Act of Sederunt (Small Claim Rules) 2002

CHAPTER 17 Recovery of documents and attendance of witnesses

Diligence for recovery of documents

17.1.—(1) At any time after a summons has been served, a party may make an incidental application in writing to the sheriff to grant commission and diligence to recover documents.

(2) A party who makes an application in accordance with paragraph (1) must list in the application the documents which he wishes to recover.

(3) The sheriff may grant commission and diligence to recover those documents in the list mentioned in paragraph (2) which he considers relevant to the claim.

Optional procedure before executing commission and diligence

17.2.—(1) Any party who has obtained a commission and diligence for the recovery of documents may, at any time before executing it, serve by first class recorded delivery post on the person from whom the documents are sought to be recovered (or on his known solicitor or solicitors) an order with certificate attached in Form 15.

(2) If in a claim the party in whose favour the commission and diligence has been granted is not–

(a) a partnership or body corporate; or

(b) acting in a representative capacity,

and is not represented by a solicitor, service under paragraph (1) must be effected by the sheriff clerk posting a copy of the order together with a certificate in Form 15 by first class recorded delivery post or, on payment of the fee prescribed by the Scottish Ministers by order, by sheriff officer.

(3) Documents recovered in response to an order under paragraph (1) must be sent to, and retained by, the sheriff clerk who shall, on receiving them, advise the parties that the documents are in his possession and may be examined within his office during normal business hours.

(4) If the party who served the order is not satisfied that–

(a) full production has been made under the specification; or

(b) that adequate reasons for non-production have been given,

he may execute the commission and diligence in normal form, notwithstanding his adoption in the first instance of the procedure in paragraph (1) above.

(5) Documents recovered under this rule may be submitted as evidence at any hearing without further formality, and rule 17.3(3) and (4) shall apply to such documents.

Confidentiality of documents

17.3.—(1) In any claim where a party has obtained a commission and diligence to recover documents and the documents have been produced either–

(a) before the execution of the commission and diligence; or

(b) following execution of the commission and diligence,

confidentiality may be claimed for any document produced.

(2) Where confidentiality is claimed under paragraph (1), the documents in respect of which confidentiality is claimed shall be enclosed in a separate, sealed packet.

(3) A sealed packet referred to in paragraph (2) shall not be opened except by authority of the sheriff obtained on the application of the party who sought the commission and diligence.

(4) Before the sheriff grants an application made in accordance with paragraph (3), he shall offer to hear the party or parties from whose possession the documents specified in the commission and diligence were obtained.

Witnesses

17.4.—(1) A party shall be responsible for securing the attendance of his witnesses or havers at a hearing and shall be personally liable for their expenses.

(2) The summons or the copy served on the defender shall be sufficient warrant for the citation of witnesses or havers.

(3) The citation of a witness or haver must be in Form 16 and the certificate of execution of citation must be in Form 16a.

(4) The period of notice given to witnesses or havers cited in terms of paragraph (3) must be not less than seven days.

(5) A witness or haver shall be cited–

(a) by registered post or the first class recorded delivery service by the solicitor for the party on whose behalf he is cited;

(b) by a sheriff officer–

(i) personally;

(ii) by a citation being left with a resident at the person’s dwelling place or an employee at his place of business;

(iii) by depositing it in that person’s dwelling place or place of business;

(iv) by affixing it to the door of that person’s dwelling place or place of business; or

(v) by registered post or the first class recorded delivery service.

(6) Where service is effected under paragraph 5(b)(iii) or (iv), the sheriff officer shall, as soon as possible after such service, send by ordinary post to the address at which he thinks it most likely that the person may be found, a letter containing a copy of the citation.

Citation of witnesses by party litigants

17.5.—(1) Where a party to a claim is a party litigant he shall–

(a) not later than 28 days before any hearing on evidence apply to the sheriff to fix caution for expenses in such sum as the sheriff considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

(b) before instructing a solicitor or a sheriff officer to cite a witness, find the sum fixed in accordance with paragraph (1)(a).

(2) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (1)(a) may apply for variation of the amount of caution.

Witnesses failing to attend

17.6.—(1) A hearing must not be adjourned solely on account of the failure of a witness to appear unless the sheriff, on cause shown, so directs.

(2) A witness or haver who fails without reasonable excuse to answer a citation after having been properly cited and offered his travelling expenses if he has asked for them may be ordered by the sheriff to pay a penalty not exceeding £250.

(3) The sheriff may grant decree for payment of a penalty imposed under paragraph (2) above in favour of the party on whose behalf the witness or haver was cited.

(4) The sheriff may grant warrant for the apprehension of the witness or haver and for bringing him to court.

(5) A warrant mentioned in paragraph (4) shall be effective in any sheriffdom without endorsation and the expenses of it may be awarded against the witness or haver.