Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998

Explanatory Note

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

This Act of Sederunt amends the Rules of the Court of Session 1994 as follows:

(a) paragraph 2(2) and (3) and (17)(a) simplifies certain existing procedures for the fixing and allocation of diets for hearings in the Outer and Inner Houses of the Court of Session;

(b) paragraph 2(4) clarifies a reference to arrestments and inhibitions in respect of which certain applications are to be made by motion: the reference is not to be construed as confined to diligences as respects which warrant has been inserted in the summons;

(c) paragraph 2(5) revokes paragraphs (h) and (i) of rule 14.3 and so removes the requirement that applications under section 49 of the Insurance Companies Act 1982 or under section 136 or 425 of the Companies Act 1985 be made by petition to the Inner House;

(d) paragraph 2(6) simplifies the procedures for making up and closing records; and in particular provides for the Assistant Clerk of Session to stamp the open record, at lodging, with inter alia a date of commencement for the adjustment period (being a date determined by the Deputy Principal Clerk of Session) and a date on which that period shall end;

(e) paragraph 2(7) removes from rule 37.4(which lists certain rules relating to proofs which apply also in relation to jury trials) references to rule 36.6 (that rule having been revoked by S.I. 1996/2168) and to rule 36.6 (which in its application to jury trials is replaced by new rule 37.5A added by this Act of Sederunt to the Rules of Court);

(f) paragraph 2(8) adds the new rule 37.5A, which in effect extends to all the proceedings at a jury trial such provision as is made by rule 36.11 as regards the recording and transcription of evidence at a proof;

(g) paragraph 2(9) extends the class of interlocutors pronounced on the Commercial Roll which are exempt from the requirement that leave of the commercial judge be obtained for reclaiming;

(h) paragraph 2(10) inserts a new sub-paragraph into rule 42.1(2) which enables accounts of expenses to be lodged after the four month period (or any extension allowed by the court) provided for in rule 42.1; but makes this new power subject to any conditions the court may impose;

(i) paragraph 2(11) clarifies the entitlement of a skilled witness to additional charges for his preparatory investigations whether or not a proof or jury trial is proceeded with;

(j) paragraph 2(12) revokes rule 49.60(e) (which provided, in certain circumstances, for the Lord Advocate to be the defender in an application for an order under section 11 of the Children (Scotland) Act 1995);

(k) paragraph 2(13) and (17)(c) provides a form of letters of inhibition in respect of any future or contingent debt;

(l) paragraph 2(14) brings the wording of sub-paragraph (p) of rule 67.24(2) into line with that of section 6(1)(b)(ii) of the Adoption (Scotland) Act 1978;

(m) paragraph 2(15) provides that certain petitions in applications under the Child Abduction and Custody Act 1985 are to be served on the Principal Reporter rather than on any other reporter. This reflects changes made to the Scottish Children’s Reporter Administration by Part III of the Local Government (Scotland) Act 1994;

(n) paragraph 2(16) expands, in rule 76.8(2)(c), the description of paragraph 12 of Schedule 1 to the Proceeds of Crime (Scotland) Act 1995;

(o) paragraph 2(17)(b) simplifies the completion of a form for citation by advertisement;

(p) paragraph 3 remedies the effects of errors of punctuation and numbering in Act of Sederunt (Rules of the Court of Session Amendment No.7) (Judicial Factors) 1997; and

(q) paragraph 4 provides various savings.