The Court of Session, Scotland's highest civil court, is apparently the only remaining public building in Scotland with an open fire. Nestled in Parliament Square off the historic Royal Mile in Edinburgh, looking somewhat like Hogwarts, with Advocates occasionally swooshing past in wigs and gowns, this may be unsurprising. The Court of Session is steeped in history, as the many tourists who come through its doors recognise. However, beyond the appearance of a historic Scottish landmark, it continues to play an important role in Scots family law on a daily basis.
What types of family cases does the Court of Session deal with?
Most family law disputes are resolved in local Sheriff courts. The Court of Session deals with cases such as high-value divorce actions, complex or unusual family disputes and cases involving international or intra-UK legal issues. It also deals with actions concerning international child abduction – where one parent has brought children to Scotland from another country, without the consent of the left-behind parent.
The court also has an important function for hearing appeals in family law cases – there is an appellate court (the Inner House) and the building also houses the Sheriff Appeal Court, which handles appeals from Sheriff Court cases across Scotland.
Who can appear in the Court of Session?
Cases in the Court of Session are regularly conducted by counsel, known in Scotland as advocates. In Court of Session actions solicitors and advocates work closely together, with different roles and responsibilities. In complex cases a King's Counsel ('KC') may be instructed. Solicitors cannot conduct hearings in the Court of Session unless they are a solicitor advocate, undertaking further specialised training to gain extended rights of audience. Our partner, Susie Mountain, qualified as a Solicitor Advocate in 2021. Brodies has a leading set of solicitor advocates – read about our Advocacy by Brodies solution for more information.
Is the procedure accessible?
Like all organisations, the modernisation of court processes that was already underway pre-pandemic has sped up considerably with the advent of hybrid working brought about by the Covid-19 pandemic. Some of the more archaic Court of Session traditions have been dispensed with - solicitors are no longer required to send vast bundles of papers to counsel tied in pink string, and the advent of GDPR means that leaving such papers piled for collection in a public corridor has been (rightly) done away with.
In many ways, the Court of Session offers an accessible and efficient court process. The Court of Session was an early adopter of electronic systems for enrolling motions, and there are dedicated family clerks who are easily contactable and responsive to queries. There are also dedicated family judges who prioritise good case management and efficient ways of working. Court of Session family procedure involves fewer procedural hearings than the Sheriff Court. Dates for final evidential hearings (known as proofs) are usually agreed between the court and the parties to suit the diaries of the particular counsel involved.
The role of the Edinburgh agent in the Court of Session
At Brodies we are extremely experienced in litigating in the Court of Session, both for individuals and acting for other firms of solicitors. We have considerable experience as an 'Edinburgh agent'. The procedures and rules of the Court of Session can appear daunting and unfamiliar for those who do not regularly practise there, and we are very happy to be instructed to act as an Edinburgh agent for other solicitors across Scotland.
We also have good links with firms in other parts of the UK looking to advise clients who may need family law orders from other jurisdictions registered or enforced in Scotland. We are very happy to advise clients and solicitors on undertaking this in the Court of Session.