Act of Sederunt (Amendment of Ordinary Cause, Summary Cause and Small Claim Rules) 1992

Made: 6th February 1992

Coming into force: 4th May 1992

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971[^f00001] and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sherrif Court Rules Council under section 34 of that Act, do hereby enact and declare:

Citation, commencement and interpretation

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Amendment of Ordinary Cause, Summary Cause and Small Claim Rules) 1992 and shall come into force on 4th May 1992.

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

• (3) In this Act of Sederunt—

• “Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907[^f00002] and a rule referred to by number in paragraph 2 of this Act of Sederunt means the rule so numbered in the Ordinary Cause Rules;

• “Summary Cause Rules” means the Schedule to the Act of Sederunt (Summary Cause Rules, Sheriff Court) 1976[^f00003] and a rule referred to by number in paragraph 3 of this Act of Sederunt means the rule so numbered in the Summary Cause Rules; and

• “Small Claim Rules” means the Schedule to the Act of Sederunt (Small Claim Rules) 1988[^f00004] and a rule referred to by number in paragraph 4 of this Act of Sederunt means the rule so numbered in the Small Claim Rules.

Amendment of Ordinary Cause Rules

2

• (1) The Ordinary Cause Rules shall be amended in accordance with the following sub-paragraphs.

• (2) After rule 9(2A) (citation where time to pay direction)[^f00005], insert the following paragraph—

(2B) In a summary application in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the respondent, citation shall be given as nearly as may be in accordance with Form C3 set out in the Appendix to this Schedule and in any other summary application shall be given as nearly as may be in accordance with Form C4 set out in the Appendix to this Schedule.

• (3) In rule 10(3) (service within Scotland by officer of court), for the word “If”, substitute the words “Except where rule 111 applies and has been complied with, if”

• (4) In rule 15 (postal citation), substitute for paragraph (2) the following paragraph—

(2) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882[^f00006], where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

• (5) In rule 33 (notice of intention to defend), after the word “Schedule”, insert the words “and shall at the same time intimate the lodging of that notice to the pursuer”.

• (6) After rule 50 (third party notice), insert the following rule—

(50A) (1) Any person who has not been called as a defender or third party may apply by minute to the sheriff for leave to enter a process as a party minuter and to lodge defences. (2) An application under this rule shall specify— (a) the applicant’s title and interest to enter the process; and (b) the grounds of the defence which he proposes to state. (3) On the lodging of a minute under this rule, the sheriff shall appoint a date for hearing the minute; and the applicant shall forthwith serve a copy of the minute and of the order for a hearing on the parties to the cause. (4) After hearing the applicant and any party to the cause, the sheriff may, if he is satisfied that the applicant has shown title and interest to enter the process, grant the applicant leave to enter the process as a party minuter and to lodge defences and may make such order as to expenses or otherwise as he considers appropriate. (5) Where an application under this rule is made after the closing of the record, the sheriff— (a) shall only grant leave under paragraph (4) if he is satisfied as to the reason why earlier application was not made; and (b) may make such further order as to expenses or otherwise as he considers appropriate.

• (7) After rule 59 (decree by default)[^f00006], insert the following rule—

(59A) (1) This rule applies to any cause other than— (a) a consistorial action; (b) an action of multiplepoinding; or (c) an action under the Presumption of Death (Scotland) Act 1977[^f00007]. (2) A pursurer may, at any time after the defender has lodged defences, apply by written motion to the court— (a) to grant decree in terms of all or any of the craves of the initial writ; (b) to pronounce an interlocutor sustaining or repelling a plea-in-law; or (c) to dispose of the whole or part of the subject matter of the action, on the ground that there is no defence to the action or a part of it disclosed in the defences. (3) A motion under this rule shall be intimated to all other parties to the cause on a period of notice of 14 days. (4) After hearing a motion under this rule, the sheriff may, if he is satisfied that there is no defence to the action or to any part of it to which the motion relates— (a) grant summary decree against the defender in terms of the motion in whole or in part; or (b) order any party or a partner, director, officer or office bearer of any party— (i) to produce any document or article; or (ii) to lodge an affidavit or affidavits in support of any averment of fact made in the pleadings or at the hearing of the motion. (5) Notwithstanding the grant or refusal of a motion under this rule a further motion under this rule may be made by the pursuer on cause shown by reason of a change of circumstances. (6) Where— (a) a defender has lodged a counter-claim; or (b) a defender or third party has made a claim against another defender or against a third party, who has lodged defences or answers, he may apply by motion in accordance with this rule for summary decree on that counterclaim or claim or part of it, on the ground that the other party has no defence to it; and the terms of paragraphs (1) to (5) of this rule shall apply to a motion by a defender or third party as they apply to a motion by a pursuer.

• (8) Renumber rule 59A (late appearance by defender in actions of divorce and of separation)[^f00008] as rule 59B.

• (9) In rule 98(1) (objection to auditor’s report), between the word “expenses” and the word “is” where they occur on the first line insert the words “awarded in any cause”.

• (10) In rule 138 (citation in simplified divorce procedure), for paragraph (5) substitute the following paragraph—

(5) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882, where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

• (11) In the Appendix—

• (a) in Form B2, omit the words “, under certification of being held as confessed”;

• (b) after Form C2[^f00009], insert Forms C3 and C4 set out in Schedule 1 to this Act of Sederunt; and

• (c) in Form E[^f00010], below the word “Advertisement” insert the words “Notice to [C.D.]”.

Amendment of Summary Cause Rules

3

• (1) The Summary Cause Rules shall be amended in accordance with the following sub-paragraphs.

• (2) In rule 1 (form of summons), for the words “A to I” substitute the words “Aa to I”.

• (3) For rule 2(1) (statement of claim)[^f00011], substitute the following paragraph—

(1) There shall be annexed to the summons a statement of claim which shall give the defender fair notice of the claim and shall, in particular, include— (a) details of the basis of the claim including any relevant dates; (b) where the claim arises from the supply of goods or services, a description of the goods or services and the date or dates on or between which they were supplied and, where relevant, ordered; (c) reference to any agreement which the pursuer has reason to believe may exist giving jurisdiction over the subject matter of the claim to another court; and (d) reference to any proceedings which the pursuer has reason to believe may be pending before another court involving the same cause of action and between the same parties.

• (4) In rule 6 (citation and service within Scotland by officer of court)[^f00012]—

• (a) in paragraph (1), after the words “officer of court”, insert the words “on any person”;

• (b) in sub-paragraph (1)(a), omit the words “on the defender”;

• (c) in sub-paragraph (1)(b), for the word “defender's” wherever it occurs, substitute the word “person's”; and

• (d) in paragraph (2)—

• (i) for the word “defender's” wherever it occurs substitute the word “person's”;

• (ii) for the word “defender”, substitute the word “person”; and

• (iii) for the words “If service is effected” substitute the words “Subject to the requirements of rule 111 of the rules contained in Schedule 1 to the Act of 1907, if”

• (5) For rule 10(2) (postal citation)[^f00013], substitute the following paragraph—

(2) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882[^f00014], where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

• (6) After rule 18(8) (first calling)[^f00015], insert the following new paragraphs—

(9) Where the sheriff is satisfied that the facts of the cause are sufficiently admitted, he may decide the cause on the merits at the first calling and, if appropriate, may make an award of expenses. (10) Where, at the first calling or at any subsequent stage of the proceedings, an issue in dispute is the quality or condition of an object the sheriff may inspect the object in the presence of the parties or their representatives in court or, if it is not practicable to bring the object to court, at the place where the object is located. (11) The sheriff may, if he considers it appropriate at the first calling or at any later stage of the proceedings, inspect any place material to a disputed issue in the cause, in the presence of the parties or their representatives.

• (7) After rule 21(3) (counter claim)[^f00016], insert the following new paragraphs—

(4) The defender may apply for warrant to use any form of diligence by way of arrestment which could be used on the dependence of a separate cause brought to enforce the matter of the counter claim. (5) An application under paragraph (4) shall be made by appending to the counter claim the words “warrant for arrestment on the dependence applied for” and shall be granted by the sheriff clerk who receives the counter claim by adding the words “Grants warrant as craved” and by adding his signature and the date below those words. (6) Any such warrant shall have the like effect as it would have in any summary cause summons.

• (8) After rule 21 (counter claim)[^f00016], insert the following new rule—

(21A) (1) Any person who has not been called as a defender may apply by incidental application to the sheriff for leave to enter a cause as a party minuter, and to state a defence. (2) An application under this rule shall specify— (a) the applicant’s title and interest to enter the cause; and (b) the grounds of the defence which he purposes to state. (3) On the lodging of an application under this rule, the sheriff shall appoint a date for hearing the application; and the applicant shall forthwith serve a copy of the applic ation and of the order for a hearing on the parties to the cause. (4) After hearing the applicant and any party to the cause the sheriff may, if he is satisfied that the applicant has shown title and interest to enter the cause, grant the application and may make such an order as to expenses as he thinks fit. (5) Where an application is granted the party minuter shall be treated as a defender and the cause shall proceed against him as if the hearing were a first calling.

• (9) In rule 31 (failure to answer citation) for “£10”, substitute “£250”.

• (10) In rule 37 (diligence for recovery of documents), for the words “proof has been allowed”, substitute the words “summons has been served”.

• (11) For rule 48 (recall and restriction of arrestment), substitute the following rule—

(48) (1) A party may have an arrestment on the dependence of a cause loosed on paying into court, or finding caution to the satisfaction of the sheriff clerk in respect of, the sum claimed together with the sum of £50 in respect of expenses. (2) On payment into court or the finding of caution to his satisfaction in accordance with paragraph (1), the sheriff clerk shall issue to the party a certificate which shall operate as a warrant for the release of any sum or property arrested and shall send a copy of the certificate to the party who instructed the arrestment. (3) A party may at any time apply to the sheriff, duly intimated to the party who instructed the arrestment to recall or restrict an arrestment on the dependence of a cause, with or without consignation or caution. (4) Where an application under paragraph (3) is granted, the sheriff clerk shall, when any condition imposed by the sheriff has been complied with, issue to the applicant a certificate which shall operate as a warrant for the release of any sum or property arrested to the extent ordered by the sheriff.

• (12) In rule 50 (actions for payment of money)[^f00017], for paragraphs (3) to (5), substitute the following paragraphs—

(3) A summary cause for payment of money shall proceed on a summons in form Aa. (4) A service copy summons— (a) in form Ab in an action to which paragraph (1) applies; or (b) in form Ac in an action to which paragraph (2) applies, shall be served on the defender.

• (13) In rule 51 (notice of intention to appear)[^f00018]

• (a) before the words “Where a defender” insert “(1)”;

• (b) in paragraph (1), for the words from “he shall lodge” to “intention to appear” substitute the words “he shall intimate his intention to appear by completing the appropriate part of the response form attached to the service copy summons and shall lodge it with the sheriff clerk on or before the return day.”.

• (c) after paragraph (1), insert the following paragraphs—

(2) A defender who intends to defend a summary cause and has lodged a notice in accordance with paragraph (1) may, at any time prior to the date of the first calling, lodge a written note of the defence which he proposes to state at the first calling. (3) Where a defender lodges a written note of defence he shall at the same time send a copy to the pursuer.

• (14) In rule 52 (applications in writing for time to pay direction, etc)[^f00019], omit the words “form Q” to “rule 51” and substitute the words “the response form attached to the service copy summons and lodging it with the sheriff clerk on or before the return day.”.

• (15) In rule 81 (appeal to sheriff principal)[^f00020]—

• (a) in paragraph (1), after the words “note of appeal” where they first occur, insert the words “specifying the ground upon which the appeal is to proceed and”;

• (b) in paragraph (3)(c), after the words “his own accord,”, insert the words “and shall, where he proposes to reject any proposed adjustments,”; and

• (c) after paragraph (5) insert the following paragraph—

(5A) Where the sheriff is temporarily absent from duty for any reason, the sheriff principal may extend any period specified in paragraphs (2) or (5) for such period or periods as he considers reasonable.

• (17) In rule 88 (expenses) omit paragraph (1) and substitute the following paragraph—

(1) Subject to paragraphs (2), (2A) and (2B) of this rule, the sheriff clerk shall, with the approval of the sheriff, assess the amount of expenses including the fees and outlays of witnesses awarded in any cause, in accordance with the statutory table of fees of solicitors appropriate to the summary cause.

• (18) For forms A and Aa substitute new forms Aa, Ab and Ac set out in Schedule 2 to this Act of Sederunt.

• (19) In form N[^f00021]—

• (a) for “£10” substitute “£250”; and

• (b) after the words “officer of court” insert the words “(full name, address and telephone number)”.

• (20) Omit forms Q and R.[^f00022]

Amendment of Small Claim Rules

4

• (1) The Small Claim Rules shall be amended in accordance with the following sub-paragraphs.

• (2) In rule 3(4) (statement of claim), for sub-paragraph (b), substitute the following sub-paragraph—

(b) where the small claim arises from the supply of goods or services, a description of the goods or services and the date or dates on or between which they were supplied and, where relevant, ordered;

• (3) In rule 4 (period of notice where service by post), for paragraph (4) substitute the following paragraph—

(4) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882,[^f00023] where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

• (4) In rule 29 (appeals)—

• (a) in paragraph (5), after the words “of his own accord” insert the words “and shall where he proposes to reject any proposed adjustment”; and

• (b) after paragraph (6) insert the following new paragraph—

(6A) Where the sheriff is temporarily absent from duty for any reason, the sheriff principal may extend any period specified in paragraphs (3) or (6) for such period or periods as he considers reasonable.

• (5) In Appendix 3, after the line commencing “rule 18A”, insert the following words—

rule 21A	(party minuter)

Amendment of Execution of Diligence (Scotland) Act 1926

5

In section 2(2)(g) of the Execution of Diligence (Scotland) Act 1926,[^f00024] for the words “one hundred and twenty six” substitute “111”.

Revocation

6

The Act of Sederunt (Sheriff Court Appeals) 1949[^f00025] is revoked.

SCHEDULE 1

FORM C3

Citation where time to pay direction may be applied for in Summary Application

Rule 9(2B)

FORM C4

Citation for summary application

Rule 9(2B)

SCHEDULE 2

FORM Aa

FORM Ab

FORM Ac

Signed

J.A.D. Hope — Lord President, IPD — 6th February 1992

Explanatory note

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

This Act of Sederunt—

• (1) amends the Ordinary Cause Rules by—

• (a) specifying the commencement of the period of notice on service (paragraphs 2(4) and 2(10));

• (b) requiring intimation of notices of intention to defend to the pursuer (paragraph 2(5));

• (c) making provision for a person to enter proceedings as a party minuter (paragraph 2(6));

• (d) making provision for applications for summary decree (paragraph 2(7));

• (e) making minor and consequential amendments (paragraph 2(2), (3), (8), (9) and (11).).

• (2) amends the Summary Cause Rules by—

• (a) amending the form of the statement of claim (paragraph 3(2) and (18));

• (b) making provision for citation or service on persons other than defenders (paragraph 3(4));

• (c) specifying the commencement of the period of notice on service (paragraph 3(5));

• (d) extending the power of the sheriff as to disposal of or enquiry into the merits at first calling (paragraph 3(6));

• (e) providing for applications for warrants for diligence on the dependence in relation to counter claims (paragraph 3(7));

• (f) making provision for a person to enter proceedings as a party minuter (paragraph 3(8));

• (g) increasing the penalty for failure to answer a citation (paragraph 3(9));

• (h) bringing forward the time at which diligence for recovery of documents may be commenced (paragraph 3(10));

• (i) clarifying the provision for the recall and restriction of arrestments (paragraph 3(11));

• (j) constituting new forms of summary cause summonses and service copies (paragraph 3(12) and schedule 2);

• (k) making new provision for response to a summons and intimation of written notes of defence (paragraph 3(13));

• (l) making new provision for appeals by requiring grounds of appeal and permit ting the sheriff principal to extend certain time limits in relation to appeals when the sheriff is absent (paragraph 3(15));

• (m) making minor and consequential amendments (paragraph 3(14) and (16));

• (n) omitting accounts between solicitor and client from taxation procedure under the summary cause rules (paragraph 3(17)).

• (3) amends the Small Claim Rules by—

• (a) amending the form of statement of claim (paragraph 4(2));

• (b) specifying the commencement of the period of notice on service (paragraph 4(3));

• (c) making new provision for appeals by providing for and permitting the sheriff principal to extend certain time limits in relation to appeals when the sheriff is absent (paragraph 4(4));

• (d) by making provision for a person to enter proceedings as a party minuter (paragraph 4(5)).

• (4) revokes the Act of Sederunt (Sheriff Court Appeals) 1949 (S.I. 1949/2062) (paragraph 6); and

• (5) amends section 2(2)(g) of the Execution of Diligence (Scotland) Act 1926 (c. 16) to correct a reference to an Ordinary Cause Rule (paragraph 5).

Footnotes

[^f00001]: 1971 c. 58.

[^f00002]: 1907 c. 51; the First Schedule was substituted by S.I. 1983/747; relevant amending instruments are S.I. 1984/255, 1986/1230 and 1988/1978.

[^f00003]: S.I. 1976/476.

[^f00004]: S.I. 1988/1976.

[^f00005]: Rule 9 (2A) was inserted by S.I. 1988/1978.

[^f00006]: 45 & 46 Vict. c.77; rule 59 was amended by S.I. 1984/255 and 1986/1230.

[^f00007]: 1977 c. 77.

[^f00008]: Rule 59A was substituted by S.I. 1986/1230.

[^f00009]: Form C2 was inserted by S.I. 1988/1978.

[^f00010]: Form E was amended by S.I. 1986/1230.

[^f00011]: Rule 2(1) was renumbered by S.I. 1986/1946.

[^f00012]: Rule 6 was substituted by S.I. 1980/455.

[^f00013]: Rule 10 was amended by S.I. 1980/455.

[^f00014]: 45 & 46 Vict. c.77.

[^f00015]: Rule 18 was amended by S.I. 1986/1946, 1988/1978 and 1991/821.

[^f00016]: Rule 21 was substituted by S.I. 1980/455.

[^f00017]: Rule 50 was substituted by S.I. 1988/1978.

[^f00018]: Rule 51 was substituted by S.I. 1988/1978.

[^f00019]: Rule 52 was substituted by S.I. 1980/1978.

[^f00020]: Rule 81 was substituted by S.I. 1980/455.

[^f00021]: Form N was amended by S.I. 1980/455.

[^f00022]: Forms Q and R were substituted by S.I. 1988/1978.

[^f00023]: 1882 c. 77.

[^f00024]: 1926 c. 16.

[^f00025]: S.I. 1949/2062.