Jurisdiction I and II Flashcards
What is the basic rule of jurisdiction?
Without jurisdiction the court cannot competently hear an action.
What is pars iudicis?
Whether the court has jurisdiction is pars iudicis - so while pursuer raises action and defender depends it, one party may not notice that court has no jurisdiction but the court itself can say.
Unlike other questions of law this is a question the court can raise by itself and does not require the parties to do so (pars iudicis).
What are the rules on jurisdiction?
In terms of the Sheriff court OCR7.2(2) the sheriff shall not grant decree unless it appears ex facie of the initial writ that a ground of jurisdiction exists under the civil jurisdiction and judgements act 1982.
Specific averments required in initial writ about basis of jurisdiction.
Sheriff needs an indication of what the grounds of jurisdiction is in terms of the 1982 Act. Your initial writ should contain the basis of jurisdiction. If there is a denial by defender then there has to be a determination.
What are the questions to ask on jurisdiction?
Does the court have power to try the case and make an enforceable order?
Certain types of case only brought in civil or criminal courts.
There is a criminal and civil jurisdiction
Within civil context there are different types of courts for different types of dispute.
The second question is whether dispute should be heard in scottish court or elsewhere - e.g. Tribunal, court of session, sheriff court, lands court, lands tribunal, other tribunal
What is the appropriate form of procedure?
One way jurisdiction is determined is by reference to the subject matter of the cause.
If you can identify the precise remedy being sought that will tell you what jurisdiction to look at.
There is not much point asking scottish court to interdict someone over whom the scottish court has no power.
Jurisdiction issues do arise.
Must identify the subject matter, private or public law? Contract, delict, commercial, insurance, etc.
What is the remedy? Is it payment of money?
Does the court have authority over the defender?
These all give indication towards question of jurisdiction.
There are areas between Sh Ct and Court of Session where CoS has exclusive jurisdiction
Does the court of session have exclusive jurisdiction?
Does another court or tribunal have exclusive jurisdiction?
Must bring dispute in the right court.
The court of session has a certain jurisdiction inherent in its constitution as a court.
By contrast, the sheriff court and tribunals are entirely covered by statute.
What are the main sources for sheriff court jurisdiction?
- Sheriff courts (S) Act 1907, 1971 (which will be repealed when courts reform (S) Act 2015 comes into force).
^These are contained in the Sh Ct Rules
There is also practical information on scotcourts.gov.uk including address finder to locate towns in jurisdiction of which courts.
What are the sheriffdoms in scotland?
There are 6 in scotland:
- Grampian, Highland and Islands
- Tayside, Central and Fife
- Lothian and Borders
- Glasgow and Strathkelvin
- North Strathclyde
- South Strathcyde, Dumfries and Galloway
s40 of Courts Reforms (S) Act 2014
In terms of s40 of Courts Reforms (S) Act 2014: all sheriffdoms include…
This is most relevant in conveyancing disputes or land.
Sheriff also has jurisdiction for injuries sustained in air…
What is the “all Scotland” jurisdiction of Sheriffs?
Important introduction by s41(1) and s42 of 2014 Courts Reform (S) Act
On their appointment, full-time sheriffs have jurisdiction to sit in sheriffdom by queen’s commission.
In terms of s41(1) the scottish ministers may be order provide that the jurisdiction of a specified sheriff sitting in a specialised court extends territorially for the purpose of dealing with specified civil proceedings. Here the intention is to facilitate centralisation of certain types of business and provide for sheriffs dealing with it.
Provision is made for all-scotland personal injury court which sits in edinburgh and a number of sheriffs have been nominated to sit in this court.
Although centralisation is the aim, an order under s41(1) does not influence the jurisdiction of any other sheriffdom to deal with the proceedings/disputes specified.
The all-scotland jurisdiction is thus in addition to and not in substitution for the existing jurisdiction of the sheriff court. It simply extends the territorial authority of given sheriffs.
What is Privative jurisdiction?
This means you cannot competently raise an action with a monetary conclusion for less than £100,000 in the court of session.
As changed by Courts Reform (S) Act 2014, s39(1) coming into effect in september 2015.
How do you determine the value?
How do you determine this?
If there is a money value you look at the aggregate value of the money claim not including interest or aggregate expenses.
Where there is no monetary value e.g. Actions of accounting and decorator are deemed to be over limit and do not need to be approached in the same way
It does not matter if you sue for £15,000 and ultimately get a decree for £5,000, the court still have jurisdiction to hear your claim but there may be a penalty of expenses for the final value of your claim
Equally, if you raise an ordinary action and get less than the ordinary cause limit (less than £5000) you may only get expenses at summary cause expenses which are of a lower scale.
The amount recovered will be affected by the amount rewardable by the court.
What are the rules regarding value and procedure within the sheriff court?
Current - summary cause is for claims up to £5000.
Within that a small claims covers money claims up to £3000
For ordinary cause this must be for claims over £5000
Prospective changes:
Simple procedure: less than £5000
Ordinary cause: more than £5000
Rules of procedure are likely to be different from other types of procedure in Sheriff Court.
What are the actions which must be raised as Summary causes?
As contained in s35 of the 1971 Act:
- Actions ad fact praestandum — means an order requiring a defender to do something, so long as not combined with monetary crave exceeding £5000 (then have to bring to summary cause if less than £5000) if no crave for payment then bring as summary cause.
- Actions for the recovery of heritable property
What are the rules on heritable property?
Action for recovery of heritable property must be brought as a summary cause.
E.g. Against a tenant who is no longer entitled to be in the property.
This is significant for jurisdiction and must be brough as a summary cause
The most common type for action under this head is a local housing aurhtoity is seeking to recover property from the tenant, there are substantial roles for sheriff court concerned with actions for recovery for heritable property.
Currently:
Actions for recovery of heritable property, as long as not combined with crave for payment in excess of £5000 must be Summary Cause
But be aware of substantive law: debtor protection legislation and RBs v Wilson 2011
Prospective: Summary cause actions will be replaced by simple procedure once 2015 act comes into force.
What are the other types of specific action?
- Action of furthcoming
2. Multipoinding
What is an action of furthcoming?
related to diligence on the dependence, intending to give measure of protection for pursuer prior to the determination of the action. Once pursuer is granted decreee and you are trying to enforce it on pursuers behalf and have arrested then forthcoming is the next stage - the collection of money/compleition of the action.
Where arrested fund does not exceed £5000 this must be brought as a summary cause — if more than £5000 this must be an ordinary action
Effect of Debtors (S) Act 1987 ss 73A and 73J - must be aware of the effect of these as they complicate the operation of remedy of furthcoming.
