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Last update: 19-08-2004

Jurisdiction of the courts - Scotland

If you want to initiate legal proceedings in civil or commercial matters, you will have to identify the court that is competent to deal with your case or, in other words, has jurisdiction. If you use the wrong court or if there is a dispute over the question of jurisdiction you run the risk of a considerable delay in the proceedings or even of a dismissal of your case because of a lack of jurisdiction.

Scotland

	TABLE OF CONTENTS
A.	Should I apply to an ordinary civil court or to a specialised court?
B.	Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?
	I.	Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?
	II.	Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)
		1.	The basic rule of territorial jurisdiction
		2.	Exceptions to the basic rule
			a)	When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?
			b)	When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?
			c)	Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?
C.	Where specialised courts have jurisdiction how can I find out which one I have to address?

A. Should I apply to an ordinary civil court or to a specialised court?

The two main civil courts in Scotland are the Sheriff Court and the Court of Session. There are, however, some specialised courts which have jurisdiction in particular kinds of claims only. These include: the Court of the Lord Lyon, the Court of Exchequer, the Election Petition Court and the Scottish Land Court. There are also a number of statutory tribunals including the Value Added Tax and Duties Tribunal, the Pensions Appeal Tribunal for Scotland, the Land Tribunal for Scotland, Employment Tribunals and tribunals dealing with social security and child support.

Some tribunals are organised on a Scottish basis, while others are administered on a UK-wide basis.

Court of the Lord Lyon

The Lord Lyon King of Arms is one of the Officers of State of the Kingdom of Scotland and the Queen's counsellor in matters armorial, genealogical and ceremonial. He exercises the whole Crown jurisdiction in armorial matters, enforces the law of arms and adjudicates in questions of name, family representation and chiefship.

Court of Exchequer

The Court of Session sits as Court of Exchequer in Scotland when dealing with revenue cases. The business consists in the main of appeals on law from the determination of the Special Commissioners of Income Tax on issues of liability to tax.

Election Petition Court

This court consists of two judges from the Court of Session and deals with petitions presented against the election of Members of Parliament and Members of the Scottish Parliament on the grounds of illegality or improper practices.

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The Scottish Land Court

The work of this court is entirely linked with agriculture and, apart from the Chairperson, the other four members are practical agriculturists. Its consent is required to most notices to quit agricultural holdings and it hears appeals from rent review arbitrations.

B. Where the ordinary civil courts have jurisdiction how can I find out which one I should apply to?

I. Is there a distinction between lower and higher ordinary civil courts and if so which one is competent for my case?

In Scotland both the Sheriff Court (lower court) and the Outer House of the Court of Session (higher court) act as courts of first instance in civil proceedings.

The civil jurisdiction of the Sheriff Court is wide and extends to all actions of debt or damages without any upper financial limit. Actions where the value, exclusive of interest and expenses does not exceed £1.500 must be brought in the Sheriff Court.

The subjects excepted from the Sheriff's jurisdiction and reserved to the Court of Session are actions involving status (eg declarator of marriage, nullity of marriage) but not divorce, judicial review of administrative decisions, inhibitions (preventing a debtor from transferring a good title to land and buildings), actions of adjudication (completing an inhibition by creating a right in security over the property), reductions (nullifying the effect of a decree or document), petitions for the winding up of companies whose paid up capital exceeds £120.000 and actions for proving the meaning of a lost document. Cases under the Hague Convention on the Civil Aspects of International Child Abduction are heard in the Court of Session.

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Some kinds of cases may be remitted to the Court of Session from the Sheriff Court - for example if the Lord Advocate produces a certificate that the case may involve an important question of law, where a declarator of presumed death is sought, or where the action involves the regulation of custody or adoption of children.

Likewise, some cases may be remitted to the Sheriff Court from the Court of Session.

II. Territorial jurisdiction (Does the court of city/town A or of city/town B have jurisdiction for my case?)

1. The basic rule of territorial jurisdiction

In most classes of civil proceedings, questions of jurisdiction are governed by the Civil Jurisdiction and Judgments Act 1982. The central principle of the Scottish rules of jurisdiction is that persons, whether legal or natural, are to be sued in the courts for the place where they are domiciled.

2. Exceptions to the basic rule

a) When can I choose between the court in the place where the defendant lives (court determined by the application of the basic rule) and another court?

In addition to the basic rule above, it may also be possible to choose which court to raise proceedings in.

For example:

Contract - a person may also be sued in the courts for the place of performance of the obligation in question.

Delict and quasi-delict - a person may also be sued in the courts for the place where the harmful event occurred or may occur.

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Maintenance - a court has jurisdiction in matters relating to maintenance if it is the court for the place where the maintenance creditor is domiciled or habitually resident or if the maintenance claim is ancillary to proceedings before it concerning the status of a person and it has jurisdiction to entertain those proceedings.

Dispute arising out of the operation of a branch, agency or other establishment - here there is jurisdiction in the courts where the branch/agency is situated.

Divorce - In Scotland, under the Domicile and Matrimonial Proceedings Act 1973 sections 7 and 8, the Court of Session only enjoys jurisdiction in actions of divorce or separation if jurisdiction is conferred under Council Regulation (EC) No. 1347 ("Brussels II") or if the action is an “excluded action” and either of the parties to the marriage is domiciled in Scotland on the date when the action begins.

“Excluded action” means an action in respect of which no court of a Contracting State has jurisdiction under the Council Regulation and the defender is not a person who is a) a national of a Contracting State (other than the UK or Ireland) or b) domiciled in Ireland.

The Sheriff Court has jurisdiction if (and only if) the conditions for the exercise of jurisdiction by the Court of Session are met and either party to the marriage:

was resident in the Sheriffdom for a period of 40 days ending with the date on which the action for divorce is begun or
had been resident in the Sheriffdom for a period of not less than 40 days ending not more than 40 days before the said date and has no known residence in Scotland at that date.

Parental responsibility - Brussels II is relevant in some actions where parental responsibility is involved. If courts are exercising jurisdiction in relation to proceedings for divorce, legal separation or annulment of marriage, the same court will have jurisdiction in relation to matters of parental responsibility over a child of both spouses where that child is habitually resident in the Member State concerned. If the child is not habitually resident in the Member State seized with the action for divorce, legal separation or annulment, the court may still exercise jurisdiction if:

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the child is habitually resident in another Member State;
at least one of the parents has parental responsibility for the child;
jurisdiction has been accepted by the spouses and
it is in the best interests of the child.

In actions relating to parental responsibilities which are not subject to Brussels II jurisdiction exists where the child

is habitually resident in Scotland or
is present in Scotland and is not habitually resident in any part of the UK, unless, in either case, matrimonial proceedings are continuing in a court in any part of the UK in respect of the marriage of the parents of the child (Family Law Act 1986), when that court would have jurisdiction.

b) When do I have to choose a court other than that in the place where the defendant lives (court determined by the application of the basic rule)?

In certain classes of proceedings a court shall have exclusive jurisdiction regardless of domicile or any other jurisdictional rule. These are:

in proceedings which have as their object rights in rem in, or tenancies of, immoveable property, there is exclusive jurisdiction in the courts for the place where the property is situated. Although where the tenancy is for temporary private use for a maximum period of six months the courts of the defender's domicile shall also have jurisdiction, if the landlord and tenant are natural persons domiciled in the same country.
in proceedings regarding the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, there is exclusive jurisdiction in the courts for the place where the company, legal person or association has its seat.
in proceedings which have as their object the validity of entries in public registers, there is exclusive jurisdiction in the courts for the place where the register is kept.
in proceedings concerned with the enforcement of judgments, there is exclusive jurisdiction in the courts for the place where the judgment has been or is to be enforced.

c) Can the parties themselves attribute jurisdiction to a court that would not be competent otherwise?

Jurisdiction may be extended if a person submits himself to a court either by express agreement or by appearing in answer to a citation without taking the plea of no jurisdiction.

C. Where specialised courts have jurisdiction how can I find out which one I have to address?

To find out which court has jurisdiction you should contact:

Scottish Executive Justice Department
Civil Justice & International Division
2nd Floor West
St Andrew's House
Edinburgh
EH1 3DG

Fax: 00 44 131 244 4848
e-mail: Laura.Mulheron@scotland.gsi.gov.uk or Maureen.Wright2@scotland.gsi.gov.uk.