The Court of Session: Understanding Scotland's Premier Civil Court

The Court of Session

What the Court of Session is and how it fits into the Scottish Legal System is something that regularly confuses many people. It plays a very important part in our justice system and is simultaneously at the forefront of legal developments in Scotland but also steeped in history and tradition.

The Court is based in Edinburgh behind St Giles Cathedral and hears Civil cases only. It deals with more complex and higher-value cases than tend to be found in the local Sheriff Courts throughout Scotland. For example, you cannot raise a case in the Court of Session for a value less than £100,000. There are some cases relating to technical things such as Trusts or various applications relating to Companies that might not have a value attached to them which have to be heard in the Court of Session.

The Court of Session also deals with Appeals. These can be from the Sheriff Court or from cases already in the Court of Session. There are also other types of Appeals from the Lands Tribunal and Tax Tribunals which go straight to the Court of Session. Gilson Gray has extensive experience in dealing with all cases and appeals that are heard in the Court of Session.

People are often confused about the High Court and how that relates to the Court of Session.  The answer to this is actually very simple. The same Judges sit in both the High Court and the Court of Session. The only difference is that the High Court deals with criminal matters whereas the Court of Session deals with civil matters.

For historical reasons the Court of Session has separate rules from the Sheriff Court however, some of the procedures followed in the Court of Session can become quite influential in lower Courts.  For example, the way in which Commercial actions and Personal Injury actions are now dealt with throughout all Courts in Scotland is heavily influenced by practice in the Court of Session.

Generally, for a case to be in the Court of Session it requires an Advocate or a Solicitor Advocate.  That is because they have Rights of Audience to appear before this Court whereas Solicitors do not. The Faculty of Advocates also have their Library within the same complex of buildings as the Court of Session and that’s where they can often be found working on cases. We have several Solicitor Advocates in Gilson Gray and also work closely with a large number of Advocates.

As with many legal things, some of the terminology used in relation to the Court of Session can sometimes be slightly confusing. For example, people will often talk about the Inner House and Outer House of the Court of Session. The Outer House deals with cases that are being raised for the first time in the Court of Session i.e. they don’t generally deal with Appeal cases. The Inner House deals with cases that have been appealed from the Outer House or other Courts below. The Judges within the Inner House are more senior to those in the Outer House. The reason why it’s called the Inner House and the Outer House is quite simply because historically the Courtrooms for the Inner House were located further into the Court complex than the Outer House Court which were located on the periphery.

The Inner House is also confusingly sometimes called the Division. That’s because the Judges in the Inner House are split up into the First Division and the Second Division.  This isn’t like in football where the First Division would be a league above the Second Division. It is simply because the Inner House Judges are split into 2 pools. The First and the Second Division. The case is assigned to one of the divisions and the judges from that pool hear the case.  At times when there is a lot of Court business to be dealt with in the Inner House, an extra Division can be formed of additional Judges brought from the Outer House.

The Outer House judges all generally have to deal with a wide variety of cases but there are some judges who have more specialty roles for example in relation to Commercial actions and Intellectual Property. It’s less common but there are also some assigned judges in the Inner House for example in relation to Election Petitions.

Gilson Gray successfully dealt with the first Election Petition to be raised in Scotland in over 50 years.

Gilson Gray regularly deals with a wide variety of cases in the Court of Session and was recently successful in the highest-value fraud case of its kind in Scottish legal history. We not only act for clients bringing their own cases to the Court but also act for other Solicitors who are unfamiliar with the procedures and require our assistance to make sure things run smoothly.

Whilst the Court of Session can seem daunting and confusing at first, once you understand the terminology and what’s actually happening it is a great place to resolve disputes and remains one of the foremost Courts in the world.

If you wish to discuss a Court of Session action please contact Iain Grant.