Scottish Statutory Instruments

2007 No. 6

SHERIFF COURT

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007

Made

12th January 2007

Coming into force in accordance with paragraph 1(1) and (2)

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 the said Act of 1971, 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) 2007 and, subject to sub-paragraph (2), shall come into force on 29th January 2007.

(2) Paragraph 2(14), (15) and (16)(f) to (k) shall come into force on 26th February 2007.

(3) 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) shall be amended in accordance with the following sub-paragraphs.

(2) In rule 1.2(1) (interpretation), after the definition of “document” there shall be inserted the following:–

““enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;”.

(3) In rule 1.3 (representation) after paragraph (2) there shall be inserted the following:–

“(3) A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment.

(4) The person referred to in paragraph (3) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action.”.

(4) In rule 3.3 (warrants of citation)(3)–

(a)in paragraph (1)(c), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974(4)”; and

(b)in paragraph (2), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

(5) In rule 5.2 (form of citation and certificate)(5)–

(a)in paragraph (1)(c), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”; and

(b)in paragraph (2), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

(6) In rule 7.2(1)(minute for granting decree without attendance)–

(a)in sub-paragraph (b) after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”; and

(b)in sub-paragraph (c), after “direction” there shall be inserted “or time order”.

(7) In rule 7.3 (applications for time to pay directions in undefended causes)–

(a)in the cross-heading, after “directions” there shall be inserted “or time orders”;

(b)in paragraph (1)–

(i)after “which” the existing words shall be numbered sub-paragraph (a); and

(ii)at the end there shall be inserted the following:–

“; or
(b)
a time order may be applied for under the Consumer Credit Act 1974”;

(c)in paragraph (2), after “direction” there shall be inserted “or time order”.

(8) For rule 9A.4(6) there shall be substituted the following:–

“Applications in respect of time to pay directions, arrestments and time orders

9A.4. An application for–

(a)a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987;

(b)the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act; or

(c)a time order under section 129 of the Consumer Credit Act 1974,

in a cause which is defended, shall be made by motion lodged before the sheriff grants decree.”.

(9) In rule 18.5 (service of amended pleadings), in paragraph (1)(a)(i), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

(10) In rule 28.2 (applications for commission and diligence for recovery of documents or for orders under section 1 of the Administration of Justice (Scotland) Act 1972)–

(a)for paragraph (3)(c)(7) (intimation of specifications) there shall be substituted the following:–

“(c)where necessary–

(i)the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

(ii)the Lord Advocate (in any other case),

and, if there is any doubt, both.”; and

(b)for paragraph (5) (hearing) there shall be substituted the following:–

“(5) The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).”.

(11) After rule 30.9 (service of charge where address of defender not known) there shall be inserted the following:–

“Expenses

30.10. A party who–

(a)is or has been represented by a person authorised under any enactment to conduct proceedings in the sheriff court; and

(b)would have been found entitled to expenses if he had been represented by a solicitor or an advocate,

may be awarded any expenses or outlays to which a party litigant may be found entitled under the Litigants in Person (Costs and Expenses) Act 1975(8) or any enactment under that Act.”.

(12) For rule 31.2(3) (applications for leave to appeal) there shall be substituted the following:–

“(3) An application for leave to appeal from a decision in relation to–

(a)a time to pay direction under section 1 of the Debtors (Scotland) Act 1987;

(b)the recall or restriction of an arrestment made under section 3(4) of that Act; or

(c)a time order under section 129 of the Consumer Credit Act 1974,

shall specify the question of law on which the appeal is made.”.

(13) After Chapter 32 (taxation of expenses) there shall be inserted the following:–

“Chapter32ALIVE LINKS

32A.1.—(1) On cause shown, a party may apply by motion for authority for the whole or part of–

(a)the evidence of a witness or the party to be given; or

(b)a submission to be made,

through a live link.

(2) In paragraph (1)–

“witness” means a person who has been or may be cited to appear before the court as a witness;

“submission” means any oral submission which would otherwise be made to the court by the party or his representative in person including an oral submission in support of a motion; and

“live link” means a live television link or such other arrangement as may be specified in the motion by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.”.

(14) In rule 33.27A (applications for postponement of decree under section 3A of the Act of 1976)(9)–

(a)“religious” shall be omitted; and

(b)for “to marry” there shall be substituted “to religious marriage”.

(15) For rule 33.73(1)(g)(10) (application of Part XI: simplified divorce applications) there shall be substituted the following:–

“(g)neither party to the marriage applies for postponement of decree under section 3A of the Act of 1976(11) (postponement of decree where impediment to religious marriage exists).”.

(16) In Appendix 1–

(a)in Form 02–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)in paragraph (b), after “direction” there shall be inserted “[or time order]”;

(b)in Form 03–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)after “SERVICE” there shall be inserted the following:–

“(1) Time to pay directions”; and

(iii)after “frozen).” there shall be inserted the following:–

“Time Orders

(2) The Consumer Credit Act 1974 allows you to apply to the court for a “time order” during a court action. A time order is similar to a time to pay direction but can only be applied for in certain circumstances, e.g. in relation to certain types of credit agreement. Payment under a time order can only be made by instalments, so that you cannot apply to pay by deferred lump sum.”;

(iv)after “HOW TO APPLY FOR A TIME TO PAY DIRECTION” there shall be inserted “OR TIME ORDER”;

(v)in paragraph 1, after “direction” there shall be inserted “or time order”;

(vi)in the paragraph headed “NOTE”, after “direction” where it twice appears there shall be inserted “or time order”;

(vii)in the heading of the form of application for a time to pay direction, after “1987” there shall be inserted “[or A TIME ORDER UNDER THE CONSUMER CREDIT ACT 1974”];

(viii)in paragraph 2 of Part B of that form, after “direction” there shall be inserted “or time order”;

(ix)in paragraph 6 of Part D of that form, after “1987” there shall be inserted “[or section 129(1) of the Consumer Credit Act 1974]”;

(x)in the section beginning “*a” of Part D of that form, after direction there shall be inserted “[or time order]”;

(c)in Form 05(12)–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)for “Form 03 (application for time to pay direction)” there shall be substituted “Form 03 (application for time to pay direction or time order)”;

(iii)in the box beginning “Form 03 is served” after “direction” where it twice appears there shall be inserted “or time order”;

(d)in Form 06(13), after “direction” there shall be inserted “or time order”;

(e)in Form 08–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)for “Form 03 (application for time to pay direction)” there shall be substituted “Form 03 (application for time to pay direction or time order)”;

(iii)in the box beginning “Form 03 is served”, after “direction” where it twice appears there shall be inserted “or time order”;

(f)in Form F31(14)–

(i)section 10A of Part 1 (remarriage) shall be omitted;

(ii)in section 11 of Part 1–

(aa)for the heading there shall be substituted “DECLARATION AND REQUEST FOR DIVORCE”; and

(bb)after “application.” there shall be inserted the following:–

“I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.”;

(iii)in Part 2, in paragraph (d) of the statement of consent “and” shall be omitted; and

(iv)in Part 2, for paragraph (e) of the statement of consent there shall be inserted the following:–

“(e)I do not ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976; and

(f)I CONSENT TO DECREE OF DIVORCE BEING GRANTED IN RESPECT OF THIS APPLICATION.”

(g)in Form F33(15)–

(i)section 11A of Part 1 (remarriage) shall be omitted; and

(ii)in section 12 of Part 1, after “application.” there shall be inserted the following:–

“I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.”;

(h)in Form F33A(16), in section 11 of Part 1, after “application.” there shall be inserted the following:–

“I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.”;

(i)in Form F34(17)–

(ii)after paragraph 1.(a) there shall be inserted–

“(b)that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists).”;

(iii)in the Note, after “provision” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists),”;

(i)in Form F35(18)–

(i)after paragraph 1.(a) there shall be inserted–

(ii)in the Note, after “provision” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists),”;

(j)in Form F35A(19)–

(i)after paragraph 2 there shall be inserted the following:–

“2A. Please note that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists).”; and

Amendment of Summary Application Rules

3.—(1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(20) shall be amended in accordance with the following sub-paragraphs.

(2) In rule 1.2(1) (interpretation), after “requires–” there shall be inserted the following:–

““enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;”.

(3) In rule 2.7 (warrants, forms and certificates of citation)–

(a)in paragraph (5), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”; and

(b)in paragraph (7), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

(4) In rule 2.22 (applications for time to pay directions)–

(a)in the cross-heading, after “directions” there shall be inserted “or time orders”;

(b)in paragraph (1)–

(i)after “which” the existing words shall be numbered sub-paragraph (a); and

(ii)at the end there shall be inserted the following:–

“; or
(b)
a time order may be applied for under the Consumer Credit Act 1987”; and

(c)in paragraph (2), after “direction” there shall be inserted “or time order”.

(5) After rule 2.31 (power of sheriff to make orders) there shall be inserted the following:–

“Live links

2.32.—(1) On cause shown, a party may apply by motion for authority for the whole or part of–

(a)the evidence of a witness or the party to be given; or

(b)a submission to be made,

through a live link.

(2) In paragraph (1)–

“witness” means a person who has been or may be cited to appear before the court as a witness;

“submission” means any oral submission which would otherwise be made to the court by the party or his representative in person including an oral submission in support of a motion; and

Representation

2.33.—(1) A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment.

(2) The person referred to in paragraph (1) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action.

Expenses

2.34.—(1) A party who–

(a)is or has been represented by a person authorised under any enactment to conduct proceedings in the sheriff court; and

(b)would have been found entitled to expenses if he had been represented by a solicitor or an advocate,

May be awarded expenses or outlays to which a party litigant may be found entitled under the Litigants in Person (Costs and Expenses) Act 1975(21) or any enactment under that Act.”.

(6) In Schedule 1–

(a)in Form 4–

(i)in the heading after “direction” there shall be inserted “or time order”; and

(ii)in paragraph (b), after “direction” there shall be inserted “or time order”;

(b)in Form 5–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)after “SERVICE” there shall be inserted the following:–

“(1) Time to pay directions”; and

(iii)after “frozen).” there shall be inserted the following:–

“Time orders

(2) The Consumer Credit Act 1974 allows you to apply to the court for a “time order” during a court action. A time order is similar to a time to pay direction but can only by applied for in certain circumstances, e.g. in relation to certain types of credit agreement. Payment under a time order can only be made by instalments so you cannot apply to pay by deferred lump sum.”;

(iv)after “HOW TO APPLY FOR A TIME TO PAY DIRECTION” there shall be inserted “OR TIME ORDER”;

(v)in the section headed “What happens if my offer to pay is accepted?”, the words “for time to pay” shall be omitted;

(vi)in the section headed “What happens if my offer to pay is rejected?” the words “for time to pay” where they twice appear shall be omitted;

(vii)in Section A, after “PAY” there shall be inserted “OR A TIME ORDER”;

(viii)In Box 1, in the heading, after “1987” there shall be inserted “OR A TIME ORDER UNDER THE CONSUMER CREDIT ACT 1974”;

(c)in Form 6–

(i)in the heading, after “direction” there shall be inserted “or time order”;

(ii)in the section beginning “Form 5”, after “direction” there shall be inserted “or time order”;

(iii)in the section beginning “IF YOU ADMIT THE CLAIM AND WISH TO APPLY”, after “DIRECTION” there shall be inserted “OR TIME ORDER”;

(d)in Form 7, after “direction” there shall be inserted “or a time order”.

Amendment of Summary Cause Rules

4.—(1) The Act of Sederunt (Summary Cause Rules) 2002(22) is amended in accordance with the following sub-paragraphs.

(2) In rule 1.1(2) (interpretation), after the definition of “authorised lay representative” there shall be inserted the following:–

““enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;”.

(3) In rule 2.1(representation)–

(a)for paragraph (1) there shall be substituted the following:–

“(1) A party may be represented by–

(a)an advocate;

(b)a solicitor;

(c)a person authorised under any enactment to conduct proceedings in the sheriff court, in accordance with the terms of that enactment; and

(d)subject to paragraphs (2) and (4), an authorised lay representative.”; and

(b)in paragraph (3), for “an authorised lay representative” there shall be substituted “the persons referred to in paragraph (1)(c) and (d) above”.

(4) In rule 23.3 (expenses), in paragraphs (3) and (4)(i), after “representative” there shall be inserted “or a person authorised under any enactment to conduct proceedings in the sheriff court”.

(5) In rule 24.1(7) (recall of decree), for “in terms of rule 8.3” there shall be substituted “as a hearing held under rules 8.2(3) to (7) and 8.3”.

(6) In rule 30.4 (preservation of defender’s goods and effects) “and the defender is neither present nor represented” shall be omitted.

(7) After Chapter 36 (equality enactments)(23) there shall be inserted–

“Chapter 37LIVE LINKS

37.1.—(1) On cause shown, a party may apply by incidental application for authority for the whole or part of–

(a)the evidence of a witness or the party to be given; or

(b)a submission to be made,

through a live link.

(2) in paragraph (1)–

“witness” means a person who has been or may be cited to appear before the court as a witness;

“submission” means any oral submission which would otherwise be made to the court by the party or his representative in person including an oral submission in support of an incidental application; and

“live link” means a live television link or such other arrangement as may be specified in the incidental application by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the court room.”.

Amendment of Small Claim Rules

5. The Act of Sederunt (Small Claim Rules) 2002(24) shall be amended as follows:–

(a)in rule 1.1(2) (interpretation), after the definition of “authorised lay representative” there shall be inserted the following:–

““enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;”.

(b)in rule 2.1 (representation)–

(i)for paragraph (1) there shall be substituted the following:–

“(1) A party may be represented by–

(a)an advocate;

(b)a solicitor;

(c)a person authorised under any enactment to conduct proceedings in the sheriff court, in accordance with the terms of that enactment; and

(d)subject to paragraph (3), an authorised lay representative.”; and

(ii)in paragraph (2), for “An authorised lay representative” there shall be substituted “The persons referred to in paragraph (1)(c) and (d) above”;

(c)in rule 21.6(3) (expenses), in sub-paragraphs (b) and (c)(i), after “representative” there shall be inserted “or a person authorised under any enactment to conduct proceedings in the sheriff court”;

(d)in rule 22.1(8) (recall of decree: hearing), for “the Hearing held in terms of rule 9.1(2)” there shall be substituted “a Hearing under rules 9.1(4) to (8) and 9.2”;

(e)after Chapter 26 (equality enactments)(25) there shall be inserted the following:–

“Chapter 27LIVE LINKS

27.1.—(1) On cause shown, a party may apply by incidental application for authority for the whole or part of–

(a)the evidence of a witness or the party to be given; or

(b)a submission to be made,

through a live link.

(2) in paragraph (1)–

“witness” means a person who has been or may be cited to appear before the court as a witness;

A C HAMILTON

Lord President, I.P.D.

Edinburgh

12th January 2007

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 as follows.

(1) Paragraph 2 amends the Ordinary Cause Rules:

(a)to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));

(b)to make provision to allow a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraphs (3) and (11));

(c)to make provision for appropriate forms to be used where the defender may apply for a time order under the Consumer Credit Act 1974 (sub-paragraphs (4) to (9) and (12));

(d)to provide for intimation of specifications under rule 28.8(2) to the Advocate General for Scotland in appropriate cases and for the right of the Advocate General to appear at a hearing under that rule (sub-paragraph (10));

(e)to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (13));

(f)to make a minor amendment to the rule 33.27A in respect of applications for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 and to clarify that the simplified divorce procedure does not apply where either party makes such an application (sub-paragraphs (14) and (15));

(g)to make related consequential amendments to the forms set out in Appendix 1 to the Ordinary Cause Rules (sub-paragraph (16)).

(h)Paragraph 3 amends the Summary Application Rules:

(i)to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));

(j)to make provision for appropriate forms to be used where the defender may apply for a time order under the Consumer Credit Act 1974 (sub-paragraphs (3), (4) and (6);

(k)to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (5)); and

(l)to make provision to allow a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraph (5));

(2) Paragraph 4 amends the Summary Cause Rules:

(a)to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));

(b)to make provision allowing a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraphs (3) and (4));

(c)to clarify the procedure following recall of decree under rule 24.1 (sub-paragraph (5));

(d)to allow the sheriff to give directions for the preservation of the defender’s goods and effects in all cases where decree is pronounced in an action for the recovery of possession of heritable property (sub-paragraph (6));

(e)to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (7)).

(3) Paragraph 5 amends the Small Claim Rules:

(a)to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (a));

(c)to clarify the procedure following recall of decree under rule 22.1 (sub-paragraph (d));

(d)to make provisions for the giving of evidence and the making of submissions by a live link (sub-paragraph (e)).

(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, the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2), and was extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49.

(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, 2005/20, 189, 638 and 648 and 2006/207, 293, 410 and 509.

(3)

Rule 3.3 was amended by S.S.I. 2005/638.

(4)

1974 c. 39.

(5)

Rule 5.2 was amended by S.S.I. 2006/207.

(6)

Rule 9A.4 was inserted by S.S.I. 2004/197.

(7)

Rule 28.2(3) was substituted by S.I. 1996/2445.

(8)

1975 c. 47.

(9)

Rule 33.27A was substituted by S.S.I. 2006/207.

(10)

Rule 33.73(1)(g) was inserted by S.S.I. 2006/207.

(11)

Section 3A was inserted by section 15 of the Family Law (Scotland) Act 2006 (asp 2).

(12)

Form 05 was substituted by S.S.I. 2000/239.

(13)

Form 06 was substituted by S.S.I. 2002/7.

(14)

Form F31 was amended by S.S.I. 2006/207.

(15)

Form F33 was inserted by S.S.I. 2006/207.

(16)

Form F33A was inserted by S.S.I. 2006/207.

(17)

Form F34 was amended by S.S.I. 2006/207.

(18)

Form F35 was amended by S.S.I. 2006/207.

(19)

Form F35A was inserted by S.S.I. 2006207.

(20)

S.I. 1999/929, amended by S.S.I. 2000/18 and 387, 2001/142, 2002/7, 129, 130, 146 and 583, 2003/26, 27, 98, 261, 319, 346 and 556, 2004/197, 222, 334 and 455, 2005/61, 473, 504 and 648 and 2006/410, 437 and 509.

(21)

1975 c. 47.

(22)

S.S.I. 2002/132, amended by S.S.I. 2002/516, 2003/216, 2004/197, 2005/648 and 2006/509.

(23)

Chapter 36 was inserted by S.S.I. 2006/509.

(24)

S.S.I. 2002/133, amended by S.S.I. 2003/26, 2004/197, 2005/648 and 2006/509.

(25)

Chapter 26 was inserted by S.S.I. 2006/509.