Every time a court action is raised, the question of jurisdiction arises. Jurisdiction is the set of rules that determine where you can raise a court action.
The territorial jurisdiction of the Court of Session in Edinburgh extends to the whole of Scotland, although there are certain types of cases that are excluded from the Court of Session’s jurisdiction. There are 49 Sheriff Courts across Scotland and each has jurisdiction over a particular Sheriff Court District. These Districts are divided into 6 Sheriffdoms.
The Civil Jurisdiction and Judgements Act 1982 contains the rules of jurisdiction for Scotland, the UK and Europe, as they exist in Scots law.
The jurisdiction of the Sheriff Courts extends to all types of case except those reserved to the Court of Session or to other courts or tribunals.
The principal rule of jurisdiction is that an action can be raised in the court that has jurisdiction over the place in which the defender (the person the proceedings are raised against) is domiciled. The rules for establishing domicile differ according to whether the defender is an individual, company or partnership.
An individual is domiciled in the place where he resides and with which he has a substantial connection. If he has been resident there for at least 3 months before the action is raised, it will be presumed that he is resident there;
A corporation or association is domiciled in the place in which it has its registered office, central administration or principal place of business;
A partnership is domiciled in the place in which it has its place of business.
There are other rules in relation to jurisdiction and if you are raising a court action, you can choose to do so based on alternative grounds of jurisdiction, rather than the defender’s domicile. Some of the alternative grounds of jurisdiction are: -
If a dispute arises in relation to a contract, you can raise proceedings in the place of performance of the obligation under the contract. So if goods should have been delivered to an address in Edinburgh, but this was not done, a court action could be raised in Edinburgh Sheriff court, even although the person who should have delivered the goods lives, or has a place of business, elsewhere.
In proceedings for interdict (known in England as an injunction) which is a court order to stop someone doing something, an action can be raised in the courts for the place where it is alleged that the wrong is likely to be committed.
For defamation claims, the courts of the place where the publisher of the allegedly defamatory publication is established have jurisdiction to consider the whole claim.
The Court of Session has a non-exclusive jurisdiction in proceedings principally concerned with the registration in the UK or the validity in the UK of patents, trade marks, etc.
If you are involved in an accident and want to seek compensation, an action can be raised in the place where the accident took place.
The Parties to an action can agree that a particular court is to have jurisdiction to settle any disputes arising between them, and that the agreed court is to have an exclusive jurisdiction. Parties may wish to have their case heard in one of the specialist commercial Sheriff Courts, for example.
Scots law allows a degree of flexibility in relation to the question of jurisdiction and a good court practitioner will be able to provide you with all the available options and advise you on which is best for your business.