Act of Sederunt (Sheriff Court Ordinary Cause Rules Amendment) (Miscellaneous) 2000 No. 239

Scottish Statutory Instruments

2000 No. 239

SHERIFF COURT

Act of Sederunt (Sheriff Court Ordinary Cause Rules Amendment) (Miscellaneous) 2000

Made

12th July 2000

Coming into force

2nd October 2000

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 13 of the Sheriff Courts (Scotland) Extracts Act 1892(1), section 32 of the Sheriff Courts (Scotland) Act 1971(2) and of all other powers enabling them in that behalf, having approved, with modifications, 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 and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Ordinary Cause Rules Amendment) (Miscellaneous) 2000 and shall come into force on 2nd October 2000.

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

Amendment of Savings

2.  For paragraph 6 of the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993(3) there is substituted the following:–

“Savings for causes already commenced

6.— (1) Subject to paragraph (2) below, nothing in this Act of Sederunt shall affect any cause commenced before the date of the coming into force of this Act of Sederunt, and any such cause shall proceed according to the law and practice in force immediately before that date.

(2) Where–

(a) a family action as defined in rule 33.1 of the Ordinary Cause Rules 1993 was commenced prior to 1st January 1994;

(b) decree has been granted in that action; and

(c) an application is made to the court on or after 2nd October 2000 to vary that decree,

that application, and any subsequent application in the same process, shall proceed in accordance with the Ordinary Cause Rules 1993.”.

Amendment of Ordinary Cause Rules 1993

3.—(1) The Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907(4) shall be amended in accordance with the following paragraphs.

(2) In rule 8.1 (reponing) after paragraph (4), there is inserted the following:–

“(4A) Where an initial writ has been served on a defender furth of the United Kingdom under rule 5.5(1)(b) (service on persons furth of Scotland) and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the defender applying to be reponed in accordance with paragraph (1) above, recall the decree and allow defences to be received if–

(a) without fault on his part, he did not have knowledge of the initial writ in sufficient time to defend;

(b) he has disclosed a prima facie defence to the action on the merits; and

(c) the reponing note is lodged within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of decree.”.

(3) In rule 9.2 (fixing date for Options Hearing)–

(a) in paragraph (1), at the beginning insert the words “Subject to paragraph (1A),”; and

(b) after paragraph (1), there is inserted the following:–

“(1A) Where in a family action–

(i) the only matters in dispute are an order in terms of section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.)(5); or

(ii) the matters in dispute include an order in terms of section 11 of that Act,

there shall be no requirement to fix an Options Hearing in terms of paragraph (1) above insofar as the matters in dispute relate to an order in terms of section 11(2) of the Children (Scotland) Act 1995.

(1B) In paragraph (1A) above, “family action” has the meaning given to it in rule 33.1(1).”.

(4) In rule 9.14 (exchange of lists of witnesses)–

(a) for paragraph (1), there is substituted the following:–

“(1) Within 28 days after the date of the interlocutor allowing a proof or proof before answer, each party shall–

(a) intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence he intends to rely at proof; and

(b) lodge a copy of that list in process.”; and

(b) in paragraph (2)–

(i) for the words “call as a witness” there are substituted the words “rely on the evidence of”;

(ii) for the words “a witness being called” there are substituted the words “evidence being admitted”; and

(iii) for the words “call that person as a witness” there are substituted the words “admit that evidence whether it is to be given orally or not”.

(5) After rule 15.5 (hearing of motions), there is inserted the following:–

“Motions to sist

15.6.— (1) Where a motion to sist is made, either orally or in writing in accordance with rule 15.1(1)(a) or (b)–

(a) the reason for the sist shall be stated by the party seeking the sist; and

(b) that reason shall be recorded in the interlocutor.

(2) Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.”.

(6) In rule 17.2 (applications for summary decree), paragraph (3) is omitted.

(7) In rule 18.3 (applications to amend) after paragraph (2) there is inserted the following:–

“(3) Any adjustment to any minute of amendment or answers shall be exchanged between parties and not lodged in process.

(4) Parties shall be responsible for maintaining a record of adjustment made and the date of their intimation.

(5) No adjustments shall be permitted after the period of adjustment allowed, except with leave of the sheriff.

(6) Each party shall, no later than 2 days before the hearing fixed in terms of paragraph (2), lodge in process a copy of their minute of amendment or answers with all adjustments made thereto in italic or bold type, or underlined.”.

(8) In rule 22.1 (note of basis of preliminary plea), in paragraph (4), after the word “may” insert the words “on cause shown”.

(9) In rule 24.1 (intimation of withdrawal to court)–

(a) in paragraph (1), at the beginning of that paragraph insert the words “Subject to paragraph (3),”;

(b) in paragraph (2), after the word “shall” insert the word “forthwith”; and

(c) after paragraph (2), insert the following–

“(3) Where a solicitor withdraws from acting on behalf of a party in open court and in the presence of the other parties to the action or their representatives, paragraph (1) shall not apply.”.

(10) In rule 24.2 (intimation to party whose solicitor has withdrawn)–

(a) in paragraph (1), at the beginning insert “Subject to paragraph (1A),”; and

(b) after paragraph (1) insert–

“(1A) Where any previously fixed diet is to occur within 14 days from the date when the sheriff first considers the solicitor’s withdrawal, the sheriff may either–

(a) pronounce an interlocutor in accordance with paragraph (1); or

(b) consider the matter at the previously fixed diet.”.

(11) Rule 29.3 (evidence generally) is omitted.

(12) In rule 29.11 (lodging productions), in paragraph (1), after the words “productions” insert the words “and affidavits”.

(13) In rule 29.12 (copy productions), in paragraph (1), after the word “every” insert the word “documentary”.

(14) In rule 29.14 (notices to admit and notices of non admission)–

(a) in paragraph (1), for the words “a proof has been allowed” there are substituted the words “the record has closed”; and

(b) after paragraph (6), there is inserted the following:–

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

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

(15) In rule 33.44 (applications after decree relating to a section 11 order), after the word “order” in paragraph (1) there shall be inserted the words “or in relation to the enforcement of such an order”.

(16) In rule 33.62 (defenders in action for a section 11 order), paragraph (e) is omitted.

(17) In rule 33.76 (citation and intimation)–

(a) for paragraph (4) there is substituted the following:–

“(4) The citation or intimation required by paragraph (2) shall be made–

(a) by the sheriff clerk by registered post or the first class recorded delivery service in accordance with rule 5.3 (postal service or intimation);

(b) on payment of an additional fee, by a sheriff officer in accordance with rule 5.4(1) and (2) (service within Scotland by sheriff officer); or

(c) where necessary, by the sheriff clerk in accordance with rule 5.5 (service on persons furth of Scotland).”; and

(b) after paragraph (4), there is inserted the following:–

“(5) Where citation or intimation is made in accordance with paragraph (4)(c), the translation into an official language of the country in which service is to be executed required by rule 5.5(6) shall be provided by the party lodging the simplified divorce application.”.

(18) After rule 34.10 (applications under Part II of the Conveyancing and Feudal Reform (Scotland) Act 1970), there is inserted the following:–

“Service on unnamed occupiers

34.11.— (1) Subject to paragraph (2), this rule applies only to a crave for removing in an action of removing against a person or persons in possession of heritable property without right or title to possess the property.

(2) This rule shall not apply with respect to a person who has or had a title or other right to occupy the heritable property and who has been in continuous occupation since that title or right is alleged to have come to an end.

(3) Where this rule applies, the pursuer may apply by motion to shorten or dispense with the period of notice or other period of time in these Rules relating to the conduct of the action or the extracting of any decree.

(4) Where the name of a person in occupation of the heritable property is not known and cannot reasonably be ascertained, the pursuer shall call that person as a defender by naming him as an “occupier”.

(5) Where the name of a person in occupation of the heritable property is not known and cannot reasonably be ascertained, the initial writ shall be served (whether or not it is also served on a named person), unless the court otherwise directs, by a sheriff officer–

(a) affixing a copy of the initial writ and a citation in Form H5 addressed to “the occupiers” to the main door or other conspicuous part of the premises, and if practicable, depositing a copy of each of those documents in the premises; or

(b) in the case of land only, inserting stakes in the ground at conspicuous parts of the occupied land to each of which is attached a sealed transparent envelope containing a copy of the initial writ and a citation in Form H5 addressed to “the occupiers”.”.

(19) In Chapter 36 (actions of damages), after Part IV (management of damages payable to persons under legal disability), insert the following–

“PART IV A PRODUCTIONS IN CERTAIN ACTIONS OF DAMAGES

Application of this Part

36.17A.   This Part applies to an action of damages for personal injuries or the death of a person in consequence of personal injuries.

Averments of medical treatment

36.17B.   The condescendence of the initial writ in an action to which this Part applies shall include averments naming–

(a) every general medical practitioner or general medical practice from whom; and

(b) every hospital or other institution in which,

the pursuer or, in an action in respect of the death of a person, the deceased received treatment for the injuries sustained, or disease suffered, by him.

Lodging of medical reports

36.17C.— (1) In an action to which this Part applies, the pursuer shall lodge as productions, with the initial writ when it is presented for warranting in accordance with rule 5.1, all medical reports on which he intends, or intends to reserve the right, to rely in the action.

(2) Where no medical report is lodged as required by paragraph (1), the defender may apply by motion for an order specifying a period within which such a report shall be lodged in process.”.

(20) In rule 37.2 (parties to, and service and intimation of, actions of declarator)–

(a) for paragraph (1), there is substituted the following:–

“(1) In an action of declarator–

(a) the missing person shall be named as the defender;

(b) subject to paragraph (2), service on that person shall be executed by advertisement in such newspaper or other publication as the sheriff thinks fit of such facts relating to the missing person and set out in the initial writ as the sheriff may specify; and

(c) the period of notice shall be 21 days from the date of publication of the advertisement unless the sheriff otherwise directs.”;

(b) for paragraph (2), substitute–

“(2) The advertisement mentioned in paragraph (1) shall be in Form P1.”; and

(c) in paragraph (4), for the word “summons” substitute the words “initial writ”.

(21) In rule 38.1 (interpretation of this Chapter), in paragraph (1)(a), for “177” substitute “234”(6).

(22) In rule 38.2 (applications for reference), paragraph (2) is omitted.

(23) In rule 38.3 (preparation of case for reference), after paragraph (1) there is inserted–

“(1A) Except in so far as the sheriff may otherwise direct, a reference shall be prepared in accordance with Form E1, having regard to the guidance set out in the Notes for Guidance issued by the Court of Justice of the European Communities(7).”

(24) After Chapter 38 (European Court), insert the following–

“CHAPTER 39 PROVISIONS IN RELATION TO CURATORS AD LITEM

Fees and outlays of curators ad litem in respect of children

39.1.— (1) This rule applies to any civil proceedings whether or not the child is a party to the action.

(2) In an action where the sheriff appoints a curator ad litem to a child, the pursuer shall in the first instance, unless the court otherwise directs, be responsible for the fees and outlays of the curator ad litem incurred during the period from his appointment until the occurrence of any of the following events:–

(a) he lodges a minute stating that he does not intend to lodge defences or to enter the process;

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

(c) the discharge, before the occurrence of the events mentioned in sub paragraphs (a) and (b), of the curator.”.

(25) In Appendix 1 (forms)–

(a) for Form E1 substitute Form E1 set out in Schedule 1 to this Act of Sederunt;

(b) for Forms F26, F41 and G13, substitute Forms F26, F41 and G13 set out in Schedule 1 to this Act of Sederunt;

(c) after Form H4, insert Form H5 set out in Schedule 1 to this Act of Sederunt;

(d) for Forms 04, 05 and 07, substitute Forms 04, 05 and 07 set out in Schedule 1 to this Act of Sederunt; and

(e) in Form P1, after the first paragraph, insert the following:–

“(insert such facts relating to the missing person as set out in the initial writ as the sheriff may specify)”.

(26) In Appendix 2 (forms for extract decrees)–

(a) for Forms 10, 11 and 12, substitute Forms 10, 11 and 12 set out in Schedule 2 to this Act of Sederunt; and

(b) Form 13 shall be omitted.

Revocation

4.  The Act of Sederunt (Presumption of Death) 1978(8) is hereby revoked.

Rodger of Earlsferry

Lord President I.P.D.

Edinburgh

12th July 2000

Paragraph 3(25).

SCHEDULE 1

Rule 38.3(1A)

“FORM E1 Form of reference to the European Court

”

Rules 33.11(1) and 33.34(2)(a)

FORM F26 Form of notice of intention to defend in family actionNOTICE OF INTENTION TO DEFEND

Rule 33.22A(2)

FORM F41 Form of intimation to parties of a Child Welfare Hearing

Rules 28.4(4) and 29.7(4)

FORM G13 Form of citation of witness or haver

Rule 34.11(4)

FORM H5 Form of citation of unnamed occupiers

Rule 5.2(1)

FORM 04 Form of Citation

Rule 5.2(2)

FORM 05 Form of citation where time to pay direction may be applied for

Rules 5.2(1) and 9.1(1)

FORM 07 Form of notice of intention to defend

Paragraph 3(26)

SCHEDULE 2

FORM 10 Form of extract decree of divorce

FORM 11 Form of extract decree of separation and aliment

FORM 12 Form of extract decree: Residence Order/Contact Order and aliment

Explanatory Note

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

This Act of Sederunt amends the Ordinary Cause Rules 1993 by:–

(a) amending the savings provisions in the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 so that the Ordinary Cause Rules 1993 apply where an application is made to the court on or after the date of coming into force of this Act of Sederunt to vary a decree granted in a family action which was commenced prior to 1st January 1994 (paragraph 2);

(b) amending rule 8.1 (reponing) so as to properly implement the provisions in Article 16 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dated 15th November 1965 (paragraph 3(2));

(c) amending rule 9.2 (fixing date for Options Hearing) so as to make it clear that where the only matters in dispute between the parties are orders in terms of section 11(2) of the Children (Scotland) Act 1995, there is no requirement to fix an Options hearing (paragraph 3(3));

(d) amending rule 9.14 (exchange of lists of witnesses) so as to require parties to lodge a copy of the list of witnesses in process within 28 days after the date of the interlocutor allowing a proof or proof before answer (paragraph 3(4));

(e) inserting rule 15.6 (motions to sist) so as to require parties to state a reason for seeking a sist to require the reason to be recorded in the interlocutor and making provision for the sheriff to recall a sist (paragraph 3(5));

(f) amending rule 17.2 (applications for summary decree) by omitting paragraph (3) which contradicted the term of rule 15.1(2) (lodging of motions) (paragraph 3(6));

(g) amending rule 18.3 (applications to amend) to amend the procedure for the adjustment of a minute of amendment and answers (paragraph 3(7));

(h) amending rule 22.1 (note of basis of preliminary plea) so as to require agents to address the sheriff on whether matters not included in a rule 22.1 note should be admitted to debate (paragraph 3(8));

(i) amending rule 24.1 (intimation of withdrawal to court) so as to require the sheriff clerk to lodge forthwith in process any letter received from a solicitor who has withdrawn from acting on behalf of a party and to make it clear that where a solicitor withdraws from acting in open court and in the presence of the other parties to the action or their representatives, there shall be no requirement for him to intimate his withdrawal to the sheriff clerk and to every other party (paragraph 3(9));

(j) amending rule 24.2 (intimation to party whose solicitor has withdrawn) so as to provide that the diet fixed by the sheriff for the party whose solicitor has withdrawn from acting to appear to state whether or not he intends to proceed may take place within 14 days after the date of the interlocutor fixing such diet where an earlier diet has already been fixed or where the sheriff otherwise directs (paragraph 3(10));

(k) omitting rule 29.3 (evidence generally) (paragraph 3(11));

(l) amending rule 29.11 (lodging productions) to require affidavits which are to be referred to at a proof to be lodged not later than 14 days before the date of proof (paragraph 3(12));

(m) amending rules 29.12 (copy productions) and 29.14 (notices to admit and notices of non admission) and inserting a new Part IV A (productions in certain actions of damages) into Chapter 36 (actions of damages) so as to harmonise these rules with the provisions in the Rules of the Court of Session 1994 (paragraphs 3(13), (14) and (19);

(n) amending rule 33.44 (applications after decree relating to a section 11 Order) so as to provide that an application for the enforcement of an Order under section 11 of the Children (Scotland) Act 1995 may be made by minute in the process of the action to which the application relates (paragraph 3(15));

(o) amending rule 33.62 (defenders in action for a section 11 Order) so as to omit the requirement on the pursuer to call the Lord Advocate as a defender where there is no person falling within paragraphs (a) to (d) of that rule (paragraph 3(16));

(p) amending rule 33.76 (citation and intimation) so as to allow the sheriff clerk to cite any person or intimate any document in connection with a simplified divorce application in accordance with rule 5.5 (service on persons furth of Scotland) as opposed to the sheriff clerk having to arrange for such citation or intimation to be done by a solicitor or a sheriff officer; and to provide that where the sheriff clerk does effect citation or intimation in this way, the translation into an official language required by rule 5.5(6) shall be provided by the party lodging the simplified divorce application (paragraph 3(17));

(q) inserting rule 34.11 (service on unnamed occupiers), so as to include provision for service, time periods and applications to be sisted as a defender in actions against unnamed occupiers who are in possession of heritable property without right or title so as to harmonise these rules with the Rules of the Court of Session 1994 (paragraph 3(18));

(r) amending rule 37.2 (parties to, and service and intimation of actions of declarator) so as to provide for service on the defender (missing person) to be made by newspaper advertisement and to prescribe as a period of notice the period of 21 days from the date of publication of the advertisement unless the sheriff directs otherwise (paragraph 3(20));

(s) amending rule 38.1 (interpretation of this Chapter) so as to reflect the provisions in the Treaty signed at Amsterdam on 2 October 1997 (paragraph 3(21));

(t) omitting rule 38.2 (applications for reference) (paragraph 3(22));

(u) amending rule 38.3 (preparation of case for reference) so as to ensure that a reference is drafted having regard to the Notes for Guidance issued by the Court of Justice of the European Communities (paragraph 3(23));

(v) inserting a new Chapter 39 which contains additional provisions in relation to the fees of curators ad litem appointed in respect of children (paragraph 3(24));

(w) amending the Forms in Appendix 1 by–

(i) substituting Forms E1, F26, F41, G13, 04, 05 and 07;

(ii) inserting new Form H5; and

(iii) amending Form P1 (paragraph 25);

(x) amending the forms for extract decrees in Appendix 2 by–

(i) substituting Forms 10, 11 and 12; and

(ii) omitting Form 13 (paragraph 26);

(y) revoking the Act of Sederunt (Presumption of Death) 1978.

(1)

1892 c. 17.

(2)

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).

(3)

1993/1956.

(4)

1907 c. 51; Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445.

(5)

1995 c. 36.

(6)

Article 177 was renumbered as article 234 by the Treaty signed at Amsterdam on 2nd October 1997 amending the Treaty on European Union, the Treaty establishing the European Communities and certain related Acts O.J. 97/C340/01.

(7)

The Notes for Guidance are reproduced in the Parliament House Book.

(8)

S.I. 1978/162.