Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004

Explanatory Note

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

This Act of Sederunt makes miscellaneous amendments to the rules of procedure in the sheriff court. It amends the Ordinary Cause Rules, the Summary Applications, Statutory Applications and Appeals etc. Rules, the Summary Cause Rules, and the Small Claim Rules.

The Ordinary Cause Rules are amended by article 2 of this Act, as follows:–

(a) paragraphs (2) and (3) amend rules 3.5 and 5.1 to provide that the sheriff, and not the sheriff clerk, shall grant warrant to arrest on the dependence, or to found jurisdiction, and provides that averments to justify such a warrant shall be made;

(b) paragraph (4) amends rule 5.5 to give further effect to Council Regulation (EC) No 1348/2000 on the service in the European Community of judicial and extrajudicial documents in a civil or commercial action, by specifying–

(i) the language that shall be used in the document being served; and

(ii) that service is not effected unless the person is told that acceptance can be refused where the document being served is not translated properly;

(c) paragraph (5) amends rule 8.1 to provide that a person other than the defender may ask the court to recall a decree in absence, in order to allow the sheriff to deal with an otherwise competent application by that person;

(d) paragraph (6) amends rule 9.12 to specify the grounds that justify the sheriff allowing a debate on the merits of a case;

(e) paragraph (7) removes rules 9.13 to 9.15;

(f) paragraph (8) inserts a new Chapter 9A, which restates rules 9.13 to 9.15 so that it is clear that those rules apply to procedure under both Chapters 9 (standard procedure) and 10 (additional procedure);

(g) paragraph (9) amends rule 10.6 in the same way as paragraph (6) amends rule 9.12;

(h) paragraph (10) amends rule 19.2 so that it is consistent with the amendments made by this instrument to rules 3.5 and 5.1 as detailed above;

(i) paragraph (11) inserts a new rule 29.3, the previous rule of that number having been deleted by S.S.I. 2000/239, and thereby provides for the lodging of any document that contains a statement made otherwise than by a witness in the course of the proof of the action in question;

(j) paragraph (12) inserts a new rule 32.1A, which enables the court on request to deal with any delay in lodging an account of expenses by the party entitled to them; and

(k) paragraph (13) amends rule 36.9 to permit the court to grant interim decree in cases where the insurer, or the Motor Insurers Bureau, is bound to make the payment on behalf of a defender.

The Summary Application Rules are amended by article 3 of this Act, as follows:–

(a) paragraphs (2) and (4) make similar amendments to rules 2.4 and 2.7 to those made by article 2 of the this Act to rules 3.5, 5.1 and 19.2 of the Ordinary Cause Rules;

(b) paragraph (3) amends rule 2.6 to specify the types of procedure covered by that rule;

(c) paragraph (5) makes the same amendment to rule 2.12 as is made by article 2 of this Act to rule 5.5 of the Ordinary Cause Rules;

(d) paragraph (6) amends rule 3.15 so that it an application under section 71E of the Race Relations Act 1976 will be by summary application; and

(e) paragraph (7) substitutes a new rule 3.16.3, to make it clear that the sheriff may order that a hearing under the Adults with Incapacity (Scotland) Act 2000 can take place in private.

The Summary Cause Rules are amended by article 4 of this Act, so that similar amendments to those made to–

(a) rule 5.5 of the Ordinary Cause Rules by article 2 of this Act are made to rule 5.7 of the Summary Cause Rules (paragraph (3)); and

(b) rules 3.5, 5.1 and 19.2 of the Ordinary Cause Rules by article 2 of this Act are made to rules 4.4, 10.1 and 11.3 of the Summary Cause Rules (paragraphs (2), (4) and (5)).

The Small Claim Rules are amended by article 5 of this Act, so that the similar amendments to those made to–

(a) rule 5.5 of the Ordinary Cause Rules by article 2 of this Act are made to rule 6.5 of the Small Claim Rules (paragraph (3)); and

(b) rules 3.5, 5.1 and 19.2 of the Ordinary Cause Rules by article 2 of this Act are made to rules 4.4 and 11.1 of the Small Claim Rules (paragraphs (2) and (4)).