Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011

Recall of decree

17.—(1) The Small Claim Rules are amended in accordance with the following subparagraphs.

(2) For rule 22.1 (recall of decree)(1) substitute—

“Recall of decree

22.1.— (1) A party may apply for recall of a decree granted under any of the following provisions—

(a) rule 8.1(3);

(b) paragraph (6), (7) or (8) of rule 9.1; or

(c) rule 11.1(8).

(2) The application is to be by minute in Form 20, which must be lodged with the sheriff clerk.

(3) The application must include where appropriate (and if not already lodged with the sheriff clerk), the proposed defence or the proposed answer to the counterclaim.

(4) A party may apply for recall of a decree in the same claim on one occasion only.

(5) A minute for recall of a decree of dismissal must be lodged within 14 days of the date of decree.

(6) Subject to paragraphs (7) and (8), a minute for recall of any other kind of decree may be lodged at any time before the decree is fully implemented.

(7) Subject to paragraph (8), where a charge or arrestment has been executed following the decree, the minute must be lodged within 14 days of that execution (or the first such execution where there has been more than one).

(8) In the case of a party seeking recall who was served with the action under rule 6.5, the minute must be lodged—

(a) within a reasonable time of such party having knowledge of the decree against him or her; but

(b) in any event, within one year of the date of decree.

(9) On the lodging of a minute for recall of a decree, the sheriff clerk must fix a date, time and place for a hearing of the minute.

(10) Where a hearing has been fixed under paragraph (9), the party seeking recall must, not less than 7 days before the date fixed for the hearing, serve upon the other party—

(a) a copy of the minute in Form 20a; and

(b) a note of the date, time and place of the hearing.

(11) Paragraph (12) applies if the party seeking recall—

(a) is not a partnership or body corporate;

(b) is not acting in a representative capacity; and

(c) is not represented by a solicitor.

(12) The sheriff clerk must assist such party to complete and lodge the minute for recall and arrange service of the minute for recall—

(a) by first class recorded delivery post; or

(b) on payment of the fee prescribed by the Scottish Ministers by order, by sheriff officer.

(13) At a hearing fixed under paragraph (9), the sheriff must recall the decree so far as not implemented and the hearing must then proceed as a hearing held under rules 9.1(4) to (8) and 9.2.

(14) A minute for recall of a decree, when lodged and served in terms of this rule, will have the effect of preventing any further action being taken by the other party to enforce the decree.

(15) On receipt of the copy minute for recall of a decree, any party in possession of an extract decree must return it forthwith to the sheriff clerk.

(16) If it appears to the sheriff that there has been any failure or irregularity in service of the minute for recall of a decree, the sheriff may order re-service of the minute on such conditions as the sheriff thinks fit.”.

(3) In Appendix 1 (forms), in Forms 20 and 20a—

(a) omit “Reason for failure to appear or be represented:”; and

(b) insert “*” before “Proposed defence/answer”.

(1)

Rule 22.1 was amended by S.S.I. 2007/6.