Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

Provisions relating to civil jurisdiction and procedure S

14 Remit from Court of Session to sheriff. S

The Court of Session may in relation to an action before it which could competently have been brought before a sheriff remit the action (at its own instance or on the application of any of the parties to the action) to the sheriff within whose jurisdiction the action could have been brought, where, in the opinion of the Court, the nature of the action makes it appropriate to do so.

15 Withdrawal of privilege against self–incrimination in certain proceedings relating to intellectual property. S

(1) In any proceeding to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose him to proceedings for a related offence or for the recovery of a related penalty—

(a) from answering any questions put to him in the first mentioned proceedings ; or

(b) from complying with any order made in those proceedings.

(2) Subsection (1) above applies to civil proceedings in the Court of Session or the sheriff court—

(a) for infringement of rights pertaining to any intellectual property or for passing off ;

(b) brought to obtain disclosure of information relating to any infringement of such rights or to any passing off ; and

(c) brought to prevent any apprehended infringement of such rights or any apprehended passing off.

(3) The proceedings referred to in subsection (2) above include—

(a) proceedings on appeal arising out of these proceedings ;

(b) proceedings under section 1(1) of the M1 Administration of Justice (Scotland) Act 1972 (provision in relation to the power of the court to order inspection of documents and other property etc.) which relate to civil proceedings falling within subsection (2) above which are likely to be brought.

(4) No statement or admission made by a person—

(a) in answering a question put to him in any proceedings to which subsection (1) above applies ; or

(b) in complying with any order made in such proceedings,

shall in proceedings for any related offence, or for the recovery of any related penalty, be admisssable in evidence against him :

Provided that this subsection shall not render ant such statement or admission inadmissable against him in proceedings for perjury or contempt of court.

(5) In this section—

“intellectual property” means any patent, trade mark, copyright [F1 or design right], registered design, technical or commercial information or other intellectual property ;

“related offence”, in relation to any proceedings to which subsection (1) above relates, means—

(a) in the case of proceedings within subsection (2)(a) or (b)—

(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate ; or

(ii) any offence not within sub-paragraph (i) committed in connection with that ing fringement or passing off, being an offence involving fraud or dishonesty ;

(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the pursuer relies in those proceedings.

“related penalty”, in relation to any proceedings to which subsection (1) above relates, means—

(a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate ;

(b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the pursuer relies in those proceedings.

Textual Amendments

F1 Words inserted by Copyright, Designs and Patents Act 1988 (c. 48, SIF 67A), ss. 303(1), Sch. 7 para. 32

Modifications etc. (not altering text)

C1 S. 15 extended by Copyright, Designs and Patents Act 1988 (c. 48, SIF 67A), ss. 296(6)(b), 298(4)

C2 S. 15 extended (with modifications) by S.I. 1987/1497

C3 S. 15 applied (31.10.2003) by 1988 c. 48, ss. 296(7)(b), 296ZA(5)(b), 296ZD(6)(b) (as inserted by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), regs. 1, 24(1) (with regs. 31-40))

C4 S. 15 applied (31.10.2003) by 1988 c. 48, s. 296ZG(6) (as inserted by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), regs. 1, 25 (with regs. 31-40))

C5 S. 15(5) extended by Patents, Designs and Marks Act 1986 (c. 39, SIF 67A), s. 2, Sch. 2 Pt. I para. 1(2)(h)

S. 15(5) amended (31.10.1994) by 1994 c. 26, s. 106(1), Sch. 4 para. 1(2); S.I. 1994/2550, art.2

Marginal Citations

M1 1972 c. 59.

16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F2 S

Textual Amendments

F2 S. 16 repealed by Family Law Act 1986 (c. 55, SIF 49:3), ss. 68(2), 69(5)(6)(7), Sch. 2

17 Power of sheriff to order sheriff clerk to execute deeds relating to heritage. S

After section 5 of the M2 Sheriff Courts (Scotland) Act 1907 there shall be inserted the following section—

“5A Power of sheriff to order sheriff clerk to execute deeds relating to heritage.

(1) This section applies where—

(a) an action relating to heritable property is before the sheriff; or

(b) it appears to the sheriff that an order under this section is necessary to implement a decree of a, sheriff relating to heritable property.

(2) Where the grantor of any deed relating to the heritable property cannot be found or refuses or is unable or otherwise fails to execute the deed, the sheriff may—

(a) where subsection (1)(a) above applies, on application;

(b) where subsection (1)(b) above applies, on summary application,

by the grantee, make an order dispensing with the execution of the deed by the grantor and directing the sheriff clerk to execute the deed.

(3) Where in pursuance of an order under this section a deed is executed by the sheriff clerk, it shall have the like force and effect as (if it had been executed by the grantor.

(4) In this section—

• “grantor” means a person who is under an obligation to execute the deed; and

• “grantee” means the person to whom that obligation is owed.”.

Marginal Citations

M2 1907 c. 51.

18 Small claims. S

(1) For subsection (2) of section 35 of the M3 Sheriff Courts (Scotland) Act 1971 (summary causes) there shall be substituted the following subsections—

“(2) There shall be a form of summary cause process, to be known as a “small claim”, which shall be used for the purposes of such descriptions of summary cause proceedings as are prescribed by the Lord Advocate by order.

(3) No enactment or rule of law relating to admissibility or corroboration of evidence before a court of law shall be binding in a small claim.

(4) An order under subsection (2) abofve shall be by statutory instrument but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.”.

(2) After section 36 of that Act (procedure in summary causes) there shall be inserted the following sections—

“36A Further provisions as to small claims.

Where the pursuer in a small claim is not—

(a) a partnership or a body corporate; or

(b) acting in a representative capacity,

he may require the sheriff clerk to efffect service of the summons on his behalf.

36B Expenses in small claims.

(1) No award of expenses shall be made in a small claim in which the value of the claim does not exceed such sum as the Lord Advocate shall prescribe by order.

(2) Any expenses which the sheriff may award in any other small claim shall not exceed such sum as the Lord Advocate shall prescribe by order.

(3) Subsections (1) and (2) above do not apply to a party to a small claim—

(a) who being a defender—

(i) has not stated a defence; or

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

(iii) having stated and proceeded with a defence, has not acted in good faith as to its merits; or

(b) on whose part there has been unreasonable conduct in relation to the proceedings or the claim;

nor do they apply in relation to an appeal to the sheriff principal.

(4) An order under this section shall be by statutory instrument but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.”.

(3) In section 37 of that Act (remits)—

(a) after subsection (2A) there shall be inserted the following subsections—

“(2B) In the case of any small claim the sheriff at any stage—

(a) may, if he is of the opinion that a difficult question of law or a question of fact of exceptional complexity is involved, of his own accord or on the motion of any party to the small claim;

(b) shall, on the joint motion of the parties to the small claim,

direct that the small claim be treated as a summary cause (not being a small claim) or ordinary cause, and in that case the small claim shall be treated for all purposes (including appeal) as a summary cause (not being a small claim) or ordinary cause as the case may be.

(2C) In the case of any cause which is not a small claim by reason only of any monetary limit applicable to a small claim or to summary causes, the sheriff at any stage shall, on the joint motion of the parties to the cause, direct that the cause be treated as a small claim and in that case the cause shall be treated for all purposes (including appeal) as a small claim and shall proceed accordingly.”; and

(b) in subsection (3)(a) after “(2A)” there shall be inserted the words “ (2B) or (2C) ”.

(4) In section 38 of that Act (appeal in summary causes) for the words from “any summary cause” to “(b)” there shall be substituted the words—

“(a) any summary cause an appeal shall lie to the sheriff principal on any point of law from the final judgment of the sheriff; and

(b) any summary cause other than a small claim an appeal shall lie”.

Marginal Citations

M3 1971 c. 58.

19 Disclosure of names in certain proceedings. S

In section 1 of the M4 Administration of Justice (Scotland) Act 1972 (which makes provision in relation to the powers of the court to order inspectincon of documents and other property), after subsection (1) there shall be inserted the following subsection—

“(1A) Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who—

(a) might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought; or

(b) might be defenders in any civil proceedings which appear to the court to be likely to be brought.”.

Marginal Citations

M4 1972 c. 59.