Sheriff Courts (Scotland) Act 1907

Appointment of curators ad litem to defenders S

33A.16. (1) [F1 This rule applies to a civil partnership action] where it appears to the court that the defender [F2 has] a mental disorder.

(2) In an action to which this rule applies, the sheriff shall [F3 , after the expiry of the period for lodging a notice of intention to defend]–

(a) appoint a curator ad litem to the defender;

[F4 (b) make an order requiring the curator ad litem to lodge in process a report, based on medical evidence, stating whether or not, in the opinion of a suitably qualified medical practitioner, the defender is incapable of instructing a solicitor to represent the defender’s interests.]

(3) Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him—

(a) a copy of the initial writ and any defences (including any adjustments and amendments) lodged; and

(b) a copy of any notice in [F5 Form G5A sent to the curator ad litem] by the sheriff clerk.

[F6 (4) On lodging a report under paragraph (2)(b), the curator ad litem must intimate that this has been done to—

(a) the pursuer; and

(b) the solicitor for the defender, if known.]

[F7 (5) Within 14 days after the report required under paragraph (2)(b) has been lodged, the curator ad litem must lodge in process one of the writs mentioned in paragraph (6).]

(6) The writs referred to in paragraph (5) are–

(a) a notice of intention to defend;

(b) defences to the action;

(c) a minute adopting defences already lodged; and

(d) a minute stating that the curator ad litem does not intend to lodge defences.

(7) Notwithstanding that he has lodged a minute stating that he does not intend to lodge defences, a curator ad litem may appear at any stage of the action to protect the interests of the defender.

[F8 (8) At such intervals as the curator ad litem considers reasonable having regard to the nature of the defender’s mental disorder, the curator ad litem must review the defender’s capacity to instruct a solicitor, in order to ascertain whether it is appropriate for the appointment to continue.

(8A) If it appears to the curator ad litem that the defender may no longer be incapable, the curator ad litem must by motion seek the sheriff’s permission to obtain an opinion on the matter from a suitably qualified medical practitioner.

(8B) If the motion under paragraph (8A) is granted, the curator ad litem must lodge in process a copy of the opinion as soon as possible.

(8C) Where the opinion concludes that the defender is not incapable of instructing a solicitor, the curator ad litem must seek discharge from appointment by minute.]

(9) The pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until–

(a) he lodges a minute stating that he does not intend to lodge defences;

(b) he decides to instruct the lodging of defences or a minute adopting defences already lodged; or

(c) being satisfied after investigation that the defender [F9 is not incapable of instructing a solicitor], he is discharged.

Textual Amendments

F1 Words in Sch. 1 rule 33A.16 substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 6(2) (with para. 15)

F2 Word in Sch. 1 rule 33A.16(1) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(a) (with para. 4)

F3 Words in Sch. 1 rule 33A.16(2) inserted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(b)(i) (with para. 4)

F4 Sch. 1 rule 33A.16(2)(b) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(b)(ii) (with para. 4)

F5 Words in Sch. 1 rule 33A.16(3)(b) substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(18) (with para. 3)

F6 Sch. 1 rule 33A.16(4) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(c) (with para. 4)

F7 Sch. 1 rule 33A.16(5) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(d) (with para. 4)

F8 Sch. 1 rule 33A.16(8)-(8C) substituted for Sch. 1 rule 33A.16(8) (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(e) (with para. 4)

F9 Words in Sch. 1 rule 33A.16(9)(c) substituted (1.6.2017) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Curators ad litem) 2017 (S.S.I. 2017/132), paras. 1(2), 2(5)(f) (with para. 4)