Case Law Across Borders: Scotland And England

Scotland and England have distinct judicial systems, with Scots law recognised as a hybrid system, containing elements of civil law and common law. Since the 1707 Treaty of Union, Scotland has shared a legislature with England and Wales, and the UK Parliament passes laws on 'reserved matters' such as immigration, defence and foreign policy. However, the Scottish Parliament can pass laws on 'devolved matters' including civil and criminal justice, education, and transport. While some English cases affect Scottish law, the Scottish court structure differs from that of England and Wales, with four levels of courts. The Scottish legal system has its own unique features, such as a three-verdict system in criminal trials and different requirements for witnesses when writing a will.

Differences in property law and conveyancing

Scotland and England have distinct judicial systems and jurisdictions, and there are several differences in property law and conveyancing.

In Scotland, solicitors often have a larger role in the housing market than their English counterparts, as they frequently sell properties themselves, acting as both legal advisors and estate agents. In England, estate agents market the property, and a separate solicitor is appointed later in the process.

In England, a contract of sale must be negotiated, signed, and exchanged. In Scotland, several documents called missives are exchanged instead. These missives make transactions binding quite early in the purchasing process, reducing the likelihood of gazumping. Gazumping is when someone makes a higher offer for a property after an offer has already been accepted.

In Scotland, the seller must commission a Home Report before a property can be listed. This includes a survey, an energy efficiency report, and a detailed homeowner's questionnaire, and is made available to all interested buyers. In England and Wales, the only upfront requirement is an energy performance certificate.

There are also differences in the way prices and offers work. In Scotland, most homes are sold through a "blind bidding" system, where the seller asks for offers over or around a minimum price. Buyers submit sealed bids, and the highest bidder wins. In England and Wales, homes are marketed at an advertised price, and it is common for the final price to be negotiated.

In Scotland, the courts system consists of three separate courts – civil cases are tried in the courts of session, and criminal cases in the court of judiciary, and the Sheriff Courts, which handle both civil and criminal cases. In England, the court system consists of judges who make decisions based on legal precedent, with overall power held in the Supreme Court.

Differences in divorce settlements

Scotland and England have distinct judicial systems and their own jurisdictions. While both countries require proof of the irretrievable breakdown of a marriage to grant a divorce, there are some key differences in divorce settlements between the two nations.

In England, the Matrimonial Causes Act 1973 states that the needs of the parties involved and any children are the most important factors when determining a financial settlement. In Scotland, the Family Law (Scotland) Act of 1985 adopts a "fair sharing" principle, which usually means a 50:50 split of all total assets.

In England, it is possible to obtain a divorce without addressing financial matters, and these can be settled years later. In Scotland, financial provision is dealt with at the same time as the divorce and cannot be readily revisited afterward.

Spousal maintenance is also treated differently in the two nations. In England, "joint lives" orders are common, meaning the higher-earning partner may have to pay maintenance to the other for life. In Scotland, spousal maintenance is restricted to three years and it is unlikely to continue long-term.

Prenuptial agreements are not legally binding in England but are considered in financial proceedings. In Scotland, prenuptial agreements are legally binding and have been recognised in Scottish courts for some time.

The treatment of assets acquired before and during the marriage also differs. In England, all resources held by the parties, including those acquired before and after the marriage, are assessed when determining a financial settlement. In Scotland, the matrimonial property available for a financial settlement is limited to those resources acquired during the marriage up until the date of separation. Assets acquired before the marriage or after separation are not considered matrimonial property and continue to belong to the individual who acquired them.

While both nations aim for a ""clean break" in divorce settlements, the Scottish courts are known to follow this philosophy more closely, and there is a reluctance to impose ongoing maintenance.

Differences in will and probate law

When it comes to wills and probate law, there are several differences between England and Scotland. Here are the key differences:

English Law: Presumption of Testamentary Freedom

In England, individuals have the right to dispose of their property as they wish through their will, thanks to the principle of testamentary freedom. However, spouses or civil partners can make claims against an estate under the Inheritance Act 1975. If someone dies without a valid will, their estate will be distributed according to the rules of intestacy, which may not align with their wishes.

Scottish Law: Forced Heirship and Legal Rights

Scottish law takes a different approach. It recognises the concept of forced heirship, meaning that close relatives like spouses, children, and grandchildren have a legal right to inherit a portion of the deceased's estate. The amount each heir receives depends on their relationship to the deceased. Additionally, Scottish law includes "legal rights", which grant spouses and children a fixed proportion of the deceased's movable estate, regardless of the will's contents. While these legal rights can be reduced or eliminated through legal mechanisms, they cannot be entirely excluded.

Key Differences in Probate

Probate, the process of administering an estate after someone's death, also differs between the two legal systems. In England, executors named in the will typically apply for a Grant of Probate to handle the administration. In Scotland, this process is known as Confirmation, and it involves applying to the court to confirm the executor's authority.

Witness Requirements

The legal requirements for creating a valid will also differ. In England, a will must be signed by the testator and two witnesses. In Scotland, only one witness is needed, but the testator must sign every page of the will, and witnesses can be beneficiaries. Additionally, witnesses in Scotland must provide full identification, including their address and occupation.

Marriage and Previous Wills

Another difference is that in England, marriage invalidates any previous will. However, this is not the case in Scotland, where marriage does not affect the validity of a previous will.

Legal Rights and Prior Rights

Legal Rights and Prior Rights are unique to Scottish law. These rights provide certain priorities to the deceased's spouse and/or children. Legal Rights are considered a debt against the estate and must be paid before any legacy or payment from the will. Prior Rights give the spouse or civil partner of the deceased certain rights, such as the right to the dwelling house, up to a specified value.

Distribution of Assets in the Absence of a Will

If there is no will, the laws governing inheritance differ. In Scots Law, spouses and children have an automatic right to inherit part of the testator's movable estate, regardless of the absence of a will. In England, there are no such automatic safeguards for spouses and children.

In summary, while both England and Scotland have their own distinct legal systems, the differences in will and probate law are significant. These differences can impact individuals residing in or owning assets in either country, making it crucial to understand and comply with the relevant laws to ensure the validity of wills and effective estate planning.

Differences in personal injury claims

Scotland and England have distinct legal systems, and accident claims in these two countries differ significantly. Here are some key differences in personal injury claims between the two nations:

Time Limits

According to the Prescription and Limitation Act 1973, claimants in Scotland have three years from the date of the accident to file a personal injury claim. The typical time frame for normal claims unrelated to personal injury is five years. In contrast, the Limitation Act of 1980 in England gives claimants three years from the accident date to settle claims or initiate legal proceedings.

Legal System

Scotland has its own set of laws, blending common law concepts with Scottish statutes to create a unique legal framework known as Scots law. On the other hand, the English legal system is primarily based on common law.

Serving Legal Documents

When making an accident claim in Scotland, court documents must be served directly to the defendant and/or their solicitors. In England, however, the defendant, their advice, or even their last known address may receive notice of court proceedings.

Statute of Limitations

The statute of limitations in Scotland starts when the claimant turns 16. In England, the three-year limitation period begins when the claimant reaches 18 if the accident occurred during their childhood.

Claim Handling

In Scotland, personal injury claims are typically resolved out of court. There are two courts for such claims: the Sheriff Court for smaller claims and the Court of Session for more substantial claims. In England, small courts and law firms handle claims of all sizes.

Claim Types

In England, claims classified as 'No Win, No Fee' are made under 'tort' law. In Scotland, the equivalent is called 'delict' law, and while similar, there are subtle differences that can impact the outcome of a claim.

Solicitor Fees

When claiming in Scotland, be aware that solicitors can take up to 30% of your awarded compensation. This is because they can take a success fee of up to 25-40% of your entitlement. In England, success fees for 'No Win, No Fee' claims are usually capped at 25% of the compensation awarded.

Differences in criminal law

While Scotland and England share the same island and are part of the United Kingdom, they have distinct judicial systems. The Scottish legal system is a hybrid of civil law and common law elements, while English law is considered part of public law. These differences in the legal system have resulted in variations in criminal law, which are outlined below:

Right to Silence

Scottish criminal law maintains the right to remain silent, without guilt being inferred. In contrast, English law does not have a right to silence, and negative inferences can be drawn if an individual refuses to answer questions during a compulsory interview.

Evidence Requirements

Scotland has higher standards for evidence than England. Scottish criminal law requires corroboration from at least two independent sources of evidence to support each crucial fact, even if the accused confesses. In English criminal law, a conviction can be obtained from a single source of evidence.

Witness Statements

English criminal law permits the use of voluntary, signed witness statements as evidence in court. In Scotland, these statements are treated as having limited value and are primarily used when the witness is not physically present or to prove earlier statements if the witness changes their testimony.

Jury Trials

Scottish jury trials consist of 12-15 people and do not require unanimous verdicts. A conviction is determined by a majority vote, with eight being the deciding number. Hung juries are not permitted. Scottish law permits three verdicts: "guilty", "not guilty", and "not proven". The "not proven" verdict acknowledges doubt about the accused's innocence. In contrast, English law typically uses 12-member juries, and the accused does not have the right to elect between a judge or jury trial.

Courts

Scotland has a three-court system for criminal cases: the Court of Judiciary, the Sheriff Courts, and the High Court of Justiciary, which is Scotland's supreme criminal court. In England, the court system consists of judges who make decisions based on legal precedent, with overall power vested in the Supreme Court of the UK.

Cautions and Warnings

England allows the issuance of formal cautions as an alternative to prosecuting minor crimes. These cautions are written warnings given by the police, requiring the admission of guilt. Scottish police, on the other hand, issue verbal or written warnings for minor offences, which can be attached to penalties. These warnings do not become part of an individual's criminal record.

Charging Process

Charges brought in Scotland must include all points of the offence committed, which criminal defence lawyers can then challenge during the preliminary case stages. In England, charges are more concise, with the case summary done separately.

Personal Injury Claims

In Scotland, personal injury claims are typically handled out of court, with the Sheriff Court handling smaller claims and the Court of Session handling more extensive claims. In England, small courts and law firms handle claims of all sizes. Additionally, Scottish solicitors can take up to 30% of the compensation awarded in personal injury claims.

Frequently asked questions