Court of Session Act 1988

Part I — Constitution and Administration of the Court

Number of judges of Court

1

• (1) Subject to subsections (2), (3) , (3A) and (4) below, the maximum number of judges of the Court of Session (hereinafter in this Act referred to as “the Court”) shall be 36.

• (2) Her Majesty may by Order in Council from time to time amend subsection (1) above so as to increase or further increase the maximum number of persons who may be appointed as judges of the Court.

• (3) No recommendation shall be made to Her Majesty in Council to make an Order under this section unless a draft of the Order has been laid before and approved by resolution of the Scottish Parliament.

• (3A) The Lord President must be consulted before any draft of an Order under this section is laid before the Parliament.

• (4) No vacancy arising among the judges of the Court shall be filled unless the Secretary of State . . .is satisfied that the state of business in the Court requires that the vacancy should be filled.

• (5) There shall be paid out of the Consolidated Fund any increase attributable to the provisions of this section in the sums which, under any other enactment, are payable out of that Fund.

Composition of Court

2

The Court shall be composed of an Inner House and an Outer House constituted in accordance with the following provisions of this section.

• (2) Subject to subsection (3) below, the Inner House shall be composed of two Divisions, namely, the First Division comprising the Lord President and five senior judges of the Court, and the Second Division comprising the Lord Justice Clerk and five other senior judges of the Court.

• (2A) The Scottish Ministers may , after consulting the Lord President, from time to time by order amend subsection (2) above so as to alter or further alter the number of senior judges in the two Divisions.

• (2B) The power conferred by subsection (2A) above may be exercised—

• (a) in relation only to one; or

• (b) differently in relation to each,

of the two Divisions.

• (2C) An order under this section shall be made by statutory instrument.

• (2D) No order shall be made under this section unless a draft of the instrument containing it has been laid before and approved by resolution of the Scottish Parliament.

• (3) The Lord President may from time to time constitute, from among the judges of the Court, an extra Division of the Inner House for the purpose of hearing and disposing of causes pending before the Inner House; and any reference in this Act or in any other enactment to a Division of the Inner House shall be construed as including a reference to such an extra Division.

• (4) Subject to an act of sederunt under section 103(1) of the Courts Reform (Scotland) Act 2014, the quorum for a Division of the Inner House shall be three judges.

• (5) The Outer House shall be composed of the judges of the Court (other than the judges of the Inner House while they are sitting in the Inner House) sitting singly, and any reference in this Act or in any other enactment to a Lord Ordinary shall be construed as a reference to a judge sitting singly in the Outer House.

• (6) Subject to subsections (7) and (8)below, where a vacancy arises in a Division of the Inner House the Lord President and the Lord Justice Clerk, with the consent of the Secretary of State and after such consultation with judges as appears to them to be appropriate in the particular circumstances, shall appoint a Lord Ordinary to fill that vacancy.

• (7) Subsection (6) above shall not apply in the case of such a vacancy arising by reason of the death or resignation of the Lord President or the Lord Justice Clerk.

• (8) The Scottish Ministers shall not give their consent under subsection (6) above to an appointment filling a vacancy in one of the two Divisions of the Inner House unless they are satisfied that the state of business in the Inner House requires that the vacancy be filled.

Exchequer causes

3

One of the judges of the Court who usually sits as a Lord Ordinary shall be appointed by the Lord Presidentto act as Lord Ordinary in exchequer causes, and no other judge shall so act unless and until such judge is appointed in his place:

Power of judges to act in cases relating to rates and taxes

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• (1) A judge of the Court shall not be incapable of acting as such in any proceedings by reason of being, as one of a class of ratepayers, taxpayers or persons of any other description, liable in common with others to pay, or contribute to, or benefit from, any rate or tax which may be increased, reduced or in any way affected by those proceedings.

• (2) In this section “rate or tax” means any rate, tax, duty or assessment, whether public, general or local, and includes—

• (a) any fund formed from the proceeds of any such rate, tax, duty or assessment; and

• (b) any fund applicable for purposes the same as, or similar to, those for which the proceeds of any such rate, tax, duty or assessment are or might be applied.

Part II — General Powers of the Court in Relation to Procedure

Power to regulate procedure etc. by act of sederunt

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Allocation of business etc. by act of sederunt

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Fees on remit to accountants etc

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The Court shall have power to regulate from time to time the fees which shall be payable to any accountant or person of skill to whom any remit is made in the course of any judicial proceedings before the Court.

Rules Council

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Part III — Ordinary Actions

Proof

Allowing of proof by Lord Ordinary

9

The Lord Ordinary may allow a proof—

• (a) in any action, other than an action enumerated in section 11 of this Act, without the consent of both parties and without reporting to and obtaining the leave of the Inner House;

• (b) in any action enumerated as aforesaid, if the parties to the action consent thereto or if special cause is shown.

Evidence on commission in Outer House

10

The Lord Ordinary may grant commission in any action—

• (a) to any person competent to take and report in writing the depositions of havers;

• (b) to take and report in writing the evidence of any witness who is resident beyond the jurisdiction of the Court, or who, by reason of age, infirmity or sickness, is unable to attend the diet of proof or trial:

Jury actions

11

Subject to section 9(b) of this Act, the following actions if remitted to probation shall be tried by jury—

• (a) an action of damages for personal injuries;

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• (c) an action founded on delinquency or quasi delinquency, where the conclusion is for damages only and expenses; and

• (d) an action of reduction on the ground of incapacity, essential error, or force and fear;

and such an action which has been ordered by the Lord Ordinary to be tried by jury is hereafter in this Act referred to as a jury action.

Trial by jury

Summoning of jury

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The jurors for the trial of issues in a jury action shall be summoned by virtue of an authority or precept signed by a Lord Ordinary or by any clerk of court officiating either in the Outer House or Inner House, and issued to the sheriff principal.

Selection of jury

13

• (1) The jurors for the trial of any jury action shall be 12 persons selected in open court by ballot in accordance with the following provisions of this section from the list of persons summoned to attend the Court for that purpose.

• (2) The clerk of court shall cause the name of each person so summoned to be written on a separate piece of paper, all the pieces being of the same size, and shall cause the pieces to be rolled up as nearly as may be in the same shape, and to be put into a box or glass and mixed; and the clerk shall draw out the said pieces one by one from the box or glass.

• (3) Each party to the action may challenge the selection of any juror whose name has been drawn in the ballot, and may, without assigning any reason, challenge the selection of not more than 4 jurors; and any challenges for an assigned reason may be made at any time during the selection of the jury.

Application for view by jury

14

Any party to a jury action may apply to a Lord Ordinary to allow the jury to view any property heritable or moveable relevant to the action; and, where the Lord Ordinary considers that it is proper and necessary for the jury to view that property, he may grant the application.

Illness or death of juror during trial

15

Where in the course of the trial of any jury action in the Court the presiding judge is satisfied that any member of the jury is, by reason of illness, unable to continue to serve on the jury or ought, for any other reason, to be discharged from further service on the jury, it shall be lawful for the judge to discharge such member, and in any such case or in any case where in the course of such a jury trial, a member of the jury dies, the remaining members of the jury (if they are not less than 10 in number) shall in all respects be deemed to constitute the jury for the purpose of the trial and any verdict returned by them whether unanimous or by majority shall be of the like force and effect as a unanimous verdict or a verdict by majority of the whole number of the jury.

Trial to proceed despite objection to opinion and direction of judge

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Notwithstanding any objection being taken in the course of the trial in any jury action to the opinion and direction of the presiding judge, the trial shall proceed and the jury shall return their verdict and assess damages where necessary.

Return of verdict

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• (1) At the end of his charge to the jury the presiding judge shall direct the jury to select someone to speak for them when returning their verdict.

• (2) The jury impanelled to try any jury action may at any time return a verdict by a majority of their members, and if the jury, after they have been enclosed for 3 hours, are unable to agree upon a verdict or to return a verdict by a majority, the presiding judge may discharge the jury without their having given a verdict and, on the jury being discharged, shall order the action to be tried by another jury.

• (3) The verdict when returned shall be declared orally by the juror selected as aforesaid in open court and taken down in writing by the clerk of court before the jury is discharged.

• (4) Where the jury in an action which concludes for damages finds a verdict for the pursuer they shall also assess the amount of the damages.

• (5) Subject to Part V of this Act, the verdict of the jury shall be final so far as relating to the facts found by them.

Judgment

Lord Ordinary’s judgment final in Outer House

18

Every interlocutor of the Lord Ordinary shall be final in the Outer House, subject however to the review of the Inner House in accordance with this Act.

Part IV — Other Causes

Consistorial causes

Lord Advocate as party to action for nullity of marriage or divorce

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Orders with respect to children

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Exchequer causes

Exchequer causes to have precedence

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Exchequer causes shall at all times take precedence of and have preference over all other causes in the Court.

Lord Advocate to sue and be sued on behalf of the Crown

22

Except where any enactment otherwise provides, all exchequer causes brought—

• (a) on behalf of the Crown, shall be at the instance of the appropriate Law Officer within the meaning of section 4A of the Crown Suits (Scotland) Act 1857;

• (b) by any person alleging any ground of action against the Crown, shall be directed against the appropriate Law Officer within the meaning of section 4A of the Crown Suits (Scotland) Act 1857.

Lord Advocate may be heard last

23

In all exchequer causes, the appropriate Law Officer within the meaning of section 4A of the Crown Suits (Scotland) Act 1857 shall, in pleading on behalf of the Crown, have the privilege of being heard last.

Appeal to House of Lords

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Petitions

Disposal of petitions initiated in Outer House

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• (1) The Lord Ordinary before whom any cause initiated by a petition comes shall have power to dispose of the petition himself.

• (2) For the purpose of disposing of such a cause, the Lord Ordinary may make such investigation and require such assistance from professional persons or persons of science or of skill as he thinks fit.

• (3) On any such cause coming before him, the Lord Ordinary may grant commission to take the depositions of havers and the evidence of witnesses as provided in section 10 of this Act with respect to an action.

Summary trials

Summary trials

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• (1) The parties to any dispute or question to which this section applies may present a petition in the Outer House setting out the dispute or question and craving that it may be decided by a particular Lord Ordinary, and any such petition shall stand referred to such Lord Ordinary for his determination of the dispute or question.

• (2) The parties to any action in dependence in the Outer House not affecting the status of any person may agree by joint minute, or in such other manner as may be prescribed, that the provisions of this section shall apply to the action, and thereafter those provisions shall apply accordingly.

• (3) Provision shall be made by act of sederunt under section 103(1) of the Courts Reform (Scotland) Act 2014 for securing that causes under this section shall be disposed of with as little delay as possible.

• (4) This section shall apply to any dispute or question not affecting the status of any person which might competently be the subject of any cause in the Outer House, or which might competently have been the subject of any such cause but for section 39 of the Courts Reform (Scotland) Act 2014.

Special cases

Special cases

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• (1) Where any parties interested, whether personally or in some fiduciary or official capacity, in the decision of a question of law are agreed upon the facts, and are in dispute only on the law applicable to those facts, it shall be competent for them without raising any proceeding, or at any stage of any proceeding, to present to the Inner House a case (in this section referred to as a special case) signed by their counsel setting out the facts upon which they are so agreed and the question of law arising from those facts; and the parties may ask the Court either for its opinion or for its judgment on that question of law.

• (1A) To the extent that an application to the supervisory jurisdiction of the Court is in respect of proceedings under section 7(1)(a) of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, in calculating the period of 3 months in subsection (1)(a), any time during which the person by or on whose behalf the application was made was under the age of 18 is to be disregarded.

• (2) The Court may, if it thinks fit, in case of difficulty or importance or of equal division, appoint a special case to be reheard by a larger court under section 36 of this Act.

• (3) The Court shall dispose of all questions of expenses arising in a special case.

• (4) Any judgment pronounced by the Court by virtue of this section shall be extractible in common form.

• (5) Any judgment pronounced by the Court by virtue of this section shall be liable to review by the Supreme Court unless such review is excluded by consent of all the parties to the special case.

Part V — Appeal and Review

Reclaiming

Reclaiming

28

Any party to a cause initiated in the Outer House either by a summons or a petition who is dissatisfied with an interlocutor pronounced by the Lord Ordinary may, except as otherwise prescribed, reclaim against that interlocutor within such period after the interlocutor is pronounced, and in such manner, as may be prescribed.

Review in jury actions

Application for new trial

29

• (1) Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground—

• (a) of misdirection by the judge;

• (b) of the undue admission or rejection of evidence;

• (c) that the verdict is contrary to the evidence;

• (d) of excess or inadequacy of damages; or

• (e) ofresnoviterveniensadnotitiam;

or on such other ground as is essential to the justice of the cause.

• (2) The Inner House on hearing an application under this section may, subject to section 30 of this Act and any act of sederunt, grant or refuse a new trial.

• (3) If the Court, on an application for a new trial on the ground that the verdict is contrary to the evidence, after hearing parties is unanimously of the opinion that the verdict under review is contrary to the evidence, and that it has before it all the evidence that could be reasonably expected to be obtained relevant to the cause, it may set aside the verdict and, in place of granting a new trial, may enter judgment for the party unsuccessful at the trial.

Restrictions on granting of application for new trial

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• (1) Where an application for a new trial is made on the ground of the undue admission of evidence, and the Court is of the opinion that the exclusion of that evidence could not have led to a different verdict than that actually returned, it shall refuse to grant a new trial.

• (2) Where an application for a new trial is made on the ground of the undue rejection of documentary evidence, and it appears to the Court from the documents themselves that they ought not to have affected the result at which the jury by their verdict have arrived, it may refuse to grant a new trial.