All change

The Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Miscellaneous) 2004 came into force on 21 May 2004. This article explains the reasons for the principal amendments.

Ordinary causes

Article 2 of the Act of Sederunt amends the Ordinary Cause Rules as follows.

Signature of warrants

Paragraphs (2) and (3) amend rules 3.5 and 5.1 to provide that it is the sheriff, and not the sheriff clerk, who must grant warrant to arrest on the dependence, or to found jurisdiction; and that averments to justify such a warrant must be made. Paragraph (10) similarly amends rule 10.6 relative to warrants for arrestment on the dependence on counterclaims.

This change is derived from the opinion of the Inner House in Advocate General for Scotland v Taylor 2003 SLT 1340, which proposed that the Ordinary Cause Rules should be amended to make it clear that an application for a warrant to arrest on the dependence must be judicially considered before it is granted. It is understood that that is already being done in practice.

Service on persons furth of Scotland

Paragraph (4) amends rule 5.5 to give further effect to Council Regulation (EC) No 1348/2000 on the service in the European Community of judicial and extrajudicial documents in a civil or commercial action. It specifies (i) the language to be used in the document being served; and (ii) that service is not effected unless the person is told that acceptance can be refused where the document being served is not translated properly.

Reponing

Paragraph (5) amends rule 8.1 to provide that a person other than the defender may ask the court to recall a decree in absence, in order to allow the sheriff to deal with an otherwise competent application by that person.

This change is made in the light of Sheriff Principal Bowen’s judgment in GMAC-RFA Ltd v Murray (Glasgow Sheriff Court, 9 October 2002, unreported). It allows a decree to be recalled to enable the making of an application under section 2 of the Mortgage Rights (Scotland) Act 2001 or a time to pay application.

Options hearing; procedural hearing

Paragraph (6) amends rule 9.12 to specify the test the sheriff is to apply at an options hearing when deciding whether to appoint the cause to debate. He is to do so if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree. Paragraph (9) similarly amends rule 10.6.

These paragraphs enact the test in Gracey v Sykes 1994 SCLR 909 and The Blair Bryden Partnership v Adair 1995 SCLR 358, which appears not to be widely understood.

Documents and witnesses; applications for time to pay directions

Paragraphs (7) and (8) are designed to remove a misapprehension that rules 9.13 to 9.15 do not apply where a case proceeds under Chapter 10 (additional procedure). Paragraph (7) removes those rules from Chapter 9 (standard procedure), while paragraph (8) inserts a new Chapter 9A in which they are restated in order to make it clear that they apply to procedure under both Chapters.

Written statements

Paragraph (11) inserts a new rule 29.3 which provides for the docqueting and lodging of a document containing a statement admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 (a statement made by a person otherwise than in the course of the proof).

Order to lodge account of expenses

Paragraph (12) inserts a new rule 32.1A which is designed to deal with delay by a party entitled to expenses in lodging an account of those expenses in process. Such delays cause parties found liable in expenses to keep files open long after the case is over. The new rule enables the party found liable to apply by motion, four months after the date of the interlocutor finding him so liable, for an order ordaining the other party to lodge his account in process. The rule may be compared with rule 42.1(2)(a) of the Rules of the Court of Session 1994, as amended.

Interim payment of damages

Paragraph (13) amends rule 36.9 to permit the court to grant interim decree in cases where an insurer under section 151 of the Road Traffic Act 1988, or the Motor Insurers Bureau, is bound to meet the liability of the defender.

Summary applications

Article 3 of the Act of Sederunt amends the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999.

Signature of warrants

Paragraphs (2) and (4) make similar amendments to rules 2.4 and 2.7 to those made by article 2(2), (3) and (10) to rules 3.5, 5.1 and 19.2 of the Ordinary Cause Rules.

Time limits

Paragraph (3) amends rule 2.6 to specify the types of procedure covered by that rule, making it clear that the time limit only applies to an appeal under statute or an application in the nature of appeal. This takes account of the view expressed by Sheriff Principal Bowen in Ward v DRM Driver Training Centre (Glasgow) 2002 GWD 17-553 that rule 2.6 was not of universal application.

Service on persons furth of Scotland

Paragraph (5) makes the same amendment to rule 2.12 as is made by article 2(4) to rule 5.5 of the Ordinary Cause Rules.

Race Relations Act 1976

Paragraph (6) amends rule 3.15.2 to make it clear that an application under section 71E of the Race Relations Act 1976 must be a summary application.

Adults with Incapacity (Scotland) Act 2000

Paragraph (7) substitutes a new rule 3.16.3 to make it clear that the sheriff may appoint that the hearing of proceedings under the Adults with Incapacity (Scotland) Act 2000 shall take place in private. It appears that practice in this respect has varied in different sheriff courts.

Summary causes and small claims

Article 4 of the Act of Sederunt amends the Summary Cause Rules 2002, and article 5 amends the Small Claim Rules 2002, to the same effect as article 2 amends the Ordinary Cause Rules 1993 relative to the signature of warrants and service furth of Scotland.