The Act Part 5 – Civil Appeals
192.Part 5 deals with civil appeals and the relationships between the sheriff court, the Sheriff Appeal Court and the Court of Session.
193.The Act provides that the new Sheriff Appeal Court should deal with all civil appeals from sheriffs and summary sheriffs in the sheriff court, except where specific legislation allows for appeal to the Court of Session. Under sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907 (which are to be repealed) appeals may go to the sheriff principal or to the Court of Session. The establishment of the Sheriff Appeal Court means that the existing right of appeal to the sheriff principal of a sheriffdom in civil proceedings is abolished. This only applies to appeals from the sheriff to the sheriff principal and does not affect any statutory appeals or applications to the sheriff principal from tribunals or other bodies.
194.Generally, direct appeals from the sheriff court to the Court of Session will cease to be possible. All appeals will go instead to the Sheriff Appeal Court. In order to address concerns that the Sheriff Appeal Court might in some cases simply be seen as an extra and unnecessary layer of appeal which merely adds to the cost of appealing an action, the Scottish Civil Courts Review recommended that there should be a restricted right of appeal from the Sheriff Appeal Court to the Court of Session. There is provision, therefore, that the Sheriff Appeal Court or the Court of Session may only grant permission to appeal if the appeal raises an important point of principle or practice or if there is some other compelling reason for the Court of Session to hear it.
195.However, there remain some proceedings where there is a statutory requirement for initial proceedings to be brought before a sheriff principal rather than a sheriff. In such cases, it is considered more appropriate for the appeal to lie to the Court of Session rather than the Sheriff Appeal Court.
196.Part 5 also provides for the granting of leave or permission and assessment of the grounds of appeal. In 2009, Lord Penrose published a Review of Inner House Business in which it was set out that there should be a sift mechanism under which a single judge of the Inner House should consider grounds of appeal. The amendment made to the Court of Session Act 1988 by the Judiciary and Courts (Scotland) Act 2008, which permits a single judge of the Inner House to dispose of business, restricts the role of the single judge to procedural matters. That power is considered sufficient to provide for a single Inner House judge to deal with applications for permission or leave to appeal, but not for a single judge to consider whether appeal proceedings should be allowed to proceed and if so on what grounds. Lord Penrose recommended that the decision of the single judge should be final, albeit with the safeguard that a decision could be reviewed by a three-judge Division of the Inner House.
197.However, the Scottish Civil Courts Review considered that it would not be an efficient use of resources for a first sift to be undertaken by three members of the Inner House and noted that the sift mechanism proposed by Lord Penrose would be the equivalent of a requirement to obtain leave in other jurisdictions. A decision on whether to grant leave or permission and an assessment of the grounds of appeal require some consideration of the merits and will ordinarily affect whether an appeal or part of it can proceed. Therefore, despite the existing procedures for dealing with leave or permission, the Act provides for a power for both of these matters to be dealt with in a consistent way.
198.Finally Part 5 deals with appeals to the Supreme Court. Section 40 of the Court of Session Act 1988 provides that it is competent to appeal to the United Kingdom Supreme Court (UKSC) against certain judgements without requiring leave from the Inner House. The only restriction is that the appeal must be certified by two counsel as reasonable before it can be heard in the UKSC. These arrangements have been criticised in a number of cases, most recently by the UK Supreme Court in Uprichard v Scottish Ministers [2013] UKSC 21. The Act, therefore, replaces the provisions for appeals under section 40 of the Court of Session Act 1988 which can be taken forward on the certification of two counsel with provision that requires the permission of the Inner House, or, failing such permission, permission of the UKSC.