2005 No. 648
SHERIFF COURT

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2005

Made
Coming into force
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 19711, and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of that Act, do hereby enact and declare:

Citation and commencement1.

(1)

This Act of Sederunt may be cited as the Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2005 and shall come into force on 2nd January 2006.

(2)

This Act of Sederunt shall be inserted in the Books of Sederunt.

Amendment of Ordinary Cause Rules2.

(1)

The Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 19072 are amended in accordance with sub-paragraphs (2) to (4).

(2)

In rule 33.27A(1) (applications for European matrimonial certificates)3 for “sheriff” substitute “sheriff clerk”.

(3)

In rule 33.93 (intimation to Principal Reporter) for “that section” substitute “section 52 of that Act”.

(4)

In Appendix 1—

(a)

for Form G11 substitute the form set out in Schedule 1 to this Act of Sederunt; and

(b)

for Form F26 substitute the form set out in Schedule 2 to this Act of Sederunt4.

Amendment of Summary Application Rules3.

(1)

The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 19995 is amended in accordance with sub-paragraphs (2) and (3).

(2)

In Part IX of Chapter 3 (Proceeds of Crime (Scotland) Act 1995) sub-paragraph (a) of rule 3.9.3(2) (note for recall or variation of restraint orders) shall be omitted.

(3)

In Part XXVI of Chapter 3 (Protection of Children (Scotland) Act 2003)6, rules 3.25.1 to 3.25.6 shall be renumbered as rules 3.26.1 to 3.26.6.

Amendment of Summary Cause Rules4.

(1)

The Act of Sederunt (Summary Cause Rules) 20027 is amended in accordance with sub-paragraph (2).

(2)

In Appendix 1, for Form 24 substitute the form set out in Schedule 3 to this Act of Sederunt.

Amendment of Small Claim Rules5.

(1)

The Act of Sederunt (Small Claim Rules) 20028 is amended in accordance with sub-paragraphs (2) and (3).

(2)

For rule 21.6(1) (expenses) there shall be substituted—

“21.6.

(1)

This rule applies, subject to section 36B of the 1971 Act9, to the determination of expenses—

(a)

in a claim, where the defender has—

(i)

not stated a defence;

(ii)

having stated a defence, has not proceeded with it; or

(iii)

having stated a defence, has not acted in good faith as to its merits;

(b)

in a claim where there has been unreasonable conduct on the part of a party to that claim in relation to the proceedings or the claim; or

(c)

in an appeal to the sheriff principal.”

(3)

In Appendix 1 for Form 15 substitute the form set out in Schedule 4 to this Act of Sederunt.

A.C. Hamilton
Lord President I.P.D.

Edinburgh

SCHEDULE 1

FORM G11Form of notice in optional procedure for commission and diligence

Rule 28.3(1)

SCHEDULE 2

FORM F26Form of notice of intention to defend in family action

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

SCHEDULE 3

FORM 24Order by the court and certificate in optional procedure for recovery of documents

Rule 18.2(1)

SCHEDULE 4

FORM 15Order by the court and certificate in optional procedure for recovery of documents

Rule 17.2(1)

(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.

Amendments are made to the forms of notice or order in optional procedure for the recovery of documents in each of the Ordinary Cause Rules, Summary Cause Rules and Small Claims Rules (Forms G11, 24 and 15, respectively) by the addition of a note regarding expenses recoverable for any necessary outlays incurred by havers.

In addition–

(a)

the Ordinary Cause Rules are amended by–

(i)

the substitution of Form 26 with the revised Form F26 set out in Schedule 2; and

(ii)

the substitution of an incorrect reference in rule 33.93 with the correct reference to section 52 of the Children (Scotland) Act 1995;

(b)

the Summary Application Rules are amended by—

(i)

the deletion of rule 3.9.9(2)(a) imposing a time limit of 21 days after service for lodging a note to vary or recall a restraint order; and

(ii)

renumbering rules 3.25.1 to 3.25.6 of Part XXVI of Chapter 3 of those Rules as rules 3.26.1 to 3.26.6; and

(c)

Rule 21.6(1) of the Small Claims Rules is amended to correspond with the exception contained in section 36B of the Sheriff Courts (Scotland) Act 1971.