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Scottish courts and the law
Scottish courts and the law

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2 Civil court procedure

Court procedure will differ depending on which court will hear a case. It is usual for many civil claims to be settled before the case reaches trial in a court room. The parties often try to negotiate a settlement whilst bringing legal proceedings. Indeed, there is a drive within the justice system to encourage parties to a case to reach a settlement before coming to court through some form of alternative dispute mechanism such as conciliation or arbitration before coming to court.

There are many websites which now offer advice and guidance on going to court. The information in Box 1 is taken from the mygov.scot [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] which is designed to provide access to public services in Scotland. It ‘is the place for people in Scotland to access public services that are easy to find and simple to use’.

Box 1 What happens at a civil court case

How a case is prepared

The lawyer representing the party bringing the action forward will:

  • interview their client
  • interview any other relevant witnesses
  • make a decision on whether there’s enough evidence to proceed to a court case.

If a decision is taken to go ahead with the case a pre action letter will be sent. If the pre action letter fails the case will be started formally.

Civil court papers will be served on the party against whom the case is raised, and any other party who may have an interest in the case.

If the case is disputed, the court will fix a date for hearing evidence. This means witnesses will be expected to go to court and tell the court what they know.

Different ways of proving a case

In most civil cases, the party or parties bringing the case forward need to prove that it’s more likely than not, that whatever they are claiming is true.

This standard of proof is known as ‘on the balance of probabilities’ and is less rigorous than the standard of proof of 'beyond reasonable doubt' that applies in criminal cases.

Sheriff Courts

Sheriff Courts deal with most civil court cases. They are located throughout Scotland and the sheriff is a qualified advocate or solicitor.

Examples of civil cases the sheriff court can deal with are:

  • separation, divorce or dissolution of a civil partnership
  • residence or aliment (another name for maintenance, where one family member pays regular sums of money to maintain another) disputes
  • adoption
  • tenant/landlord problems including evictions
  • debt
  • bankruptcy or liquidation
  • claims for money.

The sheriff will hear the case and make the final decision alone.

Court of Session

The Court of Session in Edinburgh is the highest civil court in Scotland. It has two parts:

  • the Outer House, which deals with more complex divorce or civil partnership cases, and cases when a large amount of money is being claimed for compensation in personal injury claims or broken agreements
  • the Inner House, which deals with people who are appealing against decisions of either the Sheriff Court or the Outer House of the Court of Session

The case is normally heard and the final decision made by a judge sitting alone, although sometimes in the Court of Session, a jury is involved and makes the decision.

UK Supreme Court

If you are not satisfied with the decision of the Inner House of the Court of Session you may be able to appeal to the UK Supreme Court. This is the final court of appeal for all civil cases. Appealing a case to the UK Supreme Court can be very expensive.

People in the courtroom

The judge or sheriff

The judge or sheriff is an expert in the law and is in charge of everything that happens in the court room.

They’ll make sure everything is done fairly within the law and that the court rules and legal procedures are followed. They also have a duty to protect the interests of all people involved in the case, including the witnesses.

The lawyers

Normally there will be a lawyer representing each of the parties to a civil case, unless any of the parties are representing themselves.

They’ll ask questions in court so the witnesses can give their evidence in their answers. Lawyers appearing in court may be solicitors or advocates.

Party litigants

Some people in civil cases decide to represent themselves instead of using a lawyer.

The clerk of court

This person is responsible for assisting the judge or sheriff and keeping the court papers and records.

The court officer

This person assists the court and lets the witnesses know when it’s their turn to give evidence. In the courtroom they may show a witness different pieces of evidence, like photographs.

The public and the press

The public may sometimes be excluded from the courtroom. The press is usually allowed to remain. In some cases they may be prevented from publishing anything that may lead to the identification of the parties or witnesses involved. In exceptional cases the judge might order for the courtroom to be completely cleared.

The end of the case

Some cases last only a day, others can go on for several days or longer. This usually depends on how many witnesses there are and how long each witness takes to give their evidence.

When the evidence of all witnesses has been heard, the judge/sheriff (or jury) must make their decision.

If you’re not at court when the outcome is decided, you can speak to the person who cited you as a witness to see if you can get information.

(mygov.scot, n.d.)

Filming has been allowed in some civil cases. This has been described as:

‘Open Justice’: the principle that proceedings ought to be open to the public. It is central to commanding public confidence in the legal system. The useful and often quoted tenet is that “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”Along with the holding of trials in public and allowing access to court documents, this principle can be conceived as including public education on the legal system and the operation of the courts.’

(Judicial of Scotland, 2013)

As the courts modernise, with arrangements for witnesses to give evidence by video link and for court proceedings to be held online the way in which cases are managed and dealt with is changing. The principle that ‘justice should not only be done, but should be seen to be done’ remains a fundamental one. By allowing some filming of the work of the courts the public can continue to be engaged with the work of the courts and with the courts’ role in society.