Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010

Citation, commencement and interpretation

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2010.

(2) This Act of Sederunt comes into force on 29th July 2010.

(3) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

(4) In this Act of Sederunt—

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

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(2).

Service of simplified divorce applications

2.  In rule 33.76(4)(b) (citation and intimation of simplified divorce applications)(3) of the Ordinary Cause Rules, for the words “and (2)” substitute “to (4)”.

Service of simplified dissolution of civil partnership applications

3.  In rule 33A.69(4)(b) (citation and intimation of simplified dissolution of civil partnership applications)(4) of the Ordinary Cause Rules, for the words “and (2)” substitute “to (4)”.

Ordinary cause personal injuries procedure

4.—(1) Part AI of Chapter 36 (special procedure for actions for, or arising from, personal injuries)(5) of the Ordinary Cause Rules is amended in accordance with the following subparagraphs.

(2) In Rule 36.E1(14)(c) (application of other rules), for the reference to “rule 36.G1(1)(b)(iii)” substitute “rule 36.G1(1A)(c)”.

(3) In Rule 36.G1 (allocation of diets and timetables)—

(a) for paragraph (1), substitute—

“(1) The sheriff clerk shall, on the lodging of defences in the action or, where there is more than one defender, the first lodging of defences—

(a) allocate a diet of proof of the action, which shall be no earlier than 4 months (unless the sheriff on cause shown directs an earlier diet to be fixed) and no later than 9 months from the date of the first lodging of defences; and

(b) issue a timetable stating—

(i) the date of the diet mentioned in subparagraph (a); and

(ii) the dates no later than which the procedural steps mentioned in paragraph (1A) are to take place.

(1A) Those procedural steps are—

(a) application for a third party notice under rule 20.1;

(b) the pursuer executing a commission for recovery of documents under rule 36.D1;

(c) the parties adjusting their pleadings;

(d) the pursuer lodging a statement of valuation of claim in process;

(e) the pursuer lodging a record;

(f) the defender (and any third party to the action) lodging a statement of valuation of claim in process;

(g) the parties each lodging in process a list of witnesses together with any productions upon which they wish to rely; and

(h) the pursuer lodging in process the minute of the pre-proof conference.

(1B) The dates mentioned in paragraph (1)(b)(ii) are to be calculated by reference to periods specified in Appendix 3, which, with the exception of the period specified in rule 36.K1(2), the sheriff principal may vary for his sheriffdom or for any court within his sheriffdom.”;

(b) after paragraph (8), insert—

“(8A) A party who seeks to rely on the evidence of a person not on his or her list lodged in accordance with paragraph (1A)(g) must, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence whether it is to be given orally or not; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(8B) The list of witnesses intimated in accordance with paragraph (1A)(g) must include the name, occupation (where known) and address of each intended witness and indicate whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004(6) and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.”;

(c) in paragraph (9), for “paragraph (1)(b)(vii)” substitute “paragraph (1A)(g)”.

(4) In rule 36.H1(1) (applications for sist or for variation of timetable), omit “or following the amendment of pleadings carried out under Chapter 18”.

(5) For rule 36.K1(4) (pre-proof conferences), substitute—

“(4) If a party is not present during the pre-proof conference, the representative of such party shall have access to the party or another person who has authority to commit the party in settlement of the action.”

(6) In Appendix 1 (forms)—

(a) in Forms PI1 (form of initial writ in a personal injuries action), PI3 (form of docquet for deemed grant of recovery of documents in a personal injuries action), PI6 (form of statement of valuation of claim) and PI7 (minute of pre-proof conference), below the title of each form insert—

“Court ref. no (        )”;

(b) in Form PI1, in paragraph 1 of the section entitled “STATEMENT OF CLAIM” after “address” insert “, National Insurance Number (where applicable)”;

(c) in Form PI6, at the end insert—

“

”

(d) in Form PI7, at the end for the words “Signed by agent for each party” substitute “Signed by each party/his or her solicitor”.

(7) For Appendix 3 (schedule of timetable under personal injuries procedure), substitute Appendix 3 set out in the Schedule to this Act of Sederunt.

(8) Subject to subparagraph (9), Part AI of Chapter 36 as it applied immediately before the date on which this paragraph comes into force continues to apply for the purpose of a personal injuries action raised but not determined prior to that date.

(9) Subparagraph (3)(b) also applies in respect of proceedings where a list of witnesses has not already been lodged by the date on which this paragraph comes into force.

Companies Act 2006: derivative proceedings

5.  After Chapter 45 (Vulnerable Witnesses (Scotland) Act 2004)(7) of the Ordinary Cause Rules, insert—

“CHAPTER 46 COMPANIES ACT 2006

Leave to raise derivative proceedings

46.1.— (1) Where leave of the court is required under section 266(1) (derivative proceedings: requirement for leave and notice) of the Companies Act 2006(8) (the “2006 Act”), the applicant must lodge, along with the initial writ, a written application in the form of a letter addressed to the sheriff clerk stating the grounds on which leave is sought.

(2) Subject to paragraph (4), an application under paragraph (1) is not to be served on, or intimated to, any party.

(3) The application is to be placed before the sheriff, who shall consider it for the purposes of section 266(3) of the 2006 Act without hearing the applicant.

(4) Service under section 266(4)(a) of the 2006 Act may be given by any of the methods provided for in Chapter 5 (citation, service and intimation) and a certificate of service must be lodged.

(5) If the company wishes to be heard it must, within 21 days after the date of service of the application, lodge written submissions setting out its position in relation to the application.

(6) Subject to section 266(4)(b) of the 2006 Act, the next stage in the proceedings is a hearing at which the applicant and the company may be heard.

(7) The sheriff clerk is to fix the hearing and intimate its date to the applicant and the company.

(8) Where an application under paragraph (1) is granted, a copy of the sheriff’s interlocutor must be served on the defender along with the warrant of citation.

Application to continue proceedings as derivative proceedings

46.2.   An application under section 267(2) (application to continue proceedings as derivative proceedings) of the 2006 Act is to be in the form of a minute and Chapter 14 (applications by minute) applies with the necessary modifications.”.

Notices to admit

6.  After rule 8.8 (evidence generally) of the Summary Cause Rules, insert—

“Notices to admit and notices of non-admission

8.8A.— (1) At any time after a form of response has been lodged, a party may intimate to any other party a notice or notices calling on him or her to admit for the purposes of that cause only—

(a) such facts relating to an issue averred in the statement of claim or form of response as may be specified in the notice;

(b) that a particular document lodged with the sheriff clerk and specified in the notice is—

(i) an original and properly authenticated document; or

(ii) a true copy of an original and properly authenticated document.

(2) Where a party on whom a notice is intimated under paragraph (1)—

(a) does not admit a fact specified in the notice, or

(b) does not admit, or seeks to challenge, the authenticity of a document specified in the notice,

he or she must, within 21 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him or her under paragraph (1) stating that he or she does not admit the fact or document specified.

(3) A party who fails to intimate a notice of non-admission under paragraph (2) will be deemed to have admitted the fact or document specified in the notice intimated to him or her under paragraph (1); and such fact or document may be used in evidence at a proof if otherwise admissible in evidence, unless the sheriff, on special cause shown, otherwise directs.

(4) The party serving a notice under paragraph (1) or (2) must lodge a copy of it with the sheriff clerk.

(5) A deemed admission under paragraph (3) must not be used—

(a) against the party by whom it was deemed to be made other than in the cause for the purpose for which it was deemed to be made; or

(b) in favour of any person other than the party by whom the notice was given under paragraph (1).

(6) The sheriff may, at any time, allow a party to amend or withdraw an admission made by him or her on such conditions, if any, as the sheriff thinks fit.

(7) A party may, at any time, withdraw in whole or in part a notice of non-admission by intimating a notice of withdrawal.”.

Other minor amendments

7.—(1) In rule 15.7(2)(a) (dismissal of action due to delay)(9) of the Ordinary Cause Rules, omit “or as the case may be”.

(2) In rule 22A.1(2) (dismissal of action due to delay)(10) of the Summary Cause Rules, omit “or as the case may be”.

(3) For the avoidance of doubt, it is confirmed that rule 11.1(3) (counterclaim) of the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(11) is omitted.

(4) In rules 2.51(1) (duties of reporting officer and curator ad litem), 2.52(2)(a) (agreement) and 2.54(3)(b) (hearing) of the Act of Sederunt (Child Care and Maintenance Rules) 1997(12) for each reference to “rule 2.50(1)” substitute “rule 2.50”.

A.C. HAMILTON

Lord President

I.P.D.

Edinburgh

1st July 2010