Search Legislation

Courts Reform (Scotland) Act 2014

Courts Reform (Scotland) Act 2014

2014 asp 18

Introduction

1.These Explanatory Notes have been prepared by the Scottish Government in order to assist the reader of the Courts Reform (Scotland) Act 2014 (“the Act”). They do not form part of the Act and have not been endorsed by the Parliament.

2.The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

The Act

3.The Act seeks to support the aims set out in the Policy Memorandum for the Bill(1) by introducing reforms to modernise and enhance the efficiency of the Scottish civil justice system. The provisions in the Act take forward many of the recommendations from Lord Gill’s review of the civil courts, the Scottish Civil Courts Review,(2) which reported in 2009. The Scottish Government issued its response to the review in 2010.(3) Some recommendations from the Scottish Civil Courts Review have already been taken forward, such as modernising children’s hearings. The Act will implement the majority of the recommendations that the Government accepted in its 2010 response. A consultation in 2007 informed the review. Further consultations on the draft Courts Reform (Scotland) Bill and treatment of civil appeals from the Court of Session were undertaken in 2013. Further information on the Scottish Government consultations can be found in the Policy Memorandum for the Bill.

4.The Act does not attempt to legislate for all of the recommendations made in the Scottish Civil Courts Review; some have been or are being taken forward separately, such as reforms to children’s hearings and, in addition, many of the changes recommended have already been implemented, such as some of the reforms of the Inner House of the Court of Session, or will be implemented by court rules made by the Court of Session by act of sederunt, such as some of the procedural reforms within the Court of Session envisaged by the Act. The Act sets out the framework within which the court rules will add the necessary detail.

5.The opportunity has been taken to modernise and consolidate most of the remaining provisions of the Sheriff Courts (Scotland) Acts of 1907 and 1971 (although a few provisions of the 1907 Act will still remain). Not every provision has been restated and the wording has been changed in some provisions. Some provisions have been amalgamated whilst others have been expanded.

6.The Act amends the Judiciary and Courts (Scotland) Act 2008 to establish a joint administration for courts and tribunals. It renames the Scottish Court Service (SCS) and changes the board structure to allow the merged organisation to operate effectively for both courts and tribunals.

7.The Act is in twelve Parts.

8.Part 1 (Sheriff courts) includes provisions on sheriffdoms, sheriff court districts and sheriff courts, the judiciary of the sheriffdoms, the organisation of the business, and competence and jurisdiction of the sheriffs. This part provides for the creation of the summary sheriff judicial office holder and for the designation of specialist judiciary. It also provides for the power to confer an all-Scotland jurisdiction for specified cases on a specific sheriff court which is intended to enable a Sheriff Personal Injury Court. It provides for the raising of the exclusive competence of the sheriff court. Schedule 1 specifies the civil proceedings etc. in relation to which a summary sheriff will have competence.

9.Part 2 (The Sheriff Appeal Court) makes provision for the Sheriff Appeal Court which will hear certain criminal appeals from the sheriff court and the justice of the peace (JP) court, as well as civil appeals from the sheriff court. The provisions specify the jurisdiction and competence of the Sheriff Appeal Court as well as the status of its decisions in precedent, and sets out the arrangements for the President and Vice President of the Sheriff Appeal Court. The provisions set out how sheriffs principal and sheriffs are able to be Appeal Sheriffs. They confer on the President the responsibility for the efficient disposal of business in the Sheriff Appeal Court. They make further provision about court sittings, the Clerk and Deputy Clerks. (Further provision on criminal appeals is made in Part 6.) Schedule 2 makes temporary provision for Senators of the College of Justice to act as Appeal Sheriffs during a period of 3 years beginning with the day on which the Sheriff Appeal Court is established.

10.Part 3 (Civil procedure) makes provision for civil jury trials in an all-Scotland sheriff court, for example the proposed Sheriff Personal Injury Court to which there has been reference. It also includes provisions for simple procedure which will replace small claims and summary cause procedures in the sheriff court. (The Court of Session is able to make further general provision about simple procedure in an act of sederunt made under section 104.) This part also includes provisions on the granting and enforcement of interdicts with effect in more than one sheriffdom, the execution of deeds relating to heritage by the sheriff clerk and interim orders. It includes provision on judicial review and warrants of ejection. In addition, this part makes provision for the remit of cases to or from the Court of Session, and to the Scottish Land Court. It includes provision on lay representation in simple procedure cases and in other proceedings. It includes provision on jury service. It also contains provisions on vexatious litigants.

11.Part 4 (Procedure and Fees) includes provisions to allow the Court of Session to regulate its own procedure and that of the sheriff court and Sheriff Appeal Court. It also includes provisions allowing the Court of Session to regulate the fees of those who provide services in the Court of Session, Sheriff Appeal Court and sheriff courts. This part also makes provisions for the charging of fees by the Scottish Courts and Tribunals Service (SCTS) and relevant officers of court in relation to the running costs of the courts, re-enacting the previous provisions relating to such charges contained in the Court of Law Fees (Scotland) Act 1895. This part also sets out the rules to be applied by the courts in determining for the purposes of determinations on expenses, whether to grant sanction for the employment of counsel in the sheriff and Sheriff Appeal Courts.

12.Part 5 (Civil appeals) includes provisions on civil appeals to the Sheriff Appeal Court and to the Court of Session, the effect of appeal, and appeals to the Supreme Court.

13.Part 6 (Criminal appeals) makes provision for appeals from summary criminal proceedings including appeals from the Sheriff Appeal Court to the High Court and bail appeals. Schedule 3 makes modifications to the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) consequential upon the transfer of summary appeal jurisdiction from the High Court to the Sheriff Appeal Court.

14.Part 7 (Judges of the Court of Session) makes provision for payment of salaries and expenses of judges of the Court of Session by the SCTS.

15.Part 8 (Scottish Land Court) makes provision for remuneration, expenses, and expenditure relating to the Scottish Land Court.

16.Part 9 (Justice of the peace courts) makes provision relating to the establishment, relocation and disestablishment of justice of the peace courts, the abolition of the office of stipendiary magistrate, the conversion of existing stipendiary magistrates to be summary sheriffs, and a provision enabling summary sheriffs to sit in justice of the peace courts.

17.Part 10 (The Scottish Courts and Tribunals Service), together with schedule 4 amends the Judiciary and Courts (Scotland) Act 2008 to change the name of the SCS to the Scottish Courts and Tribunals Service and confers power on the merged organisation to provide administrative support for the Scottish Tribunals and the members of those Tribunals.

18.Part 11 (The Judicial Appointments Board for Scotland) provides for the appointment of persons to assist the Board with the carrying out of its functions.

19.Part 12 (General) includes provision in relation to subordinate legislation, interpretation and commencement, and gives effect to schedule 5 which makes minor and consequential amendments to a number of enactments.

The Act

Part 1 - Sheriff Courts

20.The provisions in Part 1 are principally designed to give effect to those recommendations of the Scottish Civil Courts Review which relate to the sheriff court. The principal changes included in this Part involve:

  • the increase in the exclusive competence, of the sheriff court from £5,000 to £100,000;

  • the creation of a new judicial office in the sheriff court to be known as the summary sheriff with concurrent jurisdiction with sheriffs but in a more restricted range of both civil and criminal matters; and

  • the ability for Scottish Ministers to confer an all-Scotland jurisdiction on a sheriff in a specified sheriffdom sitting at a specified sheriff court for the purposes of dealing with specified types of civil proceedings (e.g. the proposed Sheriff Personal Injury Court).

21.The introduction of such fundamental changes by way of amendment to the Sheriff Courts (Scotland) Acts of 1907 and 1971 would almost inevitably result in a very unsatisfactory and fractured product which would be very difficult for legal practitioners and others. The opportunity has therefore been taken to restate (sometimes with modification) the relevant provisions which will now sit together in this single Part of the Act.

Chapter 1 - Sheriffdoms, sheriff court districts and sheriff courts
Section 1 – Sheriffdoms, sheriff court districts and sheriff courts

22.Subsections (1) to (3) set out that Scotland is to be divided into sheriffdoms which are to be further divided into sheriff court districts. They take account of the fact that not all sheriffdoms are divided into more than one sheriff court district (Glasgow and Strathkelvin is currently the only sheriffdom that exists as a single sheriff court district) and retain flexibility to cater for the possibility that in the future other sheriffdoms may be undivided. Subsections (4) to (6) provide that, subject to any order under section 2, existing sheriffdoms, sheriff court districts and sheriff court locations will continue as they are following the coming into force of section 1.

Section 2 – Power to alter sheriffdoms, sheriff court districts and sheriff courts

23.Section 2 updates the powers to alter sheriffdoms and sheriff court districts in sections 2(1) and 3(2) of the Sheriff Courts (Scotland) Act 1971, combining the two powers into one section, and also adds new provisions. Previously the Scottish Ministers were only able to make changes with the consent of the Lord President of the Court of Session and the Scottish Court Service, the latter being placed under a duty to consult parties who are likely to have an interest. This meant that the Scottish Court Service first had to consult, the Scottish Ministers then made an order and then the Lord President had to consent to the order including further consultation with, for example, the sheriffs principal. The process was bureaucratic and not well sequenced. The provisions now set out in subsections (2) to (5) make the process more straightforward. Firstly, the SCTS (as the SCS is renamed by section 130 of the Act) must consult such persons as it considers appropriate before submitting a proposal under subsection (1). Then it may, with the agreement of the Lord President, submit a proposal to the Scottish Ministers. The Scottish Ministers must then consider the proposal, and decide whether to make an order and what provision to make in the order. The making of the order is subject to the consent of the SCTS and the Lord President. The order made by the Scottish Ministers is subject to the affirmative procedure.

Chapter 2 - Judiciary of the sheriffdoms
Permanent and full-time judiciary
Section 3 – Sheriffs principal

24.Section 3 provides that there continues to be the office of sheriff principal, appointed by Her Majesty on the same basis as prior to the Act (that is, on the recommendation of the First Minister, after consulting the Lord President, in accordance with section 95(4)(b) of the Scotland Act 1998). The appointment procedure set out in section 3 does not affect the operation of section 11 of the Judiciary and Courts (Scotland) Act 2008, the effect of which is that the First Minister may only recommend an individual who has been recommended for appointment by the Judicial Appointments Board for Scotland (subsection (4)).

Section 4 – Sheriffs

25.Section 4 provides that there continues to be the office of sheriff, appointed by Her Majesty on the same basis as prior to the Act (that is, on the recommendation of the First Minister, after consulting the Lord President, in accordance with section 95(4)(b) of the Scotland Act 1998). The appointment procedure set out in section 4 does not affect the operation of section 11 of the Judiciary and Courts (Scotland) Act 2008, the effect of which is that the First Minister may only recommend an individual who has been recommended for appointment by the Judicial Appointments Board for Scotland (subsection (4)).

Section 5 – Summary sheriffs

26.Section 5 introduces a new office of summary sheriff who will be subject to the same appointment procedures as for sheriffs – that is, subject to the qualification requirements contained in section 14, and appointed by Her Majesty on the recommendation of the First Minister, after consulting the Lord President. The appointment procedure set out in section 5 does not affect the operation of section 11 of the Judiciary and Courts (Scotland) Act 2008, the effect of which is that the First Minister may only recommend an individual who has been recommended for appointment by the Judicial Appointments Board for Scotland (subsection (4) – paragraph 9(3) of schedule 5 amends section 10 of the 2008 Act to bring the office of summary sheriff and part-time summary sheriff within the remit of the Judicial Appointments Board). Sections 44 and 45 and schedule 1 make provision about the competence and jurisdiction of summary sheriffs.

Temporary and part-time judiciary
Section 6 – Temporary sheriff principal

27.Section 6 which effectively re-enacts, with amendments, section 11 of the Sheriff Courts (Scotland) Act 1971 makes provision for the appointment of a temporary sheriff principal in the circumstances set out in subsection (1). In these circumstances, and if the Lord President requests, the Scottish Ministers must appoint a temporary sheriff principal. Those eligible for appointment are a sheriff (subsection (2)(a)) or a “qualifying former sheriff principal” (subsection (2)(b)) defined in subsection (3) as an individual who ceased to hold office as sheriff principal other than by virtue of an order under section 25 (removal from office) and who has not reached the age of 75. Subsection (4) sets out that a temporary sheriff principal may be appointed to exercise either all of the sheriff principal’s functions or only those which the sheriff principal is unable to perform or is precluded from exercising. The Lord President may request the appointment of a temporary sheriff principal on the ground that a vacancy has occurred in the office of sheriff principal, but only if the Lord President considers such an appointment to be necessary or expedient in order to avoid a delay in the administration of justice in the sheriffdom (subsection (6)).

Section 7 – Temporary sheriff principal: further provision

28.Section 7 makes further provision for the arrangements for a temporary sheriff principal. An appointment as a temporary sheriff principal ceases when it is recalled by the Scottish Ministers on the request of the Lord President (subsection (2)) or when the individual concerned ceases to be a sheriff or is suspended from that office (subsection (3)). (For suspension and removal of sheriffs, see section 22 and 25 respectively.) Except where the temporary sheriff principal is appointed to exercise only limited functions (in terms of section 6(4)(b)), he or she may exercise the jurisdiction and powers of sheriff principal of the sheriffdom (subsection (4)). A temporary sheriff principal retains his or her appointment as a sheriff (subsection (5)), but where the appointment is as a temporary sheriff principal of a sheriffdom other than that for which the person is a sheriff, he or she will only be able to act as a sheriff within the sheriffdom in which appointment as the temporary sheriff principal is held and not in his or her “home” sheriffdom (subsection (6)).

Section 8 – Part-time sheriffs

29.Section 8, which governs the appointment of part-time sheriffs, restates the majority of section 11A of the Sheriff Courts (Scotland) Act 1971 (sections 11A to 11D of which were inserted by the Bail, Judicial Appointments etc (Scotland) Act 2000). Subsection (1) provides for the Scottish Ministers to appoint individuals to “act as” sheriffs, and for individuals so appointed to be known as “part-time sheriffs”. The qualifications for appointment, set out in section 14, are the same as for sheriffs, and the Scottish Ministers may make an appointment only after consulting the Lord President (subsection (2)). In terms of subsection (3), an appointment as part-time sheriff lasts for five years, unless it ceases in accordance with section 20 (Cessation of appointment of judicial officers); but see section 9, which provides (with exceptions) for automatic re-appointment at the end of each five-year period. A part-time sheriff may exercise the powers and jurisdiction that attach to the office of sheriff in every sheriffdom (subsection (4)) and is subject to the administrative direction of the sheriff principal of the sheriffdom in which the part time sheriff is for the time being sitting (subsection (5)) (for the powers of sheriffs principal in this regard, see sections 27 and 28). Sheriffs principal are directed by subsection (6) to have regard to the desirability of ensuring that each part-time sheriff is given the opportunity of sitting for at least 20 days, and not more than 100 days, per year. Section 11A(5) of the 1971 Act, as amended by the Maximum Number of Part-Time Sheriffs (Scotland) Order 2006 (S.S.I 2006/257) imposed a limit of 80 upon the number of part-time sheriffs. Section 11A(5) is not re-enacted, and there is therefore no longer a limit on the number of part-time sheriffs.

Section 9 – Reappointment of part-time sheriffs

30.Section 9 restates, with some amendments, section 11B of the Sheriff Courts (Scotland) Act 1971. The Act does not, however, re-enact the prohibition on those aged 69 from being reappointed. Retirement ages in general are not reproduced in the Act and are instead consolidated through amendments made to the Judicial Pensions and Retirement Act 1993 by schedule 5, paragraph 8. Section 11B(9), of the 1971 Act which prevented part-time sheriffs who were solicitors from acting as part-time sheriffs in the same sheriff court district as that individual’s principal place of business, is substantially re-enacted in section 15(3).

31.The effect of section 9 is that, except where one of the conditions in subsection (1)(a)-(c) is met, or the individual in question has reached the statutory retirement age of 70 contained in section 26(1) of the Judicial Pensions and Retirement Act 1993, that individual must be re-appointed at the expiry of each five-year appointment.

Section 10 – Part-time summary sheriffs

32.This section creates the office of part-time summary sheriff on terms identical to those applying to part-time sheriffs. Reference is made to the notes at paragraph 29.

Section 11 – Reappointment of part-time summary sheriffs

33.Section 11 replicates the provisions of section 9 in respect of part-time summary sheriffs. Reference is made to the notes at paragraph 30.

Re-employment of former holders of certain judicial offices
Section 12 – Re-employment of former judicial office holders

34.Section 12 substantially re-enacts section 14A of the Sheriff Courts (Scotland) Act 1971, as inserted by the Judiciary and Courts (Scotland) Act 2008. That section provided for the re-appointment of retired sheriffs principal and sheriffs; section 12 also allows for the re-appointment of former qualifying part-time sheriffs and summary sheriffs and part-time summary sheriffs. The section allows a sheriff principal to appoint a qualifying former sheriff principal, a qualifying former sheriff or a qualifying former part-time sheriff to act as a sheriff of the sheriffdom and a qualifying former summary sheriff or part-time summary sheriff to act as a summary sheriff of the sheriffdom. Such an appointment only permits the individual in question to act during such period or periods as the sheriff principal may determine (subsection (2)), and an appointment may only be made where it appears to the sheriff principal to be expedient as a temporary measure in order to facilitate the disposal of business in the sheriff courts of the sheriffdom (subsection (3)). So, for example, a former judicial office holder might be appointed to fill a temporary gap created by the appointment of one of the sheriffs of the sheriffdom as a temporary sheriff principal in terms of section 6. Subsections (4) to (8) define what is meant by a “qualifying” former judicial office holder: in order to be “qualifying”, the former office holder must not have been removed from office under section 25, nor have reached the age of 75. In the case of former part-time sheriffs and former part-time summary sheriffs, the former office holder must not have left office by virtue of the sheriff principal recommending against their reappointment (sections 9(1)(b) and 11(1)(b)), nor by virtue of not having sat for the minimum number of days in a 5-year period (sections 9(1)(c) and 11(1)(c)).

Section 13 – Re-employment of former judicial office holders: further provision

35.This section makes further provisions about the use of former judicial office holders. Subsection (1) provides that an appointment continues until recalled by the relevant sheriff principal. Subsections (2) and (3) provide that a re-appointed judicial officer may exercise the powers of a sheriff or, as the case may be, a summary sheriff of the sheriffdom. Subsection (4) provides that an appointment under section 12(1) comes to an end when the individual reaches the age of 75. Subsection (5) permits an individual to continue to deal with ancillary matters relating to a case begun before the ending of his or her appointment under section 12(1) and providing that for that purpose the individual concerned is to be treated as acting under that appointment.

Qualification and disqualification
Section 14 – Qualification for appointment

36.Section 14 sets out the qualification for appointment as a sheriff principal, sheriff, summary sheriff, part-time sheriff or part-time summary sheriff. It re-enacts the substance of section 5 of the Sheriff Courts (Scotland) Act 1971 by requiring that an individual must have been a solicitor or advocate during the 10 years immediately prior to appointment. Subsection (1)(a) makes it explicit that experience in a judicial office specified in subsection (2) immediately prior to appointment also qualifies an individual for appointment.

Section 15 – Disqualification from practice, etc.

37.Subsections (1) and (2) of section 15 prohibit sheriffs principal, sheriffs and summary sheriffs from engaging in practise as an advocate or a solicitor or in any other business, or being in partnership with or employed by or acting as agent for any person so engaged. In doing so, they substantially re-enact, and extend to summary sheriffs, section 6 of the Sheriff Courts (Scotland) Act 1971. The prohibition on private practice and business is intended to cover all private business as there would be an obvious potential for conflict of interest if a sheriff had outside business interests.

38.Subsection (3) makes it clear that part-time sheriffs and part-time summary sheriffs cannot act in the part-time judicial capacity in the sheriff court district in which their place of business as a solicitor is situated. This prohibition now extends to any place of business as a solicitor, not just the main place of business.

Remuneration and expenses
Section 16 – Remuneration

39.Section 16 consolidates a number of provision of the Sheriff Courts (Scotland) Acts 1907 and 1971 dealing with the remuneration of sheriffs, sheriffs principal, part-time sheriffs and re-employed former judiciary and makes new provision for the remuneration of summary sheriffs and part-time summary sheriffs. The remuneration of sheriffs principal and sheriffs is a reserved matter under the Scotland Act 1998. Subsections (1) and (2) in providing for the determination of the remuneration of sheriffs and sheriffs principal by the Secretary of State with consent of the Treasury, re-enact section 14 of the 1907 Act. Subsections (3) and (4) provide for the remuneration of summary sheriffs to be determined and paid by the Scottish Ministers. Subsections (5), (6), and (7) deal with the remuneration of part-time and re-employed judiciary. Again the remuneration of these judiciary is determined by the Scottish Ministers. Subsections (8) and (9) restate section 10(4) of the 1971 Act in relation to payments to be made to sheriffs principal and sheriffs who are directed to perform the judicial functions of sheriffs principal and sheriffs in another sheriffdom. Subsections (10) and (11) make similar provision in relation to summary sheriffs who act in another sheriffdom; in contrast to sheriffs principal and sheriffs, in respect of whom the function of determining remuneration continues to rest with the Secretary of State with the consent of the Treasury, any additional remuneration of summary sheriffs is to be determined by the Scottish Ministers.

40.Subsection (12) makes it clear that salaries and remuneration for the judicial officers listed under subsections (1) to (11) will be paid by the SCTS. Subsection (13) provides that the salaries of sheriffs principal and sheriffs and the remuneration due to summary sheriffs will be charged on the Scottish Consolidated Fund.

Section 17 – Expenses

41.There are a variety of provisions in the Sheriff Courts (Scotland) Act 1971 that make provision for the payment of expenses and allowances to holders of judicial offices in the sheriff court and which are distinct from remuneration provisions. These are section 10(4) (sheriff directed to perform duties in a sheriffdom other than that which he was appointed), section 11(8) (temporary sheriffs principal), section 11A(8) (part-time sheriffs), section 14A(6) (re-employment of retired sheriffs) and section 19 (travelling expenses for sheriffs principal). Section 17 consolidates these provisions and provides that the judicial officers listed in subsection (3) may be paid expenses by the SCTS if they were reasonably incurred in the performance of the officer’s duties. There is now no provision for the payment of “allowances”.

Leave of absence
Section 18 – Leave of absence

42.Section 18 provides for leave of absence for sheriff court judiciary. In terms of subsection (1), it is for the Lord President to approve leave of absence for sheriffs principal and temporary sheriffs principal. In terms of subsection (2), it is for the sheriff principal to approve leave of absence for a sheriff or summary sheriff. The maximum amount of recreational leave which may be approved for any one judicial officer in a given year is seven weeks (subsection (3)), although this limit may be exceeded with the permission of the Lord President (subsection (4)), which the Lord President may give only if there are special reasons which justify exceeding the limit in the particular case (subsection (5)). There is no limit upon the amount of leave which may be approved for non-recreational purposes (defined in subsection (7) as including, without limitation, sick leave, compassionate leave, and study leave). Subsection (6) allows the Lord President to delegate to another judge of the Court of Session any of the functions conferred upon the Lord President by this section. (So far as leave of absence for sheriffs principal and sheriffs is concerned, the provision made by section 18 is substantially equivalent to that previously provided for in sections 13(2) and (3) and 16(2) and (2A) of the Sheriff Courts (Scotland) Act 1971.)

Residence
Section 19 – Place of residence

43.Section 19 restates sections 13(1) and 14(2) of the Sheriff Courts (Scotland) Act 1971 to preserve, and extend to summary sheriffs, the existing power of the Lord President to require a judicial officer to have an ordinary residence at such place as the Lord President may require – which would normally be within reasonable travelling distance to the court or courts where that judicial officer sits.

Cessation of appointment
Section 20 – Cessation of appointment of judicial officers

44.Section 20 sets out the grounds upon which the appointment of a sheriff principal, a sheriff, a summary sheriff, a part-time sheriff, or a part-time summary sheriff may come to an end. Subsection (1) allows for resignation at any time by giving notice to that effect to the Scottish Ministers. Subsection (2) provides that the appointment of that officer will end on giving such notice or resignation, upon retirement (under the Judicial Pensions and Retirement Act 1993), upon removal from office in accordance with section 25 or upon appointment as another judicial officer specified in subsection (3).

Fitness for office

45.Sections 21 to 25 re-enact, and extend to summary sheriffs and part-time summary sheriffs, sections 12A to 12E of the Sheriff Courts (Scotland) Act 1971, as inserted by the Judiciary and Courts (Scotland) Act 2008. These provisions are consistent with those which apply to the senior judiciary by virtue of sections 35 to 39 of the latter Act.

Section 21 – Tribunal to consider fitness for office

46.Section 21 provides that the First Minister must set up a tribunal to investigate and report on whether a person is unfit to hold judicial office by reason of inability, neglect of duty, or misbehaviour where requested to do so by the Lord President (subsection (1)). The First Minister may set up such a tribunal in other such circumstances as the First Minister thinks fit, having consulted the Lord President (subsection (2)). Subsection (3) provides that sheriffs principal, sheriffs, summary sheriffs, part-time sheriffs, and part-time summary sheriffs are all potentially subject to the jurisdiction of such tribunals. Subsection (4) provides that the tribunal is to consist of one judge who must be a qualifying member of the Judicial Committee of the Privy Council (and who will, by virtue of subsection (7), chair the tribunal and have a casting vote); one holder of the relevant judicial office; one individual who has been qualified for at least 10 years as a solicitor or advocate; and one individual who does not, and never has, fallen within any of the other categories. The terms “qualifying member of the Judicial Committee of the Privy Council” and “relevant judicial office” are defined in subsection (5). The membership of the tribunal is to be selected by the First Minister, with the agreement of the Lord President (subsection (6)).

Section 22 – Tribunal investigations: suspension from office

47.Section 22 provides for the suspension from judicial office of the individual who is the subject of the tribunal’s investigation. This suspension may be effected by the Lord President, where the tribunal was constituted at the Lord President’s request (subsections (1) and (2)), or by the First Minister, on receiving a recommendation to that effect from the tribunal (subsections (4) and (5)). In each case, the suspension lasts until the person who made it orders otherwise (subsections (3) and (6). Suspension does not affect the remuneration of the suspended judicial officer (subsection (7)).

Section 23 – Further provision about tribunals

48.Section 23 provides that a tribunal may require any person to attend its proceedings to give evidence or may require any person to produce documents (subsection (1)). The limits upon the requirements which may be made are the same as those which apply to requirements made by a court (subsection (2)). Subsection (3) provides for the enforcement of these requirements by providing that if a person fails to comply with either or both of these requirements the tribunal may make an application to the Court of Session. The Court of Session may, in turn, make an order enforcing compliance or deal with the matter as if it were a contempt of the court (subsection (4)). Subsection (5) gives the Court of Session power, by act of sederunt, to make provision as to the procedure to be followed by and before a tribunal constituted under section 21 (subsection (5)). The expenses of a tribunal, and the payment of remuneration and expenses to its members are for the Scottish Ministers (subsection (6)).

Section 24 – Tribunal report

49.Section 24 provides that the report of a tribunal must be in writing, contain the reasons for the tribunal’s decision, and be submitted to the First Minister (subsection (1)) who must then lay the report before the Parliament (subsection (2)).

Section 25 – Removal from office

50.Section 25 provides for a judicial office holder’s removal from office following the report of a tribunal constituted under section 21. Subsection (1) provides that the First Minister may remove an individual from the office of sheriff principal, sheriff, part-time sheriff, summary sheriff, or part-time summary sheriff if the tribunal has reported that the individual is unfit to hold that office and after that report has been laid before the Parliament. In the case of a sheriff principal, sheriff, or summary sheriff, such removal requires an order under the negative procedure (subsections (2) and (3)).

Section 26 – Abolition of the office of honorary sheriff

51.Section 26 abolishes the office of honorary sheriff. Honorary sheriffs hold office under section 17 of the Sheriff Courts (Scotland) Act 1907 and have not been subject to the usual requirements for shrieval qualification in section 5 of the Sheriff Courts (Scotland) Act 1971 (which are re-enacted in section 14 of the Act). Therefore after all honorary sheriffs have left office all of the judiciary of a sheriffdom will be legally qualified.

Chapter 3 — Organisation of business
Sheriff principal’s general responsibilities
Section 27 – Sheriff principal’s responsibility for efficient disposal of business in sheriff courts

52.Section 27, which substantially re-enacts the provisions of sections 15 and 16(1) of the Sheriff Courts (Scotland) Act 1971, gives the sheriff principal responsibility to ensure the efficient disposal of business in sheriff courts in his or her sheriffdom (subsection (1)) and the power to make such arrangements as appear necessary or expedient for the purpose of carrying out that responsibility (subsection (2)). In particular, the sheriff principal has power to allocate business among the judiciary of the sheriffdom (subsection (3)), and to give directions of an administrative character to such judiciary and to members of the staff of the SCTS (subsection (5)). The “judiciary of the sheriffdom” is defined in section 125(2) as all judicial officers within the sheriffdom, including part-time sheriffs and part-time summary sheriffs. Subsection (7) makes it clear that the powers of the sheriff principal under this section are subject to the Lord President’s overall responsibility for the efficient disposal of business in the Scottish courts under provisions in the Judiciary and Courts (Scotland) Act 2008.

Section 28 – Sheriff principal’s power to fix sittings of sheriff courts

53.Section 28, which re-enacts and updates section 17 of the Sheriff Courts (Scotland) Act 1971, gives the sheriff principal power by order to prescribe where and when sheriff courts will sit and the descriptions of business to be disposed of at those sittings. The provisions of section 28 are again subject to the Lord President’s overall responsibility for the efficient disposal of business in the Scottish courts.

Section 29 – Lord President’s power to exercise functions under sections 27 and 28

54.Section 29 permits the Lord President to intervene where the Lord President considers that a sheriff principal has exercised functions under section 27 or 28 in a way which is prejudicial to the efficient disposal of business in the sheriff courts, or is prejudicial to the efficient organisation or administration of those courts, or is otherwise against the public interest (subsection (1)). In such a case, the Lord President may rescind the exercise of the function by the sheriff principal and exercise the function (subsection (2)). This section makes equivalent provision to section 17A of the Sheriff Courts (Scotland) Act 1971.

Deployment of judiciary

55.Sections 30 to 33 enable the Lord President to deploy and re-allocate sheriffs principal, sheriffs and summary sheriffs across sheriffdoms, and, in the case of sheriffs and summary sheriffs, across sheriff court districts.

Section 30 – Power to authorise a sheriff principal to act in another sheriffdom

56.Section 30 permits the Lord President to authorise the sheriff principal of one sheriffdom to exercise all or some of the functions of sheriff principal of another sheriffdom in any of the circumstances set out in subsection (1). Subsection (6) removes any doubt that a temporary sheriff principal may be asked to act in another sheriffdom while appointed.

Section 31 – Power to direct a sheriff or summary sheriff to act in another sheriffdom

57.Section 31 provides that a sheriff or summary sheriff may be directed by the Lord President to perform the judicial functions that that individual already performs in another sheriffdom or sheriffdoms until the Lord President directs otherwise (subsections (1) and (3)). It also provides that this may be instead of, or in addition to, the performance of the duties that that individual already performs in the sheriffdom in which they are based (subsection (2)) or, where that individual has already been directed to act in another sheriffdom, to that individual’s duties in that sheriffdom (subsection (4)).

Section 32 – Power to re-allocate sheriffs principal, sheriffs and summary sheriffs between sheriffdoms

58.This section enables the Lord President permanently to transfer sheriffs principal, sheriffs, and summary sheriffs between sheriffdoms. (So far as sheriffs are concerned, this power re-enacts the existing provision in section 14(4) of the Sheriff Courts (Scotland) Act 1971.)

Section 33 – Allocation of sheriffs and summary sheriffs to sheriff court districts

59.Section 33 updates and restates section 14(3) of the Sheriff Courts (Scotland) Act 1971 and extends its provisions to summary sheriffs. It provides that the Lord President is to designate in a direction a particular sheriff court district in which a sheriff or summary sheriff is to sit. Further it allows the Lord President to move a sheriff or summary sheriff to a different district within the sheriffdom by designation in a direction. Subsection (3) clarifies the interaction between the power in subsection (1) with the power of the sheriff principal to make temporary special provisions under section 27(3)(b), giving precedence to the sheriff principal’s use of that power.

Judicial specialisation

60.Sections 34 to 37 are new provisions which implement the recommendations of the Scottish Civil Courts Review in relation to the desirability of greater specialisation in the sheriff courts.

Section 34 – Determination of categories of case for purposes of judicial specialisation

61.This section permits the Lord President to decide categories of cases within the sheriff courts which should be heard by judicial officers who specialise in that category of case.

62.Subsection (2) provides that the categories of cases designated for specialisation by the Lord President may be determined by subject matter, value or other such criteria as the Lord President considers appropriate. Subsections (3) and (4) give the Lord President further flexibility in relation to the operation of specialisation among the judicial officers.

Section 35 – Designation of specialist judiciary

63.Once categories of cases for specialist treatment have been determined by the Lord President, section 35 permits a sheriff principal to designate one or more sheriffs or summary sheriffs as specialists in one or more of those categories. Under subsections (5) and (6), the Lord President is similarly permitted to designate one or more part-time sheriffs or part-time summary sheriffs as specialists in cases falling within designated categories and which are within the competence of those judicial officers.

64.Subsection (7) provides that the designation of a judicial officer as a specialist in one of the categories determined by the Lord President does not affect that officer’s ability to deal with cases other than those in relation to which they have been designated as specialist, nor does it mean that a judicial officer who has not been designated as a specialist cannot deal with a matter that falls within a specialisation.

Section 36 – Allocation of business to specialist judiciary

65.Section 36 places a duty on both the Lord President and the sheriff principal of a sheriffdom, when allocating business within a sheriffdom, to have regard to the desirability of ensuring that cases which fall within the specialist categories are dealt with by judicial officers who are designated as specialists in those categories.

Section 37 – Saving for existing powers to provide for judicial specialisation

66.Section 37 provides that, despite the provisions of sections 34 to 36, any other power which the Lord President already has to allocate business, including specialist business, among the judiciary of the sheriff courts is not affected by those sections.

Chapter 4 - Competence and jurisdiction

67.This chapter of Part 1 of the Act restates and updates the existing provisions of the Sheriff Courts (Scotland) Acts 1907 and 1971 concerning those actions and other applications that can competently be brought in the sheriff court and the competence and jurisdiction of that court. It makes certain additions to the range of actions that can competently be raised in the sheriff court in line with recommendations made by the Scottish Civil Courts Review and also makes fresh provision regarding the exclusive competence of the sheriff court. It specifies the competence and jurisdiction of the summary sheriff. The territorial jurisdiction of sheriffs is re-stated and extended to summary sheriffs.

Sheriffs: civil competence and jurisdiction
Section 38 – Jurisdiction and competence of sheriffs

68.Subsection (1) is a statement of the civil competence of sheriffs. The approach taken in the Act is to frame this in terms of the competence of a sheriff, rather than the sheriff court. The generality provided for in subsection (1) that sheriffs will retain all the competence and jurisdiction which they had before this Act is enacted is not restricted by the specific kinds of actions listed in subsection (2). This list reflects extensions to competence and jurisdiction after the Sheriff Courts (Scotland) Act 1907.

69.Actions for proving the tenor of documents and reduction are added to the list as recommended by the Scottish Civil Courts Review.

Section 39 – Exclusive competence

70.Section 39 sets out which cases fall within the exclusive competence of the sheriff court. It provides that in civil proceedings about which the sheriff has competence, and, in which an order of value of £100,000 or less is sought (or where more than one order is sought, the aggregate total of such orders is £100,000 or less), the proceedings must be brought in the sheriff court.

71.Subsection (3) exempts family proceedings (defined in section 135), from the operation of this section, unless the only order sought is an order for payment of aliment. Subsection (4) provides that this section is subject to the operation of section 92(7) of the Act which permits remit of cases to the Court of Session in exceptional circumstances. Subsection (5) provides that the Scottish Ministers may by order (subject to the affirmative procedure) substitute for the sum of £100,000 another sum. Subsection (6) defines what is meant by an “order of value”. Subsections (7) and (8) provide that further detail on how the value of an order or the aggregate total value of orders is to be determined may be provided in an act of sederunt made by the Court of Session which may make different provision for different purposes.

Section 40 – Territorial jurisdiction

72.Section 40 re-enacts section 4 of the Sheriff Courts (Scotland) Act 1907 so far as it applies to civil proceedings and provides for the territorial jurisdiction of the sheriff. Given the operation of section 134 which governs reference to “sheriff” throughout the Act, the reference to sheriff in this provision includes reference to any other member of the judiciary of the sheriffdom. The general provisions of the section are without prejudice to any other enactment or rule of law which has effect for the purposes of determining the territorial jurisdiction of a sheriff (subsection (4)), and are subject to an order under section 41(1) (subsection (5)).

Section 41 – Power to confer all-Scotland jurisdiction for specified cases

73.Section 41 provides that the Scottish Ministers may by order (subject to negative procedure) set out that the jurisdiction of a sheriff of a specified sheriffdom sitting at a specified sheriff court will extend throughout Scotland for specified kinds of civil proceedings, for example, personal injury proceedings (subsection (1)). An order may be made by the Scottish Ministers only with the consent of the Lord President (subsection (2)). Such an order does not affect the jurisdiction of any other sheriff court which may still deal with the specified type of proceedings, nor does it restrict the specified court to only deal with the specified types of proceedings (subsection (4)). The section does not apply in relation to proceedings under the Children’s Hearings (Scotland) Act 2011 (subsection (5)). See also Chapter 1 of Part 3 of the Act which provides for civil jury trials in an all-Scotland sheriff court.

Section 42 – All-Scotland jurisdiction: further provision

74.This section preserves the option of a sheriff court designated as one with an all-Scotland jurisdiction (for example, the proposed Sheriff Personal Injury Court) being used as a “local court” in relation to the specified types of action (subsections (2) to (4)). Cases that happen to fall within that court’s local jurisdiction can either be raised under normal sheriff court procedure paying standard court fees, or be raised under specialised rules in the specialist court paying the fees specified in a fees order for that court. Subsection (5) has the effect that, where a case before an all-Scotland sheriff court would have fallen within the jurisdiction of that court anyway (even without an order specifying that it has all Scotland jurisdiction), it is up to the litigant to decide whether their case will be heard by the court sitting in exercise of its usual local jurisdiction or its specialist all-Scotland jurisdiction. (It is likely that the court fees in the specialist court will be higher to reflect its specialist nature.) Subsection (6) preserves the sheriff’s power to decline to hear the case on the basis that it would be better dealt with by the specialist all-Scotland court, or the “local” court, as the case may be.

Section 43 – Jurisdiction over persons etc

75.Section 43 makes provision in relation to the civil jurisdiction in the sheriff court. It is a re-enactment of section 6 of the Sheriff Courts (Scotland) Act 1907. Section 6 is a source of jurisdiction in relation to certain civil matters where no other legislation has impliedly or explicitly displaced its operation and accordingly, its re-enactment is required in this section. In recognition, however, that section 6 has been largely but not completely displaced, subsection (3) provides that its re-enactment in section 43 is subject to those other rules of jurisdiction.

Summary sheriffs: civil and criminal competence and jurisdiction
Section 44 – Summary sheriff: civil competence and jurisdiction

76.Section 44 provides that a summary sheriff may exercise all of the jurisdiction and powers of the sheriff in relation to civil proceedings, but only with regard to the proceedings and matters listed in schedule 1 (subsection (1)). Subsection (2) provides that a sheriff still has jurisdiction and competence over the matters in schedule 1. Subsection (3) permits the Scottish Ministers by order (subject to the affirmative procedure) to amend schedule 1.

Section 45 – Summary sheriff: criminal competence and jurisdiction

77.Section 45 provides that a summary sheriff may exercise all of the jurisdiction and powers of the sheriff in criminal investigations and proceedings (subsection (1)) including the powers of a sheriff under the 1995 Act (subsection (2)). This is subject to subsection (3), which exempts most aspects of solemn criminal proceedings from the powers and jurisdiction of the summary sheriff. Therefore a summary sheriff will deal with summary criminal proceedings and certain preliminary procedural steps in solemn criminal proceedings (and in none of these proceedings will sit with a jury). The provisions of this section are without prejudice to the jurisdiction and competence of a sheriff in relation to summary or solemn criminal investigations and proceedings (subsection (4)).

Part 2 - Sheriff Appeal Court

78.The Scottish Civil Courts Review recommended the establishment of a Sheriff Appeal Court to deal with all civil appeals from the sheriff court and all summary criminal appeals by an accused on conviction or sentence; appeals by the Crown on acquittal or sentence; and bail appeals (emanating from the sheriff court or the justice of the peace court).

79.In civil appeals, the appellate jurisdiction that presently attaches to the office of sheriff principal will cease, as will the general right to take an appeal directly from the sheriff court to the Inner House of the Court of Session. Instead all civil appeals from cases heard at first instance by the sheriff court will lie to the Sheriff Appeal Court, except where specific legislation has established a specific right of appeal to the Court of Session. The Sheriff Appeal Court will have power to remit or transfer a particularly important or complex appeal to the Inner House. Onward appeal to the Inner House from the Sheriff Appeal Court will require the permission of the Sheriff Appeal Court, failing which the Inner House, and permission will only be given if “the second appeals” test is met.

80.In summary criminal cases, there will no longer be a right of appeal directly to the High Court against conviction or sentence or, in the case of the Crown, against acquittal or sentence. Such appeals will now lie to the Sheriff Appeal Court in the first instance, although there will be a corresponding power to remit complex appeals to the High Court. An onward appeal to the High Court would require permission, which would only be granted where there are clearly arguable grounds of appeal on a point of law.

81.The provisions in this Part of the Act provide for the establishment of the Sheriff Appeal Court, its membership, its clerking arrangements and its rules of court etc. Certain statutory appeals will continue to be heard by Sheriffs Principal sitting alone, not the Sheriff Appeal Court.

82.For details of the Sheriff Appeal Court’s appeal jurisdiction see Part 5 (sections 109-117) and Part 6 of the Act and the relevant sections of these notes.

Chapter 1 - Establishment and role
Section 46 – The Sheriff Appeal Court

83.This section provides for the establishment of the Sheriff Appeal Court as a “court of law”. This point is expanded upon in section 47. Subsection (2) provides that the court is made up of judicial office holders each known as an Appeal Sheriff.

Section 47 – Jurisdiction and competence

84.Subsection (1) sets out the jurisdiction and competence of the Sheriff Appeal Court, providing that it will determine appeals to such extent as is provided for in the Act or in any other enactment. With regard to the Act, the court will hear civil appeals under the provisions set out in Part 5 and criminal appeals under the provisions set out in Part 6. The court is a collegiate one with a decision of the court being constituted by a decision of one or more Appeal Sheriffs. Subsection (3) expands upon the phrase “court of law” used in section 46, putting beyond any doubt that the Sheriff Appeal Court is a court with the same inherent features as other courts in Scotland. This is intended to make clear that the court has the inherent jurisdiction of a court of law and thus ensures that, for example, the law on contempt of court and other rules relative to courts and court proceedings, such as rules about privilege and power to make reporting restrictions (A v BBC [2014] UKSC 25), are to apply.

Section 48 – Status of decisions of the Sheriff Appeal Court in precedent

85.This section makes specific provision about precedent. Whilst the position of the court in the hierarchy of courts in Scotland should ensure that its decisions will be binding upon those courts whose appeals it hears, this section puts that beyond doubt. Accordingly this section provides that in its interpretation or application of the law, the criminal decisions of the Sheriff Appeal Court will be binding on all justice of the peace courts throughout Scotland and the civil and criminal decisions of the Sheriff Appeal Court will be binding on all sheriffs throughout Scotland, as well as on the Sheriff Appeal Court (unless that Court is composed of a greater number of Appeal Sheriffs than that which composed the Court which made the decision). The use of “sheriff” in subsections (1)(a) and (2) will take on the definition in section 134 and will therefore bind the decisions of a sheriff principal sitting as a judge of first instance and any other judicial officer in the sheriff court.

86.Subsection (2) puts beyond doubt that a decision of the Sheriff Appeal Court also binds sheriffs in solemn criminal proceedings (before a sheriff and jury). Part 6 of the Act does not provide for an appeal from a solemn case in the sheriff court. Accordingly it is necessary to ensure that, despite the absence of such an appeal, the interpretation and application of the law as set out by the Sheriff Appeal Court will be the same when applied by the sheriff, whether in a summary or solemn case.

Chapter 2 – Appeal sheriffs
Section 49 – Sheriffs principal to be Appeal Sheriffs

87.This section makes provision for sheriffs principal to automatically become Appeal Sheriffs without the need for formal appointment. Sheriffs principal will thus hold two offices. Holding office as an Appeal Sheriff is dependent upon the sheriff principal continuing to hold office as a sheriff principal; suspension from the office of sheriff principal will mean suspension from the office of Appeal Sheriff.

Section 50 – Appointment of sheriffs as Appeal Sheriffs

88.Section 50 provides that sheriffs who have held office as such for at least five years may be appointed by the Lord President to be Appeal Sheriffs. The Act makes no distinction between Appeal Sheriffs who hold office as such by virtue of section 49 or 50 in terms of the judicial functions of Appeal Sheriffs or judicial authority. Accordingly an Appeal Sheriff holding office as such by virtue of section 49 is not to be treated as a more senior Appeal Sheriff to an Appeal Sheriff appointed under section 50.

89.Appeal Sheriffs appointed under this section may continue to act as sheriffs. The number of appointed Appeal Sheriffs will be a matter for the Lord President. In a similar way to section 49, holding office as an Appeal Sheriff is dependent upon the sheriff continuing to hold office as a sheriff, and suspension from the office of sheriff will mean suspension from the office of Appeal Sheriff.

Section 51 – Re-employment of former Appeal Sheriffs

90.Section 51 enables the Lord President to appoint retired Appeal Sheriffs to sit in the Sheriff Appeal Court in the same way and under the same conditions as retired sheriffs principal, sheriffs and summary sheriffs may be re-employed in the sheriff court. Accordingly, it provides that the Lord President may appoint as a temporary measure, in order to facilitate the disposal of business, former Appeal Sheriffs to act as Appeal Sheriffs. In order to be able to be appointed, the former Appeal Sheriff must not have been removed from office under sections 25 or 50(7), nor be aged 75 or over. Subsections (7) to (9) make provision for the Scottish Ministers to determine the amounts to be paid to re-employed Appeal Sheriffs by the SCTS.

Section 52 – Expenses

91.This section allows the SCTS, as it sees fit, to pay expenses to Appeal Sheriffs which are reasonably incurred in the performance of their duties as Appeal Sheriffs.

Section 53 – Temporary provision

92.Section 53 introduces schedule 2 to the Act. This schedule makes provision for the Lord President of the Court of Session to appoint Senators of the College of Justice to act as Appeal Sheriffs in the Sheriff Appeal Court. The intention is that Senators will be able to assist the Appeal Sheriffs in the new court with appellate work. The appointment of Senators to act as Appeal Sheriffs will only be possible for a period of three years from the commencement of the provisions establishing the Sheriff Appeal Court

Chapter 3 - Organisation of business
President and Vice President
Section 54 – President and Vice President of the Sheriff Appeal CourtSection 55 – President and Vice President: incapacity and suspension

93.Sections 54 and 55 make provision for the appointment of the President and Vice President of the Sheriff Appeal Court who will be appointed from the ranks of those Appeal Sheriffs who are also sheriffs principal. Provision is also made here for where the President or Vice President is unable to carry out the function of the office that these individuals hold or is suspended from office. It is intended that the role of the President and Vice President will be purely administrative and will be concerned solely with the organisation of sittings of the Sheriff Appeal Court. Accordingly the President or Vice President will, in terms of judicial functions or judicial authority, not be treated as a more senior Appeal Sheriff to an Appeal Sheriff who does not hold that role.

Disposal of business
Section 56 – President’s responsibility for efficient disposal of business

94.The President of the Sheriff Appeal Court is tasked with the organisation of the efficient disposal of business in the Court similar to the sheriff principal’s responsibility for this in his or her sheriffdom (see section 27). The President has wide powers in subsection (2) to make such arrangements as are necessary or expedient in the carrying out of that responsibility. Subsection (4) provides that, in carrying out the responsibility imposed by subsection (1), the President may give administrative directions to those persons referred to in subsection (5). Subsection (6) makes it clear however that the President’s responsibilities conferred by this section are subject to the overall responsibility of the Lord President for the efficient disposal of business in the Scottish courts.

Sittings
Section 57 – Sittings of the Sheriff Appeal Court

95.Subsection (1) permits maximum flexibility to allow the Sheriff Appeal Court to sit at any place in Scotland designated by the Act as a place for the holding of a sheriff court (which may be as general as a reference to a town or city – see sections 1 and 2). For example, this means that, although the Sheriff Appeal Court could sit centrally in Edinburgh for criminal appeals, there will remain the possibility of civil appeals being heard in the sheriffdom in which they originated. (This also includes the possibility that criminal and civil appeals could be heard in Parliament House in Edinburgh as “Edinburgh” is currently (and will remain) a place designated where a sheriff court is to be held.) Under subsection (5), these arrangements are subject to the overall responsibility for the efficient disposal of business in the Scottish courts placed on the Lord President.

Section 58 – Rehearing of pending case by a larger Court

96.Section 58 provides for the Appeal Sheriffs to determine that a case be reheard by a fuller bench of the Sheriff Appeal Court in circumstances where they are equally divided or where they consider the matter to merit such treatment.

Chapter 4 – Administration
Clerks
Section 59 – Clerk of the Sheriff Appeal CourtSection 60 – Deputy Clerks of the Sheriff Appeal CourtSection 61 – Clerk and Deputy Clerks: further provision

97.Sections 59, 60, and 61 make provision for the clerking arrangements in the Sheriff Appeal Court. Individuals can hold the office of the Clerk of the Sheriff Appeal Court only if they also hold the office of sheriff clerk. Provision is made for the SCTS to determine periods of appointment and terms and conditions for individuals appointed as Clerk and Deputy Clerks. The Clerk and Deputy Clerks of the Sheriff Appeal Court are staff of the SCTS. The Clerk, with permission of the SCTS, may delegate his or her functions to a Deputy Clerk of the Sheriff Appeal Court or a member of staff of the SCTS, for example the functions conferred by section 62(1)(b). Further provision is made for the SCTS to make arrangements to cover temporary absences of the Clerk, or Deputy Clerk, with other members of staff of the SCTS.

Records
Section 62 – Records of the Sheriff Appeal Court

98.Section 62 provides for the authentication of records of the Sheriff Appeal Court and includes provision enabling the records to be in electronic form. See also paragraph 11 of Part 2 of schedule 5 to the Act which amends the Public Records (Scotland) Act 1937 in relation to Sheriff Appeal Court records.

Part 3 – Civil Procedure

99.Part 3 (Civil procedure) chapter 1 makes provision for civil jury trials in an all-Scotland sheriff court (for example the proposed Sheriff Personal Injury Court). Since the enactment of section 11(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, it has not been possible for a civil action in the sheriff court to be tried before a jury. This was because even though the number of jury trials in the sheriff court was small, it was considered that the procedure had a disruptive effect on the work of the court. Civil jury trials have, however, continued to be available in the Court of Session and in recent years these have almost invariably been applied for in relation to personal injury actions under Chapter 43 of the Rules of the Court of Session. The intention is that the existing Court of Session practice and procedure in relation to jury trials will be transplanted in its entirety into the new Sheriff Personal Injury Court.

100.This chapter also includes provisions for a replacement for small claims and summary cause procedures in the sheriff court. The intention is that there should be a new single set of rules for cases for £5,000 or less which will be called “simple procedure” which it is proposed will be dealt with mainly by the new summary sheriffs. The most significant differences between the two procedures are that legal aid is not available for small claims and the expenses which can be awarded in small claims are limited.

101.The Scottish Civil Courts Review recommended: “The sheriff court legislation should be amended to provide that an interdict or interim order granted in one sheriff court should be enforceable throughout Scotland.” Chapter 1, therefore, includes provisions on the granting and enforcement of interdicts with effect in more than one sheriffdom.

102.Chapter 2 makes provision on judicial review. The Scottish Civil Courts Review considered whether the rules governing the procedure in petitions for judicial review were satisfactory and made a number of recommendations. The Act takes forward those recommendations by introducing a time limit for applications and a new permission to proceed stage.

103.Chapter 3 makes provision on the remit of cases to or from the Court of Session. This goes hand in hand with the proposals to raise the exclusive competence of the sheriff court. This facility is an important safeguard which counters the argument that personal injury cases in particular must be raised in the Court of Session in case they raise complex or novel points of law. The provision to permit remit to the Court of Session provides reassurance, however, that complex, but lower value, cases can receive the attention of the expertise of Court of Session judges. The provision permits remit from the Court of Session ensures that artificially inflated claims may be dealt with in the sheriff court.

104.Finally, chapter 3 makes provision to permit a case to be remitted by the sheriff to the Scottish Land Court in appropriate cases.

105.The Inner House of the Court of Session ruled in Apollo Engineering Ltd. (in liquidation) v James Scott Ltd ([2012] CSIH 4) that limited companies must have legal representation by a solicitor or counsel. This case is one of a series which continues the position that non-natural persons may not be represented by a lay person. This position has grave consequences for small business. A small company defending or pursuing a claim must incur irrecoverable legal costs when disputing a claim, whereas an individual need not instruct a solicitor and can appear as a party litigant at no cost. Small companies, partnerships and unincorporated associations may be disadvantaged by this restriction, particularly in simple procedure cases, because the cost of legal representation may be disproportionate to the value of the claim.

106.In addition, there may be circumstances outwith simple procedure cases where this rule may require to be loosened, allowing judicial discretion to be applied. Chapter 4, therefore, makes provision for lay representation in both simple procedure cases and other proceedings.

107.Chapter 5 provides that the same rules should apply in relation to excusal from civil jury service as apply in relation to excusal from criminal jury service.

108.The Scottish Civil Courts Review identified litigants who conduct their cases in an unreasonable manner as a growing problem for the administration of justice. Their conduct was said to impact not only on their opponents but also on the efficient use of court resources and on other litigants with cases of more merit and substance. The Review proposed changes in this area to permit the courts to have greater control over litigants whose behaviour took advantage of the court process to frustrate the efficient resolution of cases or who used the raising of actions as a weapon itself. Therefore, in chapter 6, the opportunity has been taken to re-enact the Vexatious Actions (Scotland) Act 1898 and bring its provisions up to date. The re-enactment retains provisions for an order to be granted by the court, preventing a vexatious litigant from instituting new proceedings without first obtaining the permission of a judge of the Outer House of the Court of Session.

109.The Scottish Civil Courts Review recommended that the court itself should be able to make civil restraint orders similar to those which may be imposed in England and Wales, but adapted for Scots law and Scottish courts, and the Act makes provision for this.

Chapter 1 – Sheriff court
Civil jury trials

110.Sections 63 to 71 provide for civil jury trials in an all-Scotland sheriff court (for example, the proposed Sheriff Personal Injury Court - see sections 41 and 42). The intention is to introduce a procedure similar to that operating in the Court of Session and, accordingly, the provisions largely reflect the language and procedures currently set out in the Court of Session Act 1988.

Section 63 – Civil jury trials in an all-Scotland sheriff court

111.Subsection (1), read together with subsection (7), sets out the types of actions which may require a jury trial. The section only applies to those types of civil proceedings which have been specified in an order made under section 41, and only at the sheriff court or courts which have been specified as having jurisdiction throughout Scotland for those types of civil proceedings. Further, subsection (7) provides that a civil jury trial is only to take place for those types of proceedings which, if they were competent in the Court of Session, would be tried by a jury there, under section 11 of the Court of Session Act 1988.

112.Section 63(2) makes it clear that a jury trial must take place where proceedings have been remitted to probation (that is, where it has been decided to allow evidence to be led to establish the facts). This qualification makes it clear that it is unnecessary to have a jury trial where the pleadings are irrelevant or there is some other fundamental problem. However, subsection (2) also makes it clear that a jury trial will not go ahead if the parties agree otherwise or special cause is shown. The use of the phrase “special cause” is deliberately identical to that in section 9(b) of the Court of Session Act 1988 and subsection (3) explicitly provides that the sheriff will apply that test in the same way as the Court of Session currently does.

113.Subsection (4) sets out the questions which are to be put to the jury, being the “issues” put to the jury in the equivalent action in the Court of Session, in terms of section 12 of the 1988 Act. Again, as with civil jury trials in the Court of Session, a jury will consist of 12 people (subsection (5)).

Section 64 – Selection of the jury

114.Section 64 is based on section 13 of the Court of Session Act 1988, with the continued expectation that practice and procedure in the Court of Session, including with regard to the effect of any challenge to a potential juror, will be adopted in this regard in the sheriff court. Further detailed rules in relation to civil jury trials in the sheriff court, for example, on how the ballot is to be conducted, may be made in an act of sederunt under section 104.

Section 65 – Application to allow the jury to view property

115.Section 65 is based on section 14 of the Court of Session Act 1988. It provides for a party to the proceedings to apply to the sheriff to allow the jury to view any property (whether moveable or immoveable) which is relevant to the proceedings.

Section 66 – Discharge or death of juror during trial

116.Section 64 provides that the sheriff may allow a juror not to take any further part in the proceedings, and for the way in which the proceedings are to continue should a juror be permitted to take no further part or die during proceedings. It is based on section 15 of the Court of Session Act 1988, except that subsection (4) makes further provision if the number of members of the jury falls below 10.

Section 67 – Trial to proceed despite objection to opinion and direction of the sheriff

117.Section 67 is based on section 16 in the Court of Session Act 1988 and provides similarly that, if an objection is taken during the trial to the opinion or direction of the sheriff, this is not to prevent the trial from proceeding nor the jury returning the verdict and assessing damages.

Section 68 – Return of verdict

118.Section 68 is drawn from section 17 of the Court of Session Act 1988. It concerns the determination of a verdict by the jury and the status of that verdict, and includes provisions on the selection of a juror to speak for the jury and the ability of the sheriff to discharge the jury and order another jury trial should the jury be unable to agree upon a verdict after a period of three hours. Court rules will be provided under section 104 in relation to giving effect to the jury’s verdict.

Section 69 – Application for new trial

119.Subsections (1) to (4) are based on section 29(1) and (2) of the Court of Session Act 1988 except that the application for a new trial from an all-Scotland sheriff court will be to the Sheriff Appeal Court rather than the Inner House of the Court of Session. It concerns the grounds under which a party to the proceedings may apply to the Sheriff Appeal Court for a new trial and what that court may do with such an application. Subsection (4) makes it clear that the powers of the Sheriff Appeal Court are subject to the operation of section 70 which sets out conditions on those powers. Subsection (5) is new and makes clear, for the avoidance of doubt, what the consequences are of granting a new trial. Subsections (6) and (7) are based on section 29(3) of the Court of Session Act 1988 and provide where the Sheriff Appeal Court may, instead of granting a new trial, set aside the decision of the jury and enter a judgment in favour of the unsuccessful party. Subsection (8) sets out that, if the Sheriff Appeal Court consists of more than one Appeal Sheriff, the Court may set aside the verdict of a jury or enter judgment for the party unsuccessful at the trial only if that is the opinion of all the Appeal Sheriffs hearing the appeal.

Section 70 – Restrictions on granting a new trial

120.Section 70 is drawn from the provisions of section 30 of the Court of Session Act 1988. It provides for various circumstances where, in the case of an application under section 69(1), the court must grant a new trial, may grant a new trial restricted to the question of damages, or may not grant a new trial. Subsection (4) varies from section 30(2) of the Court of Session Act 1988, however, in that in the circumstances set out in section 70(3), the court must refuse to grant a new trial, whereas section 30(2) states that the court may refuse to grant a new trial. Subsection (7) explains that, where the Court is constituted by more than one Appeal Sheriff, an application for a new trial may not be granted unless the majority of those Appeal Sheriffs hearing the case agree that it should.

Section 71 – Verdict subject to opinion of the Sheriff Appeal Court

121.Section 71 is based on section 31 of the Court of Session Act 1988. It provides that a party to the case may apply to the Sheriff Appeal Court for that court to direct that a verdict be returned in whole (or in part) in that party’s favour. It further sets out what the Sheriff Appeal Court may do in respect of that application.

Simple procedure

122.At present, cases for sums up to £5,000 fall to be dealt with under small claims or summary cause procedure in the sheriff court. The Scottish Civil Courts Review concluded that it was unnecessary to have two different sets of procedures for cases for £5,000 or less, but that there was a continuing need for a distinct procedure for low value claims. It considered that the financial limit should be set at £5,000 for the time being, but recommended the creation of a new procedure for cases under £5,000 to be dealt with primarily by summary sheriffs. The Act refers to this new procedure as “simple procedure”.

123.The Review advocated a flexible procedure based on a problem-solving, interventionist approach in which the court should identify the issues and specify what it wishes to see or hear by way of evidence or argument. The new procedure should be accessible to party litigants, with clear, straightforward court rules in plain English and under which the summary sheriff would be able to assist the parties to reach settlement.

Section 72 – Simple procedure

124.Subsection (1) establishes a new type of civil proceedings in the sheriff court called simple procedure. Simple procedure replaces the form of procedure known as summary cause which will be abolished through the repeal of sections 35 to 38 of the Sheriff Courts (Scotland) Act 1971 by paragraph 6 of schedule 5 to this Act. The abolition of summary cause proceedings will also mean the abolition of small claim proceedings which are a subset of summary cause proceedings. Subsection (2) makes it clear that most of the provisions about simple procedure will be made by court rules made under section 104(1).

125.Subsection (3) lists the types of proceedings which can only be brought by simple procedure, providing a monetary limit of £5,000 with respect to such proceedings. No other types of proceedings can be brought subject to simple procedure. Subsection (4) makes clear that the limitation on the type of case which must be brought under simple procedure does not prevent cases already raised under different forms of procedure from being transferred to simple procedure under section 78, or affect the operation of section 83 which provides that cases which are subject to summary cause procedure will become subject to simple procedure. It also makes clear that this limitation does not prevent a simple procedure case from being transferred out of that procedure under section 80.

126.Subsection (5) makes it clear that the obligation to raise an action falling within the description in 72(3)(a) by simple procedure does not apply where such a case is also of a type affected by section 73 (proceedings in an all-Scotland sheriff court), nor where it is also of a type affected by section 74 (proceedings for aliment of small amounts under simple procedure). Subsection (6) provides that court rules made by an act of sederunt by the Court of Session will determine the way in which the sum in subsection (3) may be calculated. Subsection (8) enables rules of court to clarify when proceedings are of a type that are to be subject to simple procedure. The method through which the court has determined whether a case must be raised under summary cause procedure is set out in the case of Milmor Properties v W & T investments Co. Ltd. [2000]. This power permits rules of court to adopt or modify this method.

127.Subsection (9) ensures that the term “simple procedure case”, when used in Part 3 of the Act includes cases which have been transferred to simple procedure under sections 78 and 79 and cases which have been made subject to simple procedure by other enactments. Subsection (12) provides that the £5,000 limit may be varied by the Scottish Ministers by order (which is subject to the affirmative procedure by virtue of section 133(2)(a) of the Act).

Section 73 – Proceedings in an all-Scotland sheriff court

128.Section 73 provides that where proceedings for the payment of a sum of £5,000 or less may be brought in an all-Scotland sheriff court (for example, the proposed Sheriff Personal Injury Court) by virtue of an order under section 41(1), then those proceedings are not subject to simple procedure in the specialist court. The claimant has the choice of raising his or her claim in the local sheriff court under simple procedure, or in the all-Scotland sheriff court.

Section 74 – Proceedings for aliment of small amounts under simple procedure

129.Section 74 re-enacts and updates the drafting of section 3 of the Sheriff Courts (Civil Jurisdiction and Procedure) (Scotland) Act 1963. It provides that, regardless of the general rules in any enactment on simple procedure, that an action for aliment where the amount claimed does not exceed a certain sum may be brought subject to simple procedure. The sum set by the section may be varied by an order made by the Scottish Ministers, subject to negative procedure. Given the re-enactment of section 3, the 1963 Act is now wholly repealed by paragraph 21 of schedule 5 to this Act.

Section 75– Rule-making: matters to be taken into consideration

130.Section 75 establishes that, as far as possible, the rules of court which govern simple procedure will enable an interventionist and problem-solving approach. It is to be read subject to the obligation on the Scottish Civil Justice Council to draft the rules in accordance with the principle that they should be as clear and easy to understand as possible, in terms of section 2(3)(b) of the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013. The obligation to make rules of court which reflect such principles is deliberately framed to be exercised “so far as possible” in order to avoid any obligation to create rules that may be inconsistent or contradictory with one another. Paragraph (d) is intended to ensure that the rules are flexible enough to allow a sheriff to follow the procedure that is most appropriate to the circumstances of the case.

Section 76 – Service of documents

131.Section 76, which is derived from section 36A of the Sheriff Courts (Scotland) Act 1971, permits rules made under section 104(1) to provide for the sheriff clerk to be required to effect service of any document on behalf of parties in a simple procedure case.

Section 77 – Evidence in simple procedure cases

132.Subsection (1) is based on section 35(3) of the Sheriff Courts (Scotland) Act 1971 and is a reflection of the desire to make the simple procedure less bound up in technical, legal rules. Subsection (2) restates section 36(3) of the 1971 Act which was included as ordinary cause rules in the sheriff court require the recording of evidence. Ordinary cause procedure will not exist after the Act is fully commenced (by virtue of the repeal of Schedule 1 to the Sheriff Courts (Scotland) Act 1907 by schedule 5 paragraph 4(h) of this Act). However the new rules of procedure are likely to require the recording of evidence in at least some cases and so section 77(2) is necessary to make it clear that such recording is not required in simple procedure cases.

Section 78 – Transfer of cases to simple procedure

133.Section 78 provides for cases which are not being dealt with under simple procedure to be transferred to that form of proceedings, provided they are now of a type that could be brought under simple procedure. Accordingly if proceedings develop to such an extent that, if they had been raised at that point, they would have had to have been raised under simple procedure, they may be transferred to simple procedure. Subsection (2)(b) permits cases to be transferred to simple procedure if the parties agree, even if the sum sought would exceed the usual monetary limit for simple procedure cases. In such a transfer there is no obligation that the sum sought requires to be lowered to meet the financial limit set out in section 72(3) or 74(2). Accordingly the parties’ agreement to continue subject to simple procedure does not have the effect of capping the sum sought to those financial limits. The sheriff has no discretion and must give effect to the parties’ joint application. Unlike sections 79 and 80, a single party cannot make a section 78 application.

Section 79 – Proceedings in an all-Scotland sheriff court: transfer to simple procedure

134.This section provides for a party to a case raised in an all-Scotland sheriff court to apply to have it transferred out of that court and into simple procedure in another sheriff court having jurisdiction, on special cause shown. The sheriff has discretion as to whether to give effect to the application.

Section 80 – Transfer of cases from simple procedure

135.Section 80 provides for the transfer of cases out of simple procedure. Given the abolition of ordinary cause rules, it is left to court rules under section 104 to determine if a uniform set of rules is to be adopted for all remaining cases outwith simple procedure or if different rules are to apply to different kinds of case. This provision simply states that cases will be transferred from simple procedure without specifying the procedure to which they are being transferred. As with section 79, a single party may make an application and the sheriff has discretion as to whether to give the application effect.

Section 81 – Expenses in simple procedure cases

136.Section 81 re-enacts section 36B of the Sheriff Courts (Scotland) Act 1971 with modifications to reflect the new system of simple procedure. Subsection (1) provides that the Scottish Ministers may prescribe, by order (subject to the affirmative procedure by virtue of section 133(2)(a)), categories of simple procedure to which alternative expenses rules will apply. In other words, in those cases the normal rules on expenses will not apply. Subsection (2) makes it clear that these categories will be defined by reference to the value of the claim or the subject matter of the claim, permitting types of actions, for example personal injury, to be excluded from any limitation on expenses.

137.An order under subsection (3) could also specify some civil proceedings where different expenses could apply, excepting them from categories set out in subsection (2).

138.Subsection (4) then sets out cases in which those rules are disapplied. Subsection (5) is based on section 36B(3) of the 1971 Act and lists the circumstances in which the restrictions on expenses should not apply owing to the behaviour of one of the parties to the case. Subsections (6) and (7) allow the sheriff to make an direction disapplying the restrictions on expenses in an order under subsection (1) in complex cases.

Section 82 – Appeals from simple procedure cases

139.This section provides that an appeal on a point of law may be taken under section 110 to the Sheriff Appeal Court, however only against the final judgment of the sheriff (“final judgment” is defined in section 136(1)). No further provision is required in this section for onward appeals of simple procedure cases from the Sheriff Appeal Court to the Court of Session since such appeals will be governed by the general rules applicable to section 110 appeals.

Section 83 – Transitional provision: summary causes

140.Section 83 makes provision to deal with the transition between summary cause procedure and its replacement, simple procedure. This ensures that all references in legislation which refer to summary cause are to be read as referring to simple procedure.

Interdicts and other orders: effect outside sheriffdom
Section 84 – Interdicts having effect in more than one sheriffdomSection 85 – Proceedings for breach of an extended interdict

141.Section 84 gives a sheriff competence to grant an interdict or interim interdict having effect outwith the sheriff’s sheriffdom (i.e., within any other sheriffdom in Scotland).

142.Section 85 sets out that these types of interdicts are to be known as “extended interdicts” and that proceedings for a breach of an extended interdict will be capable of being validly raised and enforced by an action in a number of sheriff courts: in the sheriffdom in which the defender is domiciled; in the sheriffdom in which the interdict was granted; and in the sheriffdom in which the alleged breach occurred.

143.However, on the application of a party to the proceedings or on the sheriff’s own initiative, a sheriff may transfer proceedings to a sheriff of another sheriffdom, if satisfied that this would be more appropriate. This sheriff may transfer the proceedings to any other sheriffdom in this case and is not limited to the sheriffdom in which the defender is domiciled, the sheriffdom in which the interdict was granted or the sheriffdom in which the alleged breach occurred. Where a case is transferred to another sheriff in this way, then that sheriff has the competence to consider and determine the proceedings.

144.This provision is a permissive one, however and makes it clear that the sheriff will be able to use discretion in determining whether proceedings should be raised before them. This discretion applies to the operation of all the rules in the section. It is anticipated that, by providing that the test does not affect the power of the sheriff to decline jurisdiction, a sheriff will continue to be able to decline jurisdiction on the basis that his or her court is not an appropriate forum for determining the matter in dispute (forum non conveniens).

Section 86 – Power to enable sheriff to make orders having effect outside sheriffdom

145.Section 86 enables the Scottish Ministers to provide by order (subject to the negative procedure) for the types of orders (including interim orders) which a sheriff has competence to make which would be capable of having effect and be able to be enforced outwith the sheriffdom in which they were granted. This provides that other types of court proceedings may be identified and the effect and enforcement of these proceedings extended in a similar way to that of interdict (which is dealt with in sections 84 and 85).

Execution of deeds relating to heritage
Section 87 – Power of sheriff to order sheriff clerk to execute deed relating to heritage

146.Section 87 provides, where the grantor (as defined in subsection (6)) of any deed relating to immoveable property (i.e. land and buildings), is unable, refuses or fails to execute a deed relating to such property, or cannot be found, that the sheriff may make an order which dispenses with the need for the grantor to execute the deed and directs the sheriff clerk to execute the deed. The effect of an execution by the sheriff clerk is that the deed is taken to have the same effect as it would have if it had been executed by the grantor. This section is intended to restate and to have the same legal effect as section 5A of the Sheriff Courts (Scotland) Act 1907, though the distinction in section 5A(2) between applications and summary applications is not perpetuated as the latter are no longer to be a defined category of proceedings in the Act. The grantee will simply make an application for an order in either of the cases mentioned in subsection (1).

Interim orders
Section 88 – Interim orders

147.Previously, there have been no statutory powers conferring on sheriffs a general power to grant interim orders corresponding to section 47 of the Court of Session Act 1988. This suggests that there has been a real doubt regarding the power of a sheriff to grant an interim order ad factum praestandum (that is, an order requiring that something (other than the payment of a sum of money) be done pending the final determination of the proceedings). Section 88 rectifies this by conferring an express power on sheriffs to make such orders along with the power to grant orders regarding the interim possession of any property to which the proceedings relate. Section 90 concerns similar provision as regards the Court of Session.

Chapter 2 – Court of Session
Section 89 – Judicial review

148.Section 89 inserts new sections 27A to 27D into the Court of Session Act 1988 which reform the procedures for petitions for judicial review as recommended in Chapter 12 of the Scottish Civil Courts Review. Previously, there have been no statutory time limits within which an application for judicial review must be made. Section 27A provides that a time limit of three months starting from the date that the grounds giving rise to the application for judicial review arose will apply to applications to the supervisory jurisdiction of the court. This is subject to the exercise of the court’s discretion to permit an application to be made outwith that period, for example, if there is good reason for delay in making an application, or where the court is satisfied that injustice would result if an application presented outwith the time period is not allowed to proceed. Subsection (2) provides that the time limit of three months will not apply to an application to the supervisory jurisdiction of the court under any enactment that specifies another period ending before the period of three months. Sections 27B, 27C and 27D add a new preliminary stage at which permission to proceed to judicial review is granted or refused. Each case will be considered by a judge from the Outer House of the Court of Session. There will be no necessity for a hearing at this stage. The judge will consider whether the applicant has sufficient interest in the subject matter and whether the application has a real prospect of success.

149.The Supreme Court, in Axa General Insurance Ltd & Ors v the Lord Advocate & Others [2011] UK SC 46(4), reviewed the law on title and interest to sue as regards judicial review provision – in particular, Lord Hope at paragraphs 62 to 63 and Lord Reed at paragraphs 170 and 175. The decision related to the “standing” of a third party to enter the process as respondents, but it is clear from the judgments that the statements on “standing” apply to applicants for judicial review, and that the substantive law in Scotland allows for a single test in which the petitioner for judicial review must demonstrate a sufficient interest in the subject matter of the proceedings. The Act reflects this in section 27B(2)(a) as part of the permission test.

150.The reference to a real prospect of success in section 27B(2)(b), reflects Lord Gill’s recommendations. In deciding whether or not to grant permission, the court will assess not whether the case is merely potentially arguable, but whether it has a realistic prospect of success subject to the important qualification that arguability cannot be judged without reference to the nature and gravity of the issue to be argued. Court rules will set out the process for the permission hearing. Lord Gill envisaged that the applicant would be required to serve upon the respondent and any interested party, within seven days of lodging the application, the application itself, a time estimate for the permission hearing, any written evidence in support of the application, copies of any document on which the applicant proposes to rely and a list of essential documents for advance reading by the court with the respondent having 21 days to answer the application and to decide whether to oppose the granting of leave.

151.The possible outcomes at the permission stage are that the court may:

  • grant permission for the application to proceed

  • grant permission for the application to proceed, but with specified conditions or only on particular grounds; or

  • refuse permission.

152.Section 27C provides that, if the permission to apply for judicial review is refused or granted subject to conditions or only on particular grounds and this was done without an oral hearing, then the applicant has seven days within which to request an oral hearing to review the original decision.

153.The request for review requires to be considered by a different judge. Section 27C(6) provides that section 28 of the Court of Session Act 1988 (reclaiming) does not apply where there is a right to request a review at an oral hearing. In other words, there is no right of appeal to the Inner House of the Court of Session against a decision made under section 27B – an applicant who wishes to challenge the decision must request a review under section 27B(2). Similarly, there is no right of appeal to the Inner House if the judge refuses the request for a review.

154.Under section 27D, where the court refuses permission or grants permission subject to conditions or only on particular grounds following an oral hearing (whether at the first stage of permission or following a request under section 27C(2)), the applicant can appeal to the Inner House of the Court of Session within 7 days of the Outer House’s decision.

155.The provisions in the Act also deal (at section 27B(3)) with the interaction between the new judicial review permission stage and applications to the Court of Session for judicial review of unappealable decisions of the Upper Tribunal for Scotland. Section 50(4) of the Tribunals (Scotland) Act 2014 makes provision preventing the Court of Session and the Upper Tribunal for Scotland from granting permission for a second appeal unless the “second appeals test” set out by the Supreme Court in Eba v Advocate General for Scotland [2011] UKSC 29(5) is satisfied – that the second appeal raises an important point of principle or practice or there is some other compelling reason for allowing it to proceed.

156.The Act ensures that the same second appeals test is applied at the permission stage where the application for judicial review relates to a decision of the Upper Tribunal for Scotland in an appeal from the First-tier Tribunal for Scotland under section 46 of the Tribunals (Scotland) Act 2014 – see section 27B(3). Therefore, the court may only grant permission for the application to proceed if it is satisfied that the second appeals test is satisfied in addition to the new judicial review permission test set out in section 27B(3)(a) and (b). The second appeals test is set out in section 27B(3)(c).

Section 90 – Interim orders

157.The Scottish Civil Courts Review recommended at paragraphs 142 - 143 of Chapter 4 that powers to make orders ad factum praestandum (that is, orders requiring the performance of a certain act other than the payment of a sum of money) and orders for specific implement on an interim or final basis conferred on the Scottish Land Court by section 84 of the Agricultural Holdings (Scotland) Act 2003 should also be conferred on the Court of Session and the sheriff court. Section 90 confers on the Court of Session in section 47 of the Court of Session Act 1988 a power to make an order (either final or interim) ad factum praestandum. Section 88 concerns similar provision as regards the sheriff courts.

Section 91 – Warrants for ejection

158.The Scottish Civil Courts Review recommended that the Court of Session should have jurisdiction to grant a decree of removing or warrant of ejection (paragraph 144, Chapter 4). The Court of Session can only grant a decree of removing if this is ancillary to another remedy sought. Section 91 inserts a new section 47A into the Court of Session Act 1988 giving the Court of Session competence to grant a warrant of ejection where it grants a decree for removing, so that no further order is required to compel the occupier of land to give up occupation.

Chapter 3 - Remit of cases between courts
Section 92 – Remit of cases to the Court of Session

159.Subsections (1) and (2) permit a sheriff to remit a case (to which the exclusive competence of the sheriff court under section 39 does not apply i.e. if the £100,000 limit does not apply) to the Court of Session if the sheriff considers that the importance or difficulty of the case makes it appropriate. This restates section 37(1)(b) of the Sheriff Court (Scotland) Act 1971.

160.The recommendation that the Court of Session should be able to decline the remit of a case below the exclusive competence (where section 39 does apply) is given effect to in subsections (3) and (4) which permit the sheriff to request the Court of Session to allow proceedings to which section 39 does apply to be remitted to that Court if the importance or difficulty of the proceedings makes it appropriate to do so. Under subsection (5), the Court of Session may permit the proceedings to be remitted “on cause shown”.

161.In the particular case of proceedings against the Crown in the sheriff court, section 44 of the Crown Proceedings Act 1947 continues to have effect.

Section 93 – Remit of cases from the Court of Session

162.The Scottish Civil Courts Review also recommended that where the value of an action raised in the Court of Session is likely to be below the exclusive competence limit, as assessed by the judge at a case management hearing, there should be a presumption in favour of a remit to the sheriff court. Section 93 implements these recommendations.

163.Subsections (1) and (2) set out that proceedings must be remitted to the sheriff court (unless “on cause shown” there are reasons for not so doing), if at any stage the court is of the view that the value of the order is likely to be below the value set for the time being in section 39(1)(b)(ii). Subsection (1)(c) sets out that these provisions would apply to the aggregate total value of all orders likely to be granted in the proceedings below the value set for the time being in section 39(1)(b)(ii). Under subsection (3), the Court will not have to reach any view on liability or contributory negligence and “likely value” is to be assessed on the assumption that liability will be established. Subsections (4) and (5) give a permissive power to the Court to remit cases to which the monetary rule does not apply (i.e. non-monetary cases).

Section 94 – Remit of cases to the Scottish Land Court

164.Section 94 reproduces section 37(2D) of the Sheriff Court (Scotland) Act 1971 to permit a case to be remitted by the sheriff to the Scottish Land Court in appropriate cases. There is no appeal to the Sheriff Appeal Court against a decision to remit or not to remit.

Chapter 4 – Lay representation for non-natural persons
Section 95 – Key defined terms

165.Section 95 sets out key definitions of non-natural persons (companies and other bodies) in Chapter 4, as well as lay and legal representatives for the purposes of Chapter 4. Chapter 4 makes clear that non-natural persons are entitled to lay representation in certain circumstances in simple procedure cases and may be permitted, in certain circumstances to be represented by a lay person in other civil proceedings. “Solicitor” and “advocate” are defined in section 136(1).

Section 96 - Lay representation in simple procedure cases

166.Section 96 sets out the scope for permitting lay representation on behalf of non-natural persons in simple procedure cases (see sections 72 to 83). Permission of the court is not required but this section is subject to provision that the Court of Session may make provision, by act of sederunt under section 98, to regulate the authorisation of lay representatives for non-natural persons.

Section 97 – Lay representation in other proceedings

167.Section 97 sets out the scope for permitting lay representation on behalf of non-natural persons in non-simple procedure cases in the sheriff court, the Sheriff Appeal Court and the Court of Session. The decision on whether to permit lay representation in non-simple procedure cases lies with the court, who may grant permission subject to the fulfilment of the conditions in subsection (3). The suitability of the choice of lay representative is assessed in light of subsection (4) with the assessment of whether permitting lay representation is in the interest of justice in subsection (6). The assessment of such concepts as “interests of justice” and “suitability” in subsection (3) will ensure that the power to determine whether to permit lies firmly in the hands of the court taking into account the particular circumstances of the case.

Section 98 – Lay representation: supplementary provision

168.Section 98 enables the Court of Session to make further provision by act of sederunt about granting permission for lay representatives under section 97 and, more generally, the way that the proceedings are conducted by lay representatives. Subsection (2) sets out particular provisions that the Court of Session may make in the act of sederunt through its powers in subsection (1) including enabling the court (including the sheriff in the case of proceedings in the sheriff court) to make an order preventing a lay representative from conducting proceedings other than non-simple procedure cases before the court and allowing applications to be considered in chambers and without hearing the parties. Subsection (2) is not an exhaustive list of the provisions which may be made under subsection (1).

Chapter 5 – Jury service
Section 99 – Jury service

169.Section 99 provides for the alignment of age limits for jury service for jurors in civil cases with those for jurors in criminal cases, i.e. it removes the upper age limit for jurors in civil cases of 65 years of age. It does this through an amendment to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (as amended by the Criminal Justice and Licensing (Scotland) Act 2010). Section 99 also brings arrangements for claiming excusal as of right from civil jury service into line with those established for criminal jury service by the Criminal Justice and Licensing (Scotland) Act 2010, that is, that civil jurors aged 71 or over could claim excusal as of right. Jurors serving in criminal cases who attended for jury service but did not serve had their automatic excusal time shortened from five years to two years by the 2010 Act, and this is now applied to jurors serving in civil cases.

Chapter 6 – Vexatious proceedings
Section 100 – Vexatious litigation ordersSection 101 – Vexatious litigation orders: further provision

170.Sections 100 and 101 replace and update the Vexatious Actions (Scotland) Act 1898. They retain the role of the Lord Advocate as guardian of the public interest, permitting the Lord Advocate to seek a “vexatious litigation order” from the Inner House of the Court of Session which requires the vexatious litigant to obtain the consent of a Lord Ordinary prior to raising a civil action (section 100(2)(a)). The test for obtaining an order from the Inner House and the test which requires to be met by a litigant in seeking permission from a judge of the Outer House remain mostly the same but have been updated with a more modern form of drafting (section 101(1) and (4) respectively). For the first time however, the Court in determining whether to grant a vexatious litigation order will be able to take into account the proposed vexatious litigant’s behaviour in proceedings outwith Scotland (section 101(2)).

171.The sections also allow the Lord Advocate to seek to prevent a vexatious litigant from taking a specified step in specified on-going proceedings (section 100(2)(b)). This power is based on the similar powers of the Attorney General of England and Wales in section 42 of the Senior Courts Act 1981 and the existing power of the Lord Advocate in 33(2)(b) the Employment Tribunals Act 1996. Further, the court may also determine that a vexatious litigation order has effect only for such a period as specified in the order (section 100(4)).

172.Subsections (6) to (8) of section 101 make provision permitting a court dealing with on-going civil proceedings that are halted by an order under section 100(2)(b) to make orders in those proceedings in consequence, including with regard to the disposal of those proceedings.

Section 102 – Power to make orders in relation to vexatious behaviour

173.Section 102(1) allows the Scottish Ministers to make regulations (subject to the negative procedure) to empower the courts to deal with vexatious behaviour. Scottish Ministers will require to consult the Lord President prior to making regulations.

174.This section is designed to empower the courts to deal with vexatious behaviour and abuse of process in a similar way to the use of Civil Restraint Orders (CROs) by the courts of England and Wales. CROs are part of the inherent powers of the courts of that jurisdiction and are a form of order which may be granted by them in response to unmeritorious applications or claims by a litigant. The effect of such orders is to require a litigant to obtain the permission of a specified judge or court (as the case may be) prior to making applications in a particular case or cases, or from raising actions, either generally or in specific courts. They are a flexible, court-led response to abuse of the court process, which can be tailored to ensure that the rights of the litigant in question are balanced against both the rights of the other parties to any action and the efficient operation of the court.

175.Despite section 102 there will continue to be a role for the Lord Advocate as guardian of the public interest (under section 100 and 101): it may be possible for a vexatious litigant, through a wide geographical spread of different actions, not to trouble one court sufficiently to trigger the court-led sanction, but in his or her behaviour overall, to trouble the system or one litigant in a variety of courts. That said, now that the courts will be given this power, it is expected that the number of actions required to be taken by the Lord Advocate will decrease.

Part 4 – Procedure and Fees

176.The former Lord President of the Court of Session Lord Gill, who led the Scottish Civil Courts Review, has said that the reforms should be made effective through new rules of court. Whilst the Part 4 sets out the reformed framework for the civil courts system in Scotland, the detail will be provided in rules of court.

177.Part 4 also provides for the Court to have the ability to regulate fees in the Court of Session, as it does in the sheriff court and Sheriff Appeal Court, and the powers from the various acts have been rationalised into the Act to achieve this, clearly conferring on the Court power to regulate the fees of certain persons in the exercise of their functions in the Court of Session. This will bring together the powers of the Court of Session to regulate fees and remove the need to rely on the meaning of section 5 of the Court of Session Act 1988, particularly when regulating fees with regard to messenger-at-arms and shorthand writers.

Procedure

178.Sections 103 and 104 provide powers for the Court of Session to make rules of court by act of sederunt to regulate procedure in the Court of Session (section 103) and in the sheriff court and the Sheriff Appeal Court (section 104). The powers to make rules of court are intended to be broadly similar, but with specific variations required to take account of the different jurisdictions of the courts.

179.Given the critical role which rules of court will therefore have in implementing the Scottish Civil Courts Review, the powers granted in sections 103 and 104 provide the powers for rules of court made in respect of the matters enumerated in those sections.

Section 103 – Power to regulate procedure etc. in the Court of Session

180.Section 103 replaces sections 5 and 5A of the Court of Session Act 1988 which are repealed in schedule 5, paragraph 30(3). Section 103 gives the Court of Session a power to make provision in acts of sederunt concerning the procedure and practice of the Court of Session. Subsection (1) contains a broad, general power to make provision regarding procedure and practice. Subsection (2) contains some specific, illustrative examples of the sort of matters which are procedure and practice for the purposes of this power, including the conduct and management of proceedings in the Court of Session, the forms of documents used, appeals against decisions, awards of expenses and the representation of parties by those otherwise not qualified to do so. Given the width of subsection (1), subsection (2) is not designed to be exhaustive, rather it demonstrates a widening of what can be described as practice and procedure.

181.The approach to the description of the powers of the Court contrasts with the specific and narrower powers contained in the original version of section 5 of the Court of Session Act 1988 and is designed to effect a substantial widening of the powers of the Court of Session to regulate its practice and procedure. By virtue of Part 1 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013 the Scottish Civil Justice Council will continue to draft civil procedure rules.

182.Subsection (3) allows these acts of sederunt to make various types of ancillary provision, and subsection (4) clarifies that these new powers do not affect any existing power to make court rules or otherwise regulate procedure or practice (see the discussion of the Scottish courts’ inherent powers with reference to section 47).

Section 104 – Power to regulate procedure etc. in the sheriff court and the Sheriff Appeal Court

183.Section 104 is a replacement for the power to make rules of court in relation to the sheriff court in section 32 of the Sheriff Courts (Scotland) Act 1971 and extends the power to rules in relation to the Sheriff Appeal Court. It gives the Court of Session a broad power to make acts of sederunt concerning the procedure and practice to be followed in civil proceedings in the sheriff court and Sheriff Appeal Court. Subsection (1) contains a broad general power to make provision regarding procedure and practice. Subsection (2) contains some specific illustrative examples of the sort of matters which are procedure and practice for the purposes of this power, including the conduct and management of proceedings in the sheriff court and Sheriff Appeal Court, the forms of documents used, appeals against decisions, awards of expenses and the representation of parties by those otherwise not qualified so to do.

184.Whilst of a similar nature to section 32 of the 1971 Act, the wider general illustrative examples set out in subsection (2) demonstrate a substantial widening of what can be described as practice and procedure.

185.Subsection (3) provides that the rule-making power is subject to the provisions in sections 72 to 82 concerning simple procedure. Subsection (4) allows these acts of sederunt to make various types of ancillary provision. Subsections (5) and (6) require the Court of Session to consult with the Scottish Civil Justice Council when making acts of sederunt which were not prepared in draft by the Council. Subsection (7) clarifies that these new powers do not affect any existing power to make court rules or otherwise regulate procedure or practice. See also sections 75 and 76 which make special provision about simple procedure rules.

Fees of solicitors etc.

Section 105 – Power to regulate fees in the Court of Session

186.Section 105 gives the Court of Session a broad power to make acts of sederunt concerning the fees, including the fees recoverable in an award of judicial expenses, of various office-holders and persons in relation to proceedings in the Court of Session. An act of sederunt under section 105(1) is subject to the negative procedure by virtue of subsection (5)). After consulting the Lord President, the Scottish Ministers can, by order (subject to the negative procedure by virtue of section 133(3)), specify additional persons in respect of whom this power may be exercised.

187.Section 105(2) specifically excludes the fees that the Scottish Ministers regulate under section 33 of the Legal Aid (Scotland) Act 1986 (fees and outlays of solicitors and counsel) from those listed in section 105(1).

Section 106 – Power to regulate fees in the sheriff court and the Sheriff Appeal Court

188.Section 106 is a replacement for section 40 of the Sheriff Courts (Scotland) Act 1907 Act. It gives the Court of Session a broad power to make acts of sederunt concerning the fees, including the fees recoverable in an award of judicial expenses, of various office-holders and persons in relation to proceedings in the sheriff court and Sheriff Appeal Court. An act of sederunt under section 106(1) is subject to the negative procedure by virtue of subsection (5)). After consulting the Lord President, the Scottish Ministers can, by order (subject to the negative procedure by virtue of section 133(3)), specify additional persons in respect of whom this power may be exercised.

Court fees

Section 107 – Power to provide for fees for SCTS, court clerks and other officers

189.Section 107 effectively restates and modernises the power conferred on the Scottish Ministers by section 2 of the Court of Law Fees (Scotland) Act 1895. Section 2 of the 1895 Act is consequentially repealed by schedule 5, paragraph 26. This consolidates and updates the law, for example by enabling an order on court fees to explicitly revoke an earlier order by virtue of section 6 of the Interpretation and Legislative Reform (Scotland) Act 2010.

190.This power permits the Scottish Ministers to set the fees that may be charged by the SCTS and (what the section describes as) “relevant officers” in relation their functions in providing court services. The power permits the Scottish Ministers (by order subject to the negative procedure) to make provision exempting persons from fees and provides that there may be different fees for different courts and types of proceeding. Subsection (4) permits the Scottish Minsters to modify the list of courts or officers covered by this section, by order. Such an order is subject to the affirmative procedure.

Section 108 – Sanction for counsel in the sheriff court and the Sheriff Appeal Court

191.Section 108 sets out the test to be applied by a court in considering whether to grant sanction for the employment of counsel (that is to say advocates or solicitor advocates) in the sheriff court and the Sheriff Appeal Court, when determining the level of expenses which may be due. In terms of this test, the court is required to sanction the employment of counsel if it considers that to do so is reasonable in all the circumstances of the case. In deciding whether granting sanction would be reasonable, the court must have regard to the criteria set out in subsection (3), which include “the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel”. The Court of Session is able to modify these provisions through court rules made in an act of sederunt under section 104(1) or section 106(1) of the Act. Generally, the expectation is that solicitors will conduct sheriff court and Sheriff Appeal Court litigation (without prejudice for arrangements for party litigants or lay representatives).

Part 5 – Civil Appeals

192.Part 5 deals with civil appeals and the relationships between the sheriff court, the Sheriff Appeal Court and the Court of Session.

193.The Act provides that the new Sheriff Appeal Court should deal with all civil appeals from sheriffs and summary sheriffs in the sheriff court, except where specific legislation allows for appeal to the Court of Session. Under sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907 (which are to be repealed) appeals may go to the sheriff principal or to the Court of Session. The establishment of the Sheriff Appeal Court means that the existing right of appeal to the sheriff principal of a sheriffdom in civil proceedings is abolished. This only applies to appeals from the sheriff to the sheriff principal and does not affect any statutory appeals or applications to the sheriff principal from tribunals or other bodies.

194.Generally, direct appeals from the sheriff court to the Court of Session will cease to be possible. All appeals will go instead to the Sheriff Appeal Court. In order to address concerns that the Sheriff Appeal Court might in some cases simply be seen as an extra and unnecessary layer of appeal which merely adds to the cost of appealing an action, the Scottish Civil Courts Review recommended that there should be a restricted right of appeal from the Sheriff Appeal Court to the Court of Session. There is provision, therefore, that the Sheriff Appeal Court or the Court of Session may only grant permission to appeal if the appeal raises an important point of principle or practice or if there is some other compelling reason for the Court of Session to hear it.

195.However, there remain some proceedings where there is a statutory requirement for initial proceedings to be brought before a sheriff principal rather than a sheriff. In such cases, it is considered more appropriate for the appeal to lie to the Court of Session rather than the Sheriff Appeal Court.

196.Part 5 also provides for the granting of leave or permission and assessment of the grounds of appeal. In 2009, Lord Penrose published a Review of Inner House Business in which it was set out that there should be a sift mechanism under which a single judge of the Inner House should consider grounds of appeal. The amendment made to the Court of Session Act 1988 by the Judiciary and Courts (Scotland) Act 2008, which permits a single judge of the Inner House to dispose of business, restricts the role of the single judge to procedural matters. That power is considered sufficient to provide for a single Inner House judge to deal with applications for permission or leave to appeal, but not for a single judge to consider whether appeal proceedings should be allowed to proceed and if so on what grounds. Lord Penrose recommended that the decision of the single judge should be final, albeit with the safeguard that a decision could be reviewed by a three-judge Division of the Inner House.

197.However, the Scottish Civil Courts Review considered that it would not be an efficient use of resources for a first sift to be undertaken by three members of the Inner House and noted that the sift mechanism proposed by Lord Penrose would be the equivalent of a requirement to obtain leave in other jurisdictions. A decision on whether to grant leave or permission and an assessment of the grounds of appeal require some consideration of the merits and will ordinarily affect whether an appeal or part of it can proceed. Therefore, despite the existing procedures for dealing with leave or permission, the Act provides for a power for both of these matters to be dealt with in a consistent way.

198.Finally Part 5 deals with appeals to the Supreme Court. Section 40 of the Court of Session Act 1988 provides that it is competent to appeal to the United Kingdom Supreme Court (UKSC) against certain judgements without requiring leave from the Inner House. The only restriction is that the appeal must be certified by two counsel as reasonable before it can be heard in the UKSC. These arrangements have been criticised in a number of cases, most recently by the UK Supreme Court in Uprichard v Scottish Ministers [2013] UKSC 21. The Act, therefore, replaces the provisions for appeals under section 40 of the Court of Session Act 1988 which can be taken forward on the certification of two counsel with provision that requires the permission of the Inner House, or, failing such permission, permission of the UKSC.

Appeals to the Sheriff Appeal Court

Section 109 – Abolition of appeal from a sheriff to the sheriff principal

199.Whilst the office of sheriff principal will continue, section 109(1) abolishes the right of appeal from the sheriff to the sheriff principal in civil proceedings, in consequence of the new right of appeal to the Sheriff Appeal Court in section 110. This only applies to appeals from the sheriff to the sheriff principal and does not affect any statutory appeals or applications to the sheriff principal from tribunals or other bodies. Subsections (2) and (3) provide that any specific provisions in other enactments which provide for an appeal from a sheriff to the sheriff principal will now be to the Sheriff Appeal Court.

Section 110 – Appeal from a sheriff to the Sheriff Appeal Court

200.Section 110 is based on section 27 of the Sheriff Courts (Scotland) Act 1907 but provides that the appeal is to the Sheriff Appeal Court rather than the sheriff principal. Permission to appeal is not required in relation to the matters set out in subsection (1). Subsection (2) provides that permission to appeal is, however, required against any other interlocutor (order) of a sheriff in civil proceedings. Subsections (4) to (6) contain a number of qualifications and are intended to restate section 28(2) of the 1907 Act and, in particular, to preserve any specific provision regarding appeal to the Sheriff Appeal Court or Court of Session that may be contained in other enactments. But the general rules for appeals from sheriffs in sections 27 to 29 of the 1907 Act are repealed by paragraph 4(e) of Part 1 of schedule 5 to the Act. See also the explanatory notes for section 82 which makes special provision for appeals from simple procedure cases.

Section 111 – Sheriff Appeal Court’s powers of disposal in appeals

201.Section 111 sets out the powers of disposal available to the Sheriff Appeal Court. The power in subsection (1)(a) is designed to be wide and is illustrated, but not limited, by the specific disposals listed in sub-paragraphs (i) to (v). Subsection (2) makes it clear that the provisions do not limit the inherent powers possessed by the Sheriff Appeal Court as a court of law conferred under section 47(3).

Section 112 – Remit of appeal from Sheriff Appeal Court to Court of Session

202.Section 112 permits a case to be remitted for the consideration of the Inner House of the Court of Session. However, it is not intended that parties should be able to bypass the Sheriff Appeal Court since the rationale for having such a court is that not all civil appeals merit the attention of the Inner House. Accordingly, section 112(2)(b) permits the Sheriff Appeal Court to remit an appeal on the application of a party to the Court of Session only if the Sheriff Appeal Court considers that it involves complex or novel points of law.

Appeals to the Court of Session

Section 113 – Appeal from the Sheriff Appeal Court to the Court of Session

203.Section 113 provides for an appeal to the Court of Session from a final judgment of the Sheriff Appeal Court, subject to a requirement to obtain permission, in the first instance from the Sheriff Appeal Court and, if refused, then from the Court of Session (subsection (1)). “Final judgment” is defined in section 136(1). This further right of appeal from a first instance decision is subject to the test set out in subsection (2). That subsection provides that permission to appeal may only be granted if the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Session to hear the appeal (in other words, the “second appeals test” discussed in the context of section 89). Subsections (3) and (4) restate section 28(2) of the Sheriff Courts (Scotland) Act 1907 to preserve any specific provision regarding appeals from the Sheriff Appeal Court to the Court of Session that may be contained in other enactments.

Section 114 – Appeal from the sheriff principal to the Court of Session

204.There are some enactments which provide for applications direct to the sheriff principal rather than the sheriff (as explained with reference to section 109 these are unaffected that section). Section 114 deals with such first instance judicial decisions made by sheriffs principal and makes it clear that appeals from such judgments are to the Inner House of the Court of Session rather than the Sheriff Appeal Court.

Section 115 –Appeals: granting of leave or permission and assessment of grounds of appeal

205.Section 115 inserts a new section 31A into the Court of Session Act 1988 to give the Court of Session power to provide by act of sederunt for a single judge (a) to determine any applications to the Inner House of the Court of Session for leave or permission to appeal to the Inner House; and (b) to consider any appeal proceedings initially (and, where appropriate, after leave or permission has been granted).

206.Section 115 relates to paragraphs 97 to 99 of Chapter 4 of the Scottish Civil Courts Review which also referred to the Inner House Business Review by Lord Penrose which recommended at paragraph 6.27 what the Scottish Civil Courts Review termed a “sift mechanism” whereby a single Inner House judge could consider grounds of appeal.

207.By way of background to the new provisions, it is relevant to note that section 2(4) of the Court of Session Act 1988 provides that, subject to section 5(ba), the quorum for a Division of the Inner House of the Court of Session shall be three judges. Section 5(ba) was inserted by the Judiciary and Courts (Scotland) Act 2008. Subsection 103(2)(p) of the Act gives the Court of Session power to make provision by act of sederunt as to the quorum for a Division of the Inner House considering solely procedural matters. That power is considered sufficient to provide for a single Inner House judge to deal with procedural matters including applications for leave or permission – see Rule 37A of the Rules of Court and as confirmed by the case of MBR v Secretary of State for the Home Department(6). However, the power is not considered sufficient to enable Rules of Court to enable a single judge to consider the initial stages of the appeal proceedings and decide by reference to the grounds of appeal whether the appeal proceedings should be allowed to proceed and if so on what grounds.

208.Since a decision on whether to grant leave or permission and an assessment of the grounds of appeal both require some consideration of the merits and will ordinarily affect whether an appeal or part of it can proceed. The Act provides a power for both of the above matters to enable a consistent approach.

209.New section 31A(1), therefore, provides the Court of Session with a new power relating to applications for leave or permission. When the act of sederunt is made under this new power the existing provisions that deal with the leave or permission process in Chapter 37A (as considered by the Court in the MBR case cited above) will be removed. Subsection (1) does not set out the test to be applied by the Court in determining whether leave or permission should be granted. That will be determined by the common law and any particular provisions in the relevant statutes that provide for leave or permission. The second appeals test has now been introduced for the majority of cases – see Hoseini v Secretary of State for the Home Department 2005 SLT 550 as referred to by the Court in the MBR case.

210.New section 31A(2) provides the Court of Session with a separate power to make provision for the initial appeal proceedings to be dealt with by a single judge with reference to whether the grounds of appeal or any of them are arguable. The Court is also given discretion through this power to apply this procedure to cases where leave or permission has already been granted.

211.New section 31A(3) requires the act of sederunt to make provision about the procedure including for the parties to be heard and for review by a Division of the Inner House of the Court of Session.

212.New section 31A(4) provides for the single judge’s decision to be final subject to the Inner House review process.

213.New section 31A(7) contains a definition of appeal proceedings. The new process is not capable of being applied to the procedure for permission to appeal to the Supreme Court that is separately provided for through section 117 of the Act.

Section 116 – Effect of appeal

214.Section 116 is intended to restate section 29 of the Sheriff Courts (Scotland) Act 1907 and makes provision about the effect of an appeal to either the Sheriff Appeal Court or the Court of Session. It provides that the court considering an appeal will be able to review all of the decisions in the proceedings, whether the decisions are made at first instance or on appeal (subsection (2)), and that the appeal may be insisted upon by any party to the appeal, regardless of whether that party was the one who originally brought the appeal (subsection (3)).

Section 117 – Appeals to the Supreme Court

215.Section 117 sets out new provisions for appeals from the Court of Session to the UK Supreme Court by replacing section 40 of the Court of Session Act 1988 with new sections 40 and 40A. It will be competent to appeal against a judgment of the Court of Session to the Supreme Court, but only with the permission of the Inner House of the Court of Session or, failing such permission, with the permission of the Supreme Court.

216.Section 40 of the Court of Session Act 1988 provides that it is competent to appeal to the Supreme Court against certain types of judgments without requiring leave from the Inner House. The only restriction on those appeals is that the Supreme Court under Practice Direction 4 requires that the note of appeal must be signed by two Scottish Counsel who certify that the appeal is reasonable.

217.In addition to changing the process for appeals to the Supreme Court, in line with the overall approach in the Act the opportunity has been taken to update the language and modernise terminology (noting that section 40 was itself a consolidation of the Court of Session Acts of 1808 and 1925), where appropriate. The Supreme Court in the judgment of Apollo Engineering Limited (Appellant) v James Scott Limited (Respondent) (Scotland) [2013] UKSC 37(7) made some criticism of the language of section 40.

218.The main changes in terminology in the new section 40 are:

  • “cause” becomes “proceedings” – Lord Hope notes in the Apollo judgment that “cause” has a very wide meaning and is defined in Rules of Court as covering “any proceedings”;

  • “leave” becomes “permission” as that is the term that is used more widely now, for example section 288AA(5) of the 1995 Act and the Constitutional Reform Act 2005;

  • “judgment” and “interlocutory judgment” become “decision”. This reflects the fact that “an interlocutory judgment” is any judgment other than a final one and on that basis “decision” is clearer for the user;

  • “judgment on the whole merits” becomes “final judgment” as defined in new section 40(10). This is consistent with the definition of “final judgement” as in section 136(1) of the Act which in turn is drawn from the definition of “final judgement” in section 3 of the Sheriff Courts (Scotland) Act 1907; and

  • “dilatory defence” becomes “preliminary defence”. This is discussed in the Apollo judgment where Lord Hope notes that “preliminary defence” is more favoured nowadays. The term is defined in new section 40(10).

219.New section 40(1) provides that an appeal may be taken to the Supreme Court against the relevant types of case only with the permission of the Inner House of the Court of Session or, if the Inner House has refused permission, with the permission of the Supreme Court.

220.Subsection (2) lists the kinds of decisions that can be appealed with the permission of the Supreme Court (even though the Inner House has refused permission). These are intended to be the same categories of decision as are covered by the existing provisions in section 40(1)(a) and (2) (with the terminological changes mentioned above and with the addition of a decision in an exchequer cause). Exchequer causes are subject to special rules in the Court of Session Act 1988 (namely sections 3 and 21 to 23 which are unaffected by the Act). An example of an exchequer cause is an appeal from the Upper Tax Tribunal for Scotland to the Inner House of the Court of Session under section 36 of the Revenue Scotland and Tax Powers Act 2014. The reference to exchequer causes in new section 40(2)(b) effects a restatement without modification of section 24 of the 1988 Act, bringing all the relevant provisions into a single section. See also Massie v McCaig [2013] CSIH 37.(8)

221.Subsection (3) then sets out the rule for other cases. It provides that for those other cases the decision is appealable with the permission of the Inner House of the Court of Session. In other words, the Inner House is the gatekeeper alone.

222.Subsection (4) is intended to restate the second part of the old section 40(2). It sets out that the Supreme Court has the same powers as the Inner House had in relation to an appeal against an application under section 29 of the Court of Session Act 1988 to grant or refuse a new trial in any proceedings, including in particular the powers in section 29(3) of the 1988 Act (power to set aside the verdict in place of granting a new trial) and section 30(3) of the 1988 Act (power to grant a new trial restricted to the question of the amount of damages).

223.Subsections (5) and (6) are intended to restate the old section 40(3), namely that an appeal cannot be taken to the Supreme Court against a decision of a Lord Ordinary unless that decision has been reviewed by the Inner House.

224.Subsection (7) is intended to restate the old section 40(4), with the effect that once an appeal is taken to the Supreme Court all prior decisions, whether at first instance or at any stage of appeal, are opened up for review by the Supreme Court.

225.Subsection (8) restates the opening qualification that is expressed in the old section 40(1), namely that the procedure is subject to sections 27(5) and 32(5) of the Court of Session Act 1988 which make special provision for appeals to the Supreme Court and to provisions in any other enactment which restrict or exclude appeals from the Court of Session to the Supreme Court.

226.Under new section 40(9), the provisions do not affect any right of appeal from the Court of Session to the Supreme Court that arises other than under the new section 40 of the 1988 Act – whether statutory appeals or at common law (although the assumption is that all such appeals are statutory now). For example, paragraph 13 of Schedule 6 to the Scotland Act 1998 sets out a separate process in relation to civil devolution issue appeals which is unaffected by the Act.

227.New sections 40A(1) and (2) provide a time limit for applications for permission to appeal to the Supreme Court. Applications to the Inner House of the Court of Session must be made within 28 days of the date of the decision against which the appeal lies, or such longer period as the court considers equitable having regard to the circumstances. The application to the Supreme Court should be made within 28 days of the date on which the Inner House refused permission, or such longer period as the Supreme Court considers equitable having regard to the circumstances. The time limit is equivalent to the time limits provided for in relation to applications for permission to appeal compatibility issues (European Convention on Human Rights and European Union challenges) to the Supreme Court through section 288A(7) and (8) of the Criminal Procedure (Scotland) Act 1995.

228.New section 40A(3) sets out that the test that the Court is to apply when considering an application for leave is whether the appeal raises an arguable point of law of general public importance that ought to be considered by the Supreme Court at the time. This is in line with the comments made by Lord Reed in the case of Uprichard v Scottish Ministers [2013] UKSC 21.(9)

Part 6 – Criminal Appeals

229.The Scottish Civil Courts Review recommended that the Sheriff Appeal Court should have jurisdiction to deal with all summary criminal appeals by an accused on conviction or sentence, appeals by the Crown on acquittal or sentence and bail appeals (whether in summary or solemn criminal proceedings). Part 6 gives effect to these recommendations.

Appeals from summary criminal proceedings

Section 118 - Appeals to the Sheriff Appeal Court from summary criminal proceedings

230.Section 118(1) transfers the existing powers and jurisdiction of the High Court of Justiciary relating to appeals from courts of summary criminal jurisdiction to the Sheriff Appeal Court. “Courts of summary criminal jurisdiction” are the justice of the peace court (as established by section 59 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007) and the sheriff sitting (without jury) as a summary criminal court. The powers and jurisdiction transferred include those in relation to the hearing and disposal of appeals against conviction and sentence under section 175 of the Criminal Procedure (Scotland) Act 1995 and in relation to bills of suspension and bills of advocation (for which provision is made in section 191 of that Act). Subsection (2) provides that subsection (1) does not apply to the nobile officium of the High Court: that is, to its inherent jurisdiction to grant, in extraordinary or unforeseen circumstances in which no other remedy is provided for by law, such orders as may be necessary for the purposes of preventing injustice or oppression. Subsection (3) gives effect to schedule 3, which modifies Part X (appeals from summary proceedings) of the 1995 Act in consequence of the transfer of jurisdiction effected by subsection (1).

Section 119 - Appeals from the Sheriff Appeal Court to the High Court

231.Section 119 makes provision for appeals from the Sheriff Appeal Court to the High Court of Justiciary, by inserting a new Part 10ZA (consisting of sections 194ZB to 194ZL) after Part X (appeals from summary proceedings) of the 1995 Act.

232.Inserted section 194ZB(1) provides for an appeal from the Sheriff Appeal Court to the High Court against a decision of the Sheriff Appeal Court in criminal proceedings. Such an appeal may only be made on a point of law and with the permission of the High Court. Appeals in summary proceedings may be taken either by the defence or by the prosecutor; subsection (2) similarly permits an appeal under subsection (1) to be taken by any party to the appeal in the Sheriff Appeal Court. Subsection (3) limits the grounds upon which the High Court may grant permission by providing that permission may only be granted if the Court considers that the appeal raises an important point of principle or practice or that there is some other compelling reason for the Court to hear the appeal (in other words, the “second appeals test” discussed in the context of sections 89 and 113). Such an application for permission to appeal must be made within 14 days after the decision of the Sheriff Appeal Court appealed against (subsection (5)). The High Court may extend this period if satisfied that doing so is justified by “exceptional circumstances”.

233.Inserted section 194ZC provides that an appeal under section 194ZB(1) is to be made by note of appeal (subsection (1)), which must specify the point of law on which the appeal is being made (subsection (2)). (The note of appeal will be the principal document upon which the decision to grant or refuse permission to appeal will be based: see inserted section 194ZF(1)(c)(i)). Subsection (3) makes provision in relation to the quorum of the High Court in considering and deciding an appeal under section 194ZB(1). That quorum is three judges of the High Court. Decisions are to be taken by a majority and each judge is entitled to pronounce a separate opinion.

234.Inserted section 194ZD is based on section 180(1) and (3) of the 1995 Act. As under that section, the decision whether to grant permission to appeal is to be taken by a single judge (subsection (1)), who may, in granting permission, make comments in writing in relation to the appeal (subsection (2)). (As to the effects of these comments, see inserted section 195ZG.) Where the single judge refuses permission, that judge must give reasons in writing for the refusal and, where the appellant has been sentenced to imprisonment and is on bail, must grant a warrant for the appellant’s apprehension and imprisonment (subsection (3)). In terms of subsection (4), such a warrant will not have effect until the expiry of the time limit for lodging a further application for permission to appeal in terms of section 194ZE.

235.Section 194ZE, which is based on section 180(4) to (5) of the 1995 Act, makes provision for a further application to the High Court where the single judge of the High Court has refused permission under 194ZD. The application must be made within 14 days of intimation of the single judge’s refusal (subsection (1)), although the High Court may extend this time limit if satisfied that doing so is justified by exceptional circumstances (subsections (2) and (3)). The application will be considered by a quorum of three judges (subsection (4)). Where the High Court gives permission, subsection (5) provides that it may make written comments in relation to the appeal (for the significance of which, see inserted section 194ZG). In the event of refusal, the High Court must give written reasons and, if the appellant has been sentenced to imprisonment and is on bail, grant warrant for the appellant’s apprehension and imprisonment (subsection (6)).

236.Section 194ZF makes further provision about the procedure for determining applications for leave to appeal. Subsection (1)(a), which is based upon section 180(6) of the 1995 Act provides for applications to be determined in chambers without the parties being present. Subsection (1)(b) requires the application to be determined by reference to section 194ZB(3), that is, the requirement that the High Court must consider that the appeal would raise an important point of principal or practice, or that there be some other compelling reason for the High Court to hear the appeal (again, the “second appeals test” discussed in the context of sections 89 and 113). Subsection (1)(c) specifies the documents which must be considered in determining the application. These are the note of appeal and such other document or information (if any) as may be specified by act of adjournal.

237.Inserted section 194ZG provides for the restriction of grounds of appeal to those specified in the note of appeal or as arguable in the written comments of the single judge in terms of section 194ZD(2) or, as the case may be, of the High Court in terms of section 194ZE(5). It is based, with appropriate modifications, on section 180(7) to (9) of the 1995 Act. Where written comments are made, they may specify the arguable grounds of appeal (whether or not they were stated in the note of appeal) (subsection (1)) and, where they do so, the appellant may not found upon any ground which has not been so specified without the permission of the High Court (subsection (2)). An application for such permission must be made and intimated to the Crown Agent, within 14 days of intimation of the written comments (subsection (3)), which period may be extended by the High Court in exceptional circumstances (subsection (4)). The appellant may not found on any matter not stated in the note of appeal, except with the permission of the High Court on cause shown (subsection (5)), or unless that matter, not specified in the note, has been specified as an arguable ground of appeal in written comments made in terms of section 194ZD(2) or 194ZE(5) (subsection (6)).

238.Inserted section 194ZH provides for the powers of the High Court in disposing of an appeal. In terms of subsection (1), the High Court is empowered either (a) to remit the case back to the Sheriff Appeal Court with its opinion as to direction as to further procedure in, or disposal of, the case, or (b) exercise any power that the Sheriff Appeal Court could have exercised in relation to disposal of the appeal proceedings before that Court. Subsection (3) provides that the statutory powers given to the High Court by section 194ZH do not affect any power in relation to the consideration or disposal of appeals that the High Court otherwise has.

239.Inserted section 194ZI(1) applies section 177 (procedure where appellant in custody) of the 1995 Act to appeals from the Sheriff Appeal Court to the High Court, with the exception of the “excepted appeals” set out in subsection (2). Section 177 provides for the court of first instance to be able to grant bail, grant a sist of execution, or make any other interim order pending the determination of an appeal. The “excepted appeals” set out in subsection (2) are bail appeals under section 32 and appeals under section 177(3). In each of these cases, the subject of the appeal is a decision not to grant bail, and it would not make sense to provide for a further application for bail pending the outcome of an appeal against that refusal.

240.Inserted section 194ZJ, which provides for abandonment of an appeal, is based on section 116(1) of the 1995 Act.

241.Inserted section 194ZK provides that the judgments of the High Court in an appeal in summary proceedings are final and not subject to review by any court (subsection (1)). The only exceptions to this absolute finality are consideration by the High Court on a reference from the Scottish Criminal Cases Review Commission in terms of Part XA of the 1995 Act and consideration by the UK Supreme Court on an appeal under section 288AA of that Act (compatibility issues) or in terms of paragraph 13(a) of Schedule 6 to the Scotland Act 1998 (devolution issues).

242.Inserted section 194ZL makes equivalent provision for computation of time periods to that found in section 194(1) of the 1995 Act.

Section 120 - Power to refer points of law for the opinion of the High Court

243.Section 120 amends the 1995 Act to insert a new section 175A after section 175 establishing the basis upon which the Sheriff Appeal Court may refer a point of law in an appeal case to the High Court for its opinion if the Sheriff Appeal Court thinks that the point is a complex or novel one. The Sheriff Appeal Court may do this on its own initiative or on the application of a party in the appeal proceedings.

Section 121 - References by the Scottish Criminal Cases Review Commission

244.Section 121 amends section 194B (references by the Commission) of the 1995 Act to provide for the Scottish Criminal Cases Review Commission to be able to refer to the High Court cases in which the an appeal was originally heard in the Sheriff Appeal Court.

Bail appeals

Section 122 - Bail appeals

245.Section 122 amends section 32 of the 1995 Act (bail appeals) to provide for appeals against bail decisions taken in the sheriff court (whether in summary or solemn criminal proceedings) to go to the Sheriff Appeal Court rather than the High Court.

Part 7 – Judges of the Court of Session

Section 123 – Appointment of Court of Session judges, etc

246.Section 123 re-enacts (without significant modification), the previous law relating to the appointment of:

  • judges;

  • temporary judges; and

  • re-employed former judges,

in the Court of Session. The previous law was set out in the Law Reform (Miscellaneous Provisions) (Scotland) Acts 1985 and 1990. In particular this re-enacts and repeals:

  • the provisions of the 1985 Act which relate to what is called in that Act “re-employed retired judges”;

  • the provisions of the 1990 Act which relate to qualification for appointment as a Court of Session judge; and

  • the provisions of the 1990 Act relating to the appointment of temporary judges of the Court of Session,

The re-enacted provisions are inserted into the Judiciary and Courts (Scotland) Act 2008 which already contains a range of provisions about the judiciary.

247.Section 20A restates paragraphs 1-3 of Schedule 4 to the 1990 Act. In section 20A(1)(a), the wording of sub-paragraph (ii) ensures that a person who has been a sheriff principal for less than 5 years, but was a sheriff before being appointed sheriff principal, is eligible for appointment if the person had a total combined service as a sheriff and sheriff principal of at least 5 years prior to the appointment. Sections 20B-20D (and 20G) largely reflect paragraphs 5-11 of Schedule 4 to the 1990 Act. Section 20D(2)(b) simply provides for the appointment to end when the individual retires. Sections 20E, 20F and 20G re-state section 22 of the 1985 Act. Section 20E provides for the re-employment of former Court of Session and Supreme Court judges. Section 20F and makes further provision for the re-employment of former judges. Section 20G provides for both the remuneration and expenses of temporary and former judges.

Section 124 – Payment of salaries of Court of Session judges

248.Section 124 provides for the payment of the salaries of Court of Session judges (that is, Senators of the College of Justice) to be made by the SCTS. Senators’ salaries have previously been paid by the Scottish Ministers and administered by the Scottish Government. Determination of the level of these salaries remains reserved to Westminster (see section 9 of the Administration of Justice Act 1973).

Section 125 – Expenses

249.Section 125 provides for the SCTS to pay Senators’ expenses.

Part 8 – Scottish Land Court

Section 126 – Scottish Land Court: remuneration and expenses

250.Section 126 restates with amendments provisions of the Scottish Land Court Act 1993 concerning remuneration, expenses, and expenditure. It provides for the transfer from the Scottish Ministers to the SCTS of certain functions relating to payment and determination of the remuneration and expenses of the members and staff etc. of the Scottish Land Court. But the Scottish Land Court is not one of the “Scottish courts” listed in section 2(6) of the Judiciary and Courts (Scotland) Act 2008 for which the SCTS has a general administrative support function under section 61 of that Act (pending any order made by the Scottish Ministers under section 2(7)).

251.The amendments provide that the following are to be done by the SCTS:

  • payment of the Chair’s salary (determination of the amount of the Chair’s salary is, like other judicial salaries, reserved under the Scotland Act 1998);

  • determination and payment of the salary of the other members;

  • determination and payment of the remuneration of a former member of the court acting in a judicial capacity under Schedule 1 of the 1993 Act;

  • determination and payment of the remuneration of a person appointed to act as Deputy Chair of the Court; and

  • determination and payment of reasonably incurred expenses of the Chair, Deputy Chair (including those appointed by Ministers who may act in place of the Chair or another member), other court members and those former members nominated by the principal clerk under paragraph 6(2) of the 1993 Act, where those expenses are incurred in the execution of their duties.

252.Under the restated provisions, the Scottish Ministers retain the function of paying and determining the remuneration and expenses of the Clerk of the Court, the other staff of the Court and assessors, surveyors etc. appointed to assist the Court. Finally, this provision restates that the expenditure for the general administration of the Court including employment of the clerk, staff and on property is with the Scottish Ministers.

Part 9 – Justice of the Peace Courts

Section 127 – Establishing, relocating and disestablishing justice of the peace courts

253.Section 127 restates the powers to establish justice of the peace courts at section 59 of the Criminal Proceedings etc (Reform) (Scotland) Act 2007 and updates the powers in subsections (7) and (7A). The effect of the amendments at subsections (2) and (3) is that the Scottish Minsters will be able to use their powers to establish, relocate or disestablish a justice of the peace court only following the submission of a proposal to do so by the SCTS. Such a proposal must be agreed to by the Lord President and have been subject to consultation with persons considered appropriate by the SCTS. It will be for the Scottish Minsters to decide, following the submission of a proposal, whether to exercise their order making powers under section 59(2) or (6) of the 2007 Act.

254.This provision re-orders the existing provisions which govern the process for the making of an order under section 59(2) and (6) of the 2007 Act, bringing them into line with the process to be followed for an order under section 2 of the Act (the power to alter sheriffdoms, sheriff court districts and sheriff courts). An order under section 59(2) or (6) of the 2007 Act is subject to the affirmative procedure.

Section 128– Abolition of the office of stipendiary magistrate

255.Section 128 provides that the office of stipendiary magistrate is abolished. Existing stipendiary magistrates (who will have sat in a summary criminal proceedings only capacity) are to be appointed as summary sheriffs and part-time stipendiary magistrates are to be appointed as part-time summary sheriffs, unless they decline appointment. Section 74(5) of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 provides that a person is not to be appointed as a stipendiary magistrate unless the person is, and has been for at least five years, a solicitor or advocate. It is, therefore, possible that a person appointed as a stipendiary magistrate may not be qualified for appointment as a summary sheriff, as section 14 of the Act requires ten years legal qualification. Subsections (4) and (7) ensure that they may still be appointed as a summary sheriff.

Section 129 – Summary sheriffs to sit in justice of the peace courts

256.This section permits summary sheriffs to sit in justice of the peace courts. When summary sheriffs sit in these courts, they will only be entitled to exercise the same summary criminal sentencing powers as justices of the peace.

Part 10 – the Scottish Courts and Tribunals Service

Section 130 – The Scottish Courts and Tribunals Service

257.Section 130 amends the Judiciary and Courts (Scotland) Act 2008 to create a merged organisation to provide administrative support for both courts and tribunals. The Scottish Court Service, which is a body corporate and Non-Ministerial Department within the Scottish Administration, is renamed as the Scottish Courts and Tribunals Service. The SCTS is given the function of providing administrative support to the Scottish Tribunals (as defined in subsection (3)) and their members and to any other tribunals that the Scottish Ministers may by order specify (subject to the negative procedure). Schedule 4 makes further provision in relation to the SCTS.

Part 11 – the Judicial Appointments Board for Scotland

Section 131 – Assistants to the Judicial Appointments Board for Scotland

258.Section 131 inserts two new paragraphs into schedule 1 of the Judiciary and Courts (Scotland) Act 2008 and enables the Judicial Appointments Board for Scotland (JABS) to appoint legal assistants and lay assistants to assist it in carrying out its functions. Paragraph 13A deals with the matters connected with their appointment, notice and qualification. Paragraph 13B enables these assistants to do everything that their equivalent Board member can do, short of actually taking part in recommendation decisions.

259.There is also an amendment to paragraph 16A of schedule 1 of the Judiciary and Courts (Scotland) Act 2008 (inserted by the Tribunals (Scotland) Act 2014) so that a member of the Scottish Tribunals selected to take part in any JABS proceedings on a Tribunals appointment can elect not to take part if a legal or lay assistant is taking part in the proceedings and that assistant is also a member of the Scottish Tribunals.

Part 12 – General

Section 132 – Modifications of enactments

260.Section 132 introduces schedule 5, which makes minor and consequential modifications of enactments.

Section 133 – Subordinate legislation

261.Subsection (1) of section 133 makes provision allowing any order made by the Scottish Minsters under this Act to include any incidental, supplemental, consequential, transitional, transitory or saving provision. It also permits an order to make different provisions for different purposes or different parts of the country. Subsections (2) and (3) prescribe the procedure which is to apply to orders made by the Scottish Ministers under the Act. Subsection (4) provides that this section does not apply to a commencement order made under section 138(2) of the Act.

Section 134 – References to sheriff

262.Subject to the exceptions narrated by subsection (3), this section makes provision defining references to “sheriff” in the Act. The definition of “sheriff” in the Interpretation and Legislative Reform (Scotland) Act 2010 takes its meaning from section 134 (see paragraph 45 of Part 11 of schedule 5 to the Act). Accordingly reference to “sheriff” in the Act and other enactments will be taken, subject to the conditions set out in this section, to include reference to other judiciary of the sheriffdom (as defined in section 136(2)).

Section 135 – Definition of family proceedings

263.This section lists various proceedings which, for the purposes of this Act, are to be understood as “family proceedings” (for example paragraph 1 of schedule 1 confers competence on summary sheriffs to deal with family proceedings as defined). The Scottish Ministers may modify this list by an order made under subsection (2) subject to the affirmative procedure.

Section 136 – Interpretation

264.Subsection (1) sets out the definitions that apply throughout the Act unless the context requires otherwise.

265.Subsection (2) lists the judicial officers who are included by references to the “judiciary of a sheriffdom”.

266.Subsection (3) makes provision explaining that “proceedings in the sheriff court” includes proceedings before any member of the judiciary of a sheriffdom.

Section 137 – Ancillary provision

267.This section allows the Scottish Ministers, by order, to make such ancillary provision as they consider appropriate for the purposes of, or in connection with or for the purposes of giving full effect to, any provision made by, or by virtue of, the Act. Orders are subject to either the negative or the affirmative procedure depending on their content.

Section 138 – Commencement

268.This section makes provision for all of this Part, with the exception of section 132 and section 134(2), to come into force on the day after Royal Assent. The other provisions of the Act come into force on days appointed by order by the Scottish Ministers. Such orders may contain transitional, transitory or saving provision which may be required (for example the saving of existing subordinate legislation made under enabling powers being repealed and restated in the Act). Section 8(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 allows Ministers to appoint different days for different purposes.

Section 139 – Short title

269.This section makes provision for the short title of the Act to be the Courts Reform (Scotland) Act 2014.

Schedule 1 – Civil proceedings, etc. in relation to which summary sheriff has competence

270.Schedule 1, as introduced by section 44(1), lists civil proceedings in respect of which summary sheriffs are to have jurisdiction and powers. The Scottish Ministers may modify this schedule by order under section 44(3). Any such order is subject to the affirmative procedure by virtue of section 133(2)(a). Future legislation may confer other competences on summary sheriffs without reference to schedule 1, for example competence to conduct fatal accident inquiries.

Schedule 2 – Appeal Sheriffs: temporary provision

271.Schedule 2 is introduced by section 53. It makes temporary provision for the Lord President of the Court of Session to appoint Senators of the College of Justice to act as Appeal Sheriffs in the Sheriff Appeal Court. The intention is that Senators will be able to assist the sheriffs principal acting as Appeal Sheriffs in the new court with appellate work. This appointment of Senators to act as Appeal Sheriffs will only be possible for a period of three years from the commencement of the provisions establishing the Sheriff Appeal Court.

Schedule 3 – Transfer of summary criminal appeal jurisdiction to the Sheriff Appeal Court: Modification of 1995 Act

272.Schedule 3 is introduced by section 118 of the Act which makes provision transferring summary criminal appeals from the High Court to the Sheriff Appeal Court. This schedule makes amendments to the 1995 Act in consequence of this transfer.

Schedule 4 – The Scottish Courts and Tribunals Service

273.Section 130(3) introduces schedule 4 which relates to the SCTS.

Part 1 - Conferral of additional functions etc. in relation to tribunals

274.Paragraph 1 amends the relevant sections in the Judiciary and Courts (Scotland) Act 2008 to update references to the SCS to the SCTS. It also confers power on the merged organisation to provide and ensure the provision of property, services and staff as required for the Lord President and the President of the Scottish Tribunals in their tribunals roles. The default power of the Scottish Ministers to carry out the functions of the SCTS if they feel that the SCTS is failing to carry out its functions is extended to tribunals. Paragraph 1 of schedule 3 to the Judiciary and Courts (Scotland) Act 2008 is repealed as this provision has never been brought into force. The SCS was made an office-holder in the Scottish Administration by the Judiciary and Courts (Scotland) Act 2008 (Consequential Provisions and Modifications) Order 2009 (an order made under section 104 of the Scotland Act 1998) and so this provision is no longer required.

275.Paragraph 1 also amends the SCTS board structure to include membership for the President of the Scottish Tribunals and a Chamber President of the First-tier Tribunal for Scotland. The President of the Scottish Tribunals and Chamber President are roles created in the Tribunals (Scotland) Act 2014. Remuneration may be paid to the Chamber President in the First-tier Tribunal for Scotland unless that member is in receipt of a salary for holding that position. The Judiciary and Courts (Scotland) Act 2008 is also amended to allow the Scottish Ministers to transfer any property or liability in connection with the operation of the Scottish Tribunals to the SCTS.

Part 2 – Transitional provision

276.Paragraph 2 transfers those staff who work as part of the Scottish Tribunals Service to the SCTS.

277.Paragraph 3 creates a power to allow the SCTS to provide administrative support to the listed tribunals until such time as they are transferred-in to the Scottish Tribunals (the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland) as created in the Tribunals (Scotland) Act 2014. It also allows a current President of the named tribunals to sit on the board of the SCTS until such time as Chamber Presidents are in operation. The Scottish Ministers may by order add tribunals which are to be transferred-in to the Scottish Tribunals to the list of those to be administered in the interim by SCTS and add office-holders in those tribunals to the list of office-holder eligible to sit on the SCTS board (sub-paragraph (5)). Such an order is subject to the affirmative procedure by virtue of section 133(2)(a).

Part 3 – Consequential repeal, etc

278.The consequential repeals in Part 3 of schedule 4 concern standalone tribunals which are liable to transfer in to the general Scottish Tribunals structure under the Tribunals (Scotland) Act 2014.

Paragraph 4 - Lands Tribunal Act 1949

279.Paragraph 4 repeals the provision within the Lands Tribunal Act 1949 that requires the Scottish Ministers to provide administrative support for the Lands Tribunal.

Paragraph 5 – Mental Health (Care and Treatment) (Scotland) Act 2003

280.Paragraph 5 repeals the provision within the Mental Health (Care and Treatment) (Scotland) Act 2003 that requires the Scottish Ministers to provide administrative support and accommodation for the Mental Health Tribunal for Scotland.

Paragraph 6 – Education (Additional Support for Learning) (Scotland) Act 2004

281.Paragraph 6 repeals the provision within the Education (Additional Support for Learning) (Scotland) Act 2004 that requires the Scottish Ministers to provide property, staff and services to the President and tribunals known as the Additional Support Needs Tribunals for Scotland.

Paragraph 7 – Tribunals (Scotland) Act 2014

282.Paragraph 7 repeals the provision within the Charities and Trustee Investment (Scotland) Act 2005 that requires the Scottish Ministers to provide property, staff and services for a Scottish Charity Appeals Panel.

Paragraph 8 – Tribunals (Scotland) Act 2014

283.Paragraph 8 repeals the provision within the Tribunals (Scotland) Act 2014 that requires the Scottish Ministers to provide administrative support for the Scottish Tribunals.

Paragraph 9 - Revenue Scotland and Tax Powers Act 2014

284.Paragraph 9(2) repeals section 58 of the Revenue Scotland and Tax Powers Act 2014. Section 58 provides for the Scottish Ministers to provide administrative support to the Scottish Tax Tribunals. Paragraph (3) replaces the reference to members of staff of the tax tribunals in section 59(2)(b) with a reference to the staff of the SCTS and removes the reference in section 59(2)(c) to personnel supplied under section 58. The effect is that members of staff of the SCTS must have regard to guidance issued by the President of the Scottish Tax Tribunals about the administration of those Tribunals.

Schedule 5 – Modifications of enactments

285.Schedule 5, which is introduced by section 132, makes provision for the amendment of various enactments as a consequence of the provisions of the Act.

Part 1Sheriff courts

Paragraph 1 – Promissory Oaths Act 1868

286.This paragraph amends the Schedule to the Promissory Oaths Act 1868 as a consequence of the creation of summary sheriffs and part-time summary sheriffs. The effect of the amendment is that summary sheriffs and part-time summary sheriffs will be required to take the oath of allegiance and the judicial oath.

Paragraph 2 – Promissory Oaths Act 1871

287.This paragraph amends section 2 of the Promissory Oaths Act 1871, making provision for persons before whom summary sheriffs and part-time summary sheriffs may take oaths.

Paragraph 3 – Sheriff Courts (Scotland) Act 1876

288.Section 54 of the Sheriff Courts (Scotland) Act 1876 is repealed by this section, so far as not previously repealed. Section 54 gave power to the Court of Session to allocate commissary business in the sheriff courts by act of sederunt. This power now rests with sheriffs principal as part of their general powers to organise the efficient disposal of business in the sheriff courts at sections 27 and 28 of the Act.

Paragraph 4 – Sheriff Courts (Scotland) Act 1907

289.This paragraph repeals various sections of the Sheriff Courts (Scotland) Act 1907.

290.Sub-paragraph (a) repeals sections 4 to 7 of the 1907 Act which made provision in relation to the jurisdiction of the sheriff court. These sections are largely replaced by Chapter 4 of Part 1 of the Act, which makes provision in respect of competence and jurisdiction of sheriffs.

291.Sub-paragraph (b) repeals sections 10 and 11 of the 1907 Act. The power of Her Majesty to appoint salaried sheriffs principal and sheriffs previously provided for by section 11 of that Act is recast in sections 3 and 4 of the Act.

292.Sub-paragraph (c) repeals section 14 of the 1907 Act. Provision for the salaries of sheriffs principal and sheriffs is now made by section 16 of the Act.

293.Sub-paragraph (d) repeals section 17 of the 1907 Act, which made provision for the appointment of honorary sheriffs by sheriffs principal. The office of honorary sheriff is abolished by section 26 of the Act.

294.Sub-paragraph (e) repeals section 27 to 29 of the 1907 Act, which dealt with appeals to the sheriff principal and the Court of Session as well as setting out the effect of an appeal. These repeals are in consequence of the creation of the Sheriff Appeal Court by the Act (see section 110).

295.Sub-paragraph (f) repeals sections 39 to 40 of the 1907 Act. Section 39 is repealed as consequence of the replacement of ordinary cause rules. The provision in section 40, relating to the Court of Session’s power to regulate fees, is now recast at section 98 of the Act

296.Sub-paragraphs (g) and (h) repeal section 50 and Schedule 1 of the 1907 Act respectively. These repeals are in consequence of replacement by the Act of summary cause procedure by simple procedure (section 72 of the Act) and the replacement of ordinary cause procedure.

Paragraph 5 – Sheriff Courts and Legal Officers (Scotland) Act 1927

297.This paragraph makes amendments to section 8 of the Sheriff Courts and Legal Officers (Scotland) Act 1927. The amendments will allow the Lord Advocate to issue instructions to procurators fiscal both for the purpose of giving effect to the 1927 Act and for the purpose of the efficient disposal of business in the sheriff courts.

Paragraph 6 – Sheriff Courts (Scotland) Act 1971

298.The Sheriff Courts (Scotland) Act 1971 is repealed by this paragraph, with the exception of sections 2(3) and 3(4), which provide for compensation payment on loss of shrieval office and are to be repealed by Order under section 104 of the Scotland Act 1998. The other provisions of the 1971 Act are largely replaced or recast by the Act.

Paragraph 7 – Civil Jurisdiction and Judgments Act 1982

299.This paragraph amends section 20(3) of the Civil Jurisdiction and Judgments Act 1982 to reflect the recasting of section 6 of the Sheriff Courts (Scotland) Act 1907 as section 43 of the Act.

Paragraph 8 – Judicial Pensions and Retirement Act 1993

300.This paragraph amends the Judicial Pensions and Retirement Act 1993 to ensure that provisions concerning the retirement of judges apply to the offices created by this Act.

Paragraph 9 – Judiciary and Courts (Scotland) Act 2008

301.This paragraph makes various repeals and amendments in the Judiciary and Courts (Scotland) Act 2008. References to the 1971 Act are repealed or updated to refer to the Act as necessary.

302.Sub-paragraph (3) brings the offices of summary sheriff and part-time summary sheriff within the remit of JABS.

303.Sub-paragraph (4) adds the offices of summary sheriff and part-time summary sheriff to the definition of “judicial office holder” at section 43 of the Judiciary and Courts (Scotland) Act 2008. This has the effect of bringing these officer holders under the Lord President’s responsibility for welfare, training and guidance at section 2 of the 2008 Act.

Part 2 – Sheriff Appeal Court

Paragraph 10 – Sheriff Courts and Legal Officers (Scotland) Act 1927

304.This paragraph amends section 1 of the Sheriff Courts and Legal Officers (Scotland) Act 1927 by inserting a new subsection (6) as a consequence of the creation of the office of Clerk of the Sheriff Appeal Court by section 57 of the Act (see section 62). New subsection (6) sets out that the appointment of a sheriff clerk as Clerk to the Sheriff Appeal Court under section 57 of the Act is not to be considered as a removal from office.

Paragraph 11 – Public Records (Scotland) Act 1937

305.The Public Records (Scotland) Act 1937 is amended by this paragraph to reflect the creation of the Sheriff Appeal Court by the Act. The new section 1A inserted into the 1937 Act makes provision for the keeping of Sheriff Appeal Court records. (This mirrors provision in section 1 of the 1937 Act which deals with the transmission of High Court and Court of Session records by act of adjournal or sederunt (as the case may be.))

Paragraph 12 – Administration of Justice (Scotland) Act 1972

306.This paragraph amends section 1 of the Administration of Justice (Scotland) Act 1972 by amending subsections (1), (1A) and (3), extending the powers therein concerning the inspection of documents or other property to the Sheriff Appeal Court.

Paragraph 13 – Civil Jurisdiction and Judgments Act 1982

307.The definition of “court of law” in section 50 of the Civil Jurisdiction and Judgments Act 1982 is amended by this paragraph to include a reference to the Sheriff Appeal Court.

Paragraph 14 – Legal Aid (Scotland) Act 1986

308.This paragraph extends the provisions of sections 21(1) and 25 and paragraph 1 of Part 1 of Schedule 2 to the Legal Aid (Scotland) Act 1986 in relation to legal aid for proceedings in the Sheriff Appeal Court.

Paragraph 15 – Criminal Procedure (Scotland) Act 1995

309.This paragraph has the effect of requiring one Appeal Sheriff to be appointed to the Criminal Courts Rules Council by amending section 304(2)(c) of the 1995 Act.

Paragraph 16 – Judiciary and Courts (Scotland) Act 2008

310.This paragraph makes further amendments to the Judiciary and Courts (Scotland) Act 2008 to take into account the creation of the Sheriff Appeal Court and the offices of Appeal Sheriff and President of the Sheriff Appeal Court.

Paragraph 17 – Criminal Justice and Licensing (Scotland) Act 2010

311.This paragraph makes consequential amendments to the provisions of the Criminal Justice and Licensing (Scotland) Act 2010 that deal with sentencing guidelines from the Scottish Sentencing Council, to take account of the transfer of summary criminal appeal jurisdiction from the High Court to the Sheriff Appeal Court by section 118.

Paragraph 18 – Scottish Civil Justice Council and Criminal Legal Assistance Act 2013

312.This paragraph has the effect of bringing the Sheriff Appeal Court within the remit of the Scottish Civil Justice Council, in terms of the Council’s function of reviewing practice and procedure in civil proceedings.

Part 3 – Civil jury trials

Paragraph 19 – Law Reform (Miscellaneous Provisions) (Scotland) Act 1980

313.This paragraph amends the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 in light of the provisions of the Act.

314.Sub-paragraph (2) has the effect of allowing the sheriff to remit a fine imposed on a civil juror for non-attendance where the fine was imposed in the sheriff court.

315.Sub-paragraph (3) amends section 11 of the 1980 Act in light of the creation of jury trials in all-Scotland sheriff courts (for example, a personal injury court) by section 63 of the Act.

Part 4 – Simple procedure

Paragraph 20 – Heritable Securities (Scotland) Act 1894

316.This paragraph amends the Heritable Securities (Scotland) Act 1894 as amended by the Home Owner and Debtor Protection (Scotland) Act 2010 to reflect the creation of simple procedure by section 72 of the Act and the application of simple procedure to certain proceedings for the recovery of immoveable property by section 72(3).

Paragraph 21 – Sheriff Courts (Civil Jurisdiction and Procedure) (Scotland) Act 1963

317.This paragraph repeals the Sheriff Courts (Civil Jurisdiction and Procedure) (Scotland) Act 1963 which made provision for actions for aliment of small amounts by way of a summary cause action. Provision in this regard is now made by section 74 of the Act, which enables actions for aliment of small amounts to be made by simple procedure.

Paragraph 22 – Conveyancing and Feudal Reform (Scotland) Act 1970

318.This paragraph amends the Conveyancing and Feudal Reform (Scotland) Act 1970 as amended by the Home Owner and Debtor Protection (Scotland) Act 2010 to reflect the creation of simple procedure by section 72 of the Act and the application of simple procedure to certain proceedings for the recovery of immoveable property by section 72(3).

Paragraph 23 – Legal Aid (Scotland) Act 1986

319.There is a statutory bar on civil legal aid being available for small claims proceedings as set out in paragraph 3 of Schedule 2 to the Legal Aid (Scotland) Act 1986. As a consequence of this Act, the term “small claims” will no longer be used. This section ensures that the previous position is preserved by amending the 1986 Act and substituting the reference to small claims actions with a reference to those types of simple procedure cases which would be, but for the repeal of the Sheriff Courts (Scotland) Act 1971, treated as a small claim.

Part 5 – Judicial review

Paragraph 24 – Tribunals (Scotland) Act 2014

320.This paragraph inserts a new section 57A into the Tribunals (Scotland) Act 2014 which governs the procedural steps to be followed when the Court of Session remits a petition for judicial review to the Upper Tribunal for Scotland under section 57(2) of that Act.

321.Subsection (2) provides that it is for the Upper Tribunal to decide whether the petition has been made timeously and whether or not to grant permission for the petition to proceed under section 27B of the Court of Session Act 1988. (Section 89 of the Act inserts sections 27A-27D into the 1988 Act.) Subsection (3) makes it clear that the Upper Tribunal may exercise the powers conferred by sections 27A to27C of the Court of Session Act 1988 in relation to time limits and the granting of permission in relation to any petition remitted to it from the Court of Session. Subsection (4) modifies the provisions of sections 27C(3) and (4) of the Act so that the references in those sections to requests for review of a permission decision being dealt with by a different Lord Ordinary are to be read as references to different members of the Tribunal from those who refused or granted permission subject to conditions. A similar provision appears in section 41 of the Revenue Scotland and Tax Powers Act 2014 in relation to the Scottish Tax Tribunals.

Part 6 – Remit of cases between courts

Paragraph 25 - Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

322.This paragraph repeals section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, which provides for remit from the Court of Session to the sheriff. This is now dealt with by section 93 of the Act.

Part 7 – Regulation of procedure and fees

Paragraph 26 – Courts of Law Fees (Scotland) Act 1895

323.This paragraph repeals section 2 of the Court of Law Fees (Scotland) Act 1895 in consequence of the new power at section 107.

Paragraph 27 - Vexatious Actions (Scotland) Act 1898

324.This paragraph repeals the Vexatious Actions (Scotland) Act 1898. This subject is now dealt with by Part 3 Chapter 6 of the Act.

Paragraph 28 - Execution of Diligence (Scotland) Act 1926

325.This paragraph repeals section 6 (regulations, forms and fees) of the Execution of Diligence (Scotland) Act 1926.

Paragraph 29- Administration of Justice (Scotland) Act 1972

326.As a consequence of the repeal of the Sheriff Courts (Scotland) Act 1971, this paragraph amends a reference in the Administration of Justice (Scotland) Act 1972 to refer to the new provision made by section 104 of the Act.

Paragraph 30 – Court of Session Act 1988

327.This paragraph repeals the court rule making powers of the Court of Session in sections 5, 5A, and 6 of the Court of Session Act 1988 and makes consequential amendment to that Act, ensuring that relevant provisions cross refer to the new rule making powers set out in section 103(1) of the Act.

Paragraph 31 – Scottish Civil Justice Council and Criminal Legal Assistance Act 2013

328.This paragraph amends the powers of Scottish Civil Justice Council to put beyond doubt their role in being able to propose rules of court relating to the setting of fees.

Part 8 – Civil appeals

Paragraph 32 - Court of Session Act 1988

329.Subparagraph (3) makes amendments to the Court of Session Act 1988 to take account of the introduction of the Sheriff Appeal Court. Subsections (2) and (4) provide for the repeal of provisions for exchequer cause appeals to the Supreme Court that are restated in section 117.

Paragraph 33 – Constitutional Reform Act 2005

330.Paragraph 33 repeals section 40(3) of the Constitutional Reform Act 2005 in consequence of the new provisions at section 117 of the Act. Section 40 of the 2005 Act deals with the jurisdiction of the Supreme Court.

Part 9 – Judges of the Court of Session

Paragraph 34 – Promissory Oaths Act 1868

331.This paragraph amends the Promissory Oaths Act 1868 in consequence of section 123 of the Act which re-enacts provision for the appointment of judges, temporary judges, and re-employed former judges in the Court of Session.

Paragraph 35 - Administration of Justice Act 1973

332.This paragraph repeals section 9(5) (judicial salaries) of the Administration of Justice Act 1973 in consequence of section 124.

Paragraph 36 – Law Reform (Miscellaneous Provisions) (Scotland) Act 1985Paragraph 37 – Law Reform (Miscellaneous Provisions) (Scotland) Act 1990

333.These paragraphs amend and repeal provisions in the 1985 and 1990 Acts to reflect the provisions in section 123 relating to the appointment of judges, temporary judges, and re-employed former judges in the Court of Session.

Paragraph 38 – Judiciary and Courts (Scotland) Act 2008

334.This paragraph makes amendments to section 43(1)(b) and section 72 of the Judiciary and Courts (Scotland) Act 2008 in consequence of section 123 of the Act to update references to re-enacted provisions. It also repeals section 64(3) and (4) of the Judiciary and Courts (Scotland) Act 2008, which themselves had made amendments to the provisions being re-enacted.

Part 10 – Justice of the Peace Courts

Paragraph 39 - Criminal Procedure (Scotland) Act 1995

335.This paragraph makes amendments to the 1995 Act to take account of the abolition of the office of stipendiary magistrate by section 128 of the Act.

Paragraph 40 - Criminal Proceedings etc. (Reform) (Scotland) Act 2007

336.This paragraph makes amendments to the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 to take account of the abolition of the office of stipendiary magistrate by section 128 of the Act.

Paragraph 41 - Judiciary and Courts (Scotland) Act 2008

337.This paragraph makes an amendment to the Judiciary and Courts (Scotland) Act 2008 to take account of the abolition of the office of stipendiary magistrate by section 128 of the Act.

Part 11 – Miscellaneous

Paragraph 42 – Judicial Offices (Salaries, &c.) Act 1952

338.This paragraph repeals the Judicial Offices (Salaries, &c.) Act 1952 in consequence of sections 17 and 125 of the Act.

Paragraph 43 – Court of Session Act 1988

339.This paragraph amends the Court of Session Act 1988 to ensure that references in that Act to “enactments” include Acts of the Scottish Parliament such as the Act.

Paragraph 44 – Criminal Procedure (Scotland) Act 1995

340.Paragraph 35 amends section 85(4) of the 1995 Act which requires jurors in criminal proceedings to be cited (required to attend) through the use of registered post or recorded delivery. The effect of the amendment will mean that the SCTS will be free to choose the method of citation of jurors.

Paragraph 45 – Interpretation and Legislative Reform (Scotland) Act 2010

341.Paragraph 36 updates the definition of “sheriff” in the Interpretation and Legislative Reform (Scotland) Act 2010 in light of the Act. See in this regard the explanatory note to section 134.

Parliamentary History

342.The following table sets out, for each Stage of the proceedings in the Scottish Parliament on the Bill for this Act, the dates on which the proceedings at that Stage took place, and the references to the official report of those proceedings. It also shows the dates on which Committee Reports and other papers relating to the 2016 Act were published, and references to those reports and other papers.

Proceedings and ReportReference
Introduction
Bill as Introduced, 7 February 2014As introduced
SPICe briefing on Bill as introduced, 13 March 2014Spice
Stage 1
Finance Committee
19 February 2014Finance Committee 19 February 2014
26 March 201426 March 2014 - Finance Committee
Delegated Powers and Law Reform Committee
11 March 2014Dplrc
Consideration by Parliament
Stage 1 debate, 21 May 2014Stage 1 debate
Stage 2
Bill as amended at stage 2, 19 June 2014http://www.parliament.scot/S4_Bills/Courts%20Reform%20(Scotland)%20Bill/b46as4-stage2-amend.pdf
Finance Committee
26 March 2014Finance Committee
Delegated Powers and Law Reform Committee
20 May 2014Official Report – 20 May 2014 - DPLRC
Stage 3
Consideration by Parliament
Stage 3 Debate, 7 October 2014Official Report - 7 October 2014
Bill as passed, 8 October 2014Bill as passed
Royal Assent, 10 November 2014The Courts Reform (Scotland) Act 2014

Back to top

Options/Help

Print Options

Close

Explanatory Notes

Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources