Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2004

Made: 29th November 2004

Coming into force: 30th November 2004

The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 5 of the Court of Session Act 1988[^f00001] and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2004 and shall come into force on 30th November 2004.

• (2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Amendment of the Rules of the Court of Session

2

• (1) The Rules of the Court of Session 1994[^f00002] shall be amended in accordance with the following sub-paragraphs.

• (2) In rule 33.6 (form of bonds of caution and other securities) paragraph (2) shall be omitted.

• (3) After rule 35.15 (letters of request) there shall be inserted the following:–

(35.16) (1) In this rule– - “the Council Regulation” means the Council Regulation (EC) No. 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters[^f00003]; - “Member State” has the same meaning as in Article 1(3) of the Council Regulation; - “request” means a request to which Article 1(1)(a) of the Council Regulation applies; and - “requested court” has the same meaning as in Article 2(1) of the Council Regulation. (2) This rule applies to an application under the Council Regulation for a request to a requested court in a Member State other than the United Kingdom for the purposes of a cause depending before the Court of Session. (3) An application to which paragraph (2) applies shall be made by minute in Form 35.16–A with a proposed request in form A (request for the taking of evidence) or form I (request for direct taking of evidence) set out in the Annex to the Council Regulation. (4) It shall be a condition of granting an application for a request that the agent for the applicant, or a party litigant, as the case may be, shall be personally liable, in the first instance, for any reimbursement required by the requested court in respect of any fees paid to experts and interpreters and the costs occasioned by the use of any requested special procedure in executing the request for evidence, or the use of requested communications technology at the performance of the taking of evidence; and that he shall consign into court any such sum as is required by the requested court as deposit or advance towards the costs of executing the request. (5) Unless the requested court is in a country or territory– (a) where English is an official language, or (b) in relation to which the Deputy Principal Clerk certifies that no translation is required, then the applicant shall, before the issue of the request, lodge in process a translation of the request and any interrogatories and cross-interrogatories into the official language of that country or territory. (6) Where an application under this rule has been granted, the request shall be forwarded by the Deputy Principal Clerk to– (a) the requested court; or (b) the central body or competent authority designated by the other Member State to be responsible for taking decisions on requests to take evidence directly. (7) The Deputy Principal Clerk shall, as soon as reasonably practicable after receipt of any communication from the requested court, send written intimation of that communication to the parties. (8) If a request is made to take the evidence of a witness directly in another Member State, the Deputy Principal Clerk shall intimate to the witness who is to give evidence, a notice in Form 35.16–B and the witness shall return Form 35.16–C to the Deputy Principal Clerk, within 14 days after the date of intimation of the notice.

• (4) In rule 43.1(3)[^f00004] (disapplication of certain rules to personal injuries actions) after “rule 22.3 (closing record)” there shall be inserted “rule 26.5(2)(c) (answers by third party to include pleas-in-law),”.

• (5) In rule 72.1(1) (interpretation) after “Bankruptcy (Scotland) Act 1985[^f00005]” there shall be inserted the following:–

; - “the 2004 Regulations” means the Debt Arrangement Scheme (Scotland) Regulations 2004[^f00006].

• (6) After rule 72.2 (first order in petitions for sequestration) there shall be inserted the following:–

(72.2A) The petitioner shall lodge with the petition a declaration or declarations by the petitioner and any concurring creditors in Form 72.2A confirming that the debtor has not entered into an approved debt payment programme or that the debts founded on in the petition are in respect of credit as defined in regulation 35(1)(b) of the 2004 Regulations.

• (7) After Chapter 86 (applications under various provisions of the Competition Act 1998) there shall be inserted the following:–

(87.1) (1) In this rule– - “the Treaty” means the Treaty establishing the European Community; - “the OFT” means the Office of Fair Trading. (2) In an action where an issue under Article 81 or 82 of the Treaty is raised:– (a) by the pursuer or petitioner in the summons or petition; (b) by the defender or respondent in the defences or answers; or (c) by any party in the pleadings; intimation of the action shall be given to the OFT by the party raising the issue, by a notice of intimation in Form 87.1. (3) Where the issue under Article 81 or 82 of the Treaty is raised in the summons or petition, a warrant for intimation shall be inserted in the summons or petition in the following terms: ‘Warrant to intimate to the Office of Fair Trading’. (4) Where the issue under Article 81 or 82 of the Treaty is raised in defences, answers or in any other part of the pleadings, the party raising the issue shall apply by motion for an order for intimation to the OFT. (5) A certified copy of an interlocutor granting a motion under paragraph (4) shall be sufficient authority for the party to intimate by notice in Form 87.1. (6) The notice of intimation shall be served on the OFT within such period as the court shall specify in the interlocutor allowing intimation. (7) There shall be attached to the notice of intimation– (a) a copy of the pleadings (including any adjustments and amendments); (b) a copy of the interlocutor allowing intimation of the notice; and (c) where the pleadings have not been amended in accordance with a minute of amendment, a copy of that minute.

• (8) In the appendix–

• (a) after Form 35.15–B there shall be inserted the forms set out in Part 1 of the Schedule to this Act of Sederunt;

• (b) after Form 69.23 there shall be inserted the form set out in Part 2 of the Schedule to this Act of Sederunt;

• (c) after Form 86.3 there shall be inserted the form set out in Part 3 of the Schedule to this Act of Sederunt.

SCHEDULE

PART 1

FORM 35.16–A

Form of minute for request to take evidence

Rule 35.16(3)

FORM 35.16–B

Form of notice to person in another Member State of intention to seek to take direct evidence

Rule 35.16(8)

FORM 35.16–C

Form of response form to be completed and returned to requesting court by witness

Rule 35.16(8)

PART 2

FORM 72.2A

Form of declaration regarding debt payment programme

Rule 72.2A

PART 3

FORM 87.1

Form of notice of intimation to the Office of Fair Trading

Rule 87.1(2)

Signed

Lord President I.P.D. — 29th November 2004

Explanatory note

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

This Act of Sederunt makes miscellaneous amendments to the Rules of the Court of Session 1994 (S.I. 1994/1443) (“the Rules”).

Paragraph 2(2) makes a minor amendment to the rules relating to bonds of caution to remove any reference to the bond of caution or security being given by an insurance company authorised under the Insurance Companies Act 1982.

Paragraph 2(3) introduces procedure for letters of request for evidence to be taken under European Council Regulation 1206/2001 on the taking of evidence in civil and commercial matters. A form for an application by minute is prescribed and rules are made in relation to the applicant’s liability for expenses and the documents to accompany any letter of request. New rules are introduced to provide for intimation between the parties, the court that has been sent the request and the witness.

Paragraph 2(4) amends rule 43.1(3) to clarify that pleas-in-law are not required in answers by third parties in personal injury cases.

Paragraph 2(5) and (6) introduces a new rule requiring a declaration to be lodged with a petition for sequestration stating that the sequestration is not prohibited under the Debt Arrangement Scheme (Scotland) Regulations 2004 due to the existence of a debt payment programme.

Paragraph 2(7) introduces a new chapter to provide a mechanism for the OFT to be advised of actions that are raised involving issues under Article 81 or 82 of the Treaty establishing the European Community.

Paragraph 2(8) inserts new forms in relation to the request to take evidence in a court in a European Community Member State, the form of declaration in a petition for sequestration, and the form of notice of intimation to Office of Fair Trading.

Footnotes

[^f00001]: 1988 c. 36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 c. 32, section 2(3) and by the Children (Scotland) Act 1995 c. 36, Schedule 4, paragraph 45.

[^f00002]: S.I. 1994/1443, last amended by S.S.I. 2004/331.

[^f00003]: O.J. L 174, 27.06.2001, p.1.

[^f00004]: inserted by S.S.I. 2002/570 and amended by S.S.I. 2004/291.

[^f00005]: 1985 c. 66.

[^f00006]: S.S.I. 2004/468 as amended by S.S.I. 2004/470.