Court of Session Flashcards
What is the structure of the court of session?
1532 is the conventional date of Court of Session
The structure of the modern court is set out in Court of Session Act 1988 which deals with constitution and powers of court but this is not exhaustive. It has adherent jurisdiction to regulate its own procedure.
The 1988 act allows a maximum of 34 Senators
Each judge holds an equal status as a senator of the college of justice.
Outer House - first instance
Inner House - appeals
What is the structure of the outer house?
24 Lords Ordinary (judges of the court of session)
The Lord Ordinary sits for the most part as a judge of first instance. If his/her judgement is not reclaimed (appealed) it is a judgement of the court of session as a whole.
First instance business
Civil Proofs/ jury trials - these are at present only competent in the court of session. This will change when civil jury trials for personal injury cases returns to the sheriff court as a consequence of the courts reform act.
The LO will also hear judicial review First Hearings and procedural roll debates.
Procedure roll discussion
The LO will also hear hearings in petitions and interlocutory business.
Straight forward procedural business is often allocated to the LO prior to his/her main business of the day. This involves hearings such as bi-order adjustment roll, motion roll, first orders of petitions and motions of calling.
The motion roll involves the hearing of motions in a similar manner to the sheriff court.
A bi-order hearing is a hearing fixed by the court in order to manage the procedural progress.
A first orders hearing takes place at the outset of a petitions process.
The allocation of business to each judge sitting in the outer house is carried out by the keeper of the rolls (official rather than judge acting under authority of lord president).
These can be automatically assigned as some judges are nominated for a specific purpose, e.g.:
Commercial judges (also deal with insolvency)
Intellectual property judges
Judicial review judges
Lord Ordinary in Exchequer Causes (deals with certain tax cases)
Lord Ordinary in Teind Causes (almost obsolite)
Judges nominated under the Arbitration (Sco) Act 2010
Other appointments (e.g. Chairman of the scottish law commission)
What is the structure of the inner house?
Comprises the first division and second division.
With the exception of certain provisions, the business of the inner house comprises Appeals from outer house and statutory tribunals.
Equal standing - each division has equal authority.
First Division – Lord President plus 5 other judges
Second Division – Lord Justice Clerk plus 5 other judges (most senior)
Sitting as court of 3 (usually as this constitutes a quorum of each division). Each division now normally sits as a court of three.
Inner house judges are not prevented from sitting in the outer house where circumstances dictate. It is not uncommon for inner house judges to sit for the disposal of outer house business in order to ensure that the volume of business is dealt with.
Any judge can be called upon to sit in the inner house.
Extra Division - this is also regularly constituted in order to manage the volume of inner house business.
The LP is empowered to form an extra division constituting of 3 judges and the most senior judge present usually presides over an extra division.
Position of presiding judge - in any division they have an equal vote as the other judges. They sign the interlocutors and have his or her signature as IPD:
In praestentia dominorum
In an action involving particular difficulty or legal subject matter, where it is appropriate to reconsider inner house authority,t he judges may appoint the case to be heard by a larger court (e.g. 5 to 7 judges).
There is no specialisation between divisions and this is allocated by the keeper of the rolls.
The Cos of session judges also constitute the various statutory courts:
Statutory jurisdictions:
Lands Valuation Appeal Court
Registration Appeal Court - registration of voters (3 judges, one extra division one inner and one outer)
Election Petition Court (judges nominated by Lord Presient - 2 judges)
Teind Court - deals with cases concerning ground burdens - court is a quorum of 5 made up of judges of the inner house and LO of teind causes. This has been abolished and its jurisdiction is considerably reduced.
What are the departments of court?
Each department is under the charge of an officer of the court under direction of principal clerk who acts in consolation with lord president.
Office hours are monday - thursday 9-5 and friday 9-430 and closed on weekends.
General structure
General Department - under the supervision of the deputy principal clerk of session and is in the charge of the civil deputy clerk. The pleadings and other documents are collectively called the process and are lodged in the general department processes in following types of action:
Causes initiated by Summons, except commercial actions
Appeals from inferior courts - e.g. Stated and special cases
Causes transmitted from sheriff court
Lands Valuation appeals
Petition Department - this is under the supervision of the deputy principal clerk of session and in the charge of the depute clerk. They lodge in the petition department all causes lodged by petition (form of a writ found only in the court of session)
Keeper of Rolls and functions of Rolls Department - under supervision of deputy principal clerk and in the charge of the keeper of the rolls.the keeper is responsible for keeping the rolls of the court in consolation of the LP the LJC and the Lord principal clerk. The keepers functions are to manage the business of the court and to allocate the time of the judges each day and across a court year. The keeper also arranges for the publication of the rolls of court to inform the public and practitioners about the business of the court. The weekly roll is published each thursday and shows business allocated to the following week.
It also publishes the acts of seduernat, practice notes and directions which regulate the procedure before the court and admnistartive arrangements.
There is also a daily roll which has the allocated business for the succeeding day which is now issued electronically.
Extractor and functions of Extracts Department - under charge of the principal extractor who is responsible for extracting acts and decrees of the court and is the keeper of the register of acts of decrees, the register of citations and exectuion of diligence and decrees of constituorial causes. They are responsible for the registration of commercial actions. Their most important function is the issue of extract decrees which is the parties authority to enforce the courts determination of a given action.
Teind Office - under the charge of a clerk however the jurisdiction of this court is significantly reduced and its continuation is open to question.
What are the types of summons and petition in the court of session?
There are two principal forms of first procedure in the court of session. These are firstly ordinary actions and secondly petition procedure.
These two distinct forms of procedure exists because the CoS has a wider ranging jurisdiction and the distinctions are long standing:
“The object of a Summons is to enforce a pursuer’s legal right against a defender who resists it, or to protect a legal right which the defender is infringing”
“The object of a Petition, on the other hand, is to obtain from the administrative jurisdiction of the court power to do something or to require something to be done, which is just and proper to be done, but which the petitioner has no legal right to do or to require, apart from judicial authority.”
Report of the Royal Commission on the Court of Session (1927) (Cmd 2801) para 1.49
In an ordinary action the claimant is the pursuer who comes to court seeking to enforce a right. In such an action the initiating writ is called a summons.
In a petition by contrast the claimant is called the petitioner and the process evokes a power which the court has to assist a various class of claimant, rather than involving the assertion by the claimant of a right. The power the court is invited to exercise is under statute or common law e.g. Judicial review, insolvency, applications under Trusts (S) Act, adoption cases and international child abduction. In such proceedings the initiating writ is called a petition.
What proceedings are exclusive to the court of session?
These are competent only in the court of session.
Petitions for judicial review
Applications under s 45 Court of Session Act - for an order requiring implementation of a statutory duty.
Petitions under Trusts (Scotland) Acts
Petitions to the nobile officium - the courts extra ordinary power to provide an equitable remedy in unusual circumstances or where there has been an inexcusable failure and no other remedy is available.
What are the other aspects of jurisdiction?
Sheriff court has exclusive jurisdiction in relation to sums less than £100,000
Privative jurisdiction of sheriff
How is practice and procedure governed in the court of session?
Procedure in CoS is governed by the Rules of the Court of Session 1994 as amended from time to time by acts of sedeurant which is a form of subordinate legislation by the court.
In addition the court from time to time makes practice notes which are printed in the Parliament House Book and available on their website.
Pleadings drafted by counsel or solicitors with extended rights of audience
Although the forms are different the same rules apply for drafting etc.
Rules of pleading are the same
Procedure trialled in Court of Session is often extended to sheriff courts - e.g. Personal injury.
