Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015

Made: 8th December 2015

Laid before the Scottish Parliament: 10th December 2015

Coming into force in accordance with paragraph 1(2) and (3)

The Court of Session therefore makes this Act of Sederunt under the powers conferred by sections 103(1) and 104(1) of the Courts Reform (Scotland) Act 2014[^f00002] and all other powers enabling it to do so.

Citation and commencement, etc.

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Sheriff Appeal Court) 2015.

• (2) Subject to subparagraph (3), it comes into force on 1st January 2016.

• (3) Paragraph 19 comes into force on 31st December 2015.

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

Amendment of the Act of Sederunt (Expenses of Party Litigants) 1976

2

• (1) The Act of Sederunt (Expenses of Party Litigants) 1976[^f00003] is amended in accordance with this paragraph.

• (2) In rule 2 (expenses allowable to party litigants)—

• (a) in paragraph (1)—

• (i) after “the Court of Session”, insert “, the Sheriff Appeal Court”;

• (ii) in subparagraph (a), omit “for that work under the table of fees for solicitors in judicial proceedings”;

• (b) in paragraph (3)—

• (i) in subparagraph (a), after “the Court of Session” insert “, the Sheriff Appeal Court”;

• (ii) omit subparagraph (d).

Amendment of the Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986

3

• (1) The Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986[^f00004] is amended in accordance with this paragraph.

• (2) In rule 36 (appeals to the Sheriff Principal or Court of Session)—

• (a) in paragraph (1)—

• (i) omit “the Sheriff Principal or”;

• (ii) in subparagraph (b), for “the Sheriff Principal [or Court of Session]” substitute “the Court of Session”;

• (b) in paragraph (3), omit “Where the appeal is to the Court of Session,”;

• (c) in paragraph (4), for subparagraph (a) substitute—

(a) transmit the process to the Deputy Principal Clerk of Session; and

• (d) the heading becomes “Appeals to the Court of Session”.

• (3) After rule 36, insert—

(36A) Where an appeal to the Sheriff Appeal Court is competent, it is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00005].

Amendment of the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988

4

• (1) The Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988[^f00006] is amended in accordance with this paragraph.

• (2) In rule 72 (appeals)—

• (a) in paragraph (3)—

• (i) for “Subject to section 103(2) of the Act, an appeal shall—” substitute “An appeal to the Court of Session is to—”;

• (ii) in subparagraph (d), omit “where appeal is made to the Court of Session,”;

• (b) after paragraph (3), insert—

(3A) An appeal to the Sheriff Appeal Court is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00007].

• (c) for paragraph (4) substitute—

(4) When the appellant appeals to— (a) the Court of Session in accordance with paragraph (3); or (b) the Sheriff Appeal Court in accordance with paragraph (3A), the appellant must at the same time intimate to the other parties that an appeal has been made.

• (d) for paragraph (5) substitute—

(5) When an appeal is made, the sheriff is to issue a note stating the reasons for the decision appealed against.

• (e) omit paragraph (6).

Amendment of the Ordinary Cause Rules 1993

5

• (1) The Ordinary Cause Rules 1993[^f00008] are amended in accordance with this paragraph.

• (2) In rule 1.3 (representation)[^f00009], omit paragraph (2).

• (3) In rule 11.7 (retention and disposal of parts of process by sheriff clerk)—

• (a) in paragraph (1)—

• (i) for “marking” substitute “making”;

• (ii) for “marked” substitute “made”;

• (b) in paragraph (2), for “marked” substitute “made”.

• (4) In rule 11.8(1) (uplifting of productions from process), for “marked” in each place where it occurs substitute “made”.

• (5) In rule 26.1 (transfer to another sheriff court)[^f00010], omit paragraph (8).

• (6) In rule 28.3A(9) (optional procedure where there is a party litigant)[^f00011], for “marked” substitute “made”.

• (7) For rule 29.19 (incidental appeal against rulings on confidentiality of evidence and production of documents) substitute—

(29.19) (1) This rule applies where a party or any other person objects to— (a) the admissibility of oral or documentary evidence on the ground of confidentiality; (b) the production of a document on any ground. (2) An application for leave to appeal against the decision of the sheriff on the objection must be made immediately.

• (8) In rule 30.4(1)(b)(iii) (when decrees extractable)[^f00012], for “marked” in each place where it occurs substitute “made”.

• (9) In rule 30.8(1) (date of decree in extract), for “sheriff principal” in each place where it occurs substitute “Sheriff Appeal Court”.

• (10) In Chapter 31 (appeals)[^f00013]—

• (a) omit rule 31.1 (time limit for appeal);

• (b) in rule 31.2 (applications for leave to appeal)[^f00014], omit paragraph (2);

• (c) omit rule 31.2A (appeals in connection with interim diligence)[^f00015];

• (d) omit rules 31.3 (form of appeal to Court of Session) to 31.8 (fixing of Options Hearing or making other order following appeal);

• (e) in rule 31.9 (appeals in connection with orders under section 11 of the Children (Scotland) Act 1995 or aliment), for “, the sheriff principal or the Court of Session, as the case may be” substitute “or the Sheriff Appeal Court”;

• (f) in rule 31.10 (interim possession etc. pending appeal)—

• (i) in paragraph (1), omit “or sheriff principal”;

• (ii) for paragraph (2) substitute—

(2) An order made under paragraph (1) may be reviewed by the Sheriff Appeal Court.

• (g) omit rule 31.11 (abandonment of appeal).

• (11) In rule 33.81 (simplified divorce applications: appeals)—

• (a) the existing rule becomes paragraph (1);

• (b) after that paragraph, insert—

(2) Within 4 days after receiving an appeal, the sheriff clerk must transmit to the Clerk of the Sheriff Appeal Court— (a) the appeal; (b) all documents and productions in the simplified divorce application. (3) On receipt of the appeal, the Clerk of the Sheriff Appeal Court is to fix a hearing and intimate the date, time and place of that hearing to the parties.

• (12) In rule 33.86(1)(a) (variation of Court of Session decrees: transmission of process)—

• (a) for “marking” substitute “making”;

• (b) for “marked” substitute “made”.

• (13) In rule 33A.74 (simplified dissolution of civil partnership applications: appeals)—

• (a) the existing rule becomes paragraph (1);

• (b) after that paragraph, insert—

(2) Within 4 days after receiving an appeal, the sheriff clerk must transmit to the Clerk of the Sheriff Appeal Court— (a) the appeal; (b) all documents and productions in the simplified dissolution of civil partnership application. (3) On receipt of the appeal, the Clerk of the Sheriff Appeal Court is to fix a hearing and intimate the date, time and place of that hearing to the parties.

• (14) In rule 50.5 (access to a recording of a child)[^f00016], after paragraph (2) insert—

(3) An application for leave to appeal against the decision of the sheriff on that motion must be made immediately.

• (15) Omit rule 50.6 (incidental appeal against rulings on access to a recording of a child)[^f00017].

• (16) In Appendix 1 (forms), omit Form A1 (form of note of appeal to the sheriff principal)[^f00018].

Amendment of the Act of Sederunt (Summary Suspension) 1993

6

• (1) The Act of Sederunt (Summary Suspension) 1993[^f00019] is amended in accordance with this paragraph.

• (2) In paragraph 2 (summary application for suspension of charge), for “section 5(5) of the Sheriff Courts (Scotland) Act 1907” substitute “ section 38(2)(i) of the Courts Reform (Scotland) Act 2014[^f00020]”.

• (3) In paragraph 4 (objections), for “sheriff principal” substitute “Sheriff Appeal Court”.

Amendment of the Rules of the Court of Session 1994

7

• (1) The Rules of the Court of Session 1994[^f00021] are amended in accordance with this paragraph.

• (2) In rule 3.2(2)(b) (General Department), after “sheriff court” insert “and the Sheriff Appeal Court”.

• (3) In rule 40.1(2) (application and interpretation of this Chapter)[^f00022], for subparagraph (c) substitute—

(c) inferior court means— (i) the Lyon Court; (ii) the Sheriff Appeal Court, in respect of an appeal under section 113(1) of the Act of 2014 or section 38(b) of the Sheriff Courts (Scotland) Act 1971[^f00023]; (iii) the sheriff principal, in respect of an appeal under section 114(1) of the Act of 2014; (d) any reference to leave to appeal includes permission to appeal in terms of section 113(1) of the Act of 2014.

• (4) In rule 40.21 (referral to family mediation in appeals from the sheriff court)[^f00024]—

• (a) for “sheriff court” substitute “Sheriff Appeal Court”;

• (b) the heading of the rule becomes “Referral to family mediation in appeals from the Sheriff Appeal Court”.

• (5) In rule 41.1 (application and interpretation of this Chapter)[^f00025], for paragraph (1) substitute—

(1) This Chapter applies to an appeal from any decision of a tribunal, unless one of the following Chapters applies— (a) Chapter 38 (reclaiming); (b) Chapter 39 (applications for new trial or to enter jury verdicts); (c) Chapter 40 (appeals from inferior courts).

• (6) In rule 41.37 (lodging of reports and statements with sheriff)[^f00026]—

• (a) in paragraph (1)(a)—

• (i) for “(or as the case may be to the sheriff principal)” substitute “or the Sheriff Appeal Court”;

• (ii) for “him or her” substitute “the sheriff or the Sheriff Appeal Court”;

• (b) in paragraph (2)—

• (i) for “(or sheriff principal)” substitute “or the Sheriff Appeal Court”;

• (ii) after “sheriff clerk” in both places where it occurs, insert “or the Clerk of the Sheriff Appeal Court”.

• (7) In rule 41.52(4) (appeals to be heard in the Outer House)[^f00027], after subparagraph (f) insert—

(fa) an appeal from the Sheriff Appeal Court;

• (8) In rule 70.1 (interpretation of this Chapter), in the definition of “relevant authority”—

• (a) after “a sheriff court,” insert “the Sheriff Appeal Court,”;

• (b) for “Part III of the Social Work (Scotland) Act 1968” substitute “the Children’s Hearings (Scotland) Act 2011[^f00028]”.

Amendment of the Act of Sederunt (Child Care and Maintenance Rules) 1997

8

• (1) The Act of Sederunt (Child Care and Maintenance Rules) 1997[^f00029] is amended in accordance with this paragraph.

• (2) In rule 1.6(3) (lodging audio or audio-visual recordings of children)[^f00030]—

• (a) in subparagraph (a), for “marked” substitute “made”;

• (b) in subparagraph (b), for “marked on” substitute “made in relation to”.

• (3) For rule 2.60 (appeals)[^f00031] substitute—

(2.60) An appeal to the Sheriff Appeal Court against an order of the sheriff under this Part is to be made in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00032].

• (4) In Chapter 3 (children’s hearings: applications to the sheriff)[^f00033]—

• (a) in rule 3.59 (appeals)[^f00034]—

• (i) in paragraph (1), omit “to the sheriff principal to which this Part applies”;

• (ii) in paragraph (8), omit subparagraph (a);

• (iii) omit paragraph (9);

• (iv) the heading becomes “Appeals: applications for stated case”;

• (b) omit rule 3.61 (hearing);

• (c) omit rule 3.61A (leave of the sheriff principal to appeal to the Court of Session)[^f00035];

• (d) in rule 3.66 (extent of application of Part XI of Chapter 3)[^f00036], omit “or an appeal is made under Part 15 of the 2011 Act”.

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

9

• (1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999[^f00037] is amended in accordance with this paragraph.

• (2) In rule 2.21 (transfer to another sheriff court), omit paragraph (8).

• (3) In rule 2.25(1)(b)(iii) (when decrees extractable), for “marked” in each place where it occurs substitute “made”.

• (4) In rule 2.28 (date of decree in extract), for “sheriff principal” in each place where it occurs substitute “Sheriff Appeal Court”.

• (5) In rule 2.42(3) (lodging audio or audio-visual recordings of children)[^f00038], for “marked” in each place where it occurs substitute “made”.

• (6) Omit Part XXVI (Protection of Children (Scotland) Act 2003) of Chapter 3 (rules on applications under specific statutes)[^f00039].

• (7) In rule 3.35.8 (form of appeal to the sheriff principal)[^f00040]—

• (a) omit paragraphs (1) and (3);

• (b) the heading becomes “Applications for leave to appeal to the Sheriff Appeal Court”.

• (8) In rule 3.45.11 (adjustment of incoming protection measure)[^f00041]—

• (a) in paragraph (8), for “marked” substitute “made”;

• (b) in paragraph (9), for “mark” substitute “make”.

Amendment of the Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999

10

• (1) The Act of Sederunt (Proceedings for Determination of Devolution Issues Rules) 1999[^f00042] is amended in accordance with this paragraph.

• (2) In rule 6(6) (intimation of devolution issue)[^f00043], for “marks an appeal under rule 3.1.3 or 31.4 of the Ordinary Cause Rules 1993 in Schedule 1 to the Sheriff Courts (Scotland) Act 1907” substitute “appeals to the Sheriff Appeal Court in accordance with Chapter 6 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00044]”.

• (3) In rule 7(7) (response to intimation of devolution issue)[^f00045], for “sheriff principal” substitute “Sheriff Appeal Court”.

• (4) In Schedule 1 (forms), in Form 2A (form of intimation to relevant authority of appeal in proceedings in which a devolution issue has been raised)[^f00046], for “marked” substitute “made”.

Amendment of the Summary Cause Rules 2002

11

• (1) The Summary Cause Rules 2002[^f00047] are amended in accordance with this paragraph.

• (2) In rule 2.1(5) (representation), omit “, other than appeals to the sheriff principal,”.

• (3) In rule 8.15 (objections to admissibility of evidence), omit subparagraph (b).

• (4) Omit rule 8.16 (incidental appeal against rulings on confidentiality of evidence and production of documents).

• (5) In rule 23.2 (final decree)[^f00048], omit “the sheriff principal or”.

• (6) In rule 23.3 (expenses)[^f00049]—

• (a) in paragraph (6), omit “the sheriff principal or”;

• (b) in paragraph (9)(b), omit “the sheriff principal or”;

• (c) in paragraph (10), omit “sheriff principal or the”;

• (d) omit paragraph (11);

• (e) in paragraph (12), omit “the sheriff principal or”;

• (f) in paragraph (13), omit “sheriff principal or”;

• (g) in paragraph (15), omit “sheriff principal or”.

• (7) In Chapter 25 (appeals)—

• (a) in rule 25.1 (appeals)—

• (i) in paragraph (1)—

• (aa) for “the sheriff principal” substitute “the Sheriff Appeal Court”;

• (bb) omit “by note of appeal”;

• (ii) in paragraph (2), for “a note of appeal” substitute “Form 31”;

• (iii) in paragraph (3), for “a note of appeal” substitute “Form 31”;

• (iv) for paragraph (10) substitute—

(10) After the sheriff has signed the stated case, the appeal is to proceed in accordance with Chapter 29 of the Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00050].

• (v) the heading becomes “Appeals: application for stated case”;

• (b) omit rules 25.2 (effect of and abandonment of appeal) and 25.3 (hearing of appeal);

• (c) in rule 25.4 (appeal in relation to a time to pay direction)—

• (i) in paragraph (1), for “sheriff principal” substitute “Sheriff Appeal Court”;

• (ii) in paragraph (2), for “Rules 25.1, 25.2, 25.3(2) and (3) and 25.7” substitute “Rule 25.1”;

• (iii) omit paragraph (5);

• (d) in rule 25.6(c) (provisions for appeal in actions for recovery of heritable property to which rule 30.2 applies), for “note of appeal” substitute “Form 31”;

• (e) omit rule 25.7 (appeal to the Court of Session).

• (8) In Appendix 1 (forms)[^f00051]—

• (a) in Form 31 (form of note of appeal to the sheriff principal)—

• (i) for “sheriff principal” substitute “Sheriff Appeal Court”;

• (ii) the title of the Form becomes “Form of application for stated case”;