Court of Session
The Court of Session is the supreme civil court in Scotland. Between 1707 and 2009 there was a further right of appeal to the House of Lords and since 2009 this right of appeal has been to the Supreme Court of the United Kingdom. As a court of first instance (ie: hearing cases for the first time) the Outer House of the Court of Session hears the same range of civil cases as the sheriff courts but generally deals with more complex or high value cases (currently over £100,000) and also hears maritime cases. As a court of appeal, the Inner House of the Court of Session hears civil cases from sheriff courts and from the Outer House of the Court of Session.
The Court of Session was first identified by this name in Article 19 of the Treaty of Union of 1707.[1] Its jurisdiction dates back well beyond this, however, and its formal foundation is generally attributed to the decision of a parliament of James V in 1532 to set up a permanent college of justice ‘for the doing and administration of justice in all civil actions’ consisting of 15 paid judges who became known as Lords of Council and Session.[2]
Very little is known of the administration of civil justice in the medieval period, but the records indicate a range of royal and parliamentary councils which moved with the royal court and which included some legal advisers.[3] The creation of the College of Justice in 1532 enabled the development of professional lawyers and centralised civil justice in Edinburgh.[4]
The division of the Court of Session into what became known as the Inner House and Outer House emerged during the regency of Mary of Guise, when preparatory work was dealt with separately from the court’s deliberations. The administration of oaths and preparation of actions required the supervision of only a small number of judges in the outer parts of the building, while deliberations and decisions required the whole court sitting together.[5]
The Court of Session was reformed in 1808 by dividing the Inner House into a First Division headed by the Lord President and a Second Division headed by the Lord Justice-Clerk. With some adjustments this became a settled arrangement by 1825.[6] By 1868 the Outer House consisted of a several courts of first instance, while the Inner House consisted of two appeal courts.[7] This basic division between courts of first instance and courts of appeal has been maintained to date. In 1933 the Lord President was enabled to add a third division of the Inner House as and when needed.[8] The numbers of judges were reduced to 13 in 1830, increased to 15 in 1948 and increased to a maximum of 24 in 1988.[9]
The jurisdiction of the Court of Session has been modified several times over its existence. In 1672 it ceased to hear any criminal cases when the High Court of Justiciary was established.[10] In 1830 the Admiralty Court, which had dealt with both criminal and civil cases relating to maritime contracts, salvage and crimes on the high seas, was abolished and its jurisdiction over maritime civil cases transferred to the Court of Session (while other matters were transferred to the sheriff courts).[11] The Jury Court, established in 1815 to deal with cases remitted to it by the Court of Session, was united with the Court of Session in 1830. That same year, cases relating to marriage, legitimacy and divorce were removed from the Commissary Courts to the Court of Session.[12] In 1856 the business of the Court of Exchequer, dealing with customs and excise, revenue and stamp duty, was absorbed by the Court of Session.[13] The Bill Chamber, which was set up as a vacation court in 1532, and which mainly dealt with bills and petitions to the Court of Session, was abolished in 1933 and its business merged with that of the Court of Session.[14]
Since 2009, the Supreme Court of the United Kingdom has replaced The House of Lords as the final court of appeal for cases from the Court of Session.[15]
The records of the Court of Session are held by the National Records of Scotland and further details can be found in the NRS online catalogue by searching for the Court of Session (reference code CS).
Contributors: Elspeth Reid, Alison Rosie (2023)
Related Knowledge Base entries
Bibliography
Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996)
Cooper, Lord, of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed by G H C Paton (Stair Society, 1958), pp. 341-49
Coutts Winifred, The Business of the College of Justice in 1600 (Stair Society, 2003)
Duncan, A.A.M., ‘The Central Courts before 1532’ in An Introduction to Scottish Legal History ed by G. H. C. Paton (Stair Society, 1958), pp. 321-40
Hannay, R.K., The College of Justice (Stair Society, 1990)
The Laws of Scotland: The Stair Memorial Encyclopaedia, 2nd re-issue Vol 6 (Butterworths, 2023)
References
[1] Union with England Act 1707 (c. 7).
[2] College of Justice Act, 1532 (c.2).
[3] Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996), p.101.
[4] Hector MacQueen, ‘Introduction’ in The College of Justice by R. K. Hannay, (Stair Society, 1990) pp. i-ii.
[5] R.K. Hannay The College of Justice (Stair Society 1990), pp.95-96.
[6] Cooper, Lord, of Culross, ‘The Central Courts after 1532’ in An Introduction to Scottish Legal History ed. by G. H. C. Paton (Stair Society, 1958), pp. 341-49 (p.343); Court of Session Act, 1825 (6 Geo. IV c. 120).
[7] Court of Session Act 1868 (31 & 32 Vict. c. 100).
[8] Administration of Justice (Scotland) Act 1933 (23 & 24 Geo V c. 41).
[9] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69); Administration of Justice (Scotland) Act, 1948 (12, 13 & 14 Geo. VI c. 10); Court of Session At 1988 (c. 36).
[10] Courts Act 1672 (c.40).
[11] Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).
[12] Jury Trials (Scotland) Act 1815 (55 Geo. III c. 42); Court of Session Act 1830 (11 Geo. IV & 1 Will IV c. 69).
[13] Exchequer Court (Scotland) Act 1856 (19 & 20 Vict. c. 56).
[14] Scottish Record Office Guide to the National Archives of Scotland (HMSO, 1996), pp. 113-14; Administration of Justice (Scotland) Act 1933 (23 & 24 Geo V c. 41).
[15] Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (SSI 2009 No. 323).