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
|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|
|Authorized by||Act of James V of Scotland, 1532|
|Decisions are appealed to||Supreme Court of the United Kingdom|
|Judge term length||ad vitam aut culpam|
|Number of positions||34|
|Since||8 June 2012|
|Lord Justice Clerk|
|Since||15 August 2012|
The Court of Session (Scottish Gaelic: Cùirt an t-Seisein; Scots: Coort o Session) is the supreme civil court of Scotland, 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. 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. Legal aid, administered by the Scottish Legal Aid Board, is available to persons with little disposable income for cases in the Court of Session.
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.
The court was divided in 1810 into an outer and inner house. 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.
The Lords of Council and Session had previously been part of the King's Council, 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. Seven of the lords had to be churchmen, while another seven had to be laymen. An Act of Parliament in 1640 restricted membership of the Court to laymen only, by withdrawing the right of churchmen to sit in judgement. 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, 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. 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. In 1830 the Jury Court was absorbed into the Court of Session along with the Admiralty and Commissary Courts.
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. (These are generally incorporated into the Rules of Court, which are published by the Scottish Court Service and form the basis for Scots civil procedure.) 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.
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, and in this house judges sit singly—and with a jury of twelve in personal injury or defamation actions. 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. 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.
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. As a court of first instance it has historically handled cases that involve nobile officium, a power it shares with the High Court of Justiciary. Criminal appeals in Scotland are handled by the High Court of Justiciary sitting as the Court of Appeal.
The Inner House is the part of the Court of Session which acts as a court of appeal for cases decided the Outer House and of civil cases from the Sheriff Courts, the Court of the Lord Lyon, Scottish Land Court, and the Lands Tribunal for Scotland. 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 (or sometimes to the Judicial Committee of the Privy Council).
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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.
The Court of Session is also the admiralty court 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 is set out in the Scottish Adjacent Waters Boundaries Order 1999.
- Bill Chamber
- Office of the Accountant of Court
- List of Senators of the College of Justice
- Historic List of Senators of the College of Justice
- List of Leading Scottish Legal Cases
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- "Chapter 55 – Causes relating to intellectual property", Rules of the Court of Session (Scottish Courts Service) 2006: 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)."
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- Robert Wyness Millar (1932). "Civil Pleading in Scotland". Michigan Law Review (The Michigan Law Review Association) 30 (4): 546–547. JSTOR 1280689. "The Inner House… possesses certain important original jurisdiction, including the exercise of the so-called nobile officium for the most part, however, it is a court of review."
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- "Section 21, Court of Session Act 1830", Acts of the Parliament of the United Kingdom 69, 1830-06-23: 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"
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- Scottish Court Service
- Recent decisions of the Court of Session
- Faculty of Advocates
- Jurisdiction of the Court of Session
- Scottish Legal Aid Board