"Clerk of Session" redirects here; not to be confused with Session Clerk, see Moderators and clerks in the Church of Scotland or Principal Clerk of Session and Justiciary.

Since the adjournment of the Parliament of Scotland in 1707, the Court of Session has been housed in Parliament House.

Institution of the Court of Session by James V in 1532, from the Great Window in Parliament House, Edinburgh. The description reads: "The first Session was begun by Gavin Dunbar, Archbishop of Glasgow; Alexander Myln, Abbot of Cambuskenneth, Lord President; Master Richard Bothuile, Rector of Ashkirk; Sir John Dingwell, Provost of the Church of the Holy Trinity, near Edinburgh; Master Henry Quhyte, Rector of the Church of Finhaven; Master William Gibson, Dean of the Collegiate Church of Restlerig; Master Thomas Hay, Dean of the Collegiate Church of Dunbar, all elected by our Sovereign Lord the King."

The Court of Session (Cùirt an t-Seisein in Scottish Gaelic) is the supreme civil court of Scotland,^[4] and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal.^[5]

The court has a largely coextensive jurisdiction with the Sheriff Court—the other Scottish civil court, which sits locally—with the choice of court being given first to the pursuer; but the majority of complex or high value cases are brought in the Court of Session.^[6] Legal aid, administered by the Scottish Legal Aid Board, is available to some persons for cases of the Court of Session.^[7]

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 or Lady of Council and Session.^[5] There are thirty-four judges (four of whom are women), in addition to a number of temporary judges—who are typically either sheriffs or advocates in private practice. The judges sit also in the High Court of Justiciary, where the Lord President is named, as president of that court, the Lord Justice General.^[8][9]

The Court of Session Act 1810 divided the Court into the Outer House and the Inner House.^[10] The first is the junior part of the Court of Session and is a court of first instance. The second is an appeal court for civil cases as well as a court of first instance.

History[link]

The Lords of Council and Session had previously been part of the King's Council,^[11][12] but after receiving support in the form of a papal bull of 1531, King James V established a separate institution—the College of Justice or Court of Session—in 1532, with a structure based on that of the Parlement of Paris. The Lord Chancellor of Scotland was to preside over the court, which was to be composed of fifteen lords appointed from the King’s Council.^[13] Seven of the lords had to be churchmen, while another seven had to be laymen.^[14]

An Act of Parliament in 1640 restricted membership of the Court to laymen only, by withdrawing the right of churchmen to sit in judgement.^[15] The number of laymen was increased to maintain the number of Lords in the Court.

The Court of Session is explicitly preserved "in all time coming" in Article XIX of the Treaty of Union between England and Scotland,^[16] subsequently passed into legislation by the Acts of Union in 1706 and 1707 respectively.

Several significant changes were made to the Court during the nineteenth century. It was separated into two divisions, the Outer House and Inner House, by the Court of Session Act 1810.^[17] A further separation was made in 1815 with the creation of a lesser Jury Court to allow certain civil cases to be tried by jury.^[18] In 1830 the Jury Court was absorbed into the Court of Session along with the Admiralty and Commissary Courts.^[14]

Structure[link]

The court is divided into two houses. The Lords Ordinary sit in the Outer House, and usually singly. The Lords of Council and Session sit in the Inner House, typically in threes. The nature of cases referred to the Court of Session will determine which house that case shall be heard in. The court may set its own procedures and practices by Acts of Sederunt.^[19][20] (These are generally incorporated into the Rules of Court, which are published by the Scottish Court Service and form the basis for Scots civil procedure.^[21]) Members of the Faculty of Advocates, known as advocates or counsel, and as of 1990 also some solicitors, known as solicitor-advocates, have practically exclusive rights of audience in the court.

Outer House[link]

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 twelve in personal injury and defamation actions.^[5] Subject-matter jurisdiction is extensive and extends to all kinds of civil claims unless expressly excluded by statute, and it shares much of this jurisdiction with the Sheriff courts.^[22] Some classes of cases, such as intellectual property disputes, are heard by designated judges.^[23]

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.^[24]

Inner House[link]

The Inner House is the senior part of the Court of Session, and is both a court of appeal and a court of first instance. As a court of first instance it has historically handled cases that involve nobile officium, a power it shares with the High Court of Justiciary.^[5][25][26] Criminal appeals in Scotland are handled by the High Court of Justiciary sitting as the Court of Appeal.^[27][28][29]

The Inner House is the part of the Court of Session which acts as a court of appeal for cases decided the Outer House^[30] and of civil cases from the Sheriff Courts, the Court of the Lord Lyon, Scottish Land Court, and the Lands Tribunal for Scotland.^[31] The Inner House always sits as a panel of at least three Senators and with no jury.^[32]

Unlike in the High Court of Justiciary, there is a right of appeal to the Supreme Court of the United Kingdom (and previously instead to the House of Lords or to the Judicial Committee of the House of Lords) of cases from the Inner House. The right of appeal only exists when the Court of Session grants leave to this effect or when the decision of the Inner House is by majority. Until the Constitutional Reform Act 2005 came into force in October 2009, this right of appeal was to the House of Lords^[2] (or sometimes to the Judicial Committee of the Privy Council).

Function[link]

The primary task of the Court of Session is to decide on civil law cases. The court is also the Court of Exchequer for Scotland, a jurisdiction previously held by the Court of Exchequer. (In 1856, the functions of that court were transferred to the Court of Session, and one of the Lords Ordinary sit as a Lord Ordinary in Exchequer Causes when hearing cases therein.) This was restated by the Court of Session Act 1988.^[33][34][35]

The Court of Session is also the admiralty court for Scotland,^[36] having been given the duties of that court by the provisions of the Court of Session Act 1830.^[37] The boundaries of the jurisdiction of the Court of Session in maritime cases is set out in the Scottish Adjacent Waters Boundaries Order 1999.

The Oath of Allegiance is taken by holders of political office in Scotland before the Lord President of the Court of Session at a meeting of the court.^[38]

See also[link]

• Office of the Accountant of Court
• List of Senators of the College of Justice
• Historic List of Senators of the College of Justice
• List of Leading Scottish Legal Cases

References[link]

Further reading[link]

• Erskine, John; Mackenzie, George; Ivory, James (1824). An institute of the law of Scotland: in four books : in the order of Sir George Mackenzie's Institutions of that law. Bell & Bradfute. 
• Maidment, James (1839). The Court of session garland. T.G. Stevenson. 
• Burton, John Hill (1847). Manual of the law of Scotland. Oliver & Boyd. 
• Shand, Charles Farquhar; Darling, James Johnston (1848). The practice of the Court of Session: on the basis of the late Mr. Darling's work of 1833. T. & T. Clark. http://books.google.com/books?id=LIIDAAAAQAAJ&oe=UTF-8. Retrieved 18 November 2009. 
• Lorimer, James; Bell, Russell (1885). A handbook of the law of Scotland. T. & T. Clark. 
• Donaldson, George (1965). Scotland: James V to James VII. Oliver & Boyd. 

External links[link]

• Scottish Court Service
• Recent decisions of the Court of Session
• Faculty of Advocates
• Jurisdiction of the Court of Session
• Scottish Legal Aid Board

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