland, courts and tribunals of Scotland. The Service is ...
and the Principal Clerk administers the court and judges. Decisions of the court are subject to review by the
European Court of Human Rights The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
and on appeal, the UK Supreme Court can overturn them altogether. These courts lie outwith Scotland and so the Court of Session is the supreme court of Scotland for civil cases. Early judges of the court recorded their decisions and codified the law at a time early in the development of Scots law, leading to the development and distinct character of
Scots law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
. In modern times, the court has ruled on issues of public importance and proceedings of its Inner House have been streamed and recorded since 2023. The court now hears cases from any part of Scotland on any issue, other than criminal cases, which belong to its sister court, the High Court of Justiciary. The Court of Session is the Royal Court of Scotland, hearing civil cases in the name of the
Monarch A monarch () is a head of stateWebster's II New College Dictionary. "Monarch". Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest ...
. Judges are termed Lords of Council and Session and appointed simultaneously to the
College of Justice The College of Justice () includes the Supreme Courts of Scotland, and its associated bodies. The constituent bodies of the national supreme courts are the Court of Session, the High Court of Justiciary, the Office of the Accountant of Court, ...
and the High Court of Justiciary. Their number is fixed by statute, currently to 37, although a number of temporary judges assist the court with its workload. The court is led by the
Lord President of the Court of Session The Lord President of the Court of Session and Lord Justice General () is the most senior judge in Scotland, the head of the judiciary, and the presiding judge of the College of Justice, the Court of Session, and the High Court of Justiciary. ...
who also heads the Scottish judiciary.


History


Establishment of the court

The creation of the court was part of wider efforts to improve and reform access to justice in Scottish society. By 1153, the local feudal courts had been established. Depending on the part of Scotland where the cause originated, justice might also be available from the local baron or lord of regality, sitting with the king's authority. Parties often found these courts ineffectual. Appeal of the decisions of local courts lay to the king and the Lords of Council, sitting together as the King's Council, or the Parliament of Scotland. The burden on these bodies of hearing appeals led to a growing effort to divest their judicial functions. James I decided that a Session would be held periodically to hear appeals and decide cases. It came to be known as the Auld Session and sat three times a year, comprising the Lord Chancellor and "certain discreet persons of the Three Estates" as the Lords of Session. The Sessions had universal jurisdiction to hear disputes formerly arguable to the king's Council. According to the Stair Memorial Encyclopedia, they were so named because the Sessions were "a court and €¦the term 'session' was used to distinguish this new court from the royal court which was peripatetic, whereas the Session sat at such places as the king appointed." By 1438, the Session was convening only yearly and it ceased altogether at a time between 1457 and 1468, with its function transferring back to the king's council and decided by the Lords of Council. The voluntary and unpaid nature of the office of Lord of Session was likely responsible for the Auld Session's failure. The work of the Session continued under the auspices of the king's council and in 1491, an act proclaimed that "the Chancellor with certain Lords of Council or else the Lords of Session sit for the administration of justice thrice each year… so that justice may be put to due execution to all parties complaining". These sittings, or 'sessions', became more regular. Edinburgh was fixed as the location for the sessions, addressing a frustrating feature of the royal courts – litigants would summon an opponent to appear at one place on one date, but by that day the king may have decided to move onto another location. The summons would fail and the litigant would have to spend considerable money both following the court and issuing a fresh summons. The Lords of Council and the Lords of Session became commingled, and the modern court's judges are still styled ''Lords of Council and Session''. In 1531, it was decided to create a permanent, dedicated, national court of Scotland.
James V James V (10 April 1512 – 14 December 1542) was List of Scottish monarchs, King of Scotland from 9 September 1513 until his death in 1542. He was crowned on 21 September 1513 at the age of seventeen months. James was the son of King James IV a ...
obtained a
papal bull A papal bull is a type of public decree, letters patent, or charter issued by the pope of the Catholic Church. It is named after the leaden Seal (emblem), seal (''bulla (seal), bulla'') traditionally appended to authenticate it. History Papal ...
in 1531 and established the College of Justice in 1532,College of Justice Act 1532 (c. 2) basing it on the Parisian ''parlement''. The council lords became members of the College of Justice and judges of the new Court of Session. The Lord Chancellor of Scotland presided over the court. The court began providing free access to a lawyer, the ''advocatus pauperum'', in 1534. Initially, the court's judiciary numbered fourteen and was split evenly between clerics and laymen. Judges were at first selected by the king and council, but the court grew anxious at the quality of those selected, and from 1579 nominees had to be confirmed by the existing judges.


Early operation

On its founding, the court had jurisdiction over "all civil actions". Consistorial and succession causes were moved from the church courts to the Court of Session after the Reformation. As the court's jurisdiction grew, it began to direct that smaller causes be heard in the local courts, with the Court of Session acting as an appeal court. The court also developed the doctrine of '' nobile officium'' under which it had an inherent power to provide a remedy for any injustice not already provided for by Scots law. Scots law did not develop a distinction between its common law and equitable principles partly due to the ''nobile officium''. The Courts Act 1672 allowed for five of the Lords of Session to be appointed as Lords Commissioners of Justiciary, and as such becomes judges of the High Court of Justiciary. The High Court of Justiciary is the supreme criminal court of Scotland. Previously the Lord Justice General, the president of the High Court, had appointed deputes to preside in his absence. From 1672 to 1887, the High Court consisted of the Lord Justice General, Lord Justice Clerk, and five Lords of Session. In 1640, membership of the court was restricted to laymen only, by withdrawing the right of churchmen to sit in judgement of legal causes. The number of laymen was increased to maintain the number of lords in the court.


Towards the modern day

The Court of Session is explicitly preserved "in all time coming" in Article XIX of the
Treaty of Union The Treaty of Union is the name usually now given to the treaty which led to the creation of the new political state of Great Britain. The treaty, effective since 1707, brought the Kingdom of England (which already included Wales) and the Ki ...
between England and Scotland, subsequently passed into legislation by the Acts of Union in 1706 and 1707 respectively. The office of Extraordinary Lord of Session was abolished in 1762. Outer House judges continue to be addressed in the Inner House as "the Lord Ordinary", a remnant of the historical distinction between the Extraordinary Lords of Session and the other or 'Ordinary' ones. Several significant changes were made to the court during the 19th century, with the Court of Session Act 1810 formally dividing the Court of Session into the
Outer House The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted ...
(with first-instance jurisdiction before a Lord Ordinary) and
Inner House The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is th ...
(with
appellate jurisdiction An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to hear a case upon appeal from a trial court or other lower tribunal. Appellat ...
.) Cases in the Outer House were to be heard by Lords Ordinary who either sat alone or with a jury of twelve. Cases in the Inner House were to be heard by three Lords of Council and Session, but significant or complicated cases were to be heard by five or more judges. A further separation was made in 1815, by the Jury Trials (Scotland) Act 1815 ( 55 Geo. 3. c. 42), with the creation of a lesser Jury Court to allow certain civil cases to be tried by jury. In 1830 the Jury Court, along with the Admiralty and
Commissary A commissary is a government official charged with oversight or an ecclesiastical official who exercises in special circumstances the jurisdiction of a bishop. In many countries, the term is used as an administrative or police title. It often c ...
courts, was absorbed into the Court of Session following the enactment of the Court of Session Act 1830. In 1834, the
remuneration Remuneration is the pay or other financial compensation provided in exchange for an employee's ''services performed'' (not to be confused with giving (away), or donating, or the act of providing to). Remuneration is one component of reward managem ...
and
working conditions {{Short description, 1=Overview of and topical guide to working time and conditions The following Outline (list), outline is provided as an overview of and topical guide to working time and conditions: Legislation * See :Labour law * Collective ...
were a matter of public discussion and debate in the
House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...
. On 6 May 1834 Sir George Sinclair addressed the House of Commons to plead for an increase in the salaries of the senators, noting that "a Civil Judge in the Supreme Court in Scotland received only " and the masters in the
Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
were paid . A select committee was appointed to investigate the matter. In October 1834, ''
The Spectator ''The Spectator'' is a weekly British political and cultural news magazine. It was first published in July 1828, making it the oldest surviving magazine in the world. ''The Spectator'' is politically conservative, and its principal subject a ...
'' reported on the conflicting views around the remuneration and working conditions of the judges of the Court of Session, with conflicting views being presented in response to the ''Report on the Scotch Judges' Salaries''. ''The Spectator'' reported the arguments made by Sir William Rae, Lord Advocate, that the judges of the Court of Session had considerable duties, which he listed as: The select committee's Report recommended that the salaries of the Lord President, Lord Justice Clerk and remaining senators should be increased, and also recommended that all senators should become ''Lords Commissioners of Justiciary''. The recommended salaries were: * Lord President: increase from to * Lord Justice Clerk: increase from to * Senator: increase from to However, ''The Spectator'' was very critical of the actual amount of work done by the judges of the court, noting that there was much public criticism of their effectiveness. The article noted that the judges were entitled to 7 months
vacation A vacation (American English) or holiday (British English) is either a leave of absence from a regular job or school or an instance of leisure travel away from home. People often take a vacation during specific holiday observances or for sp ...
in each year. ''The Spectator'' also asserted that civil justice was out of the reach of the poor in Scotland. In 1887 all of the Lords of Session were made Lords Commissioners of Justiciary, and thus judges of the High Court of Justiciary, following the passage of the Criminal Procedure (Scotland) Act 1887 ( 50 & 51 Vict. c. 35).


Work

Decisions of the Court of Session are influential or binding on all the courts of Scotland, and the court handles all manner of civil business, from commercial and contract disputes to family and taxation. Appeal lies to Supreme Court of the United Kingdom and may be taken only with the permission of either court. The Court of Session and the local
sheriff court A sheriff court () is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to , and with the jurisdiction to hear any criminal case except treason, murder, and ra ...
s of Scotland have
concurrent jurisdiction Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. United States In the United States, state courts are presumed to have concurrent jurisdiction in federal matt ...
for all cases with a monetary value in excess of ; the pursuer is given first choice of court. The majority of complex, important, or high value cases are brought in the Court of Session. The sheriff courts and
Sheriff Personal Injury Court The Sheriff Personal Injury Court is a courts of Scotland, Scottish court with Exclusive jurisdiction, exclusive competence over Cause of action, claims relating to personal injury where the case is for a work-related accident claim in excess of ...
may remit cases to the Court of Session at the presiding sheriff's request.


Civil cases

The Court of Session is the supreme civil
court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
of
Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...
, and it shares
concurrent jurisdiction Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. United States In the United States, state courts are presumed to have concurrent jurisdiction in federal matt ...
with the local
sheriff court A sheriff court () is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to , and with the jurisdiction to hear any criminal case except treason, murder, and ra ...
s over all cases with a value of more than (including personal injury claims.) Where a choice of jurisdiction exists between the Court of Session and the sheriff courts, including the
Sheriff Personal Injury Court The Sheriff Personal Injury Court is a courts of Scotland, Scottish court with Exclusive jurisdiction, exclusive competence over Cause of action, claims relating to personal injury where the case is for a work-related accident claim in excess of ...
, it is for the pursuer to decide which court to raise the action in. The court sits in Parliament House in
Edinburgh Edinburgh is the capital city of Scotland and one of its 32 Council areas of Scotland, council areas. The city is located in southeast Scotland and is bounded to the north by the Firth of Forth and to the south by the Pentland Hills. Edinburgh ...
and is both a trial court and a court of
appeal In law, an appeal is the process in which Legal case, cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of cla ...
.


Exchequer cases

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 sits as ''Lord Ordinary in Exchequer Causes'' when hearing cases therein.) This was restated by the Court of Session Act 1988.


Admiralty cases

The Court of Session is also the
admiralty court Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all admiralty law, maritime contracts, torts, injuries, and offenses. United Kingdom England and Wales Scotland The Scottish court's earliest records, ...
for Scotland, having been given the duties of that court by the provisions of the Court of Session Act 1830. The boundaries of the jurisdiction of the Court of Session in maritime cases were specified in 1999 by an
Order in Council An Order in Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom, this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council ('' ...
: the Scottish Adjacent Waters Boundaries Order 1999.


''Nobile officium''

The jurisdiction of the Court of Session extends beyond statutory and common law powers, with the Court having an equitable and inherent jurisdiction called the ''nobile officium'', unique among British courts. The ''nobile officium'' enables the court to provide a
legal remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its ...
where
statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
or the
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
are silent, and to prevent mistakes in procedure or practice that would lead to injustice. The exercise of this power is limited by adherence to
precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
, and when
legislation Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred ...
or the common law do not already specify the relevant remedy. Thus, the court cannot set aside a statutory power, but can deal with situations where the law is silent, or where there is an omission in statute. Such an omission is sometimes termed a ''casus improvisus''. The ''nobile officium'' was used to implement recognition of an order of the High Court of Justice of England and Wales for the placement of children in secure accommodation in Scotland, in the case of ''Cumbria County Council, Petitioners 016CSIH 92''. An application was made to the Court of Session under the ''nobile officium'' by Cumbria County Council, Stockport Metropolitan Council, and Blackpool Borough Council on behalf of four children. There was insufficient accommodation in England to house the children, so the councils sought to place them in suitable Scottish accommodation. However, legislation was silent on the cross-border jurisdiction of such orders as made by the High Court of Justice. Nonetheless, equivalent orders made by a Scottish court were enforceable in
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
. Thus, the Court of Session found, using its inherent powers, that the orders could be applied as though they had been issued by the Court of Session itself. In September 2019 UK Prime Minister
Boris Johnson Alexander Boris de Pfeffel Johnson (born 19 June 1964) is a British politician and writer who served as Prime Minister of the United Kingdom and Leader of the Conservative Party (UK), Leader of the Conservative Party from 2019 to 2022. He wa ...
said that he would "rather be dead in a ditch" than apply for an extension to Britain's application to leave the European Union (
Brexit Brexit (, a portmanteau of "Britain" and "Exit") was the Withdrawal from the European Union, withdrawal of the United Kingdom (UK) from the European Union (EU). Brexit officially took place at 23:00 GMT on 31 January 2020 (00:00 1 February ...
), due on 31 October, although the UK parliament had required him to do so under circumstances laid out in the Benn Act. Following this, an application was made to the Court of Session to require the Prime Minister to sign a letter requesting extension if no exit deal could be agreed in time. The applicants hoped that the unique power of ''nobile officium'' would enable the court to send the article 50 extension letter on Johnson's behalf, if he declined to do so.


Appellate jurisdiction

Appeals in the Court of Session are generally heard by the Inner House before three judges, although in important cases in which there is a conflict of authority a court of five judges or, exceptionally, seven, may be convened. The Inner House is sub-divided into two divisions of equal authority and jurisdiction - the First Division, headed by the Lord President; and the Second Division headed by the Lord Justice Clerk. The courts to hear each case are, ordinarily, drawn from these divisions. When neither is available to chair a hearing, an Extra Division of three senators is summoned, chaired by the most senior judge present; due to pressure of business the Extra Division sits frequently nowadays. Until 2015 civil cases that went to a full proof (hearing) in the sheriff courts of Scotland could be appealed by right to the
Inner House The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is th ...
of the Court of Session.
Appellant In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
s could take the appeal to a
sheriff principal In Scotland a sheriff principal (''pl''. sheriffs principal) () is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the ...
for an initial appeal, and then onto the Inner House, or they could take the appeal directly to the Inner House. However, the appellate jurisdiction of sheriffs principal for all civil cases (including summary cause and small claims actions) was transferred to the
Sheriff Appeal Court The Sheriff Appeal Court () is a court in Scotland that hears appeals from summary criminal proceedings in the sheriff courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the sheriff co ...
following passage of the
Courts Reform (Scotland) Act 2014 The Courts Reform (Scotland) Act 2014 (asp 18) is an Act of the Scottish Parliament passed in October 2014 to improve access to the civil justice system and while making the Court of Session The Court of Session is the highest national co ...
. The 2014 Act also modified the appellate jurisdiction of the Inner House with civil appeals from the sheriff courts being heard by an appeal sheriff sitting in the Sheriff Appeal Court. Such appeals are binding on all sheriff courts in Scotland, and appeals can only be remitted (transferred) to the Inner House where they are deemed to be of wider public interest, raise a significant point of law, or are particularly complex:


Oath of Allegiance

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.


Acts of Sederunt

Civil procedure in Scotland is regulated by the Court of Session through Acts of Sederunt, which are subordinate legislation and take legal force as Scottish statutory instruments. The power to enact Acts of Sederunt is granted by the Courts Reform (Scotland) Act 2014 and the Tribunals (Scotland) Act 2014, which replaced powers regulated by the Court of Session Act 1988 and the Sheriff Courts (Scotland) Act 1971. These are generally incorporated into the Rules of Court, which are published by the
Scottish Courts and Tribunals Service The Scottish Courts and Tribunals Service (SCTS) () is an independent Public bodies of the Scottish Government, public body which is responsible for the administration of the Courts of Scotland, courts and tribunals of Scotland. The Service is ...
and form the basis for Scots civil procedure. Acts of Sederunt regulate civil procedure in the Court of Session, the sheriff courts of Scotland (including the Sheriff Appeal Court and Sheriff Personal Injury Court), and in the tribunals of Scotland. The Court of Session can amend or
repeal A repeal (O.F. ''rapel'', modern ''rappel'', from ''rapeler'', ''rappeler'', revoke, ''re'' and ''appeler'', appeal) is the removal or reversal of a law. There are two basic types of repeal; a repeal with a re-enactment is used to replace the law ...
any enactment, including primary legislation, if it relates to matters an ''Act of Sederunt'' may cover. Rules for regulating civil procedure are decided upon by the Scottish Civil Justice Council before being presented to the Lords of Session for decision; the Lords of Session may approve, amend or reject the rules so presented. An Act of Sederunt, Act of Sederunt (Regulation of Advocates) 2011, devolves authority to the Faculty of Advocates to regulate admission to practice as an
advocate An advocate is a professional in the field of law. List of country legal systems, Different countries and legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a ba ...
before the Court of Session and the High Court of Justiciary; advocates are notionally officers of the court, and are ''de jure'' appointed by the court.


Structure

The court is divided into the Inner House of twelve senators, which is primarily an appeal court, and the
Outer House The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted ...
, which is primarily a
court of first instance A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually heard by higher courts with the power of appellate review (appellate courts). ...
. The Inner House is further divided into divisions of six senators: the first division, presided over by the Lord President, and second division, presided over by the Lord Justice Clerk. Cases in the Inner House are normally heard before a bench of three senators, though more complex or important cases are presided over by five senators. On very rare occasions the whole Inner House has presided over a case. Outer House cases are heard by a single senator sitting as a Lord Ordinary, occasionally with a jury of twelve. The current Lord President is Lord Carloway. In addition to the 35 senators, a number of temporary judges have been appointed to the court, typically from serving sheriffs and sheriffs principal or
advocate An advocate is a professional in the field of law. List of country legal systems, Different countries and legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a ba ...
s in private practice.


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. Criminal
appeal In law, an appeal is the process in which Legal case, cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of cla ...
s in Scotland are handled by the High Court of Justiciary sitting as the
Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
. The Inner House is the part of the Court of Session which acts as a
court of appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...
for cases decided the Outer House and of civil cases from the sheriff courts, the Court of the Lord Lyon,
Scottish Land Court The Scottish Land Court () is a Courts of Scotland, Scottish court of law based in Edinburgh with subject-matter jurisdiction covering disputes between landlords and tenants relating to Tenant farmer, agricultural tenancies, and matters relat ...
, and the
Lands Tribunal for Scotland The Lands Tribunal for Scotland () is a tribunal with jurisdiction over land and property in Scotland, relating to title obligations, compulsory purchase and other private rights. The Tribunal was established under the Lands Tribunal Act 194 ...
. The Inner House always sits as a panel of at least three senators and with no jury. 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 The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
(or sometimes to the
Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 August ...
).


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 courts, the court of first instance for civil causes in the court system of Scotland. Judges in the Outer House are referred to as ''Lord or Lady ame', or as ''Lord Ordinary''. The Outer House is superficially similar to the High Court in England and Wales, and in this house judges sit singly—and with a
jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...
of twelve in personal injury or defamation actions.
Subject-matter jurisdiction Subject-matter jurisdiction, also called jurisdiction ''ratione materiae'', is a legal doctrine regarding the ability of a court to lawfully hear and adjudicate a case. Subject-matter relates to the nature of a case; whether it is criminal, ci ...
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. 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. 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.


Other sittings

The court sits as the Lands Valuation Appeal Court is a Scottish civil court, composed of three Court of Session judges, and established under Section 7 of the Valuation of Lands (Scotland) Amendment Act 1879. It hears cases where the decision of a local Valuation Appeal Committee is disputed. The senators who make up the Lands Valuation Appeal Court was specified in 2013 by the Act of Sederunt (Lands Valuation Appeal Court) 2013, which has both Lord Carloway (Lord President) and Lady Dorrian (Lord Justice Clerk) as members with a further four senators specified.


Administration


Legal aid

Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little
disposable income Disposable income is total personal income minus current taxes on income. In national accounting, personal income minus personal current taxes equals disposable personal income or household disposable income. Subtracting personal outlays ( ...
for cases in the Court of Session.


Rights of audience

Members of the Faculty of Advocates, known as advocates or
counsel A counsel or a counsellor at law is a person who gives advice and deals with various issues, particularly in legal matters. It is a title often used interchangeably with the title of ''lawyer''. The word ''counsel'' can also mean advice given ...
, and as of 1990 also some solicitors, known as solicitor-advocates, have practically exclusive rights of audience in the court. Barristers from
England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
have no right of audience, which caused controversy in 2011 (over an appeal from an immigration tribunal) and again in 2015 (over an appeal from a tax tribunal) when barristers recognised by the General Council of the Bar were denied the right to take an appeal on behalf of clients they had represented at tribunal.


Principal Clerk

The administration of the court is part of the Scottish Courts and Tribunals Service, and is led by the
Principal Clerk of Session and Justiciary The Principal Clerk of Session and Justiciary is the clerk of court responsible for the administration of the Supreme Courts of Scotland and their associated staff. The Keeper of the Signet grants a commission to the Principal Clerk of Session ...
. She is responsible for the administration of the Supreme Courts of Scotland and their associated staff. Gillian Prentice has been the Principal Clerk since June 2018.


Judges

The court's president is the Lord President, the second most senior judge is the Lord Justice Clerk, with a further 33 senators of the College of Justice holding office as Lords of Council and Session. The total numbers of judges is fixed by Section 1 of the Court of Session Act 1988, and subject to amendment by Order in Council. Judges are appointed for life, subject to dismissal if they are found unfit for office, and subject to a compulsory retirement age of 75. Temporary judges can also be appointed. 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''. There are thirty-four judges, 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.


Appointment and removal

To be eligible for appointment as a senator, or temporary judge, a person must have served at least five years as sheriff or sheriff principal, been an advocate for five years, a
solicitor A solicitor is a lawyer who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to p ...
with five years rights of audience before the Court of Session or High Court of Justiciary, or been a Writer to the Signet for ten years (having passed the exam in civil law at least two years before application). Appointments are made by the
King King is a royal title given to a male monarch. A king is an Absolute monarchy, absolute monarch if he holds unrestricted Government, governmental power or exercises full sovereignty over a nation. Conversely, he is a Constitutional monarchy, ...
on the recommendation of the First Minister of Scotland who receives recommendations from the Judicial Appointments Board for Scotland. The Judicial Appointments Board has a statutory authority for making recommendations under Sections 9 to 27 of the Judiciary and Courts (Scotland) Act 2008 (as amended by the Courts Reform (Scotland) Act 2014). Appointments to the Inner House are made by the Lord President and Lord Justice Clerk, with the consent of the Scottish Ministers. The Lord President, Lord Justice Clerk and other senators can be removed from office after a tribunal has been convened to examine their fitness for office. The tribunal is convened on the request of the Lord President, or in other circumstances that the First Minister sees fit. However, the First Minister must consult the Lord President (for all other judges) and the Lord Justice Clerk (when the Lord President is under investigation.) Should the tribunal recommend their dismissal the
Scottish Parliament The Scottish Parliament ( ; ) is the Devolution in the United Kingdom, devolved, unicameral legislature of Scotland. It is located in the Holyrood, Edinburgh, Holyrood area of Edinburgh, and is frequently referred to by the metonym 'Holyrood'. ...
can resolve that the First Minister make a recommendation to the Monarch.


Lord President

The Lord President is the most senior judge of the Court of Session, and is also president of the First Division of the Inner House. The Lord Justice Clerk is the second most senior judge of the Court of Session, and deputises for the Lord President when the Lord President is absent, unable to fulfil his duties, or when there is a vacancy for Lord President. The Lord Justice Clerk is president of the 2nd Division of the Inner House.


Inner House


Outer House


See also

* Bill Chamber * Office of the Accountant of Court * Senators of the College of Justice * Historic list of senators of the College of Justice * List of Scottish legal cases


Notes


References


Further reading

* * * * * *


External links


Scottish Courts and Tribunals Service (SCTS)

Court of Session Digital Archive
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Faculty of Advocates

Scottish Legal Aid Board
{{DEFAULTSORT:Court Of Session 1532 establishments in Scotland 16th century in Scotland Appellate courts Civil law (common law) Royal Mile College of Justice Privy Council of Scotland Courts and tribunals established in 1532