Act of Sederunt (Rules of the Court of Session 1994, Sheriff Appeal Court Rules and Sheriff Court Rules Amendment) (Qualified One-Way Costs Shifting) 2021
01 June, 2021
This Act of Sederunt amends the Rules of the Court of Session 1994, the Act of Sederunt (Sheriff Appeal Court Rules) 2015, the Ordinary Cause Rules 1993 and the Summary Cause Rules 2002.
Section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (“the Act”) introduces a procedure known as “Qualified One-Way Costs Shifting”. Section 8 of the Act makes provision in civil proceedings for damages for personal injury or death to the effect that the court must not make an award of expenses against the person bringing the action or the appeal arising therefrom, even if the person fails in their claim, provided the person has conducted the proceedings in an appropriate manner. Section 8(4) of the Act sets out exceptions to that principle whereby such a person, or their legal representative, may be held not to have conducted proceedings in an appropriate manner. Section 8(6) of the Act provides that further exceptions may be specified by Act of Sederunt. 

This instrument makes amendments to the Rules of the Court of Session, the Sheriff Appeal Court Rules, the Ordinary Cause Rules and the Summary Cause Rules to add a new Chapter to each set of rules. In each case it specifies further exceptions, in terms of section 8(6) of the Act, and establishes court procedure for assessing whether exceptions apply. 

The instrument provides that where the court makes an award of expenses on the ground that the pursuer has failed to beat a tender, or unreasonably delayed in accepting it, the liability of that person to the applicant, or applicants, lodging the tender is not to exceed expenses incurred by the applicant after the date of the tender, and is limited to an aggregate sum, payable to all applicants (if more than one) of 75% of the amount of damages awarded to the pursuer. 

In each case the relevant new Chapter provides that an application may refer to one or more of the exceptions set out in section 8(4) of the Act and in the instrument itself. The instrument provides that applications are to be in writing, made by way of motion procedure in the Court of Session, the Sheriff Appeal Court and in ordinary causes in the sheriff court, and by way of incidental application in summary causes; and that such an application must be made before the pronouncing of an interlocutor disposing of the expenses of the action or, as the case may be, the appeal.

The policy note relating to this Act of Sederunt can be found here.


28 May, 2021

This Act of Sederunt makes changes to the rules regulating the fees of Messengers-at-Arms and   sheriff officers. 
Paragraphs 2 and 3 substitute new Tables of Fees for Messengers-at-Arms and sheriff officers in Act of Sederunt (Fees of Messengers-at-Arms) (No. 2) 2002 and Act of Sederunt (Fees of Sheriff Officers) (No.2) 2002. 
The fee levels in the new Tables of Fees represent an increase of 6% on the existing fees. This increase takes effect from 30th June 2021.

 
Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2021
Feb 17, 2021
This Act of Sederunt comes in to force on 01 March 2021 and amends various Forms in the appendices of the Rules of the Court of Session 1994 and the Ordinary Cause Rules 1993. The Forms, which are simplified divorce and dissolution of civil partnership applications, are amended in consequence of the United Kingdom’s withdrawal from the European Union. Under the Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (S.S.I. 2019/104) the jurisdiction of the Court of Session and sheriff courts in these court actions has been brought back to the position before there was EU provision in this area. Necessary consequential amendments are made to the Forms by this Act of Sederunt. 

This Act of Sederunt also amends rule 49.91 of the Rules of the Court of Session 1994 and rule 33.96 of the Ordinary Cause Rules 1993 to make minor provision in relation to actions for declarator of recognition, or non-recognition, of certain foreign decrees in consequence of European Union withdrawal. The rules, as amended, apply to such actions concerning decrees of divorce, nullity or separation in respect of an opposite sex marriage or a same sex marriage. 

Paragraph 3(2) removes a reference to Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility from rule 33.2 of the Ordinary Cause Rules. Saving and transitional provision is made by paragraph 4 of this Act of Sederunt in relation to that amendment. 

Minor amendments, unconnected to European Union withdrawal, are made to the Forms to provide that references to “General Register Office” and “General Register Office (Scotland)” are substituted with “National Records of Scotland”.

Full story

Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Miscellaneous) 2021
Jan 20, 2021
This Act of Sederunt  provides for a change to Chapter 58 of the Rules of the Court of Session (Judicial Review) by extending the period a case can be sisted for a legal aid application from 28 days to two months at a time. 

The instrument also amends Chapter 49 of the Rules of the Court of Session by providing that the last date for amendment is now 56 days before the proof, and lists of witnesses and inventories of productions should be lodged with the Court 56 days before the diet of proof.

Full story

Act of Sederunt (Challenges to Validity of EU Instruments (EU Exit)) (Amendment) 2020 
Jan 07, 2021
This Act of Sederunt amends the Act of Sederunt (Challenges to Validity of EU Instruments (EU Exit) in the Court of Session) 2019 (S.S.I. 2019/328) and the Act of Sederunt (Challenges to Validity of EU Instruments (EU Exit) in the Sheriff Appeal Court and Sheriff Court) 2019 (S.S.I. 2019/329) (“the two Principal Instruments”). 

Full story


Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Miscellaneous) 2020
Dec 21, 2020
This Act of Sederunt was made by the court on 17 December and comes into force in accordance with article 1(2). It amends the Rules of the Court of Session 1994 (the “RCS”), the Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986 (the “1986 Rules”) and the Act of Sederunt (Fatal Accident Inquiry Rules) 2017 (the “2017 Rules”). It comes into force on IP completion day. The amendments made to Chapter 74 of the RCS, the 1986 Rules and the 2017 Rules are in consequence of the United Kingdom’s withdrawal from the European Union. 

Full story



New compulsory Pre-Action Protocol

Jul 25, 2016

The Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016 introduces a new chapter into both the Ordinary Cause Rules (Chapter 3A) and the Summary Cause Rules (Chapter 4A) requiring parties to a prospective action of damages for personal injury to comply with a compulsory protocol prior to commencing proceedings.

The Personal Injury Pre-Action Protocol (the Protocol), which is found in Appendix 4 of the Ordinary Cause Rules and Appendix 1B of the Summary Cause Rules, sets out the steps which must be followed prior to raising proceedings. 

The aims of the Protocol are to encourage the fair, just and timely settlement of disputes before court proceedings are raised, and to narrow the issues for litigation in cases which do not settle.

The Protocol will apply to personal injury claims (with some exceptions) up to the value of £25,000 in local sheriff courts and in the all-Scotland Personal Injury Court. 

Parties will only be expected to follow the Protocol in relevant cases where the accident or other circumstance giving raise to the claim for damages occurred on or after 28 November 2016.

The Protocol requirements begin with the issuing of a Claim Form and progress through to the settlement stage. If the defender chooses not to make a settlement offer, the claimant is entitled to raise court proceedings. There is a requirement on the claimant to either accept any settlement offer made or issue a reasoned response explaining why it has been rejected. A stock taking period of 14 days then follows to allow any final settlement negotiations to be pursued.  

The Protocol is modelled very closely on the existing Law Society voluntary Personal Injury Protocol which was introduced to encourage the early resolution of personal injury claims. 

But there are important differences, including an express power allowing the courts to make an award of expenses against a party who has:

  • failed to comply with the Protocol
  • unreasonably failed to accept a settlement offer made under the Protocol which is lodged as a tender following the commencement of proceedings.

The new Protocol also sets out the expenses to be paid to the claimant in the event of settlement in respect of liability for solicitors’ fees and reimbursement of other reasonably incurred outlays.

The Scottish Civil Courts Review 2009 recommended the introduction of a compulsory protocol and the The Courts Reform (Scotland) Act 2014 gives the Court of Session power to make rules requiring parties to a prospective action to take certain steps prior to raising proceedings. 

Consideration is being given to developing additional compulsory personal injury protocols in specific areas. For example, a proposal for a clinical negligence pre-action protocol is to be considered and further developed by the Personal Injury Committee with a view to coming into force during 2017.

 

Providing Feedback

The SCJC welcomes feedback on any aspect of court rules.

Please email your comments to the Secretariat scjc@scotcourts.gov.uk