The Court of Session is the supreme civil court in Scotland. It is both a court of first instance and a court of appeal and sits exclusively in Parliament House in Edinburgh. The Sheriff Court is the other Scottish civil court; this sits locally. Although the two courts have a largely co-extensive jurisdiction, with the choice of court being given in the first place to the pursuer (petitioner), the vast majority of difficult or high-value cases in Scotland are brought in the Court of Session. Legal aid, administered by the Scottish Legal Aid Board, may be available.
Modelled on the Parlement of Paris when it was first founded by King James V in 1532, the Court of Session is notionally a unitary collegiate court, with all judges other than the Lord President and the Lord Justice Clerk holding the same rank and title - Senator of the College of Justice and also Lord/Lady of Council and Session. The number of judges is now thirty-four (four of whom are women); there are also a number of temporary judges, who are typically either sheriffs or QCs in private practice. The judges sit also in the High Court of Justiciary, and the Lord President is also, as president of that court, the Lord Justice General.
The Court of Session has extensive powers to regulate its own procedures and practice by Acts of Sederunt . These are generally incorporated into the Rules of Court, which are published by the Scottish Court Service (see links below). Members of the Faculty of Advocates, known as ‘advocates’ or ‘counsel’ and corresponding approximately to English Barristers, have practically exclusive rights of audience; although since 1990 some solicitors, known as ‘solicitor-advocates’, have a right of audience, few will exercise it in cases of any difficulty and these only rarely.
Since 1808, the Court has been divided into the Outer House and the Inner House.
The Outer House
The Outer House is a court of first instance, although some statutory appeals are remitted to it by the Inner House. Judges in the Outer House are referred to as Lord or Lady [name], or as Lord Ordinary. They sit singly, sometimes with a jury of 12 in personal injury and defamation actions. Jurisdiction is extensive and extends to all kinds of civil claims unless expressly excluded by statute. Some classes of cases, such as intellectual property disputes, are heard by designated judges.
Final (and some important procedural) judgments of the Outer House may be appealed to the Inner House. Other judgments may be so appealed with leave.
The Inner House
The Inner House is sub-divided into two divisions of equal authority and jurisdiction - the First Division, headed by the Lord President; and the Second Division headed by the Lord Justice-Clerk. When neither is available to chair a hearing, an Extra Division is summoned, chaired by the most senior judge present.
The quorum for each Division is three judges out of the five who are notionally members of the Division. In practice, almost all hearings in the Inner House are before three judges, although in important cases in which there is a conflict of authority a Court of Five Judges or, exceptionally, seven, may be convened.
The Inner House will sit as a court of first instance in respect of special cases. A special case is one where the facts are not disputed but where a significant legal difficulty has arisen.
Unlike the High Court of Justiciary, which deals with Scottish criminal cases, and whose decisions cannot in general be appealed beyond Scotland, appeals can be taken from the Court of Session to the House of Lords (and, it is anticipated, to the proposed UK Supreme Court). The constitutional settlement introduced by the Scotland Act 1998 further provided that, in cases where a 'devolution issue' arose, an appeal would lie to the Judicial Committee of the Privy Council.
It was formerly argued that the Act of Union 1707 expressly forbade appeals from the Court of Session to the House of Lords. Throughout the eighteenth and nineteenth centuries this was a matter of great concern, as Scottish cases were typically decided by Law Lords with no background in Scots Law. In modern times, the few cases which are so appealed are heard by a judicial committee of five which includes at least two senior Scottish judges, but it is still controversial whether such a right of appeal to an essentially foreign court should exist. This debate has spilled into the debate as to whether the judicial functions of the House of Lords and Privy Council should be consolidated in a new Supreme Court for the United Kingdom.