Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008

Explanatory Note

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

This Act of Sederunt makes amendments to the Rules of the Court of Session 1994.

Paragraph 3 amends rules 13.2, 14.4 and 47.3 and forms 13.2-A, 14.4, 43.2-A and 58.6 to provide that summons and petitions must state any special capacity in which a pursuer or petitioner is bringing proceedings, and that summons must state any special capacity in which a defender is being sued.

Paragraph 4 inserts a new Chapter 21A and rule 21A which makes provision for claims to be dismissed on the application of a party to the claim on the grounds of inordinate or inexcusable delay by another party in progressing the claim.

Paragraph 5 amends rule 16.2A to refer to applicable procedures relating to the service of documents under Regulation (EC) No. 1393/2007 of the European Parliament and of the Council on the service in EU Member States of judicial and extrajudicial documents in civil or commercial matters.

Paragraph 6 amends rules 16.4, 21.2, 50.2, 50.5 and Form 16.4 to provide for a new form of certification from a person where a document is served by first class recorded delivery post.

Paragraph 7(1) to (5) amends rules 41.20, 41.21, 41.41 and 41.44 in respect of appeals from the Employment Appeal Tribunal, appeals under Social Security legislation and, in respect of the exercise of functions transferred from a Child Support Commissioner or a Social Security Commissioner, appeals from the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007.

Paragraph 7(6) inserts a new rule 41.59 which makes provision for the criteria applicable for permission to appeal to the Court of Session from a decision of the Upper Tribunal under section 13 of the Tribunals, Courts and Enforcement Act 2007.

Paragraph 8 amends rule 43.5 by making provision for some of the aspects of Chapter 43 procedure to apply where the court appoints a personal injuries action to proceed as an ordinary action.

Paragraph 9 inserts new rules 58.7A and 58.11 which set out the mechanism by which an application to the supervisory jurisdiction of the Court of Session can be transferred from the court to the Upper Tribunal, established under the Tribunals, Courts and Enforcement Act 2007. Rule 58.7A provides for applications to be transferred to the Upper Tribunal on a mandatory basis under section 20(1)(a) of the 2007 Act when a petition for judicial review comes before the Lord Ordinary for a first order. Rule 58.11 provides a criterion for the transfer of an application on a discretionary basis (that the Lord Ordinary is satisfied that it is in all the circumstances appropriate to make such an order), provides that an order transferring the application may be made by the Lord Ordinary, having heard parties, whether or not the parties request this and provides for the times at which the Lord Ordinary may make an order transferring the application on a discretionary basis. Finally, rule 58.11 provides for an order to be made in respect of expenses incurred in the proceedings up to the time at which the application was transferred.