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Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2005

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Scottish Statutory Instruments

2005 No. 648

SHERIFF COURT

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2005

Made

14th December 2005

Coming into force

2nd January 2006

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1), and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of that Act, do hereby enact and declare:

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2005 and shall come into force on 2nd January 2006.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Amendment of Ordinary Cause Rules

2.—(1) The Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907(2) are amended in accordance with sub-paragraphs (2) to (4).

(2) In rule 33.27A(1) (applications for European matrimonial certificates)(3) for “sheriff” substitute “sheriff clerk”.

(3) In rule 33.93 (intimation to Principal Reporter) for “that section” substitute “section 52 of that Act”.

(4) In Appendix 1—

(a)for Form G11 substitute the form set out in Schedule 1 to this Act of Sederunt; and

(b)for Form F26 substitute the form set out in Schedule 2 to this Act of Sederunt(4).

Amendment of Summary Application Rules

3.—(1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(5) is amended in accordance with sub-paragraphs (2) and (3).

(2) In Part IX of Chapter 3 (Proceeds of Crime (Scotland) Act 1995) sub-paragraph (a) of rule 3.9.3(2) (note for recall or variation of restraint orders) shall be omitted.

(3) In Part XXVI of Chapter 3 (Protection of Children (Scotland) Act 2003)(6), rules 3.25.1 to 3.25.6 shall be renumbered as rules 3.26.1 to 3.26.6.

Amendment of Summary Cause Rules

4.—(1) The Act of Sederunt (Summary Cause Rules) 2002(7) is amended in accordance with sub-paragraph (2).

(2) In Appendix 1, for Form 24 substitute the form set out in Schedule 3 to this Act of Sederunt.

Amendment of Small Claim Rules

5.—(1) The Act of Sederunt (Small Claim Rules) 2002(8) is amended in accordance with sub-paragraphs (2) and (3).

(2) For rule 21.6(1) (expenses) there shall be substituted—

21.6.(1) This rule applies, subject to section 36B of the 1971 Act(9), to the determination of expenses—

(a)in a claim, where the defender has—

(i)not stated a defence;

(ii)having stated a defence, has not proceeded with it; or

(iii)having stated a defence, has not acted in good faith as to its merits;

(b)in a claim where there has been unreasonable conduct on the part of a party to that claim in relation to the proceedings or the claim; or

(c)in an appeal to the sheriff principal.

(3) In Appendix 1 for Form 15 substitute the form set out in Schedule 4 to this Act of Sederunt.

A.C. Hamilton

Lord President I.P.D.

Edinburgh

14th December 2005

SCHEDULE 1

Rule 28.3(1)

FORM G11Form of notice in optional procedure for commission and diligence

SCHEDULE 2

Rules 33.11(1) and 33.34(2)(a)

FORM F26Form of notice of intention to defend in family action

SCHEDULE 3

Rule 18.2(1)

FORM 24Order by the court and certificate in optional procedure for recovery of documents

SCHEDULE 4

Rule 17.2(1)

FORM 15Order by the court and certificate in optional procedure for recovery of documents

Explanatory Note

(This note is not part of the Act of Sederunt)

This Act of Sederunt makes miscellaneous amendments to the rules of procedure in the sheriff court. It amends the Ordinary Cause Rules, the Summary Applications, Statutory Applications and Appeals etc. Rules, the Summary Cause Rules and the Small Claim Rules.

Amendments are made to the forms of notice or order in optional procedure for the recovery of documents in each of the Ordinary Cause Rules, Summary Cause Rules and Small Claims Rules (Forms G11, 24 and 15, respectively) by the addition of a note regarding expenses recoverable for any necessary outlays incurred by havers.

In addition–

(a)the Ordinary Cause Rules are amended by–

(i)the substitution of Form 26 with the revised Form F26 set out in Schedule 2; and

(ii)the substitution of an incorrect reference in rule 33.93 with the correct reference to section 52 of the Children (Scotland) Act 1995;

(b)the Summary Application Rules are amended by—

(i)the deletion of rule 3.9.9(2)(a) imposing a time limit of 21 days after service for lodging a note to vary or recall a restraint order; and

(ii)renumbering rules 3.25.1 to 3.25.6 of Part XXVI of Chapter 3 of those Rules as rules 3.26.1 to 3.26.6; and

(c)Rule 21.6(1) of the Small Claims Rules is amended to correspond with the exception contained in section 36B of the Sheriff Courts (Scotland) Act 1971.

(1)

1971 c. 58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), schedule 5, paragraph 13 and the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and was extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49 and the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2).

(2)

1907 c. 51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445, S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 566, 2003/25 and 26, 2004/197 and 350 and 2005/20, 189 and 638.

(3)

Rule 33.27A was inserted by S.S.I. 2001/144.

(4)

Form F26 was amended by S.S.I. 2000/239.

(5)

S.I. 1999/929, amended by S.S.I. 2000/148 and 387, 2001/142, 2002/7, 129, 130, 146 and 563, 2003/26, 27, 98, 261, 319, 346 and 556, 2004/197, 222, 334 and 455, 2005/61, 473 and 504.

(6)

Part XXVI was inserted by S.S.I. 2004/334.

(9)

Section 36B of the Sheriff Courts (Scotland) Act 1971 was inserted by section 18(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73) and amended by article 2 of the Schedule to S.I. 1999/678.

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