http://www.legislation.gov.uk/id/ssi/2007/6

http://www.legislation.gov.uk/ssi/2007/6/article/2/2007-01-29

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007

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SHERIFF COURT

2023-11-30

Statute Law Database

2007-01-29

This Act of Sederunt makes miscellaneous amendments to the rules of procedure in the sheriff court as follows.Paragraph 2 amends the Ordinary Cause Rules:to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));to make provision to allow a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraphs (3) and (11));to make provision for appropriate forms to be used where the defender may apply for a time order under the Consumer Credit Act 1974 (sub-paragraphs (4) to (9) and (12));to provide for intimation of specifications under rule 28.8(2) to the Advocate General for Scotland in appropriate cases and for the right of the Advocate General to appear at a hearing under that rule (sub-paragraph (10));to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (13));to make a minor amendment to the rule 33.27A in respect of applications for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 and to clarify that the simplified divorce procedure does not apply where either party makes such an application (sub-paragraphs (14) and (15));to make related consequential amendments to the forms set out in Appendix 1 to the Ordinary Cause Rules (sub-paragraph (16)).Paragraph 3 amends the Summary Application Rules:to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));to make provision for appropriate forms to be used where the defender may apply for a time order under the Consumer Credit Act 1974 (sub-paragraphs (3), (4) and (6);to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (5)); andto make provision to allow a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraph (5));Paragraph 4 amends the Summary Cause Rules:to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (2));to make provision allowing a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraphs (3) and (4));to clarify the procedure following recall of decree under rule 24.1 (sub-paragraph (5));to allow the sheriff to give directions for the preservation of the defender’s goods and effects in all cases where decree is pronounced in an action for the recovery of possession of heritable property (sub-paragraph (6));to make provision for the giving of evidence and the making of submissions by a live link (sub-paragraph (7)).Paragraph 5 amends the Small Claim Rules:to clarify the meaning of the term “enactment” where it is referred to in the Rules (sub-paragraph (a));to make provision allowing a party to be represented by a person authorised under an enactment to conduct proceedings in the sheriff court and for the recovery of expenses by that party (sub-paragraphs (b) and (c)); andto clarify the procedure following recall of decree under rule 22.1 (sub-paragraph (d));to make provisions for the giving of evidence and the making of submissions by a live link (sub-paragraph (e)).

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007

para. 2(14)

(15)

para. 2(16)(f)-(k)

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007

para. 1(2)

Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2007

para. 2(13)

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Attendance at Hearings) 2023

para. 4(1)(a)

para. 1(2)

Amendment of Ordinary Cause RulesI1 I22

1

The Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 19072 shall be amended in accordance with the following sub-paragraphs.

2

In rule 1.2(1) (interpretation), after the definition of “document” there shall be inserted the following:–

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;

3

In rule 1.3 (representation) after paragraph (2) there shall be inserted the following:–

3
A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment.
4
The person referred to in paragraph (3) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action.

4

In rule 3.3 (warrants of citation)3–

a

in paragraph (1)(c), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 19744”; and

b

in paragraph (2), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

5

In rule 5.2 (form of citation and certificate)5–

a

in paragraph (1)(c), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”; and

b

in paragraph (2), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

6

In rule 7.2(1)(minute for granting decree without attendance)–

a

in sub-paragraph (b) after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”; and

b

in sub-paragraph (c), after “direction” there shall be inserted “or time order”.

7

In rule 7.3 (applications for time to pay directions in undefended causes)–

a

in the cross-heading, after “directions” there shall be inserted “or time orders”;

b

in paragraph (1)–

i

after “which” the existing words shall be numbered sub-paragraph (a); and

ii

at the end there shall be inserted the following:–

; or
a
a time order may be applied for under the Consumer Credit Act 1974

c

in paragraph (2), after “direction” there shall be inserted “or time order”.

8

For rule 9A.46 there shall be substituted the following:–

Applications in respect of time to pay directions, arrestments and time orders9A.4
An application for–
a
a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987;
b
the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act; or
c
a time order under section 129 of the Consumer Credit Act 1974,
in a cause which is defended, shall be made by motion lodged before the sheriff grants decree.

9

In rule 18.5 (service of amended pleadings), in paragraph (1)(a)(i), after “1987” there shall be inserted “or a time order under the Consumer Credit Act 1974”.

10

In rule 28.2 (applications for commission and diligence for recovery of documents or for orders under section 1 of the Administration of Justice (Scotland) Act 1972)–

a

for paragraph (3)(c)7 (intimation of specifications) there shall be substituted the following:–

c
where necessary–
i
the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or
ii
the Lord Advocate (in any other case),
and, if there is any doubt, both.

b

for paragraph (5) (hearing) there shall be substituted the following:–

5
The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).

11

After rule 30.9 (service of charge where address of defender not known) there shall be inserted the following:–

Expenses30.10
A party who–
a
is or has been represented by a person authorised under any enactment to conduct proceedings in the sheriff court; and
b
would have been found entitled to expenses if he had been represented by a solicitor or an advocate,
may be awarded any expenses or outlays to which a party litigant may be found entitled under the Litigants in Person (Costs and Expenses) Act 19758 or any enactment under that Act.

12

For rule 31.2(3) (applications for leave to appeal) there shall be substituted the following:–

3
An application for leave to appeal from a decision in relation to–
a
a time to pay direction under section 1 of the Debtors (Scotland) Act 1987;
b
the recall or restriction of an arrestment made under section 3(4) of that Act; or
c
a time order under section 129 of the Consumer Credit Act 1974,
shall specify the question of law on which the appeal is made.

13

After Chapter 32 (taxation of expenses) there shall be inserted the following:–

Chapter32ALIVE LINKS
32A.1
1
On cause shown, a party may apply by motion for authority for the whole or part of–
a
the evidence of a witness or the party to be given; or
b
a submission to be made,
through a live link.
2
In paragraph (1)–
“witness” means a person who has been or may be cited to appear before the court as a witness;
“submission” means any oral submission which would otherwise be made to the court by the party or his representative in person including an oral submission in support of a motion; and
“live link” means a live television link or such other arrangement as may be specified in the motion by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.

14

In rule 33.27A (applications for postponement of decree under section 3A of the Act of 1976)9–

a

“religious” shall be omitted; and

b

for “to marry” there shall be substituted “to religious marriage”.

15

For rule 33.73(1)(g)10 (application of Part XI: simplified divorce applications) there shall be substituted the following:–

g
neither party to the marriage applies for postponement of decree under section 3A of the Act of 197611 (postponement of decree where impediment to religious marriage exists).

16

In Appendix 1–

a

in Form 02–

i

in the heading, after “direction” there shall be inserted “or time order”;

ii

in paragraph (b), after “direction” there shall be inserted “[or time order]”;

b

in Form 03–

i

in the heading, after “direction” there shall be inserted “or time order”;

ii

after “SERVICE” there shall be inserted the following:–

1
Time to pay directions

iii

after “frozen).” there shall be inserted the following:–

2Time Orders
The Consumer Credit Act 1974 allows you to apply to the court for a “time order” during a court action. A time order is similar to a time to pay direction but can only be applied for in certain circumstances, e.g. in relation to certain types of credit agreement. Payment under a time order can only be made by instalments, so that you cannot apply to pay by deferred lump sum.

iv

after “HOW TO APPLY FOR A TIME TO PAY DIRECTION” there shall be inserted “OR TIME ORDER”;

v

in paragraph 1, after “direction” there shall be inserted “or time order”;

vi

in the paragraph headed “NOTE”, after “direction” where it twice appears there shall be inserted “or time order”;

vii

in the heading of the form of application for a time to pay direction, after “1987” there shall be inserted “[orA TIME ORDER UNDER THE CONSUMER CREDIT ACT 1974”];

viii

in paragraph 2 of Part B of that form, after “direction” there shall be inserted “or time order”;

ix

in paragraph 6 of Part D of that form, after “1987” there shall be inserted “[or section 129(1) of the Consumer Credit Act 1974]”;

x

in the section beginning “*a” of Part D of that form, after direction there shall be inserted “[or time order]”;

c

in Form 0512–

i

in the heading, after “direction” there shall be inserted “or time order”;

ii

for “Form 03 (application for time to pay direction)” there shall be substituted “Form 03 (application for time to pay direction or time order)”;

iii

in the box beginning “Form 03 is served” after “direction” where it twice appears there shall be inserted “or time order”;

d

in Form 0613, after “direction” there shall be inserted “or time order”;

e

in Form 08–

i

in the heading, after “direction” there shall be inserted “or time order”;

ii

for “Form 03 (application for time to pay direction)” there shall be substituted “Form 03 (application for time to pay direction or time order)”;

iii

in the box beginning “Form 03 is served”, after “direction” where it twice appears there shall be inserted “or time order”;

f

in Form F3114–

i

section 10A of Part 1 (remarriage) shall be omitted;

ii

in section 11 of Part 1–

aa

for the heading there shall be substituted “DECLARATION AND REQUEST FOR DIVORCE”; and

bb

after “application.” there shall be inserted the following:–

I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.

iii

in Part 2, in paragraph (d) of the statement of consent “and” shall be omitted; and

iv

in Part 2, for paragraph (e) of the statement of consent there shall be inserted the following:–

e
I do not ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976; and
f
I CONSENT TO DECREE OF DIVORCE BEING GRANTED IN RESPECT OF THIS APPLICATION.

g

in Form F3315–

i

section 11A of Part 1 (remarriage) shall be omitted; and

ii

in section 12 of Part 1, after “application.” there shall be inserted the following:–

I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.

h

in Form F33A16, in section 11 of Part 1, after “application.” there shall be inserted the following:–

I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.

i

in Form F3417–

ii

after paragraph 1.(a) there shall be inserted–

b
that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists).

iii

in the Note, after “provision” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists),”;

i

in Form F3518–

i

after paragraph 1.(a) there shall be inserted–

b
that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists).

ii

j

in Form F35A19–

i

after paragraph 2 there shall be inserted the following:–

2A
Please note that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious marriage exists).

Amendment of Ordinary Cause RulesI1I22

1

2

3

3

4

4

a

b

5

a

b

6

a

b

7

a

b

i

ii

c

8

Applications in respect of time to pay directions, arrestments and time orders9A.4

a

b

c

9

10

a

c

i

ii

b

5

11

Expenses30.10

a

b

12

3

a

b

c

13

Chapter32ALIVE LINKS

32A.1

1

a

b

2

14

a

b

15

g

16

a

i

ii

b

i

ii

1

iii

2Time Orders

iv

v

vi

vii

viii

ix

x

c

i

ii

iii

d

e

i

ii

Amendment of Ordinary Cause RulesI1 I22