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Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2008

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Scottish Statutory Instruments

2008 No. 365

SHERIFF COURT

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2008

Made

7th November 2008

Coming into force in accordance with paragraph 1(1), (2) and (3)

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 section 11(6) of the UK Borders Act 2007(2), this instrument making provision for a purpose mentioned in section 2(2) of the European Communities Act 1972(3), and it appearing to the Lords of Council and Session that it is expedient for the reference to Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000(4) to be construed as a reference to that instrument as amended from time to time, under and by virtue of the powers conferred by paragraph 1A of Schedule 2 to the European Communities Act 1972(5), and under and by virtue of all other powers enabling them in that behalf, and 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, commencement and interpretation

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 2) 2008 and, subject to subparagraphs (2) and (3), shall come into force on 13th November 2008.

(2) Paragraph 6 shall come into force on 25th November 2008.

(3) Paragraphs 2 to 5 shall come into force on 1st December 2008.

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

(5) In this Act of Sederunt–

“the Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907(6);

“the Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999(7);

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(8);

“the Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(9).

Commercial actions

2.  In Forms O4 and O5 in Appendix 1 of the Ordinary Cause Rules, after the paragraph commencing “IF YOU WISH TO DEFEND THIS ACTION” insert the following paragraph:–

  • IF THE WORDSCOMMERCIAL ACTIONAPPEAR AT THE HEAD OF THIS INITIAL WRIT then you should note that this action is a commercial action governed by Chapter 40 of the Ordinary Cause Rules 1993. You should also note in particular that if you lodge a notice of intention to defend you must then lodge defences within 7 days of the expiry of the period of notice. You will receive no further notification of this requirement from the court..

Interim Diligence

3.  After rule 31.2 of the Ordinary Cause Rules insert–

Appeals in connection with interim diligence

31.2A.  An interlocutor–

(a)loosing, restricting, varying or recalling an arrestment or an interim attachment;

(b)recalling in whole or in part, or varying an inhibition used on the dependence of an action; or

(c)refusing to loose, restrict or recall such arrestment, attachment or inhibition,

may be appealed to the sheriff principal, without leave of the sheriff, within 14 days after the date of the interlocutor..

Notice to admit

4.  In rule 29.14 of the Ordinary Cause Rules (notices to admit and notices of non-admission), subparagraph (4) is omitted.

Specification of Documents

5.—(1) The Summary Cause Rules are amended in accordance with the following subparagraphs.

(2) For paragraph (6) of rule 34.2 (form of summons) substitute–

(6) Where a summons includes a specification of documents in accordance with paragraph (5)(b) it shall be intimated to–

(a)in respect of an application under section 1(1) of the Administration of Justice (Scotland) Act 1972(10), any third party haver; and

(b)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..

(3) For Form 10e in Appendix 1, substitute Form 10e set out in the Schedule to this Act of Sederunt.

UK Borders Act 2007

6.  After Part XXXV of the Summary Application Rules(11) insert–

Part XXXVIUK BORDERS ACT 2007

Interpretation

3.36.1.  In this Part–

the Act” means the UK Borders Act 2007(12); and

“an appeal” means an appeal to the sheriff under section 11(1) of the Act.

Appeals

3.36.2.(1) Subject to paragraph (2), an appeal must be lodged with the sheriff clerk not later than 21 days after the date the penalty notice was received by the appellant.

(2) Where the appellant has given notice of objection under section 10(1) of the Act, an appeal must be lodged with the sheriff clerk not later than 21 days after the date that notice of the Secretary of State’s decision under section 10(4) of the Act was received by the appellant..

Service under the EC Service Regulation

7.  In rule 5.5 of the Ordinary Cause Rules (service on persons furth of Scotland)–

(a)in paragraphs (1A) and (6)(b)(13) for “the Council Regulation” substitute “the EC Service Regulation”; and

(b)for paragraph (8)(14) substitute–

(8) In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time(15)..

8.  In rule 2.12 of the Summary Application Rules (service on persons furth of Scotland)–

(a)in paragraphs (1A) and (6)(b)(16) for “the Council Regulation” substitute “the EC Service Regulation”; and

(b)for paragraph (8)(17) substitute–

(8) In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time(18)..

9.  In rule 5.7 of the Summary Cause Rules (service on persons outwith Scotland)–

(a)in paragraphs (4) and (12)(b)(19) for “the Council Regulation” substitute “the EC Service Regulation”; and

(b)for paragraph (14)(20) substitute–

(14) In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time..

10.  In rule 6.5 of the Small Claim Rules (service on persons outwith Scotland)–

(a)in paragraphs (4) and (12)(b)(21) for “the Council Regulation” substitute “the EC Service Regulation”; and

(b)for paragraph (15)(22) substitute–

(15) In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time..

A. C. Hamilton

Lord President I.P.D.

Edinburgh

7th November 2008

SCHEDULEParagraph 5(3)

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.

Paragraph 2 amends Forms O4 and O5 of the Ordinary Cause Rules by inserting a paragraph which provides information about certain procedural steps to take in relation to defending commercial actions.

Paragraph 3 amends the Ordinary Cause Rules by inserting a new rule into Chapter 31 (appeals) making provision for appeal to the sheriff principal of specified interlocutors without the requirement for leave to be obtained.

Paragraph 4 omits subparagraph (4) of rule 29.14 of the Ordinary Cause Rules relating to notices to admit and notices of non-admission.

Paragraph 5 amends the Summary Cause Rules in relation to specification of documents in actions of damages for personal injury. Existing Form 10e is replaced by a new form.

Paragraph 6 inserts a new Part XXXVI into the Summary Application Rules to make provision in relation to the period for lodging an appeal under section 11(1) of the UK Borders Act 2007.

Paragraphs 7 to 10 amend the Ordinary Cause Rules, Summary Application Rules, Summary Cause Rules and Small Claims Rules 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.

(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 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 and the Bankruptcy and Diligence (Scotland) Act 2007 (asp 3), section 33.

(4)

O.J. No. L 324, 10.12.2007, p.79.

(5)

Paragraph 1A of Schedule 2 was inserted by section 28 of the Legislative and Regulatory Reform Act 2006 (c. 51).

(6)

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 560, 2003/25 and 26, 2004/197 and 350, 2005/20, 189, 638 and 648 and 2006/198, 207, 293, 410 and 509, 2007/6, 339, 440 and 463 and 2008/121 and 223.

(7)

S.I. 1999/929, amended by S.S.I. 2000/18 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, 504 and 648, 2006/198 and 410, 437 and 509, 2007/6, 233, 339, 440 and 463 and 2008/9, 41, 111, 223 and 335.

(11)

Part XXXV was inserted by S.S.I. 2008/335.

(13)

Rule 5.5(1A) and (6)(b) were inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(14)

Rule 5.5(8) was inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(15)

O.J. No. L 324, 10.12.2007, p. 79.

(16)

Rule 2.12(1A) and (6)(b) were inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(17)

Rule 12.2(8) was inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(18)

O.J. No. L 324, 10.12.2007, p. 79.

(19)

Rule 5.7(4) and (12)(b) were inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(20)

Rule 5.7(14) was inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(21)

Rule 6.5 was inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

(22)

Rule 6.5(15) was inserted by S.S.I. 2004/197 and substituted by S.S.I. 2007/440.

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