OpenLegislation

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011

S.S.I. 2011/193 · Made 10 March 2011

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Sheriff Court

Made 10th March 2011

Coming into force in accordance with paragraph 1(1) and (2)

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971f1, section 1A(1)(b) of the Bankruptcy (Scotland) Act 1985f2 and sections 32 and 64 of the Debt Arrangement and Attachment (Scotland) Act 2002f3 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 the said Act of 1971, do hereby enact and declare:

Annotations to the whole text

Footnotes

f1

1971 c.58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), Schedule 2, paragraph 12; the Civil Evidence (Scotland) Act 1988 (c.32), section 2(4); the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 18(2); the Adults with Incapacity (Scotland) Act 2000 (asp 4) (the “2000 asp”), schedule 5, paragraph 13; the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43; the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2); the Consumer Credit Act 2006 (c.14), section 16(4); and the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) (the “2007 asp”) section 33. Section 32 is amended prospectively by the 2007 asp, schedule 5, paragraph 10. Section 32 was extended by the Debtors (Scotland) Act 1987 (c.18), section 97; the Child Support Act 1991 (c.48), sections 39(2) and 49; and by section 2(4) of the 2000 asp.

f2

1985 c.66. Section 1A was substituted by the Bankruptcy (Scotland) Act 1993 (c.6), section 1(1) and amended by the 2007 asp, sections 2(2), 14(1) and 23(2) and schedule 1, paragraph 2 and schedule 6, paragraph (1); and S.I. 1999/1820.

f3

2002 asp 17. Section 32 was amended by the 2007 asp, schedule 5, paragraph 30(8)(a).

Contents

  1. 1Citation, commencement and interpretation
  2. 2Service of documents by sheriff officers
  3. 3Service of documents by sheriff officers
  4. 4Service of documents by sheriff officers
  5. 5Service of documents by sheriff officers
  6. 6Service and evidence conventions
  7. 7Service and evidence conventions
  8. 8Service and evidence conventions
  9. 9Regulated agreements
  10. 10Regulated agreements
  11. 11Regulated agreements
  12. 12Regulated agreements
  13. 13Appointment or removal of a person as a guardian of a child
  14. 14Appointment or removal of a person as a guardian of a child
  15. 15Pensions Act 2008
  16. 16Recall of decree
  17. 17Recall of decree
  18. 18Debt arrangement and attachment: Report of auction
  19. 19Sheriff Court Bankruptcy Rules
  20. 20Transitional and savings provision
  21. Signature
  22. Schedule Schedule
  23. Explanatory note

1Citation, commencement and interpretation

(1)

This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011 and, subject to subparagraph (2), comes into force on 4th April 2011.

(2)

Paragraph 15 comes into force on 6th April 2011.

(3)

A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

(4)

In this Act of Sederunt—

  • “Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907f1;

  • “Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002f2;

  • “Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999f3;

  • “Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002f4.

2Service of documents by sheriff officers

(1)

The Ordinary Cause Rules are amended in accordance with the following subparagraph.

(2)

In rule 5.4 (service within Scotland by sheriff officer)f1—

(a)

for paragraph (3)(b) substitute—

“(b)

by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.”;

(b)

after paragraph (5), insert—

“(6)

Where service is executed under paragraphs (1)(b) or (3), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)”and sealed by the sheriff officer.”.

3Service of documents by sheriff officers

(1)

The Summary Application Rules are amended in accordance with the following subparagraph.

(2)

In rule 2.11 (service within Scotland by sheriff officer)f1—

(a)

for paragraph (3)(b) substitute—

“(b)

by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.”;

(b)

after paragraph (5), insert—

“(6)

Where service is executed under paragraphs (1)(b) or (3), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)” and sealed by the sheriff officer.”.

4Service of documents by sheriff officers

(1)

The Summary Cause Rules are amended in accordance with the following subparagraph.

(2)

In rule 5.4 (service within Scotland by sheriff officer)—

(a)

in paragraph (1)(b)(i) for “an inmate” substitute “a resident”;

(b)

for paragraph (2)(b) substitute—

“(b)

by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.”;

(c)

after paragraph (5), insert—

“(6)

Where service is executed under paragraphs (1)(b) or (2), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)” and sealed by the sheriff officer.”.

5Service of documents by sheriff officers

(1)

The Small Claim Rules are amended in accordance with the following subparagraph.

(2)

In rule 6.4 (service within Scotland by sheriff officer)—

(a)

in paragraph (1)(b)(i) for “an inmate” substitute “a resident”;

(b)

for paragraph (2)(b) substitute—

“(b)

by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.”;

(c)

after paragraph (6), insert—

“(7)

Where service is executed under paragraphs (1)(b) or (2), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)” and sealed by the sheriff officer.”.

6Service and evidence conventions

For “the Secretary of State for Foreign and Commonwealth Affairs” substitute “the Scottish Ministers” where it occurs in each of the following places—

  • rule 5.5(1)(b)(ii) of the Ordinary Cause Rules (service on persons furth of Scotland)f1,

    rule 2.12(1)(b)(ii) of the Summary Application Rules (service on persons furth of Scotland)f2,

    rule 5.7(3)(c) of the Summary Cause Rules (service on persons outwith Scotland)f3,

    rule 6.5(3)(c) of the Small Claim Rules (service on persons outwith Scotland)f4.

7Service and evidence conventions

After “in the request to” insert “the Scottish Ministers or, as the case may be,” where it occurs in each of the following places—

  • rule 5.5(3)(a) of the Ordinary Cause Rules,

    rule 2.12(3)(a) of the Summary Application Rules,

    rule 5.7(8)(a) of the Summary Cause Rules,

    rule 6.5(8)(a) of the Small Claim Rules.

8Service and evidence conventions

For “the Foreign and Commonwealth Office” substitute “the Scottish Ministers” where it occurs in each of the following places—

  • rule 28.14(6) of the Ordinary Cause Rules (letters of request)f1,

    rule 18.7(6) of the Summary Cause Rules (letter of request)f2.

9Regulated agreements

(1)

The Ordinary Cause Rules are amended in accordance with the following subparagraph.

(2)

In Form O3f1 in Appendix 1 (forms), in Part B of the Application for a Time Order under the Consumer Credit Act 1974—

(a)

after the heading of section 5 insert “(Please attach a copy of the agreement if you have retained it and insert details of the agreement where known)”;

(b)

after section 5(b) omit “(Please attach a copy of the agreement)”.

10Regulated agreements

(1)

The Summary Application Rules are amended in accordance with the following subparagraph.

(2)

In Form 5f1 in Schedule 1 (forms), in Part B of the Application for a Time Order under the Consumer Credit Act 1974—

(a)

after the heading of section 5 insert “(Please attach a copy of the agreement if you have retained it and insert details of the agreement where known)”;

(b)

after section 5(b) omit “(Please attach a copy of the agreement)”.

11Regulated agreements

(1)

The Summary Cause Rules are amended in accordance with the following subparagraph.

(2)

On page numbered 11 of Form 1af1 in Appendix 1 (forms), in the Application for a Time Order under the Consumer Credit Act 1974—

(a)

after the heading of section 5 insert “(Please attach a copy of the agreement if you have retained it and insert details of the agreement where known)”;

(b)

after section 5(b) omit “(Please attach a copy of the agreement)”.

12Regulated agreements

(1)

The Small Claim Rules are amended in accordance with the following subparagraph.

(2)

On page numbered 12 of Form 1af1 in Appendix 1 (forms), in the Application for a Time Order under the Consumer Credit Act 1974—

(a)

after the heading of section 5 insert “(Please attach a copy of the agreement if you have retained it and insert details of the agreement where known)”;

(b)

after section 5(b) omit “(Please attach a copy of the agreement)”.

13Appointment or removal of a person as a guardian of a child

(1)

The Ordinary Cause Rules are amended in accordance with the following subparagraph.

(2)

In rule 33.1 (interpretation of Chapter 33, family actions)f1, omit—

(a)

in paragraph (1)(h)(i), the word “and”;

(b)

paragraph (1)(h)(ii).

14Appointment or removal of a person as a guardian of a child

(1)

The Act of Sederunt (Family Proceedings in the Sheriff Court) 1996f1 is amended in accordance with the following subparagraph.

(2)

Paragraph 4 (summary applications to appoint or remove guardian under Children (Scotland) Act 1995) is omitted.

15Pensions Act 2008

(1)

The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2)

In rule 33.7 (warrants and forms for intimation)f1—

(a)

in paragraph (1)(l) omit the word “and” where it appears at the end of that paragraph;

(b)

after paragraph (1)(m) insert—

“(n)

in an action where a pursuer makes an application for an order under section 8(1)(bab) of the Act of 1985 (pension compensation sharing order)f2, to the Board of the Pension Protection Fund, and a notice of intimation in Form F12C shall be attached to the initial writ intimated to that Board; and

(o)

in an action where a pursuer makes an application for an order under section 8(1)(bb) of the Act of 1985 (an order under section 12B(2) of the Act of 1985 for pension compensation)f3, to the Board of the Pension Protection Fund and a notice of intimation in Form F12D shall be attached to the initial writ intimated to that Board.”.

(3)

In rule 33.51 (applications relating to orders for financial provision)f4—

(a)

in paragraph (3)(b) omit the word “or” where it appears at the end of that paragraph; and

(b)

after paragraph (3)(b) insert—

“(ba)

section 12B(4) of the Act of 1985 (recall or variation of a capital sum order)f5, or”.

(4)

In rule 33A.7 (warrants and forms for intimation)f6—

(a)

in paragraph (1)(j) omit the word “and” where it appears at the end of that paragraph;

(b)

after paragraph (1)(k) insert—

“(l)

in an action where a pursuer makes an application for an order under section 8(1)(bab) of the Act of 1985 (pension compensation sharing order), to the Board of the Pension Protection Fund, and a notice of intimation in Form CP12A shall be attached to the initial writ intimated to that Board; and

(m)

in an action where a pursuer makes an application for an order under section 8(1)(bb) of the Act of 1985 (an order under section 12B(2) of the Act of 1985 for pension compensation), to the Board of the Pension Protection Fund and a notice of intimation in Form CP12B shall be attached to the initial writ intimated to that Board.”.

(5)

In rule 33A.48 (applications relating to orders for financial provision)f7—

(a)

in paragraph (3)(b) omit the word “or” where it appears at the end of that paragraph; and

(b)

after paragraph (3)(b) insert—

“(ba)

section 12B(4) of the Act of 1985 (recall or variation of a capital sum order); or”.

(6)

Appendix 1 (forms) is amended as follows:—

(a)

after Form F12B insert Form F12C and Form F12D set out in the Schedule to this Act of Sederunt; and

(b)

after Form CP12 insert Form CP12A and Form CP12B set out in the Schedule to this Act of Sederunt.

16Recall of decree

(1)

The Summary Cause Rules are amended in accordance with the following subparagraphs.

(2)

For rule 24.1 (recall of decree)f1 substitute—

“Recall of decree

24.1.
(1)

A party may apply for recall of a decree granted under any of the following provisions—

(a)

rule 7.1; or

(b)

paragraph (5), (6) or (7) of rule 8.2.

(2)

The application is to be by minute in Form 30, which must be lodged with the sheriff clerk.

(3)

The application must include where appropriate (and if not already lodged with the sheriff clerk), the proposed defence or the proposed answer to the counterclaim.

(4)

A party may apply for recall of a decree in the same action on one occasion only.

(5)

A minute for recall of a decree of dismissal must be lodged within 14 days of the date of decree.

(6)

Subject to paragraphs (7) to (9), a minute for recall of any other kind of decree may be lodged at any time before the decree is fully implemented.

(7)

Subject to paragraphs (8) and (9), where a charge or arrestment has been executed following the decree, the minute must be lodged within 14 days of that execution (or the first such execution where there has been more than one).

(8)

Subject to paragraph (9), in the case of a party seeking recall who was served with the action under rule 5.7, the minute must be lodged—

(a)

within a reasonable time of such party having knowledge of the decree against him or her; but

(b)

in any event, within one year of the date of decree.

(9)

Where the decree includes a decree for removing from heritable property to which section 216(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007f2 applies, the minute may be lodged at any time before the defender has been removed from the subjects or premises.

(10)

On the lodging of a minute for recall of a decree, the sheriff clerk must fix a date, time and place for a hearing of the minute.

(11)

Where a hearing has been fixed under paragraph (10), the party seeking recall must, not less than 7 days before the date fixed for the hearing, serve upon the other party—

(a)

a copy of the minute in Form 30a; and

(b)

a note of the date, time and place of the hearing.

(12)

At a hearing fixed under paragraph (10), the sheriff must recall the decree so far as not implemented and the hearing must then proceed as a hearing held under rules 8.2(3) to (7) and 8.3.

(13)

A minute for recall of a decree, when lodged and served in terms of this rule, will have the effect of preventing any further action being taken by the other party to enforce the decree.

(14)

On receipt of the copy minute for recall of a decree, any party in possession of an extract decree must return it forthwith to the sheriff clerk.

(15)

If it appears to the sheriff that there has been any failure or irregularity in service of the minute for recall of a decree, the sheriff may order re-service of the minute on such conditions as the sheriff thinks fit.”.

(3)

In Appendix 1 (forms), in Forms 30 and 30a—

(a)

omit “Reason for failure to appear or be represented:”;

(b)

insert “/third party” after “pursuer/defender”; and

(c)

insert “*” before “Proposed defence/answer”.

17Recall of decree

(1)

The Small Claim Rules are amended in accordance with the following subparagraphs.

(2)

For rule 22.1 (recall of decree)f1 substitute—

“Recall of decree

22.1.
(1)

A party may apply for recall of a decree granted under any of the following provisions—

(a)

rule 8.1(3);

(b)

paragraph (6), (7) or (8) of rule 9.1; or

(c)

rule 11.1(8).

(2)

The application is to be by minute in Form 20, which must be lodged with the sheriff clerk.

(3)

The application must include where appropriate (and if not already lodged with the sheriff clerk), the proposed defence or the proposed answer to the counterclaim.

(4)

A party may apply for recall of a decree in the same claim on one occasion only.

(5)

A minute for recall of a decree of dismissal must be lodged within 14 days of the date of decree.

(6)

Subject to paragraphs (7) and (8), a minute for recall of any other kind of decree may be lodged at any time before the decree is fully implemented.

(7)

Subject to paragraph (8), where a charge or arrestment has been executed following the decree, the minute must be lodged within 14 days of that execution (or the first such execution where there has been more than one).

(8)

In the case of a party seeking recall who was served with the action under rule 6.5, the minute must be lodged—

(a)

within a reasonable time of such party having knowledge of the decree against him or her; but

(b)

in any event, within one year of the date of decree.

(9)

On the lodging of a minute for recall of a decree, the sheriff clerk must fix a date, time and place for a hearing of the minute.

(10)

Where a hearing has been fixed under paragraph (9), the party seeking recall must, not less than 7 days before the date fixed for the hearing, serve upon the other party—

(a)

a copy of the minute in Form 20a; and

(b)

a note of the date, time and place of the hearing.

(11)

Paragraph (12) applies if the party seeking recall—

(a)

is not a partnership or body corporate;

(b)

is not acting in a representative capacity; and

(c)

is not represented by a solicitor.

(12)

The sheriff clerk must assist such party to complete and lodge the minute for recall and arrange service of the minute for recall—

(a)

by first class recorded delivery post; or

(b)

on payment of the fee prescribed by the Scottish Ministers by order, by sheriff officer.

(13)

At a hearing fixed under paragraph (9), the sheriff must recall the decree so far as not implemented and the hearing must then proceed as a hearing held under rules 9.1(4) to (8) and 9.2.

(14)

A minute for recall of a decree, when lodged and served in terms of this rule, will have the effect of preventing any further action being taken by the other party to enforce the decree.

(15)

On receipt of the copy minute for recall of a decree, any party in possession of an extract decree must return it forthwith to the sheriff clerk.

(16)

If it appears to the sheriff that there has been any failure or irregularity in service of the minute for recall of a decree, the sheriff may order re-service of the minute on such conditions as the sheriff thinks fit.”.

(3)

In Appendix 1 (forms), in Forms 20 and 20a—

(a)

omit “Reason for failure to appear or be represented:”; and

(b)

insert “*” before “Proposed defence/answer”.

18Debt arrangement and attachment: Report of auction

(1)

The Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002f1 is amended in accordance with the following subparagraph.

(2)

In Form 17 in Appendix 1 (forms) of Schedule 1, for “This report is made by me (specify name and address) to the Sheriff at (place) on (date)” substitute—

“I, (insert name and address) declare that all the information contained within this report is, to the best of my knowledge, true.

(Date)”.

19Sheriff Court Bankruptcy Rules

(1)

The Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008f1 is amended in accordance with the following subparagraph.

(2)

In Appendix 2 (information to be contained in the Register of Insolvencies) of the Schedule—

(a)

in section A (Sequestrations), after “Name of debtor” insert on a new line “Debtor’s date of birth (where known)”;

(b)

in section B (Protected trust deeds for creditors), after “Name and address of granter of trust deed” insert on a new line “Granter’s date of birth (where known)”;

(c)

in section C (Bankruptcy Restrictions Orders, Interim Bankruptcy Restrictions Orders and Bankruptcy Restrictions Undertakings), after “Name of debtor” insert on a new line “Debtor’s date of birth (where known)”.

20Transitional and savings provision

(1)

Subject to subparagraph (2), the Ordinary Cause Rules, Summary Application Rules, Summary Cause Rules, Small Claim Rules, Act of Sederunt (Family Proceedings in the Sheriff Court) 1996 and Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002 as they applied immediately before 4th April 2011 continue to have effect for the purpose of any action raised but not determined prior to that date.

(2)

Subparagraph (1) does not apply to the changes made to the Ordinary Cause Rules by paragraph 15.

Signature

A.C. HAMILTON

Lord President

Edinburgh

I.P.D.

10th March 2011

Explanatory note

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

This Act of Sederunt makes miscellaneous amendments to the Ordinary Cause Rules, the Summary Application Rules, the Summary Cause Rules and the Small Claim Rules; and certain other minor amendments.

Paragraphs 2 to 5 amend each set of rules in relation to service of documents within Scotland by sheriff officer. In particular, the rules now require that where sheriff officers serve a document by depositing or leaving it, the document should be placed in a sealed envelope.

Paragraphs 6 to 8 amend each set of rules in consequence of a transfer of functions from the Secretary of State for Foreign and Commonwealth Affairs to the Scottish Ministers for outgoing requests for service and evidence from Scotland under the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

Paragraphs 9 to 12 amend each set of rules so that the forms for Applications for a Time Order under the Consumer Credit Act 1974 require that an applicant should attach a copy of the regulated agreement to their application if they have retained it.

Paragraph 13 amends the definition of “family action” in rule 33.1 of the Ordinary Cause Rules so that applications for an order appointing or removing a person as guardian of a child are to be made by ordinary cause, rather than by summary application. In consequence of this change, paragraph 14 omits paragraph 4 of the Act of Sederunt (Family Proceedings in the Sheriff Court) 1996.

Paragraph 15 amends the Ordinary Cause Rules in relation to applications for pension compensation orders on divorce or dissolution of civil partnership. In particular:—

(a)

it inserts rules 33.7(1)(n) and (o) to provide that where a party to a family action applies for a pension compensation sharing order to be made under section 8(1)(bab) of the Family Law (Scotland) Act 1985 (the “1985 Act”) or an order under section 12B(2) to be made under section 8(1)(bb) of the 1985 Act, intimation of the application is given to the Board of the Pension Protection Fund (paragraph 15(2)(b));

(b)

it inserts rule 33.51(3)(ba) to provide that an application for recall or variation of a capital sum order made under section 12B(4) of the 1985 Act is to be made by minute in the process of the action to which the application relates (paragraph 15(3));

(c)

similar rules regarding intimation of applications for a pension compensation sharing order or an order under section 12B(2) of the 1985 Act are inserted in rule 33A.7 in respect of civil partnership actions (paragraph 15(4));

(d)

corresponding provision is made in rule 33A.48 in respect of recall or variation of a capital sum order made in the context of civil partnership actions (paragraph 15(5));

(e)

Forms F12C and Form F12D are inserted in Appendix 1, in which intimation is to be made on the Board of the Pension Protection Fund in respect of family actions (paragraph 15(6)(a)); and

(f)

Forms CP12A and CP12B are inserted in Appendix 1, in which intimation is to be made on the Board of the Pension Protection Fund in respect of civil partnership actions (paragraph 15(6)(b)).

Paragraphs 16 and 17 amend the rules in respect of recall of decree in the Summary Cause Rules and the Small Claim Rules. In particular, it is provided that in the Summary Cause Rules in the case of decree including a decree for removing from heritable property to which section 216(1) of the Bankruptcy and Diligence etc. (Scotland) Act 2007 applies, a minute for recall may be lodged at any time before the defender has been removed from the subjects or premises.

Paragraph 18 amends Form 17 in Appendix 1 of Schedule 1 to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) so that a sheriff officer is required to complete a declaration in accordance with section 32(2)(c) of the Debt Arrangement and Attachment (Scotland) Act 2002.

Paragraph 19 amends Appendix 2 of the Schedule to the Act of Sederunt (Sheriff Court Bankruptcy Rules) 2008 to require that the debtor’s date of birth (where known) is included in the information to be contained in the Register of Insolvencies.

Paragraph 20 contains transitional provisions.