Act of Sederunt (Chancery Procedure Rules) 1996

Made: 16th August 1996

Coming into force: 1st November 1996

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 51 of the Titles to Land Consolidation (Scotland) Act 1868[^f00001], section 32 of the Sheriff Courts (Scotland) Act 1971[^f00002] and of all other powers enabling them in that behalf, having approved, with modifications, draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation and commencement

1

• (1) This Act of Sederunt may be cited as the Act of Sederunt (Chancery Procedure Rules) 1996 and shall come into force on 1st November 1996.

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

Chancery Procedure Rules

2

Schedule 1 to this Act of Sederunt shall have effect for the purpose of providing rules for the form and service of petitions presented to the Sheriff of Chancery, and for connected purposes.

Repeals and revocation

3

The enactments mentioned in Schedule 2 to this Act of Sederunt are repealed or revoked, as the case may be, to the extent specified in that Schedule.

SCHEDULE 1 — CHANCERY PROCEDURE RULES

Citation

1

These Rules may be cited as the Chancery Procedure Rules.

Interpretation

2

• (1) In these Rules, unless the context otherwise requires–

• “the Act of 1868” means the Titles to Land Consolidation (Scotland) Act 1868 and a reference to a section of that Act shall be construed as a reference to that section as saved by section 37(1)(d) of the Succession (Scotland) Act 1964[^f00003] and as revived by section 6 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980[^f00004];

• “the Act of 1874” means the Conveyancing (Scotland) Act 1874[^f00005] and a reference to a section of that Act shall be construed as a reference to that section as saved by section 37(1)(d) of the Succession (Scotland) Act 1964;

• “sheriff clerk of Chancery” includes the sheriff clerk depute of Chancery.

• (2) Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

Form and subscription of petitions

3

• (1) A petition for service or a petition for completion of title under section 10 of the Act of 1874 shall be in one or other of Forms 1 to 12, as the case may be.

• (2) A petition for service or a petition for completion of title under section 10 of the Act of 1874 shall be subscribed by the petitioner or his solicitor.

Publication of petitions

4

• (1) Subject to rule 5 (evidence) below, a petition for service or a petition for completion of title under section 10 of the Act of 1874 shall not proceed until the expiry of 21 days from the date of publication.

• (2) Publication of such a petition shall be by display of a copy of the petition on the walls of court.

• (3) Publication of the petition shall be made–

• (a) in the case of a petition for general service–

• (i) in the sheriff court of the sheriff court district in which the deceased died domiciled;

• (ii) where the deceased had at the time of his death no domicile in Scotland or where his domicile is not known, in the sheriff court at Edinburgh; or

• (iii) where the deceased was domiciled in Scotland at the time of his death but had no fixed or known domicile in any sheriff court district, in the sheriff court at Edinburgh; and

• (b) in the case of a petition for special service or a petition for completion of title under section 10 of the Act of 1874, in the sheriff court of the sheriff court district or each such district in which the lands are situated.

• (4) Immediately on publication of the petition, the sheriff clerk shall foward to the sheriff clerk of Chancery a certificate in Form 13.

Evidence

5

• (1) Evidence may be received at any time after a petition for service is accepted for publication.

• (2) Any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988[^f00006], may be received in evidence without being spoken to by a witness notwithstanding that it was made before the petition for service or a petition for completion of title under section 10 of the Act of 1874, was accepted for publication.

SCHEDULE 2 — ENACTMENTS REPEALED OR REVOKED

Signed

Hope of Craighead — Lord President, I.P.D. — 16th August 1996

Explanatory note

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

This Act of Sederunt makes new provision in relation to the forms, subscription, publication, taking of evidence and issue of extract in chancery petitions.

It revokes paragraph 3 of the Act of Sederunt (Edictal Citations, Commissary Petitions and Petitions of Service) 1971 which made provision for publication of petitions of service.

It also repeals sections 29, 30 and 34, and parts of section 33, of the Titles to Land Consolidation (Scotland) Act 1868, and part of section 10 of the Conveyancing (Scotland) Act 1874, which provide for the form, publication and procedure with respect to petitions for service for which new provision is made in this Act of Sederunt.

Footnotes

[^f00001]: 1868 c. 101.

[^f00002]: 1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).

[^f00003]: 1964 c. 41.

[^f00004]: 1980 c. 55.

[^f00005]: 1874 c. 94.

[^f00006]: 1988 c. 32.