Act of Sederunt (Rules of the Court of Session Amendment No. 3) (Miscellaneous) 2011

Made: 10th March 2011

Coming into force in accordance with paragraph

The Lords of Council and Session, under and by virtue of the powers conferred by section5 of the Court of Session Act 1988[^f00001] and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation, commencement etc.

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 2011 and, subject to paragraph (2), comes into force on 11thApril 2011.

• (2) Paragraph 4 comes into force on the date on which the Parental Responsibility and Measures for the Protection of Children (International Obligations) (Scotland) Regulations 2010[^f00002] come into force.

• (3) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

• (4) In this Act of Sederunt, “the Rules” means the Rules of the Court of Session 1994[^f00003].

Service of documents furth of the United Kingdom

2

• (1) The Rules are amended in accordance with the following subparagraph.

• (2) In rule 16.2 (service furth of United Kingdom)—

• (a) in paragraph (2)(b), for “Secretary of State for Foreign and Commonwealth Affairs” substitute “Scottish Ministers”;

• (b) for paragraph (3) substitute—

(3) Where service is to be executed through a central, or other appropriate, authority at the request of the Scottish Ministers, the party executing service shall— (a) send a copy of the document, with a request for service by the method indicated in the request, to the Scottish Ministers; and (b) lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served. (3A) Where service is to be executed through a British consular officer at the request of the Secretary of State for Foreign and Commonwealth Affairs, the party executing service shall— (a) send a copy of the document, with a request for service by the method indicated in the request, to the Secretary of State for Foreign and Commonwealth Affairs; and (b) lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

Personal injuries actions

3

• (1) The Rules are amended in accordance with the following subparagraph.

• (2) In Chapter 43 (actions of damages for, or arising from, personal injuries)[^f00004]—

• (a) in rule 43.4(4) (inspection and recovery of documents), for “rule 35.2” substitute “rules 35.3 or 35.3A”.

• (b) in rule 43.6(1)(b)(ii) (allocation of diets and timetables)[^f00005], for “execute” substitute “serve”.

Registration and enforcement of measures for the protection of children

4

• (1) The Rules are amended in accordance with the following subparagraphs.

• (2) In Chapter 62 (recognition, registration and enforcement of foreign judgments etc.), after Part XIII (UNCITRAL model law on cross-border insolvency)[^f00006] insert—

(62.97) (1) This Part applies to the registration and enforcement of a measure under Article 24 or Article 26 of the 1996 Convention. (2) In this Part— - “the 1996 Convention” means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19th October 1996[^f00007]; - “Contracting State” means a state party to the 1996 Convention. (62.98) shall be made by petition in Form 62.98. (1) An application— (a) under Article 24 of the 1996 Convention for recognition or non-recognition of a measure taken in a Contracting State other than the United Kingdom; or (b) under Article 26 of the 1996 Convention for enforcement of a measure taken in a Contracting State other than the United Kingdom, (2) The petition shall include averments on the matters outlined at Article 23(2) of the 1996 Convention (grounds for refusal of recognition). (3) There shall be produced with the petition an authentic copy of any judgment or other document which outlines the measure to be registered. (4) The court shall, on being satisfied that the petition complies with the requirements of the 1996 Convention, pronounce an interlocutor— (a) granting warrant for the registration of the measure; and (b) where necessary, granting decree in accordance with Scots law. (5) The interlocutor pronounced under paragraph (4) shall specify that the petitioner may register the measure under rule 62.100 (registration under the 1996 Convention). (62.99) Where the court pronounces an interlocutor under rule 62.98(4) the Deputy Principal Clerk shall intimate such interlocutor to the petitioner, by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service. (62.100) (1) Where the court pronounces an interlocutor under rule 62.98(4) granting warrant for registration, the Deputy Principal Clerk shall enter the measure in the register of judgments, authentic instruments and court settlements kept in the Petition Department. (2) On presentation by the petitioner to the Keeper of the Registers of— (a) a certified copy of the interlocutor under rule 62.98(4) granting warrant for registration, (b) an authentic copy of any judgment or other document which outlines the measure to be registered and any translation of such a document, they shall be registered in the register of judgments in the Books of Council and Session. (3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered document with a warrant for execution. (62.101) The petitioner shall serve a copy of the interlocutor under rule 62.98(4) granting warrant for registration of a judgment and notice in Form 62.101 on the person against whom enforcement is sought.

• (3) At the appropriate place in the appendix insert the forms set out in Schedule1 to this Act of Sederunt.

Applications under section 1 of the Administration of Justice (Scotland) Act 1972

5

• (1) The Rules are amended in accordance with the following subparagraphs.

• (2) In rule 64.9 (duties of commissioner)[^f00008], in paragraph (c), after “legal advice” insert “and to ask the court to vary or discharge the order”.

• (3) For rule 64.12 (right of haver to consult)[^f00009] substitute—

(64.12) (1) The haver may seek legal or other professional advice of his choice. (2) Where the purpose of seeking this advice is to help the haver to decide whether to ask the court to vary or discharge the order, the haver may ask the Commissioner to delay starting the search for up to 2 hours or such other longer period as the Commissioner may permit. (3) Where the haver is seeking advice under this rule, he or she must— (a) inform the Commissioner and the petitioner’s agent of that fact; (b) not disturb or remove any listed items; (c) permit the Commissioner to enter the premises, but not to start the search.

• (4) For Form 64.6 (form of order of court in procedure for recovery of documents under Chapter64)[^f00010], and Form 64.9 (notice to accompany order of the court when served by Commissioner)[^f00011], substitute the forms set out in Schedule 2 to this Act of Sederunt.

Citation of witness personally at proof or jury trial

6

• (1) The Rules are amended in accordance with the following subparagraph.

• (2) In the appendix, for Form 36.2-C substitute the form set out in Schedule 3 to this Act of Sederunt.

SCHEDULE 1

SCHEDULE 2

SCHEDULE 3

Signed

A.C. HAMILTON — Lord President — I.P.D. — 10th March 2011

Explanatory note

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

EXPLANATORY NOTE

This Act of Sederunt makes amendments to the Rules of the Court of Session 1994.

Paragraph 2 amends the rule on service of documents furth of the United Kingdom, to reflect a change in the designated central authority under the 1965 Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters.

Paragraph 3 amends rules 43.4 and 43.6, in relation to the inspection of recovery of documents and allocation of diets and timetables in personal injuries actions.

Paragraph 4 inserts a new Part XIV into Chapter 62 of the Rules, and related forms, in relation to the enforcement of measures made by Contracting States to the Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children.

Paragraph 5 amends the rules and Forms relating to applications under section 1 of the Administration of Justice (Scotland) Act 1972, in order to make it clear that a haver has a right to apply for variation or discharge of an order granted under that provision. Rule 64.12 and Forms 64.6 and 64.9 are amended to provide that where a haver is seeking advice to help decide whether to apply for variation or discharge of an order, the haver may ask the Commissioner to delay starting the search for up to 2 hours or such other longer period as the Commissioner may permit.

Paragraph 6 amends the form of certificate of citation of a witness by a Messenger-at-Arms, so as to remove the requirement for the citation to be witnessed.

Footnotes

[^f00001]: 1988 c.36; section5 was amended by the Civil Evidence (Scotland) Act 1988 (c.32), section2(3); the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule9; the Children (Scotland) Act 1995 (c.36), Schedule4, paragraph45; the Vulnerable Witnesses (Scotland) Act 2004 (asp3), section14(1); and the Judiciary and Courts (Scotland) Act 2008, (asp6), section46(3).

[^f00002]: S.S.I. 2010/213. Regulation 1(2) specifies the day on which these Regulations come into force.

[^f00003]: S.I. 1994/1443, last amended by S.SI. 2011/165.

[^f00004]: Chapter 43 was substituted by S.S.I. 2002/570.

[^f00005]: Rule 43.6 was last amended by S.S.I. 2007/548.

[^f00006]: Part XIII of Chapter 62 was inserted by S.S.I. 2006/199.

[^f00007]: Cm 7727.

[^f00008]: Rule 64.9 was inserted by S.S.I. 2000/319 and amended by S.S.I. 2004/52.

[^f00009]: Rule 64.12 was inserted by S.S.I. 2000/319.

[^f00010]: Form 64.6 was inserted by S.S.I. 2000/319 as Form 64.-A and was renumbered by S.S.I. 2004/52 and amended by S.S.I. 2009/450.

[^f00011]: Form 64.9 was inserted by S.S.I. 2009/319 as Form64.-B and was renumbered by S.S.I. 2004/52.