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.