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1 Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner
Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner, MacRoberts Many recent reported adjudication decisions have come from the Scottish Courts. Therefore, as part of the case notes update, we have included a brief explanation of some of the Scottish Court procedures. There are noted below certain legal terms used in Scottish Court Procedure with a brief explanation of them. This is done in an attempt to give some readers a better understanding of some of the terms used in the Scottish cases highlighted on this web-site. 1. Action: Legal proceedings before a Court in Scotland initiated by Initial Writ or Summons. 2. Adjustment (of Pleadings): The process by which a party changes its written pleadings during the period allowed by the Court for adjustment. 3. Amendment (of Pleadings): The process by which a party changes its written pleadings after the period for adjustment has expired. Amendment requires leave of the Court. 4. Appeal to Sheriff Principal: In certain circumstances an appeal may be taken from a decision of a Sheriff to the Sheriff Principal. In some cases leave of the Sheriff is required. 5. Appeal to Court of Session: In certain circumstances an appeal may be taken from a decision of a Sheriff directly to the Court of Session or from a decision of the Sheriff Principal to the Court of Session. Such an appeal may require leave of the Sheriff or Sheriff Principal who pronounced the decision. Such an appeal will be heard by the Inner House of the Court of Session. 6. Arrestment: The process of diligence under which a Pursuer (or Defender in a counterclaim) can obtain security for a claim by freezing moveable (personal) property of the debtor in the hands of third parties e.g. -
162 INTERNATIONAL LAWYER Long Before the 1957 Law, Indigent
162 INTERNATIONAL LAWYER Long before the 1957 law, indigent litigants could obtain exemption from judicial fees payable for actions in courts. The presently effective statute, 53 which dates from 1936, is part of the Code of Civil Procedure; it regulates in detail the bases on which an indigent litigant can obtain a waiver of court costs. A person who seeks legal aid either gratuitously or at a reduced rate initiates his request by obtaining from the Municipality a form, which must be filled out personally by the applicant, setting forth the financial situation on which he bases his claim that he is unable to obtain needed assistance via his own resources. Information furnished on the form is checked by the Municipality, and the application is then submitted to the consultation bureau for processing and determination of the legal aid which will be furnished. Information furnished by the applicant is further subject to examination by the court which may seek confirmation of the financial condition alleged from the tax authorities. 2. CRIMINAL MATTERS Counsel has always been available to indigent defendants in criminal matters involving a felony. 154 Within the jurisdiction of each court of first instance, a court-appointed Council for Legal Assistance functions in crim- inal matters, consisting of at least three attorneys. The Council assigns attorneys to indigent defendants in criminal matters as provided in the Code of Criminal Procedure and further as the Council may deem fit. Each defendant in provisional custody must be assigned counsel by the president of the court before which the matter will be adjudicated. -
Appendix to Memorandum of Law on Behalf of United
APPENDIX TO MEMORANDUM OF LAW ON BEHALF OF UNITED KINGDOM AND EUROPEAN PARLIAMENTARIANS AS AMICI CURIAE IN SUPPORT OF PETITIONER’S MOTION FOR A PRELIMINARY INJUNCTION LIST OF AMICI HOUSES OF PARLIAMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND MEMBERS OF THE EUROPEAN PARLIAMENT House of Lords The Lord Ahmed The Lord Alderdice The Lord Alton of Liverpool, CB The Rt Hon the Lord Archer of Sandwell, QC PC The Lord Avebury The Lord Berkeley, OBE The Lord Bhatia, OBE The Viscount Bledisloe, QC The Baroness Bonham-Carter of Yarnbury The Rt Hon the Baroness Boothroyd, OM PC The Lord Borrie, QC The Rt Hon the Baroness Bottomley of Nettlestone, DL PC The Lord Bowness, CBE DL The Lord Brennan, QC The Lord Bridges, GCMG The Rt Hon the Lord Brittan of Spennithorne, QC DL PC The Rt Hon the Lord Brooke of Sutton Mandeville, CH PC The Viscount Brookeborough, DL The Rt Hon the Lord Browne-Wilkinson, PC The Lord Campbell of Alloway, ERD QC The Lord Cameron of Dillington The Rt Hon the Lord Cameron of Lochbroom, QC The Rt Rev and Rt Hon the Lord Carey of Clifton, PC The Lord Carlile of Berriew, QC The Baroness Chapman The Lord Chidgey The Lord Clarke of Hampstead, CBE The Lord Clement-Jones, CBE The Rt Hon the Lord Clinton-Davis, PC The Lord Cobbold, DL The Lord Corbett of Castle Vale The Rt Hon the Baroness Corston, PC The Lord Dahrendorf, KBE The Lord Dholakia, OBE DL The Lord Donoughue The Baroness D’Souza, CMG The Lord Dykes The Viscount Falkland The Baroness Falkner of Margravine The Lord Faulkner of Worcester The Rt Hon the -
British Institute of International and Comparative Law
BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055 THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman Project National Rapporteurs: Mr Peter Beaton (Scotland); Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Mr Javier Areste Gonzalez (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands) Project Director: Jacob van de Velden Project Research Fellow: Justine Stefanelli Project Consultant: Andrew Dickinson Project Research Assistants: Elina Konstantinidou and Daniel Vasbeck 1 QUESTIONNAIRE The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process Instructions to National Rapporteurs Please use the following questions to describe the current position in the country for which you have been appointed as National Rapporteur. Please respond to the following questions as fully as possible, with appropriate reference to, and quotation of, supporting authority (e.g. case law and, where appropriate, the views of legal writers). -
Reports to Conference Spring 2015 Contents
REPORTS TO CONFERENCE SPRING 2015 CONTENTS Contents Page Federal Conference Committee……….……………………….……………..4 Federal Policy Committee......................…………...……………………......9 Federal Executive.............………………... ………………………………...17 Federal Finance and Administration Committee………….….…..............25 Parliamentary Party (Commons)……………………………. ……………...29 …………. Parliamentary Party (Lords)………………………..………………………...35 Parliamentary Party (Europe)………………………….……………………..41 Campaign for Gender Balance……………………………………………...45 Diversity Engagement Group……………………………………………..…50 3 Federal Conference Committee Glasgow 2015 Last autumn we went back to Glasgow for the second year running. As in 2013 we received a superb welcome from the city. We continue to ask all attendees to complete an online feedback questionnaire. A good percentage complete this but I would urge all members to take the time to participate. It is incredibly useful to the conference office and FCC and does influence whether we visit a venue again and if we do, what changes we need to try and make. FCC Changes Following the committee elections at the end of last year there were a number of changes to the membership of FCC. Qassim Afzal, Louise Bloom, Sal Brinton, Prateek Buch, Veronica German, Evan Harris and David Rendel either did not restand or were not re-elected. All played a valuable role on FCC and will be missed. We welcome Jon Ball, Zoe O’Connell and Mary Reid onto the committee as directly elected members. FPC have elected two new representatives onto FCC and we welcome back Linda Jack and Jeremy Hargreaves in these roles. Both have previously served on FCC so are familiar with the way we work. One of the FE reps is also new with Kaavya Kaushik joining James Gurling as an FE rep on FCC. -
The Scottish Bar: the Evolution of the Faculty of Advocates in Its Historical Setting, 28 La
Louisiana Law Review Volume 28 | Number 2 February 1968 The cottS ish Bar: The volutE ion of the Faculty of Advocates in Its Historical Setting Nan Wilson Repository Citation Nan Wilson, The Scottish Bar: The Evolution of the Faculty of Advocates in Its Historical Setting, 28 La. L. Rev. (1968) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol28/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE SCOTTISH BAR: THE EVOLUTION OF THE FACULTY OF ADVOCATES IN ITS HISTORICAL SOCIAL SETTING Nan Wilson* Although the expression "advocate" is used in early Scottish statutes such as the Act of 1424, c. 45, which provided for legal aid to the indigent, the Faculty of Advocates as such dates from 1532 when the Court of Session was constituted as a College of Justice. Before this time, though friends of litigants could appear as unpaid amateurs, there had, of course, been professional lawyers, lay and ecclesiastical, variously described as "fore- speakers," procurators and prolocutors. The functions of advo- cate and solicitor had not yet been differentiated, though the notary had been for historical reasons. The law teacher was then essentially an ecclesiastic. As early as 1455, a distinctive costume (a green tabard) for pleaders was prescribed by Act of Parliament.' Between 1496 and 1501, at least a dozen pleaders can be identified as in extensive practice before the highest courts, and procurators appeared regularly in the Sheriff Courts.2 The position of notary also flourished in Scotland as on the Continent, though from 1469 the King asserted the exclusive right to appoint candidates for that branch of legal practice. -
Guide to Professional Conduct
FACULTY OF ADVOCATEADVOCATESSSS GUIDE TO THE PROFESSIONAL CONDUCT OF ADVOCATEADVOCATESSSS Published by the Faculty of Advocates, Parliament House, Edinburgh First Published June 1988 Second Edition January 2005 Third Edition June 2006 Fourth Edition August 2007 Fifth Edition October 2008 CONTENTS Chapter Introduction Note 1. The Status, Rights and Obligations of an Advocate 2. The General Principles of Professional Conduct 3. Duties in Relation to the Faculty and other Advocates 4. Duties in Relation to the Instructing Agent 5. Duties in Relation to the Client 6. Duty to the Court and Duties Connected with Court and Similar Proceedings 7. Duty to Seek Advice 8. Instructions 9. Fees 10. Advertising, Publicity, Touting and Relations with the Media 11. Discipline 12. Dress 13. Duties of Devilmaster 14. Continuing Professional Development 15. Discrimination 16. Non Professional Activities of Practising Advocate 17. Advocates Holding a Public Office and Non-practising Advocates 18 . Work Outside Scotland 19. European Lawyers Appearing in Scotland 20. Registered European Lawyers 21. Precedence of Counsel of Other Bars 22. Proceeds of Crime Act 2 Appendices Appendix A The Declaration of Perugia Appendix B Code of Conduct for European Lawyers produced by the CCBE Appendix C Faculty of Advocates Continuous Professional Development Regulations Appendix D Direct Access Rules and associated documents Appendix E Guidance in relation to Proceeds of Crime and Money Laundering 3 INTRODUCTION The work of an Advocate is essentially the work of an individual practitioner whose conscience, guided by the advice of his seniors, is more likely to tell him how to behave than any book of rules. In places in this Guide, it has been found convenient to state "the rule" or "the general rule". -
Judicial Review Scope and Grounds
JUDICIAL REVIEW SCOPE AND GROUNDS By Scott Blair, Advocate THE TRIGONOMETRY OF JUDICIAL REVIEW In Scotland, unlike England and Wales, the judicial review jurisdiction is not limited to cases which have an element of public law. As explained by Lord President Hope in West v. Secretary of State for Scotland 1992 SC 385 at 413 the scope of judicial review is as follows: “ The following propositions are intended therefore to define the principles by reference to which the competency of all applications to the supervisory jurisdiction under Rule of Court 260B is to be determined: 1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. 3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy. By way of explanation we would emphasise these important points: (a) Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. -
UK's WITHDRAWAL from the EU the Prime Minister
UK’S WITHDRAWAL FROM THE EU The Prime Minister That this House notes the Prime Minister’s statement on Leaving the European Union of 26 February 2019; and further notes that discussions between the UK and the EU are ongoing. Amendment (a) Jeremy Corbyn Keir Starmer Emily Thornberry John McDonnell Valerie Vaz Mr Nicholas Brown Mr Ben BradshawRuth George Line 1, leave out from “House” to end and add “instructs Ministers (a) to negotiate with the EU for changes to the Political Declaration to secure: i. a permanent and comprehensive customs union with the EU; ii. close alignment with the single market underpinned by shared institutions and obligations; iii. dynamic alignment on rights and protections; iv. commitments on participation in EU agencies and funding programmes, including in areas such as the environment, education, and industrial regulation; and v. unambiguous agreement on the detail of future security arrangements, including access to the European Arrest Warrant and vital shared databases; and (b) to introduce primary legislation to give statutory effect to this negotiating mandate.”. As an Amendment to Jeremy Corbyn’s proposed Amendment (a): Sir Vince Cable Tom Brake Jo Swinson Mr Alistair Carmichael Sir Edward Davey Norman Lamb Christine JardineJamie StoneWera HobhouseTim FarronLayla Moran Line 2, leave out from “for” to end and add ”an extension of the period of two years specified in Article 50(3) of the Treaty on European Union for the purposes of a referendum on whether to exit the European Union under the terms of the negotiated Withdrawal Agreement or stay in membership of the European Union.”. -
385 WEST V. SECRETARY of STATE for SCOTLAND Apr. 23
s.c. WEST V. SECRETARY OF STAT E FOR SCOTLAND 385 WEST v. SECRETARY OF STATE FOR SCOTLAND No. 33. FIRST DIVISION. Apr. 23, 1992. Lord Weir. WILLIAM LAURISTON WEST, Petitioner (Reclaimer). — Mackinnon. THE SECRETARY OF STATE FOR SCOTLAND (on behalf of the Scottish Prison Service), Respondent. — Clarke, Q.C., Reed. Administrative law—Practice—Judicial review — Competency — Prison officer refused discretionary reimbursement of removal expenses — Scope of supervisory jurisdiction of Court of Session—Whether exercise of discretion by Scottish Prison Service open to judicial review — Whether criteria for exercise of supervisory jurisdiction included requirement that "public law " element be present—Rules of Court 1965, rule 260B.1 The petitioner, a serving prison officer, was transferred from a young offenders institution to a prison. Under his conditions of service with his employers, the Scottish Prison Service, he was regarded as "mobile staff and liable to be transferred compulsorily to any prison service establishment in Scotland. Provision was made in the conditions of service for the reimbursement to staff of inter alia removal expenses. As a result of his transfer, the petitioner required to move house but was thereafter informed by his employers that his removal expenses would not be reimbursed. He then presented a petition to the Court of Session for judicial review of the prison service's decision, on the ground that the refusal was an unreasonable exercise of its discretion, for reduction of its decision, and declarator that he was entitled to reimbursement of his removal expenses and damages. The respondent, the Secretary of State for Scotland, lodged answers on behalf of the prison service, arguing that the petition was incompetent and irrelevant. -
Civil Justice - Civil Courts and Tribunals (Republished)
SPICe Briefing Pàipear-ullachaidh SPICe Civil Justice - Civil Courts and Tribunals (republished) Abigail Bremner The civil justice system enables people to protect or enforce their legal rights. This briefing looks at the structure of civil courts and tribunals in Scotland. Note that this briefing is a re-edited version of the SPICe briefing Civil Justice - Civil Courts and Tribunals, published in December 2016. 11 May 2017 SB 17/30 Civil Justice - Civil Courts and Tribunals (republished), SB 17/30 Contents What this briefing is about ________________________________________________4 Useful definitions _______________________________________________________5 What is civil justice? _____________________________________________________6 The civil courts are being reformed _________________________________________6 How devolution affects the civil courts _______________________________________7 Who's who in Scotland's civil court system __________________________________8 The role of the Lord President _____________________________________________8 The role of the Lord Justice Clerk __________________________________________8 The role of the Scottish Civil Justice Council __________________________________8 The sheriff courts ______________________________________________________10 Who's who in the sheriff courts ___________________________________________10 Summary sheriffs are likely to increase in number ____________________________ 11 Reforms enable sheriffs and summary sheriffs to specialise_____________________ 11 The Sheriff Personal -
First Division, Inner House, Court of Session
FIRST DIVISION, INNER HOUSE, COURT OF SESSION [2021] CSIH 25 A76/20 Lord President Lord Menzies Lord Doherty OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD PRESIDENT in the Reclaiming Motion by MARTIN JAMES KEATINGS Pursuer and Reclaimer against (First) THE ADVOCATE GENERAL; and (Second) THE LORD ADVOCATE Defenders and Respondents ______________ Pursuer and Reclaimer: O’Neill QC, Welsh; Balfour & Manson LLP First Defender and Respondent: Webster QC, Pirie; Office of the Advocate General Second Defender and Respondent: Mure QC, C O’Neill QC (sol adv); Scottish Government Legal Directorate 30 April 2021 Introduction [1] The pursuer is a campaigner for Scottish independence. He is a voter in the upcoming election for the Scottish Parliament. He seeks two declarators. The first is that the Scottish Parliament has power under the Scotland Act 1998 to legislate for a referendum on whether Scotland should be independent, without requiring the consent of the United 2 Kingdom Government. The second is that the Scottish Government’s “proposed Act” concerning an independence referendum contains no provisions which would be outside the Parliament’s legislative competence. [2] Although called as third defenders, the Scottish Ministers withdrew their defences. The action was also intimated to the Parliamentary Corporate Body, but they elected not to intervene. The first and second defenders plead inter alia that: the pursuer has no title, interest or standing to sue; the action is academic, hypothetical, premature and thus incompetent; and the declarators are inconsistent with the structure of the 1998 Act. The pursuer responds with a plea that the defences are irrelevant and decree should be pronounced de plano.