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

© Crown Copyright 2004

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(a) in paragraph (2), omit "clerk"; and

(b) after paragraph (2), insert-

    " (3) Averments to justify the granting of a warrant to arrest on the dependence, or a precept of arrestment, shall be included in the condescendence of an initial writ or the statement of claim in a counterclaim.".

    (3) In rule 5.1 (signature of warrants)-

(a) in paragraph (1), for ", intimation or arrestment on the dependence" substitute " or intimation"; and

(b) for paragraph (2)(b) substitute-


" (b) a warrant for arrestment to found jurisdiction;


(ba) a warrant for arrestment on the dependence;".

    (4) In rule 5.5 (service on persons furth of Scotland)-

(a) in paragraph (1)-


(i) at the end of sub-paragraph (b)(v), insert "or"; and

(ii) omit sub-paragraph (d);



(b) after paragraph (1), insert-

    " (1A) In a country to which the Council Regulation applies, service-


(a) may be effected by the methods prescribed in paragraph (1)(b)(ii) and (iii) only in exceptional circumstances; and

(b) is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (6).";



(c) in paragraph (6), omit from "an official language" to the end of that paragraph and insert on a new line-



" (a) an official language of the country in which service is to be executed; or

(b) in a country to which the Council Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed."; and



(d) after paragraph (7), insert-

    " (8) In this rule "the Council Regulation" means Council Regulation (EC) No. 1348/2000[3] on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.".

    (5) In rule 8.1 (reponing)-

(a) in paragraph (1)-


(i) after "defender", insert "or any party with a statutory title or interest"; and

(ii) after "defence", insert "or the proposed order or direction,";



(b) in paragraph (2), after "pursuer" insert "and any other party";

(c) in paragraph (3)-



(i) after "if", insert-


     " -

(a) "; and


(ii) at the end, insert-


     " ; or

(b) the party seeking the order or direction had lodged the appropriate application on the date when the decree was recalled"; and



(d) in paragraph (4), after "pursuer" insert "and any other party".

    (6) In rule 9.12 (options hearing) in paragraph (3)(c), for "justifies a debate" substitute "if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree".

    (7) Omit rules 9.13 to 9.15.

    (8) After Chapter 9 (standard procedure in defended causes), insert-

" CHAPTER 9A
DOCUMENTS AND WITNESSES
Application of this Chapter
     9A.1. This Chapter applies to any cause proceeding under Chapters 9 and 10.

Inspection and recovery of documents
     9A.2.  - (1) Each party shall, within 14 days after the date of the interlocutor allowing proof or proof before answer, intimate to every other party a list of the documents, which are or have been in his possession or control and which he intends to use or put in evidence at the proof, including the whereabouts of those documents.

    (2) A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list at a time and place fixed by that party which is reasonable to both parties.

    (3) A party who seeks to use or put in evidence at a proof a document not on his list intimated under paragraph (1) shall, if any other party objects to such document being used or put in evidence, seek leave of the sheriff to do so; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

    (4) Nothing in this rule shall affect-


(a) the law relating, or the right of a party to object, to the inspection of a document on the ground of privilege or confidentiality; or

(b) the right of a party to apply under rule 28.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972[4].



Exchange of lists of witnesses
     9A.3.  - (1) Within 28 days after the date of the interlocutor allowing a proof or proof before answer, each party shall-



(a) intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence he intends to rely at proof; and

(b) lodge a copy of that list in process.



    (2) A party who seeks to rely on the evidence of a person not on his list intimated under paragraph (1) shall, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence whether it is to be given orally or not; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

    (3) The list of witnesses intimated under paragraph (1) shall include the name, occupation (where known) and address of each intended witness.

Applications in respect of time to pay directions, and arrestments
     9A.4. An application for a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987[5], or for the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act, in a cause which is defended, shall be made by motion lodged before the sheriff grants decree.".

    (9) In rule 10.6 (procedural hearing) in paragraph (3)(c), for "justifies a debate" substitute "if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree".

    (10) In rule 19.2 (warrants for diligence on counterclaims)-

(a) in paragraph (2)(b), after "made" insert "by application"; and

(b) in paragraph (3), omit "clerk".

    (11) After rule 29.2 (remit to persons of skill), insert-

" Written statements
     29.3. Where a statement in a document is admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988[6], any party who wishes to have that statement received in evidence shall-


(a) docquet that document as follows:-


" (Place and date)
This document contains a statement admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988.
(Signed)
(Designation and address)";

(b) lodge that document in process; and

(c) provide all other parties with a copy of that document.".

    (12) After rule 32.1 (taxation before decree for expenses), insert-

" Order to lodge account of expenses
     32.1A. A party found liable in expenses may from 4 months after the date of the interlocutor finding him so liable apply by motion for an order ordaining the party entitled to expenses to lodge an account of those expenses in process.".

    (13) In rule 36.9 (applications for interim payment of damages)-

(a) after paragraph (5)(b), omit "or"; and

(b) at the end of paragraph (5)(c), insert-


     " ; or

(d) the person's liability will be met by-


(i) an insurer under section 151 of the Road Traffic Act 1988[7]; or

(ii) an insurer acting under the Motor Insurers Bureau Agreement, or the Motor Insurers Bureau where it is acting itself.".

Amendment of Summary Application Rules
     3.  - (1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999[8] is amended in accordance with paragraphs (2) to (7).

    (2) In rule 2.4 (the initial writ), insert at the end-

    " (9) Where warrant to arrest on the dependence is sought, the initial writ shall include averments to justify the grant of such a warrant.".

    (3) In rule 2.6 (time limits) in paragraph (1), after "application" where it second occurs insert ", being an appeal under statute or an application in the nature of an appeal,".

    (4) In rule 2.7 (warrants, forms and certificate of citation)-

(a) in paragraph (1), for ", intimation or arrestment on the dependence" substitute "or intimation"; and

(b) after paragraph (1), insert-

    " (1A) A warrant for arrestment on the dependence may be signed by the sheriff, if the sheriff considers it appropriate.".

    (5) In rule 2.12 (service on persons furth of Scotland)-

(a) in paragraph (1)-


(i) at the end of sub-paragraph (b)(v), insert "or";

(ii) at the end of sub-paragraph (c), omit "or"; and

(iii) omit sub-paragraph (d);



(b) after paragraph (1) insert-

    " (1A) In a country to which the Council Regulation applies, service-


(a) may be effected by the methods prescribed in paragraph (1)(b)(ii) or (iii) only in exceptional circumstances; and

(b) is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (6).";



(c) in paragraph (6), omit from "an official language" to the end of that paragraph and insert on a new line-



" (a) an official language of the country in which service is to be executed; or

(b) in a country to which the Council Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed."; and



(d) after paragraph (7), insert-

    " (8) In this rule "the Council Regulation" means Council Regulation (EC) No. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.".

    (6) In rule 3.15.2 (application)-

(a) at the end of paragraph (e), omit "and"; and

(b) after paragraph (e), insert-


" (ea) an application by the Commission under section 71E[9] for an order requiring a person to furnish any information required by a compliance notice; and".

    (7) For rule 3.16.3 (place of any hearing) substitute-

" Place, and privacy, of any hearing
     3.16.3. The sheriff may, where he considers it appropriate in all the circumstances, appoint that the hearing of an application or other proceedings shall take place-


(a) in a hospital, or any other place than the court building;

(b) in private.".

Amendment of Summary Cause Rules
     4.  - (1) The Act of Sederunt (Summary Cause Rules) 2002[10] is amended in accordance with paragraphs (2) to (5).

    (2) In rule 4.4 (authentication and effect of summons)-

(a) at the end of paragraph (1)(c), insert-


     " ; or

(d) a warrant for arrestment on the dependence, or to found jurisdiction, is sought";



(b) in paragraph (2), for ", (b) or (c)" substitute "to (d)"; and

(c) after paragraph (3), insert-

    " (4) Where a warrant for arrestment on the dependence, or to found jurisdiction, is sought, averments to justify that warrant must be included in the statement of claim.".

    (3) In rule 5.7 (service on persons outwith Scotland)-

(a) for paragraph (4), substitute-

    " (4) If the document requires to be served in a country to which the Council Regulation applies, service-


(a) may be effected by the methods prescribed in paragraph (3)(b) or (c) only in exceptional circumstances; and

(b) is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (12).";



(b) in paragraph (12), omit from "an official language" to the end of that paragraph and insert on a new line-



" (a) an official language of the country in which service is to be executed; or

(b) in a country to which the Council Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed."; and



(c) after paragraph (13), insert-

    " (14) In this rule "the Council Regulation" means Council Regulation (EC) No. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.".

    (4) In rule 10.1 (counterclaim)-

(a) in paragraph (4), omit from "and" where it first occurs to the end;

(b) after paragraph (4), insert-

    " (4A) Where an application under paragraph (3) is made-


(a) the counterclaim must include averments to justify the grant of the warrant sought; and

(b) the sheriff may grant the application if he thinks it appropriate.



    (4B) If the sheriff grants an application under paragraph (3), then the sheriff shall add to the counterclaim the words "Warrant granted as craved", and authenticate the counterclaim in an appropriate manner.".

    (5) In rule 11.3 (warrants for diligence in a third party notice), after paragraph (1) insert-

    " (1A) On an application under paragraph (1) being made-


(a) the sheriff may grant the application if he thinks it appropriate; and

(b) the sheriff shall not grant the application unless averments to justify the warrant sought have been made.".

Amendment of Small Claim Rules
     5.  - (1) The Act of Sederunt (Small Claim Rules) 2002[11] is amended in accordance with paragraphs (2) to (4).

    (2) In rule 4.4 (authentication and effect of summons)-

(a) at the end of paragraph (1)(c), insert-


     " ; or

(d) a warrant for arrestment on the dependence, or to found jurisdiction, is sought";



(b) in paragraph (2), for ", (b) or (c)" substitute "to (d)"; and

(c) after paragraph (3), insert-

    " (4) Where a warrant for arrestment on the dependence, or to found jurisdiction, is sought, averments to justify that warrant must be included in the statement of claim.".

    (3) In rule 6.5 (service on persons outwith Scotland)-

(a) for paragraph (4), substitute-

    " (4) If the document requires to be served in a country to which the Council Regulation applies, service-


(a) may be effected by the methods prescribed in paragraph (3)(b) or (c) only in exceptional circumstances; and

(b) is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (12).";



(b) in paragraph (12), omit from "an official language" to the end of that paragraph and insert on a new line-



" (a) an official language of the country in which service is to be executed; or

(b) in a country to which the Council Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed."; and



(c) after paragraph (14), insert-

    " (15) In this rule "the Council Regulation" means Council Regulation (EC) No. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.".

    (4) In rule 11.1 (counterclaim), for paragraphs (3) and (4) substitute-

    " (3) Where a counterclaim stated in accordance with paragraph (1)(b)(i) seeks a warrant for arrestment on the dependence, the sheriff may authenticate the warrant if-


(a) averments to justify the grant of the warrant are included in the counterclaim; and

(b) the sheriff considers that appropriate.".

Cullen of Whitekirk
Lord President IPD

Edinburgh
22nd April 2004

[2] The Sheriff Courts (Scotland) Act 1907 (c.51), Schedule 1. Schedule 1 was substituted by S.I. 1993/1956, and amended by S.I. 1996/2167 and 2445 and by S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 560 and 2003/25 and 26.back

[3] O.J. No. L 160, 30.06.00, p.37.back

[4] 1972 c.59; section 1 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73); section 19 and Schedule 2, paragraph 15.back

[5] 1987 c.18; section 1 was repealed in part by the Social Security Act 1998 (c.14) ("the 1998 Act"), Schedule 8 and by the Abolition of Poindings and Warrant Sales (Scotland) Act 2001 (asp 1) (now repealed), Schedule, Part 1 and was amended by the Child Support Act 1991 (c.48), Schedule 5, paragraph 8, the Local Government Finance Act 1992 (c.14), Schedule 13, paragraph 53, the Local Government etc. (Scotland) Act 1994 (c.39), Schedule 13, paragraph 151, the 1998 Act, Schedule 7, paragraph 12, the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), Schedule 9, paragraph 1, and the Water Industry (Scotland) Act 2002 (asp 3), schedule 7, paragraph 17.back

[6] 1988 c.32.back

[7] 1988 c.52; section 151 repealed in part by the Road Traffic Act 1991 (c.40), Schedule 8.back

[8] S.I. 1999/929; amended by S.S.I. 2000/148 and 387, 2001/142, and 2002/7, 129, 130, 146 and 563, and 2003/26, 27, 98, 261, 316, 346 and 556.back

[9] Section 71E of the Race Relations Act 1976 (c.74) was inserted by the Race Relations (Amendment) Act 2000 (c.34), section 2.back

[10] S.S.I. 2002/132; amended by S.S.I. 2002/516 and 2003/26.back

[11] S.S.I. 2002/133; amended by S.S.I. 2003/26.back