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Courts Reform (Scotland) Act 2014

Type Act of the Scottish Parliament

Publication 2014-11-10

Last updated 2022-05-10

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

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(6) The calculation of a sum for the time being mentioned in subsection (3) is to be determined in accordance with provision made by the Court of Session by act of sederunt.

(7) An act of sederunt under subsection (6) may make different provision for different purposes.

(8) An act of sederunt under section 104(1) may make provision for the purposes of this Act for determining whether proceedings are of a type mentioned in subsection (3).

(9) Proceedings that—

(a) are subject to simple procedure under subsection (3) or by virtue of any other enactment,

(b) are brought subject to simple procedure under section 74, or

are referred to in this Part as a “simple procedure case”.

(10) Subsection (9) is subject to section 80.

(11) References in subsection (3) to a sum of money is to that amount exclusive of interest and expenses.

(12) The Scottish Ministers may by order substitute for any sum for the time being specified in this section a different sum.

Proceedings in an all-Scotland sheriff court

73

(1) Section 72(3), so far as requiring any relevant proceedings to be brought subject to simple procedure, does not apply to any such proceedings in an all-Scotland sheriff court, and no such proceedings may be brought or continued in such a court subject to simple procedure.

(2) Subsection (1) does not affect the application of section 72(3) in relation to any relevant proceedings brought in any other sheriff court.

(3) In this section, “relevant proceedings” means proceedings of a type mentioned in section 72(3)(a) so far as they are also of a type specified in an order under section 41(1).

Proceedings for aliment of small amounts under simple procedure

74

(1) Subsection (2) applies to a claim for aliment only (whether or not expenses are also sought) under section 2 of the Family Law (Scotland) Act 1985 (actions for aliment).

(2) The claim may be brought subject to simple procedure if the aliment claimed does not exceed—

(a) in respect of a child under the age of 18 years, the sum of £100 per week, and

(b) in any other case, the sum of £200 per week.

(3) A provision such as is mentioned in subsection (4) does not apply in relation to a claim brought subject to simple procedure under subsection (2).

(4) The provision referred to in subsection (3) is provision in any enactment—

(a) limiting the jurisdiction of a sheriff in a simple procedure case by reference to any amount, or

(b) limiting the period for which a decree granted by a sheriff is to have effect.

(5) The Scottish Ministers may by order substitute for any sum for the time being mentioned in subsection (2) a different sum.

Rule-making: matters to be taken into consideration

75

The power to make provision relating to simple procedure by act of sederunt under section 104(1) is to be exercised so far as possible with a view to ensuring that the sheriff before whom a simple procedure case is conducted—

(a) is able to identify the issues in dispute,

(b) may facilitate negotiation between or among the parties with a view to securing a settlement,

(d) can adopt a procedure that is appropriate to and takes account of the particular circumstances of the case.

Service of documents

76

(1) An act of sederunt under section 104(1) may permit a party to a simple procedure case, in such circumstances as may be specified in the act, to require the sheriff clerk to effect service of any document relating to the case on behalf of the party.

(2) In subsection (1)—

(a) the reference to a party to a simple procedure case includes a reference to a description of such a party as may be specified in an act of sederunt mentioned in that subsection,

(b) the reference to any document relating to the case includes a reference to a description of any such document as may be so specified.

Evidence in simple procedure cases

77

(1) Any enactment or rule of law that prevents evidence being led on grounds of admissibility before a court of law does not apply in simple procedure cases.

(2) The evidence, if any, given in simple procedure cases is not to be recorded.

Transfer of cases to simple procedure

78

(1) This section applies to any civil proceedings in the sheriff court that are being conducted otherwise than as a simple procedure case.

(2) The parties to the proceedings may, at any stage, make a joint application for the proceedings to continue subject to simple procedure if the proceedings are of a type that, if brought at the time when the application is made—

(a) would or could be brought subject to simple procedure by virtue of any enactment, or

(b) would or could be so brought but for the fact that a financial limit specified in section 72(3) or 74(2) is exceeded.

(3) Where such a joint application is made, the sheriff must direct that the proceedings are to continue subject to simple procedure for all purposes (including appeal).

Proceedings in an all-Scotland sheriff court: transfer to simple procedure

79

(1) This section applies to any relevant proceedings in an all-Scotland sheriff court.

(2) A party to the proceedings may, at any stage, make an application for the proceedings to continue subject to simple procedure in another sheriff court.

(3) Where such an application is made, the sheriff may, on special cause shown—

(a) direct that the proceedings are to continue subject to simple procedure for all purposes (including appeal), and

(b) make an order transferring the proceedings to another sheriff court having jurisdiction in relation to the proceedings.

(4) Where a sheriff makes a direction under section 78(3) in relation to proceedings to which this section applies, the sheriff must make an order transferring the proceedings to another sheriff court having jurisdiction in relation to the proceedings.

(5) In this section, “relevant proceedings” has the same meaning as in section 73.

Transfer of cases from simple procedure

80

(1) A party to a simple procedure case may, at any stage, make an application for the case not to proceed subject to simple procedure.

(2) Where such an application is made, the sheriff may direct that the proceedings are no longer subject to simple procedure.

(3) Where a direction is made under subsection (2), the proceedings are to continue for all purposes (including appeal) subject to such procedure as would have been applicable to them had they not been subject to simple procedure.

Expenses in simple procedure cases

81

(1) The Scottish Ministers may by order provide that—

(a) in such category of simple procedure cases as may be prescribed in the order, no award of expenses may be made,

(b) in such other category of simple procedure cases as may be so prescribed, any expenses awarded may not exceed such sum as may be so prescribed.

(2) The categories of simple procedure cases mentioned in subsection (1) may be prescribed by reference to—

(a) the value of the claim in the cases,

(b) the subject matter of the claim in the cases.

(3) Categories may be prescribed subject to specified exceptions.

(4) An order under subsection (1) does not apply—

(a) to simple procedure cases such as those mentioned in subsection (5),

(b) in relation to an appeal to the Sheriff Appeal Court from any decision in a simple procedure case, or

(5) The simple procedure cases referred to in subsection (4)(a) are those in which—

(a) the defender—

(i) has not stated a defence,

(ii) having stated a defence, has not proceeded with it, or

(iii) having stated and proceeded with a defence, has not acted in good faith as to its merits, or

(b) a party to the case has behaved in a manner which is manifestly unreasonable in relation to the case.

(6) Subsection (7) applies where the sheriff in a simple procedure case is of the opinion that a difficult question of law, or a question of fact of exceptional complexity, is involved.

(7) The sheriff may, at any stage, on the application of any party to the case, direct that an order under subsection (1) is not to apply in relation to the case.

Appeals from simple procedure cases

82

(1) An appeal may be taken to the Sheriff Appeal Court under section 110 on a point of law only against a decision of the sheriff constituting final judgment in a simple procedure case.

(2) Any other decision of the sheriff in such a case is not subject to review.

Transitional provision: summary causes

83

(1) Any reference, however expressed, in a pre-commencement enactment to proceedings being subject to summary cause procedure is, on and after the coming into force of this section, to be construed as a reference to proceedings being subject to simple procedure.

(2) Accordingly, any reference to proceedings being taken by way of summary cause is to be construed as a reference to proceedings being subject to simple procedure.

(3) In subsection (1), “pre-commencement enactment” means any enactment passed or made before this section comes into force.

Interdicts and other orders: effect outside sheriffdom

Interdicts having effect in more than one sheriffdom

84

(1) A sheriff has competence to grant an interdict having effect in relation to conduct at places outside the sheriff's sheriffdom as well as at places within the sheriff's sheriffdom.

(2) In this section, “interdict” includes “interim interdict”.

Proceedings for breach of an extended interdict

85

(1) In this section, “extended interdict” means an interdict granted by a sheriff, by virtue of section 84(1), having effect in relation to conduct at places outside the sheriff's sheriffdom.

(2) Proceedings for breach of an extended interdict may be brought before a sheriff of the sheriffdom—

(a) in which the defender is domiciled,

(b) in which the interdict was granted,

(3) A sheriff before whom proceedings for breach of an extended interdict are brought may make an order transferring the proceedings to a sheriff of another sheriffdom (whether or not one mentioned in subsection (2)) if satisfied that it would be more appropriate for the proceedings to be dealt with by a sheriff of the other sheriffdom.

(4) A sheriff may make an order under subsection (3)—

(a) on the application of a party to the proceedings, or

(b) on the sheriff's own initiative.

(5) Where an order is made under subsection (3), a sheriff of the sheriffdom to whom the proceedings are to be transferred has jurisdiction and competence to consider and determine the proceedings.

(6) This section does not affect any power that a sheriff has to decline jurisdiction in any case.

Power to enable sheriff to make orders having effect outside sheriffdom

86

(1) In this section, “relevant order” means an order—

(a) which a sheriff has competence and jurisdiction to make in civil proceedings, but

(b) which, apart from this section, the sheriff could make only so as to have effect or be enforceable within the sheriff's sheriffdom.

(2) The Scottish Ministers may by order provide for a sheriff to have competence to make relevant orders having effect (and being capable of being enforced) outside the sheriff's sheriffdom as well as within that sheriffdom (referred to in this section as “extended competence”).

(3) An order under subsection (2) may—

(a) make provision in relation to all relevant orders or in relation only to specified categories or descriptions of relevant order,

(b) make different provision in relation to different categories or descriptions of relevant order,

(i) in such circumstances,

(ii) in relation to such civil proceedings, or

(iii) subject to such conditions,

as are specified in the order,

(d) make provision about jurisdiction in relation to proceedings for relevant orders,

(e) make provision for the transfer of proceedings for relevant orders between different sheriffdoms,

(f) make provision about the enforcement of orders made in the exercise of extended competence (including provision about jurisdiction in relation to enforcement proceedings).

(4) Subsection (3) does not affect the generality of section 133(1).

(5) In subsection (1), “order”—

(a) includes “interim order”, but

(b) does not include an interdict or an interim interdict.

Execution of deeds relating to heritage

Power of sheriff to order sheriff clerk to execute deed relating to heritage

87

(1) This section applies where—

(a) an action relating to heritable property is before a sheriff, or

(b) it appears to a sheriff that an order under this section is necessary to implement a decree of a sheriff relating to heritable property.

(2) The sheriff may make an order such as is mentioned in subsection (4)—

(a) on an application by the grantee of any deed relating to the heritable property, and

(b) if satisfied as to the matters mentioned in subsection (3).

(3) The matters are that the grantor of any deed relating to the heritable property—

(a) cannot be found,

(b) refuses to execute the deed,

(4) The order is one—

(a) dispensing with the execution of the deed by the grantor, and

(b) directing the sheriff clerk to execute the deed.

(5) A deed executed by the sheriff clerk in accordance with a direction in an order under this section has the same force and effect as if it had been executed by the grantor.

(6) In this section—

“grantor”, in relation to a deed relating to the heritable property, means a person who is under an obligation to execute the deed,

“grantee” means the person to whom that obligation is owed.

Interim orders

88

(1) A sheriff may, on the application of a party to any civil proceedings before the sheriff, make—

(a) such interim order as the sheriff thinks fit in relation to—

(i) the possession of any heritable or movable property to which the proceedings relate,

(ii) the subject matter of the proceedings,

(b) an interim order ad factum praestandum.

(2) Subsection (1) does not apply in relation to proceedings under the Children's Hearings (Scotland) Act 2011.

CHAPTER 2 — COURT OF SESSION

Judicial review

89

After section 27 of the Court of Session Act 1988, insert—

(27A) (1) An application to the supervisory jurisdiction of the Court must be made before the end of— (a) the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or (b) such longer period as the Court considers equitable having regard to all the circumstances. (2) Subsection (1) does not apply to an application to the supervisory jurisdiction of the Court which, by virtue of any enactment, is to be made before the end of a period ending before the period of 3 months mentioned in that subsection (however that first-ending period may be expressed). (27B) (1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed. (2) Subject to subsection (3), the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that— (a) the applicant can demonstrate a sufficient interest in the subject matter of the application, and (b) the application has a real prospect of success. (3) Where the application relates to a decision of the Upper Tribunal for Scotland in an appeal from the First-tier Tribunal for Scotland under section 46 of the Tribunals (Scotland) Act 2014, the Court may grant permission under subsection (1) for the application to proceed only if it is satisfied that— (a) the applicant can demonstrate a sufficient interest in the subject matter of the application, (b) the application has a real prospect of success, and (c) either— (i) the application would raise an important point of principle or practice, or (ii) there is some other compelling reason for allowing the application to proceed. (4) The Court may grant permission under subsection (1) for an application to proceed— (a) subject to such conditions as the Court thinks fit, (b) only on such of the grounds specified in the application as the Court thinks fit. (5) The Court may decide whether or not to grant permission without an oral hearing having been held. (27C) (1) Subsection (2) applies where, in relation to an application to the supervisory jurisdiction of the Court— (a) the Court— (i) refuses permission under subsection 27B(1) for the application to proceed, or (ii) grants permission for the application to proceed subject to conditions or only on particular grounds, and (b) the Court decides to refuse permission, or grant permission as mentioned in paragraph (a)(ii), without an oral hearing having been held. (2) The person making the application may, within the period of 7 days beginning with the day on which that decision is made, request a review of the decision at an oral hearing. (3) A request under subsection (2) must be considered by a different Lord Ordinary from the one who refused permission or granted permission as mentioned in subsection (1)(a)(ii). (4) Where a request under subsection (2) is granted, the oral hearing must be conducted before a different Lord Ordinary from the one who refused or so granted permission. (5) At a review following a request under subsection (2), the Court must consider whether to grant permission for the application to proceed; and subsections (2), (3) and (4) of section 27B apply for that purpose. (6) Section 28 does not apply— (a) where subsection (2) applies, or (b) in relation to the refusal of a request made under subsection (2). (27D) (1) Subsection (2) applies where, after an oral hearing to determine whether or not to grant permission for an application to the supervisory jurisdiction of the Court to proceed, the Court— (a) refuses permission for the application to proceed, or (b) grants permission for the application to proceed subject to conditions or only on particular grounds. (2) The person making the application may, within the period of 7 days beginning with the day on which the Court makes its decision, appeal under this section to the Inner House (but may not appeal under any other provision of this Act). (3) In an appeal under subsection (2), the Inner House must consider whether to grant permission for the application to proceed; and subsections (2), (3) and (4) of section 27B apply for that purpose. (4) In subsection (1), the reference to an oral hearing is to an oral hearing whether following a request under section 27C(2) or otherwise.

Interim orders

90

In section 47 of the Court of Session Act 1988 (interim interdict and other interim orders), after subsection (2) insert—

(2A) The power under subsection (2) to make an order includes, in particular, power to make an order ad factum praestandum (including an interim order).

Warrants for ejection

91

After section 47 of the Court of Session Act 1988, insert—

(47A) In any proceedings where the Court has competence to grant a decree of removing, it also has competence to grant a warrant for ejection.

CHAPTER 3 — REMIT OF CASES BETWEEN COURTS

Remit of cases to the Court of Session

92

(1) Subsection (2) applies to any civil proceedings before a sheriff that are—

(a) proceedings that the Court of Session also has competence and jurisdiction to deal with,

(b) not proceedings to which section 39 applies, and

(2) On the application of any of the parties to the proceedings, the sheriff may, at any stage, remit the proceedings to the Court of Session if the sheriff considers that the importance or difficulty of the proceedings makes it appropriate to do so.

(3) Subsection (4) applies to any civil proceedings before a sheriff that are—

(a) proceedings to which section 39 applies,

(b) proceedings that the Court of Session would (but for that section) also have competence and jurisdiction to deal with, and

(4) On the application of any of the parties to the proceedings, the sheriff may, at any stage, request the Court of Session to allow the proceedings to be remitted to that Court if the sheriff considers that the importance or difficulty of the proceedings makes it appropriate to do so.

(5) On receiving a request under subsection (4), the Court of Session may, on cause shown, allow the proceedings to be remitted to the Court.

(6) If the Court of Session allows the proceedings to be remitted to that Court, the sheriff is to remit the proceedings to that Court.

(7) Where the proceedings are remitted to the Court of Session under subsection (6), the proceedings may be dealt with and disposed of by that Court despite section 39(2).

Remit of cases from the Court of Session

93

(1) Subsection (2) applies to any proceedings in the Court of Session if—

(a) they are proceedings that a sheriff also has competence and jurisdiction to deal with,

(b) they would be proceedings to which section 39 applies but for the fact that subsection (1)(b)(ii) of that section is not satisfied, and

(c) the Court considers, at any stage, that it is unlikely that the aggregate total value of all the orders of value granted in the proceedings, exclusive of interest and expenses, will be greater than the sum specified in that subsection.

(2) The Court must remit the proceedings to an appropriate sheriff, unless the Court considers, on cause shown, that the proceedings should remain in the Court of Session.

(3) In considering the matter in subsection (1)(c), the Court is to assume—

(a) that liability for the order sought is established, and

(b) that there will, where appropriate, be no deduction for contributory negligence.

(4) Subsection (5) applies to any proceedings in the Court of Session if—

(a) they are proceedings that a sheriff also has competence and jurisdiction to deal with, but

(b) are not proceedings to which paragraph (b) or (c) of subsection (1) applies.

(5) The Court may, at any stage, remit the proceedings to an appropriate sheriff if the Court considers that the nature of the proceedings makes it appropriate to do so.

(6) The Court may remit proceedings under subsection (2) or (5)—

(a) on the application of any party to the proceedings, or

(b) on its own initiative.

(7) In this section, “an appropriate sheriff” means, in relation to proceedings remitted from the Court of Session under this section, a sheriff having competence and jurisdiction to deal with the proceedings sitting at such sheriff court as the Court may, at the time of the remit, specify.

Remit of cases to the Scottish Land Court

94

(1) Subsection (2) applies to any proceedings before a sheriff where the matter to which the proceedings relate could competently be determined by the Scottish Land Court under—

(a) the Agricultural Holdings (Scotland) Act 1991, or

(b) the Agricultural Holdings (Scotland) Act 2003.

(2) The sheriff may, at any stage, remit the proceedings to the Scottish Land Court if the sheriff considers that it is appropriate to do so.

(3) The sheriff may remit proceedings under subsection (2)—

(a) on the application of any party to the proceedings, or

(b) on the sheriff's own initiative.

(4) A decision of the sheriff to remit, or not to remit, the proceedings under subsection (2) is final and no appeal may be taken against it.

CHAPTER 4 — LAY REPRESENTATION FOR NON-NATURAL PERSONS

Key defined terms

95

(1) This section applies for the purposes of the interpretation of this Chapter.

(2) “Non-natural person” means—

(a) a company (whether incorporated in the United Kingdom or elsewhere),

(b) a limited liability partnership,

(d) an unincorporated association of persons.

(3) “Lay representative” means an individual who is not a legal representative.

(4) “Legal representative” means—

(a) a solicitor,

(b) an advocate, or

(c) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

(5) An individual holds a relevant position with a non-natural person if the individual—

(a) in the case of a company, is a director or secretary of the company,

(b) in the case of a limited liability partnership, is a member of the partnership,

(d) in the case of an unincorporated association, is a member or office holder of the association.

(6) For the purposes of section 96, an individual also holds a relevant position with a non-natural person if the individual is an employee of the non-natural person.

(7) References to conducting proceedings are references to exercising, in relation to the proceedings, a function or right (including a right of audience) that a legal representative could exercise in the proceedings.

Lay representation in simple procedure cases

96

(1) This section applies in any simple procedure case to which a non-natural person is a party.

(2) A lay representative may conduct proceedings in the case on behalf of the non-natural person if—

(a) the lay representative holds a relevant position with the non-natural person,

(b) the responsibilities of the lay representative in that position do not consist wholly or mainly of conducting legal proceedings on behalf of the non-natural person or another person,

(d) the lay representative does not have a personal interest in the subject matter of the proceedings, and

(e) the lay representative is not the subject of an order such as is mentioned in section 98(2)(f).

(3) In subsection (2)(d), “personal interest” means an interest other than one that anyone holding the position that the lay representative holds with the non-natural person would have.

(4) Subsection (2) is subject to provision made by an act of sederunt under section 98.

Lay representation in other proceedings

97

(1) This section applies in civil proceedings (other than a simple procedure case) to which a non-natural person is a party.

(2) A lay representative may, if the court grants permission, conduct the proceedings on behalf of the non-natural person.

(3) The court may grant permission if satisfied that—

(a) the non-natural person is unable to pay for the services of a legal representative to conduct the proceedings,

(b) the lay representative is a suitable person to conduct the proceedings, and

(4) For the purposes of subsection (3)(b), a lay representative is a suitable person to conduct the proceedings if—

(a) the lay representative holds a relevant position with the non-natural person,

(b) the responsibilities of the lay representative in that position do not consist wholly or mainly of conducting legal proceedings on behalf of the non-natural person or another person,

(d) the lay representative does not have a personal interest in the subject matter of the proceedings, and

(e) the lay representative is not the subject of an order such as is mentioned in section 98(2)(f).

(5) In subsection (4)(d), “personal interest” means an interest other than one that anyone holding the position that the lay representative holds with the non-natural person would have.

(6) For the purposes of subsection (3)(c), in deciding whether it is in the interests of justice to grant permission, the court must have regard, in particular, to—

(a) the non-natural person's prospects of success in the proceedings, and

(b) the likely complexity of the proceedings.

(7) Subsection (2) is subject to provision made by an act of sederunt under section 98.

(8) In this section—

“civil proceedings” means civil proceedings in—the Court of Session,the Sheriff Appeal Court, orthe sheriff court,

“the court”, in the case of proceedings in the sheriff court, means the sheriff.

Lay representation: supplementary provision

98

(1) The Court of Session may, by act of sederunt, make further provision about—

(a) the granting of permission under section 97, and

(b) the conduct of proceedings by lay representatives by virtue of this Chapter.

(2) Provision under subsection (1) may include, in particular, provision—

(a) about the procedure to be followed in considering applications for permission under section 97 (including provision for applications to be considered in chambers and without hearing the parties),

(b) regulating the conduct of lay representatives in exercising a function or right by virtue of this Chapter,

(d) imposing conditions on the exercise by lay representatives of a function or right by virtue of this Chapter or enabling the court to impose such conditions in particular cases,

(e) enabling the court, in particular cases, to withdraw a lay representative's right to exercise a function or right by virtue of this Chapter if the representative contravenes provision made by virtue of the act of sederunt,

(f) enabling the court to make an order preventing a lay representative from conducting any proceedings before any court on behalf of non-natural persons,

(g) enabling the court, in awarding expenses against a non-natural person in any case, to find a lay representative jointly and severally liable for the expenses.

(3) An act of sederunt under subsection (1) may make different provision for different purposes.

(4) In this section, “the court”, in the case of proceedings in the sheriff court, means the sheriff.

CHAPTER 5 — JURY SERVICE

Jury service

99

(1) The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 is amended in accordance with this section.

(2) In section 1 (qualification of jurors)—

(a) in subsection (1)—

(i) the words “to subsections (2) and (3) below and” are repealed, and

(ii) for paragraph (b) substitute—

(b) is not less than 18 years of age;

(b) subsections (1A), (2) and (3) are repealed,

(3) In section 1A (excusal of jurors in relation to criminal proceedings)—

(a) in each of subsections (1), (2) and (3), the words “in relation to criminal proceedings” are repealed,

(b) in subsection (3), for “(a)(iii)” substitute “ (ab) ”,

(4) In Part III of Schedule 1 (persons excusable from jury service as of right), in Group F, for paragraphs (a) and (aa) substitute—

(a) persons who have served as a juror in the period of 5 years ending with the date on which the person is cited first to attend; (aa) persons who have attended for jury service, but have not served as a juror, in the period of 2 years ending with the date on which the person is cited first to attend; (ab) persons who have attained the age of 71;

CHAPTER 6 — VEXATIOUS PROCEEDINGS

Vexatious litigation orders

100

(1) The Inner House may, on the application of the Lord Advocate, make a vexatious litigation order in relation to a person (a “vexatious litigant”).

(2) A vexatious litigation order is an order which has either or both of the following effects—

(a) the vexatious litigant may institute civil proceedings only with the permission of a judge of the Outer House,

(b) the vexatious litigant may take a specified step in specified ongoing civil proceedings only with such permission.

(3) In subsection (2)(b)—

(a) “specified ongoing civil proceedings” means civil proceedings which—

(i) were instituted by the vexatious litigant before the order was made, and

(ii) are specified in the order,

(b) “specified step” means a step specified in the order.

(4) A vexatious litigation order has effect—

(a) during such period as is specified in the order, or

(b) if no period is so specified, indefinitely.

(5) In this section and section 101—

(a) “the Inner House” means the Inner House of the Court of Session,

(b) “the Outer House” means the Outer House of the Court of Session,

(d) “vexatious litigation order” means an order made under subsection (1).

Vexatious litigation orders: further provision

101

(1) The Inner House may make a vexatious litigation order in relation to a person only if satisfied that the person has habitually and persistently, without any reasonable ground for doing so—

(a) instituted vexatious civil proceedings, or

(b) made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).

(2) For the purpose of subsection (1), it does not matter whether the proceedings—

(a) were instituted in Scotland or elsewhere,

(b) involved the same parties or different parties.

(3) A copy of a vexatious litigation order must be published in the Edinburgh Gazette.

(4) A judge of the Outer House may grant permission to a vexatious litigant to institute civil proceedings or, as the case may be, to take a step in such proceedings only if satisfied that there is a reasonable ground for the proceedings or the taking of the step.

(5) The decision of the judge to refuse to grant permission under subsection (4) is final.

(6) Subsection (7) applies in relation to civil proceedings instituted in any court by a vexatious litigant before the Inner House makes a vexatious litigation order in relation to the vexatious litigant.

(7) The court may make such order as it sees fit in consequence of the vexatious litigation order.

(8) In subsection (7), “the court” means—

(a) the court which is dealing with the proceedings,

(b) in the case of proceedings in the sheriff court, the sheriff.

Power to make orders in relation to vexatious behaviour

102

(1) The Scottish Ministers may by regulations confer on the Court of Session, a sheriff or the Sheriff Appeal Court the power to make an order of a kind mentioned in subsection (2) in relation to a person who has behaved in a vexatious manner in civil proceedings before the Court of Session, sheriff or, as the case may be, Sheriff Appeal Court.

(2) The order referred to in subsection (1) is an order that the person may do any of the following only with the permission of a court or a judge of any court—

(a) take such a step in those proceedings as is specified in the order,

(b) take such a step as is so specified in such other civil proceedings (whether or not those proceedings are before the Court of Session, sheriff or, as the case may be, Sheriff Appeal Court) as are so specified,

(3) For the purpose of subsection (1), a person behaves in a vexatious manner in civil proceedings if the person—

(a) institutes the proceedings and they are vexatious, or

(b) makes a vexatious application in the course of the proceedings (whether or not they were instituted by the person).

(4) Regulations under subsection (1) may include provision for—

(a) an order to be made on the application of a party to the proceedings or on the Court's or, as the case may be, sheriff's own initiative,

(b) circumstances in which the Court or sheriff may make an order, and the requirements as to permission which may be imposed in an order in those circumstances,

(c) the factors which the Court or sheriff may take into account in deciding whether to make an order (including the person's behaviour in other civil proceedings, whether in Scotland or elsewhere),

(d) the courts in relation to which an order may have effect,

(e) the maximum period for which an order may have effect,

(f) the effect of an order in any other respects.

(5) The Scottish Ministers must consult the Lord President of the Court of Session before making regulations under subsection (1).

(6) Regulations under subsection (1)—

(a) are subject to the negative procedure,

(b) may make different provision for different purposes,

PART 4 — PROCEDURE AND FEES

Procedure

Power to regulate procedure etc. in the Court of Session

103

(1) The Court of Session may by act of sederunt make provision for or about—

(a) the procedure and practice to be followed in proceedings in the Court,

(b) any matter incidental or ancillary to such proceedings.

(2) Without limiting that generality, the power in subsection (1) includes power to make provision for or about—

(a) execution or diligence following on such proceedings,

(b) avoiding the need for, or mitigating the length and complexity of, such proceedings, including—

(i) encouraging settlement of disputes and the use of alternative dispute resolution procedures,

(ii) action to be taken before such proceedings are brought by persons who will be party to the proceedings,

(d) simplifying the language used in connection with such proceedings or matters incidental or ancillary to them,

(e) the form of any document to be used in connection with such proceedings, matters incidental or ancillary to them or matters specified in this subsection,

(f) appeals against a decision of the Court,

(g) applications that may be made to the Court,

(h) time limits in relation to proceedings mentioned in subsection (1), matters incidental or ancillary to them or matters specified in this subsection,

(i) the steps that the Court may take where there has been an abuse of process by a party to such proceedings,

(j) expenses that may be awarded in such proceedings,

(k) other payments such parties or persons representing such parties may be required to make in respect of their conduct relating to such proceedings,

(l) the payment, investment or application of any sum of money awarded in such proceedings to or in respect of a person under a legal disability,

(m) the representation of parties to such proceedings, and others, including representation by persons who—

(i) are neither solicitors nor advocates, or

(ii) do not have the right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990,

(n) the functions and rights of persons appointed by the Court in connection with such proceedings,

(o) witnesses and evidence, including modifying the rules of evidence as they apply to such proceedings,

(p) the quorum for a Division of the Inner House considering purely procedural matters and, in the case of an extra Division, as to which judge is to preside and to sign any judgment or interlocutor pronounced by the extra Division,

(q) such other matters as the Court thinks necessary or appropriate for the purposes of carrying out or giving effect to the provisions of any enactment (including this Act) relating to such proceedings or matters incidental or ancillary to them.

(3) An act of sederunt under subsection (1) may make—

(a) incidental, supplemental, consequential, transitional, transitory or saving provision,

(b) provision amending, repealing or revoking any enactment (including any provision of this Act) relating to matters with respect to which an act of sederunt may be made,

(4) This section is without prejudice to—

(a) any enactment that enables the Court to make rules (by act of sederunt or otherwise) regulating the practice and procedure to be followed in proceedings to which this section applies, or

(b) the inherent powers of the Court.

Power to regulate procedure etc. in the sheriff court and the Sheriff Appeal Court

104

(1) The Court of Session may by act of sederunt make provision for or about—

(a) the procedure and practice to be followed in civil proceedings in the sheriff court or in the Sheriff Appeal Court,

(b) any matter incidental or ancillary to such proceedings.

(2) Without limiting that generality, the power in subsection (1) includes power to make provision for or about—

(a) execution or diligence following on such proceedings,

(b) avoiding the need for, or mitigating the length and complexity of, such proceedings, including—

(i) encouraging settlement of disputes and the use of alternative dispute resolution procedures,

(ii) action to be taken before such proceedings are brought by persons who will be party to the proceedings,

(d) simplifying the language used in connection with such proceedings or matters incidental or ancillary to them,

(e) the form of any document to be used in connection with such proceedings, matters incidental or ancillary to them or matters specified in this subsection,

(f) appeals against a decision of a sheriff or the Sheriff Appeal Court,

(g) applications that may be made to a sheriff or the Sheriff Appeal Court,

(h) time limits in relation to proceedings mentioned in subsection (1), matters incidental or ancillary to them or matters specified in this subsection,

(i) the steps that a sheriff or the Sheriff Appeal Court may take where there has been an abuse of process by a party to such proceedings,

(j) expenses that may be awarded in such proceedings,

(k) other payments such parties or persons representing such parties may be required to make in respect of their conduct relating to such proceedings,

(l) the payment, investment or application of any sum of money awarded in such proceedings to or in respect of a person under a legal disability,

(m) the representation of parties to such proceedings, and others, including representation by persons who—

(i) are neither solicitors nor advocates, or

(ii) do not have the right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990,

(n) the functions and rights of persons appointed by a sheriff or the Sheriff Appeal Court in connection with such proceedings,

(o) witnesses and evidence, including modifying the rules of evidence as they apply to such proceedings,

(p) the quorum for sittings of the Sheriff Appeal Court,

(q) determining which Appeal Sheriff is to preside at such sittings where the Court is constituted by more than one Appeal Sheriff,

(r) such other matters as the Court of Session thinks necessary or appropriate for the purposes of carrying out or giving effect to the provisions of any enactment (including this Act) relating to such proceedings or matters incidental or ancillary to them.

(3) Nothing in an act of sederunt under subsection (1) is to derogate from the provisions of sections 72 to 82 (simple procedure).

(4) An act of sederunt under subsection (1) may make—

(a) incidental, supplemental, consequential, transitional, transitory or saving provision,

(b) provision amending, repealing or revoking any enactment (including any provision of this Act) relating to matters with respect to which an act of sederunt under subsection (1) may be made,

(5) Before making an act of sederunt under subsection (1) with respect to any matter, the Court of Session must—

(a) consult the Scottish Civil Justice Council, and

(b) take into consideration any views expressed by the Council with respect to that matter.

(6) Subsection (5) does not apply in relation to an act of sederunt that embodies, with or without modifications, draft rules submitted by the Scottish Civil Justice Council to the Court of Session.

(7) This section is without prejudice to—

(a) any enactment that enables the Court of Session to make rules (by act of sederunt or otherwise) regulating the practice and procedure to be followed in proceedings to which this section applies, or

(b) the inherent powers of a sheriff or the Sheriff Appeal Court.

Fees of solicitors etc.

Power to regulate fees in the Court of Session

105

(1) The Court of Session may, in relation to any proceedings in the Court (including any execution or diligence following such proceedings), by act of sederunt make provision for or about the fees of—

(a) solicitors,

(b) messengers-at-arms,

(d) witnesses,

(e) shorthand writers,

(f) such other persons, or persons of such descriptions, as the Scottish Ministers may by order specify.

(2) An act of sederunt under subsection (1) may not make any provision for or about the fees that the Scottish Ministers may regulate under or by virtue of section 33 of the Legal Aid (Scotland) Act 1986 (fees and outlays of solicitors and counsel).

(3) An act of sederunt under subsection (1) and an order under subsection (1)(f) may make—

(a) incidental, supplemental, consequential, transitional, transitory or saving provision,

(b) different provision for different purposes.

(4) Before making an order under subsection (1)(f), the Scottish Ministers must consult the Lord President of the Court of Session.

(5) An act of sederunt under subsection (1) is subject to the negative procedure.

Power to regulate fees in the sheriff court and the Sheriff Appeal Court

106

(1) The Court of Session may, in relation to civil proceedings in the sheriff court or the Sheriff Appeal Court (including any execution or diligence following such proceedings), by act of sederunt make provision for or about the fees of—

(a) solicitors,

(b) sheriff officers,

(d) witnesses,

(e) shorthand writers,

(f) such other persons, or persons of such descriptions, as the Scottish Ministers may by order specify.

(2) An act of sederunt under subsection (1) may not make any provision for or about the fees that the Scottish Ministers may regulate under or by virtue of section 33 of the Legal Aid (Scotland) Act 1986 (fees and outlays of solicitors and counsel).

(3) An act of sederunt under subsection (1) may make—

(a) incidental, supplemental, consequential, transitional, transitory or saving provision,

(b) different provision for different purposes.

(4) Before making an order under subsection (1)(f), the Scottish Ministers must consult the Lord President of the Court of Session.

(5) An act of sederunt under subsection (1) is subject to the negative procedure.

Court fees

Power to provide for fees for SCTS, court clerks and other officers

107

(1) The Scottish Ministers may by order make provision for the charging of fees in respect of the carrying out of the functions of the Scottish Courts and Tribunals Service (“the SCTS”) or a relevant officer in connection with—

(a) proceedings in the Scottish Courts, or

(b) any other matter dealt with by a relevant officer.

(2) An order under subsection (1) may—

(a) in particular include provision—

(i) specifying, or for determining, the amount of fees,

(ii) specifying, or for determining, the persons or types of person who are to pay the fees,

(iii) specifying the times when, places where and persons to whom the fees are to be paid,

(iv) for exemptions from the requirement to pay fees,

(v) for the remission of fees,

(vi) for modification of fees,

(b) make different provision for different purposes or circumstances including, in particular, different provision for—

(i) different Scottish Courts,

(ii) different relevant officers,

(iii) different proceedings or types of proceedings.

(3) In this section—

“relevant officer” means—a clerk, deputy clerk or assistant clerk of any of the Scottish Courts,the Accountant of Court,the Auditor of the Court of Session, the auditor of the Sheriff Appeal Court, the auditor of a sheriff court,any other officer who is a member of the staff of the SCTS,

“Scottish Courts” means—the Court of Session,the High Court of Justiciary,the court for hearing appeals under section 57(1)(b) of the Representation of the People Act 1983,the election court in Scotland constituted under section 123 of that Act,the Scottish Land Court,the Lands Valuation Appeal Court,the Sheriff Appeal Court,sheriff courts,justice of the peace courts.

(4) The Scottish Ministers may by order modify (either or both of) the definitions of “relevant officer” and “Scottish Courts” in subsection (3).

Sanction for counsel

Sanction for counsel in the sheriff court and Sheriff Appeal Court

108

(1) This section applies in civil proceedings in the sheriff court or the Sheriff Appeal Court where the court is deciding, for the purposes of any relevant expenses rule, whether to sanction the employment of counsel by a party for the purposes of the proceedings.

(2) The court must sanction the employment of counsel if the court considers, in all the circumstances of the case, that it is reasonable to do so.

(3) In considering that matter, the court must have regard to—

(a) whether the proceedings are such as to merit the employment of counsel, having particular regard to—

(i) the difficulty or complexity, or likely difficulty or complexity, of the proceedings,

(ii) the importance or value of any claim in the proceedings, and

(b) the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.

(4) The court may have regard to such other matters as it considers appropriate.

(5) References in this section to proceedings include references to any part or aspect of the proceedings.

(6) In this section—

“counsel” means—an advocate,a solicitor having a right of audience in the Court of Session under section 25A of the Solicitors (Scotland) Act 1980,

“court”, in relation to proceedings in the sheriff court, means the sheriff,

“relevant expenses rule” means, in relation to any proceedings mentioned in subsection (1), any provision of an act of sederunt requiring, or having the effect of requiring, that the employment of counsel by a party for the purposes of the proceedings be sanctioned by the court before the fees of counsel are allowable as expenses that may be awarded to the party.

(7) This section is subject to an act of sederunt under section 104(1) or 106(1).

PART 5 — CIVIL APPEALS

Appeals to the Sheriff Appeal Court

Abolition of appeal from a sheriff to the sheriff principal

109

(1) No appeal may be taken to the sheriff principal against any decision of a sheriff in civil proceedings.

(2) Subsection (3) applies to any provision of any pre-commencement enactment that—

(a) provides for an appeal to the sheriff principal from any decision of a sheriff in civil proceedings, or

(b) restricts or excludes any such appeal.

(3) The provision has effect as if for the reference to the sheriff principal there were substituted a reference to the Sheriff Appeal Court.

(4) In subsection (2), “pre-commencement enactment” means an enactment passed or made before this section comes into force.

Appeal from a sheriff to the Sheriff Appeal Court

110

(1) An appeal may be taken to the Sheriff Appeal Court, without the need for permission, against—

(a) a decision of a sheriff constituting final judgment in civil proceedings, or

(b) any decision of a sheriff in civil proceedings—

(i) granting, refusing or recalling an interdict, whether interim or final,

(ii) granting interim decree for payment of money other than a decree for expenses,

(iii) making an order ad factum praestandum,

(iv) sisting an action,

(v) allowing, refusing or limiting the mode of proof, or

(vi) refusing a reponing note.

(2) An appeal may be taken to the Sheriff Appeal Court against any other decision of a sheriff in civil proceedings if the sheriff, on the sheriff's own initiative or on the application of any party to the proceedings, grants permission for the appeal.

(3) In an appeal to the Sheriff Appeal Court, the Court may allow further proof.

(4) This section does not affect any other right of appeal to the Sheriff Appeal Court under any other enactment.

(5) This section does not affect any right of appeal against any decision of a sheriff to the Court of Session under any other enactment.

(6) This section is subject to any provision of this or any other enactment that restricts or excludes a right of appeal from a sheriff to the Sheriff Appeal Court.

Sheriff Appeal Court’s powers of disposal in appeals

111

(1) In determining an appeal under section 110, the Court has power to—

(a) grant such disposal as the Court sees fit, including by (in whole or in part)—

(i) adhering to the decision that is subject to the appeal,

(ii) recalling the decision,

(iii) varying the decision,

(iv) remitting the case back to the sheriff,

(v) dismissing the appeal,

(b) make such incidental or interim orders as may be necessary, and

(2) Subsection (1)—

(a) does not affect the generality of section 47(3), but

(b) is subject to any other provision of this Act or any other enactment that restricts or excludes any power of the Court in determining or disposing of an appeal.

Remit of appeal from the Sheriff Appeal Court to the Court of Session

112

(1) This section applies in relation to an appeal to the Sheriff Appeal Court against a decision of a sheriff in civil proceedings.

(2) The Sheriff Appeal Court may—

(a) on the application of a party to the appeal, and

(b) if satisfied that the appeal raises a complex or novel point of law,

remit the appeal to the Court of Session.

(3) Where an appeal is remitted to the Court of Session under subsection (2), the Court of Session may deal with and dispose of the appeal as if it had originally been made direct to that Court.

Appeals to the Court of Session

Appeal from the Sheriff Appeal Court to the Court of Session

113

(1) An appeal may be taken to the Court of Session against a decision of the Sheriff Appeal Court constituting final judgment in civil proceedings, but only—

(a) with the permission of the Sheriff Appeal Court, or

(b) if that Court has refused permission, with the permission of the Court of Session.

(2) The Sheriff Appeal Court or the Court of Session may grant permission under subsection (1) only if the Court considers that—

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Session to hear the appeal.

(3) This section does not affect any other right of appeal against any decision of the Sheriff Appeal Court to the Court of Session under any other enactment.

(4) This section is subject to any provision of any other enactment that restricts or excludes a right of appeal from the Sheriff Appeal Court to the Court of Session.

Appeal from the sheriff principal to the Court of Session

114

(1) An appeal may be taken to the Court of Session against a decision of a sheriff principal constituting a final judgment in relevant civil proceedings.

(2) This section does not affect any other right of appeal against any decision of a sheriff principal to the Court of Session under any other enactment.

(3) This section is subject to any provision of any other enactment that restricts or excludes any right of appeal from a sheriff principal to the Court of Session.

(4) In subsection (1), “relevant civil proceedings” means civil proceedings (other than an appeal) under an enactment that provides for the proceedings to be brought before a sheriff principal rather than a sheriff.

Appeals: granting of leave or permission and assessment of grounds of appeal

115

In the Court of Session Act 1988, after section 31 insert—

(31A) (1) The Court may by act of sederunt provide for any applications to the Court for leave or permission to appeal to the Inner House to be determined by a single judge of the Inner House. (2) The Court may by act of sederunt provide for— (a) any appeal proceedings to be considered initially (and, where required, after leave or permission to appeal has been granted) by a single judge of the Inner House, and (b) for the single judge to decide, by reference to whether the grounds of appeal or any of them are arguable— (i) whether the appeal proceedings should be allowed to proceed in the Inner House, and (ii) if so, on which grounds. (3) An act of sederunt under subsection (1) or (2)— (a) must include provision— (i) about the procedure to be followed in the proceedings before the single judge, including provision for the parties to be heard before the judge makes a decision, (ii) for review, on the application of any party to the proceedings, of the decision of the single judge by a Division of the Inner House, (iii) about the grounds on which the decision may be so reviewed, (iv) about the procedure to be followed in such a review, (v) about the matters that may be considered in such a review and the powers available to the Division on disposing of the review, and (b) may make different provision in relation to different types of— (i) applications for leave or permission, (ii) appeal proceedings. (4) Subject to any provision made in an act of sederunt by virtue of subsection (3)(a)(ii) to (v), the decision of any single judge under an act of sederunt under subsection (1) or (2) is final. (5) Subsection (6) applies in appeal proceedings in which— (a) a single judge has granted leave or permission for the appeal by virtue of subsection (1), and (b) the judge's decision is subject to review by a Division of the Inner House by virtue of subsection (3)(a)(ii). (6) Where this subsection applies, the reference in subsection (2)(a) to leave or permission to appeal having been granted is a reference to its having been confirmed following review by the Division of the Inner House. (7) In subsection (2)(a), “appeal proceedings” means proceedings on— (a) a reclaiming application under section 28 (reclaiming against decisions of a Lord Ordinary), (b) an application under section 29 (application for a new trial), (c) an application under section 31 (application to overturn jury verdict), (d) an appeal from the Sheriff Appeal Court under section 113 of the Courts Reform (Scotland) Act 2014, (e) an appeal from a sheriff principal under section 114 of that Act, (f) any other appeal taken to the Court (whether under an enactment or otherwise).

Effect of appeal

116

(1) This section applies to—

(a) an appeal to the Sheriff Appeal Court under section 110 (including such an appeal remitted to the Court of Session under section 112), and

(b) an appeal to the Court of Session under section 113 or 114.

(2) In the appeal, all prior decisions in the proceedings (whether made at first instance or at any stage of appeal) are open to review.

(3) Any party to the proceedings may insist in the appeal even though the party is not the one who initiated the appeal.

(4) An appeal to which this section applies does not prevent the immediate execution of any of the following, which may continue to have effect despite the appeal until recalled—

(a) a warrant to take inventories,

(b) a warrant to place effects in custody for the interim,

(d) an interim interdict.

Appeals to the Supreme Court

117

In the Court of Session Act 1988, for section 40 (appeals to the Supreme Court: appealable interlocutors) substitute—

(40) (1) An appeal may be taken to the Supreme Court against a decision of the Inner House mentioned in subsection (2), but only— (a) with the permission of the Inner House, or (b) if the Inner House has refused permission, with the permission of the Supreme Court. (2) The decisions are— (a) a decision constituting final judgment in any proceedings, (b) a decision in an exchequer cause, (c) a decision, on an application under section 29, to grant or refuse a new trial in any proceedings, (d) any other decision in any proceedings if— (i) there is a difference of opinion among the judges making the decision, or (ii) the decision is one sustaining a preliminary defence and dismissing the proceedings. (3) An appeal may be taken to the Supreme Court against any other decision of the Inner House in any proceedings, but only with the permission of the Inner House. (4) In an appeal against a decision mentioned in subsection (2)(c), the Supreme Court has the same powers as the Inner House had in relation to the application under section 29, including, in particular, the powers under sections 29(3) and 30(3). (5) No appeal may be taken to the Supreme Court against any decision of a Lord Ordinary. (6) But subsection (5) does not affect the operation of subsections (1) and (3) in relation to a decision of the Inner House in a review of a decision of a Lord Ordinary. (7) In an appeal to the Supreme Court under this section against a decision of the Inner House in any proceedings, all prior decisions in the proceedings (whether made at first instance or at any stage of appeal) are open to review by the Supreme Court. (8) This section is subject to— (a) sections 27(5) and 32(5), (b) any provision of any other enactment that restricts or excludes an appeal from the Court of Session to the Supreme Court. (9) This section does not affect any right of appeal from the Court of Session to the Supreme Court that arises apart from this section. (10) In this section— - “final judgment”, in relation to any proceedings, means a decision which, by itself or taken along with prior decisions in the proceedings, disposes of the subject matter of the proceedings on its merits, even though judgment may not have been pronounced on every question raised or expenses found due may not have been modified, taxed or decerned for, - “preliminary defence”, in relation to any proceedings, means a defence that does not relate to the merits of the proceedings. (40A) (1) An application to the Inner House for permission to take an appeal under section 40(1) or (3) must be made— (a) within the period of 28 days beginning with the date of the decision against which the appeal is to be taken, or (b) within such longer period as the Inner House considers equitable having regard to all the circumstances. (2) An application to the Supreme Court for permission to take an appeal under section 40(1) must be made— (a) within the period of 28 days beginning with the date on which the Inner House refuses permission for the appeal, or (b) within such longer period as the Supreme Court considers equitable having regard to all the circumstances. (3) The Inner House or the Supreme Court may grant permission for an appeal under section 40(1) or (3) only if the Inner House or, as the case may be, the Supreme Court considers that the appeal raises an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time.

PART 6 — CRIMINAL APPEALS

Appeals from summary criminal proceedings

Appeals to the Sheriff Appeal Court from summary criminal proceedings

118

(1) There are transferred to and vested in the Sheriff Appeal Court all the powers and jurisdiction of the High Court of Justiciary (whether under an enactment or otherwise) so far as relating to appeals from courts of summary criminal jurisdiction.

(2) Subsection (1) does not apply to the nobile officium of the High Court.

(3) Schedule 3 (which modifies the Criminal Procedure (Scotland) Act 1995 in consequence of subsection (1)) has effect.

Appeals from the Sheriff Appeal Court to the High Court

119

In the Criminal Procedure (Scotland) Act 1995, after Part X (appeals from summary proceedings), insert—

(194ZB) (1) An appeal on a point of law may be taken to the High Court against any decision of the Sheriff Appeal Court in criminal proceedings, but only with the permission of the High Court. (2) An appeal under subsection (1) may be taken by any party to the appeal in the Sheriff Appeal Court. (3) The High Court may give permission for an appeal under subsection (1) only if the Court considers that— (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court to hear the appeal. (4) An application for permission for an appeal under subsection (1) must be made before the end of the period of 14 days beginning with the day on which the decision of the Sheriff Appeal Court that would be the subject of the appeal was made. (5) The High Court may extend the period of 14 days mentioned in subsection (4) if satisfied that doing so is justified by exceptional circumstances. (194ZC) (1) An appeal under section 194ZB(1) is to be made by way of note of appeal. (2) A note of appeal must specify the point of law on which the appeal is being made. (3) For the purposes of considering and deciding an appeal under section 194ZB(1)— (a) three of the judges of the High Court are to constitute a quorum of the Court, (b) decisions are to be taken by a majority vote of the members of the Court sitting (including the presiding judge), (c) each judge sitting may pronounce a separate opinion. (194ZD) (1) An application to the High Court for permission for an appeal under section 194ZB(1) is to be determined by a single judge of the High Court. (2) If the judge gives permission for the appeal, the judge may make comments in writing in relation to the appeal. (3) If the judge refuses permission for the appeal— (a) the judge must give reasons in writing for the refusal, and (b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the judge must grant a warrant to apprehend and imprison the appellant. (4) A warrant under subsection (3)(b) does not take effect until the expiry of the period of 14 days mentioned in section 194ZE(1) (or, where that period is extended under section 194ZE(2) before the period being extended expires, until the expiry of the period as so extended) without an application for permission having been lodged by the appellant under section 194ZE(1). (194ZE) (1) Where the judge refuses permission for the appeal under section 194ZD, the appellant may, within the period of 14 days beginning with the day on which intimation of the decision is given under section 194ZF(2), apply again to the High Court for permission for the appeal. (2) The High Court may extend the period of 14 days mentioned in subsection (1), or that period as extended under this subsection, whether or not the period to be extended has expired. (3) The High Court may extend a period under subsection (2) only if satisfied that doing so is justified by exceptional circumstances. (4) Three of the judges of the High Court are to constitute a quorum for the purposes of considering an application under subsection (1). (5) If the High Court gives permission for the appeal, the Court may make comments in writing in relation to the appeal. (6) If the High Court refuses permission for the appeal— (a) the Court must give reasons in writing for the refusal, and (b) where the appellant is on bail and the sentence imposed on the appellant on conviction is one of imprisonment, the Court must grant a warrant to apprehend and imprison the appellant. (194ZF) (1) An application for permission for an appeal under section 194ZB(1) is to be considered and determined (whether under section 194ZD or 194ZE)— (a) in chambers without the parties being present, (b) by reference to section 194ZB(3), and (c) on the basis of consideration of— (i) the note of appeal under section 194ZC(1), and (ii) such other document or information (if any) as may be specified by act of adjournal. (2) The Clerk of Justiciary must, as soon as possible, intimate to the appellant or the appellant's solicitor and to the Crown Agent— (a) a decision under section 194ZD or 194ZE determining the application for permission for an appeal, and (b) in the case of a refusal of permission for the appeal, the reasons for the decision. (194ZG) (1) Comments in writing made under section 194ZD(2) or 194ZE(5) may specify the arguable grounds of appeal (whether or not they were stated in the note of appeal) on the basis of which permission for the appeal was given. (2) Where the arguable grounds of appeal are specified under subsection (1), the appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a ground of appeal stated in the application for permission but not specified under subsection (1). (3) An application by the appellant for permission under subsection (2) must— (a) be made before the end of the period of 14 days beginning with the date of intimation under section 194ZF(2), and (b) be intimated by the appellant to the Crown Agent before the end of that period. (4) The High Court may extend the period of 14 days mentioned in subsection (3) if satisfied that doing so is justified by exceptional circumstances. (5) The appellant may not, except with the permission of the High Court on cause shown, found any aspect of the appeal on a matter not stated in the note of appeal (or in a duly made amendment or addition to the note of appeal). (6) Subsection (5) does not apply in relation to a matter specified as an arguable ground of appeal under subsection (1). (194ZH) (1) In disposing of an appeal under section 194ZB(1), the High Court may— (a) remit the case back to the Sheriff Appeal Court with its opinion and any direction as to further procedure in, or disposal of, the case, or (b) exercise any power that the Sheriff Appeal Court could have exercised in relation to disposal of the appeal proceedings before that Court. (2) So far as necessary for the purposes or in consequence of the exercise of a power by the High Court by virtue of subsection (1)(b)— (a) references in Part X to the Sheriff Appeal Court are to be read as including references to the High Court, and (b) references in Part X to a verdict of or sentence passed by the inferior court are to be read as incuding references to a verdict of or sentence passed by the Sheriff Appeal Court in disposing of the appeal before it. (3) Subsections (1)(b) and (2) do not affect any power in relation to the consideration or disposal of appeals that the High Court has apart from those subsections. (194ZI) (1) Section 177 (procedure where appellant in custody) applies in the case where a party making an appeal (other than an excepted appeal) under section 194ZB(1) is in custody as it applies in the case where an appellant making an application under section 176 is in custody. (2) In subsection (1), “excepted appeal” means an appeal against a decision of the Sheriff Appeal Court in— (a) an appeal under section 32, or (b) an appeal under section 177(3). (194ZJ) An appellant in an appeal under section 194ZB(1) may at any time abandon the appeal by minute to that effect— (a) signed by the appellant or the appellant's solicitor, (b) lodged with the Clerk of Justiciary, and (c) intimated to the respondent or the respondent's solicitor. (194ZK) (1) Every interlocutor and sentence (including disposal or order) pronounced by the High Court in disposing of an appeal relating to summary proceedings is final and conclusive and not subject to review by any court whatsoever. (2) Subsection (1) is subject to— (a) Part XA and section 288AA, and (b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998. (3) It is incompetent to stay or suspend any execution or diligence issuing from the High Court under this Part, except for the purposes of an appeal under— (a) section 288AA, or (b) paragraph 13(a) of Schedule 6 to the Scotland Act 1998. (194ZL) If any period of time specified in this Part expires on a Saturday, Sunday or court holiday prescribed for the relevant court, the period is extended to expire on the next day which is not a Saturday, Sunday or such a court holiday.

Power to refer points of law for the opinion of the High Court

120

In the Criminal Procedure (Scotland) Act 1995, after section 175, insert—

(175A) (1) In an appeal under this Part, the Sheriff Appeal Court may refer a point of law to the High Court for its opinion if it considers that the point is a complex or novel one. (2) The Sheriff Appeal Court may make a reference under subsection (1)— (a) on the application of a party to the appeal proceedings, or (b) on its own initiative. (3) On giving its opinion on a reference under subsection (1), the High Court may also give a direction as to further procedure in, or disposal of, the appeal.

References by the Scottish Criminal Cases Review Commission

121

(1) In the Criminal Procedure (Scotland) Act 1995, section 194B (references by the Commission) is amended in accordance with this section.

(2) In subsection (1), after “High Court”, in the first place where those words appear, insert “ or the Sheriff Appeal Court ”.

(3) After subsection (3), insert—

(3A) For the purposes of an appeal under Part X of this Act in a case referred to the High Court under subsection (1)— (a) the High Court may exercise in the case all the powers and jurisdiction that the Sheriff Appeal Court would, had the case been an appeal to that Court, have had in relation to the case by virtue of section 118 of the Courts Reform (Scotland) Act 2014, and (b) accordingly, Part X of this Act has effect in relation to the case subject to the following modifications— (i) references to the Sheriff Appeal Court are to be read as references to the High Court, (ii) references to an Appeal Sheriff are to be read as references to a judge of the High Court, (iii) references to the Clerk of the Sheriff Appeal Court are to be read as reference to the Clerk of Justiciary.

Bail appeals

122

(1) Section 32 of the Criminal Procedure (Scotland) Act 1995 (bail appeals) is amended in accordance with this section.

(2) In each of subsections (1), (2), (3H)(a), (3I), (4), (5) and (7) for “High Court” substitute “ appropriate Appeal Court ”.

(3) For subsections (3D) and (3E) substitute—

(3CA) The clerk of the court from which the appeal is to be taken (unless that clerk is the Clerk of Justiciary) must— (a) send the notice of appeal without delay to the clerk of the appropriate Appeal Court, and (b) before the end of the day after the day of receipt of the notice of appeal, send the judge's report (if provided by then) to the clerk of the appropriate Appeal Court.

(4) In each of subsections (3F), (3G) and (10), for “Clerk of Justiciary” in each place it occurs substitute “ clerk of the appropriate Appeal Court ”.

(5) In subsection (3H)—

(a) for “Where” substitute “ In a case where the Sheriff Appeal Court is the appropriate Appeal Court, if ”, and

(b) for “(3E)” substitute “ (3CA) ”.

(6) In each of subsections (4) and (5), for “Lord Commissioner of Justiciary” substitute “ judge of the appropriate Appeal Court ”.

(7) In subsection (7B)(a), for “High Court” substitute “ the appropriate Appeal Court ”.

(8) After subsection (10), insert—

(11) In this section— - “appropriate Appeal Court” means— 1. in the case of an appeal under this section against a bail decision of the High Court or a judge of the High Court, that Court, 2. in the case of an appeal under this section against a bail decision of the Sheriff Appeal Court, the High Court, 3. in the case of an appeal under this section against a bail decision of a sheriff (whether in solemn or summary proceedings) or a JP court, the Sheriff Appeal Court, - “judge of the appropriate Appeal Court” means— 1. in a case where the High Court is the appropriate Appeal Court, judge of that Court, 2. in a case where the Sheriff Appeal Court is the appropriate Appeal Court, Appeal Sheriff, - “the clerk of the appropriate Appeal Court” means— 1. in a case where the High Court is the appropriate Appeal Court, the Clerk of Justiciary, 2. in a case where the Sheriff Appeal Court is the appropriate Appeal Court, the Clerk of that Court. (12) In a case where the Sheriff Appeal Court is the appropriate Appeal Court, the references in subsections (3G)(b) and (10) to the Crown Agent are to be read as references to the prosecutor.

PART 7 — JUDGES OF THE COURT OF SESSION

Appointment of Court of Session judges, etc.

123

In the Judiciary and Courts (Scotland) Act 2008, for sections 21 to 23 substitute—

(20A) (1) An individual is qualified for appointment as a judge of the Court of Session if the individual— (a) immediately before the appointment— (i) held the office of sheriff principal or sheriff, and (ii) had held office as either sheriff principal or sheriff throughout the period of 5 years immediately preceding the appointment, or (b) at the time of appointment— (i) is a solicitor having a right of audience in the Court of Session or the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980 (rights of audience), and (ii) has been such a solicitor throughout the period of 5 years immediately preceding the appointment. (2) Subsection (1) does not affect an individual's qualification for appointment as a judge of the Court of Session by virtue of article xix of the Union with England Act 1707. (20B) (1) The Scottish Ministers may appoint an individual to act as a judge of the Court of Session; and an individual so appointed is to be known as a “temporary judge”. (2) An individual appointed under subsection (1) may also, by virtue of the appointment, act as a judge of the High Court of Justiciary. (3) The Scottish Ministers may appoint an individual under subsection (1) only if— (a) the individual is qualified for appointment as a judge of the Court of Session, and (b) the Scottish Ministers have consulted the Lord President before making the appointment. (4) Subject to section 20C, an appointment as a temporary judge lasts for 5 years. (5) Subject to subsection (6), an individual appointed under subsection (1) is, while acting as a judge of the Court of Session or the High Court of Justiciary, to be treated for all purposes as a judge of that Court and may exercise the jurisdiction and powers that attach to that office. (6) Such an individual is not to be treated as a judge of the Court of Session for the purposes of any enactment or rule of law relating to— (a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court (including, without limiting that generality, any enactment or rule of law relating to the number of judges who may be appointed), (b) the remuneration, allowances or pensions of such a judge. (7) The appointment of an individual under subsection (1) does not affect— (a) any appointment of the individual as a sheriff principal or sheriff, or (b) the individual's continuing with any business or professional occupation not inconsistent with the individual acting as a judge. (20C) (1) A temporary judge whose appointment comes to an end by virtue of the expiry of the 5 year period mentioned in section 20B(4) is to be reappointed unless— (a) the temporary judge declines reappointment, (b) the Lord President has made a recommendation to the Scottish Ministers against the reappointment, or (c) the temporary judge has sat for fewer than 50 days in total in that 5 year period. (2) Section 20B (apart from subsection (3)) applies to a reappointment under subsection (1) as it applies to an appointment. (3) A temporary judge whose appointment comes to an end by resignation under section 20D may be reappointed. (4) Section 20B applies to a reappointment under subsection (3) as it applies to an appointment. (20D) (1) A temporary judge may resign at any time by giving notice to that effect to the Scottish Ministers. (2) An individual's appointment as a temporary judge ends— (a) when the individual resigns in accordance with subsection (1), (b) when the individual retires from office, or (c) if the individual is removed from office as such under section 39 (temporary judges: removal from office). (20E) (1) The Lord President may appoint a qualifying former judge to act as a judge of the Court of Session. (2) An individual appointed under subsection (1) may also, by virtue of the appointment, act as a judge of the High Court of Justiciary. (3) An individual so appointed may act as a judge only during such periods or on such occasions as the Lord President may determine. (4) The Lord President may make an appointment under subsection (1) only if it appears to the Lord President to be expedient as a temporary measure in order to facilitate the disposal of business in the Court of Session or the High Court of Justiciary. (5) A “qualifying former judge” is an individual who— (a) has ceased to hold the office of— (i) judge of the Court of Session other than by virtue of section 95(6) of the Scotland Act 1998, or (ii) Justice of the Supreme Court or President or Deputy President of that Court and who, at the time of being appointed to the office in question, was eligible for appointment as a judge in the Court of Session, and (b) has not reached the age of 75. (20F) (1) Subject to subsection (2), an individual's appointment under section 20E(1) lasts until recalled by the Lord President. (2) An individual's appointment under section 20E(1) ceases when the individual reaches the age of 75. (3) Despite the ending of an individual's appointment under section 20E(1)— (a) the individual may continue to deal with, give judgment in or deal with an ancillary matter relating to, a case begun before the individual while acting under that appointment, (b) so far as necessary for that purpose, and for the purpose of any subsequent proceedings arising out of the case or matter, the individual is to be treated as acting or, as the case may be, having acted under that appointment. (4) Subject to subsection (5), an individual appointed under section 20E(1) is, while acting as a judge of the Court of Session or the High Court of Justiciary, to be treated for all purposes as a judge of that Court and may exercise the jurisdiction and powers that attach to that office. (5) Such an individual is not to be treated as a judge of the Court of Session for the purposes of any enactment or rule of law relating to— (a) the appointment, tenure of office, retirement, removal or disqualification of judges of that Court (including, without limiting that generality, any enactment or rule of law relating to the number of judges who may be appointed), (b) the oaths to be taken by such judges, (c) the remuneration, allowances or pensions of such a judge. (20G) (1) The Scottish Courts and Tribunals Service (“the SCTS”) is to pay to an individual appointed under section 20B(1) or 20E(1) such remuneration as the Scottish Ministers may determine. (2) The Scottish Ministers may determine different amounts of remuneration for— (a) different individuals so appointed, or (b) different descriptions of individuals so appointed. (3) The SCTS may pay to an individual appointed under section 20B(1) or 20E(1) such sums as it may determine in respect of expenses reasonably incurred by the individual in the performance of, or in connection with, the individual's duties. (4) The SCTS may— (a) determine the circumstances in which such sums may be paid, and (b) determine different circumstances for different individuals.

Payment of salaries of Court of Session judges

124

(1) The salaries and allowances of judges of the Court of Session determined under section 9 of the Administration of Justice Act 1973 (judicial salaries) are to be paid by the Scottish Courts and Tribunals Service.

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