Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Ordinary Cause Rules Amendment) (Taxation of Judicial Expenses) 2019

EXPLANATORY NOTE

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

This Act of Sederunt makes provision for—

• revocations of, and amendments to, rules consequential on the coming into force of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and

• amendments to the rules of procedure governing the taxation of accounts of expenses in civil proceedings in the Court of Session, Sheriff Appeal Court and sheriff court.

In this note—

“the Ordinary Cause Rules” means the Ordinary Cause Rules 1993 in schedule 1 of the Sheriff Courts (Scotland) Act 1907;

“the Rules of the Court of Session” means the Rules of the Court of Session 1994 in schedule 2 of Act of Sederunt (Rules of the Court of Session 1994) 1994;

“the Sheriff Appeal Court Rules” means Act of Sederunt (Sheriff Appeal Court Rules) 2015; and

“the Taxation of Judicial Expenses Rules” means Act of Sederunt (Taxation of Judicial Expenses Rules) 2019.

Amendments and revocations consequential on the Taxation of Judicial Expenses Rules

Paragraph 3(2) amends rule 7.4 of the Ordinary Cause Rules to allow the requirement for taxation to be dispensed with when decree has been granted in absence, and where the expenses claimed comprise only the inclusive charge provided for the purpose in the Taxation of Judicial Expenses Rules, a court fee, postal charges, and, where applicable, a sheriff officer’s fee for service.

Paragraph 4(2) amends rule 19.1 of the Rules of the Court of Session to allow the requirement for taxation to be dispensed with when decree has been granted in absence, and when the expenses claimed comprise only the inclusive charge provided for the purpose in the Taxation of Judicial Expenses Rules and outlays not exceeding £471.50.

Paragraphs 3(3) and (4), and 4(3) and (4) replace various references to fees with references to charges, consistent with the Taxation of Judicial Expenses Rules.

Paragraphs 4(5), 4(12) and 4(14), 5(2) and 6 provide for the omission of rules and tables, and for the revocation of Acts of Sederunt that are superseded by the Taxation of Judicial Expenses Rules.

Paragraph 4(15) amends the Rules of the Court of Session by inserting rule 42.18 in substitution for the provisions previously set out in rule 42.15. The rule makes provision regarding the remuneration of reporters appointed at the instance of the court.

In terms of paragraph 2(1), the foregoing amendments have effect only in respect of proceedings commenced on or after the coming into force of this Act of Sederunt. In terms of paragraph 7, the Acts of Sederunt revoked by paragraph 6 are saved for the purposes of proceedings commenced before the coming into force of this Act of Sederunt, and for the purposes of summary causes commenced subsequently.

Modification of taxation procedure

Paragraphs 3(6) and 5(3) amend the Ordinary Cause Rules and the Sheriff Appeal Court Rules by inserting rules that require a party found entitled to expenses to lodge an account of expenses for taxation not later than four months after the date of the final judgment, unless the court orders otherwise. The time limit is extended to eight months where the account is lodged by the Scottish Legal Aid Board in reliance on regulation 39(2)(a) of the Civil Legal Aid (Scotland) Regulations 2002.

The rules inserted replace rule 32.1A of the Ordinary Cause Rules and rule 19.3 of the Sheriff Appeal Court Rules. In terms of paragraph 2(2), the rules inserted have effect when the date of the final judgment is on or after the coming into force of this Act of Sederunt.

The amendments set out in paragraphs 3(7) and 5(4) provide for the modification of taxation procedure in sheriff court ordinary causes and in the Sheriff Appeal Court. Paragraph 3(7) omits existing rules 32.3 and 32.4 of the Ordinary Cause Rules and substitutes new rules 32.3, 32.3A, 32.4 and 32.5. Paragraph 5(4) omits existing rules 19.4 and 19.5 of the Sheriff Appeal Court Rules and substitutes new rules 19.4, 19.4A and 19.5.

New rules 32.3 and 19.4 make provision regarding the fixing and intimation of diets of taxation, the provision of vouching and information, and the intimation of points of objection. On receipt of an account of expenses remitted from the court the Auditor is not obliged to fix a diet of taxation until the party lodging the account has also provided vouchers in respect of all outlays claimed, and a letter that both confirms that the vouchers have been intimated to the paying party, and provides the Auditor with such information as is required to enable the Auditor to intimate the diet of taxation on the paying party.

Under the new rules it is for the Auditor to intimate the diet of taxation on both the party lodging the account and the paying party. The paying party must intimate particular points of objection to the account by 4.00 pm on the fourth business day before the diet of taxation. Where a failure to do so was due to mistake or oversight the Auditor may relieve the paying party of the consequences of the failure. Otherwise, the Auditor must not take account of a point of objection that has not been intimated in advance.

In place of the requirement to prepare a report, new rules 32.3A and 19.4A require the Auditor to prepare a statement of the amount of expenses as taxed.

New rules 32.4 and 19.5 introduce more detailed provision regarding the procedure to be followed where a party challenges decisions taken by the Auditor at taxation by way of note of objection. A note of objection must be lodged within fourteen days of the date of the Auditor’s statement. The party lodging the note must apply for an order allowing the note to be received, and allowing a hearing on the note. It is for the objecting party to intimate the note and the interlocutor allowing a hearing to the Auditor.

Within fourteen days of intimation the Auditor must lodge a statement of reasons. The sheriff clerk or clerk to the Sheriff Appeal Court then fixes a hearing on the note of objections.

New rule 32.5 of the Ordinary Cause Rules makes provision concerning the payment of interest on expenses by allowing the court to award interest from a date before the date of the Auditor’s statement. The earliest date from which interest may be awarded is 28 days after the date on which the account of expenses was lodged.

Paragraphs 4(6), 4(7), 4(8), 4(9), 4(10) and 4(11) provide for amendments to the Rules of the Court of Session relating to taxation procedure. Paragraphs 4(6) and 4(7) amend rule 42.1(2) to allow a party to apply to the court for an extension of the period allowed for the lodging of an account of expenses before that period has expired. Paragraph 4(8) amends rule 42.2(7) to make it possible for the Auditor to allow a party a reasonable period following the diet of taxation to produce documents or information sought in the course of the diet.

Paragraphs 4(9), 4(10) and 4(13) provide for references to the Auditor’s report to be replaced with references to a statement of the amount of expenses as taxed. Paragraph 4(11) inserts rule 42.4A which makes provision for awards of interest on expenses to be backdated to a date no earlier than 28 days after the lodging of the account.

In terms of paragraph 2(3), the foregoing amendments have effect in relation to proceedings where the account of expenses is lodged for taxation on or after the coming into force of this Act of Sederunt.