Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (Civil Protection Measures (EU Exit)) 2022/239
10 November 2022

This Act of Sederunt makes amendments to the Rules of the Court of Session 1994, the Ordinary Cause Rules 1993 and the Summary Application Rules 1999, following upon the United Kingdom leaving the European Union on 31st December 2020, and in consequence of Part 1 and 2 of the Civil Protection Measures, European Protection Order and Victims’ Rights (EU Exit) (Scotland) (Amendment Etc.) Regulations 2022. The rules were made on 9 November 2022 and will come into force on 01 December 2022.

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Act of Sederunt (Simple Procedure Amendment) (Miscellaneous) 2022/295
12 October 2022

This Act of Sederunt implements a request from Scottish Courts and Tribunals Service for a change to the commencement date of the court rules set out in Act of Sederunt (Simple Procedure Amendment) (Miscellaneous) 2022/211. The new commencement date of those court rules will be 31 May 2023.
This Act of Sederunt was made by the court on 12 October 2022 and comes into force on 11 November 2022.

Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I 2022/289)
29 September 2022.

This Act of Sederunt amends Chapters 33 and 33A of the Ordinary Cause Rules 1993 in relation to defended Family and Civil Partnership actions in the sheriff court. The rules introduce Initial Case Management Hearings and Full Case Management Hearings .The overall policy intention of the rule changes is to improve the procedures for progressing family actions by ensuring consistent and effective case management of these cases. Particular regard is paid to preventing undue delay in proceedings relating to the welfare of children. The rules were made on 28 September 2022 and will commence on 25 September 2023.

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Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Recognition and Enforcement of Judgments) 2022
21 September 2022

The instrument amends Chapter 62 (recognition, registration and enforcement of foreign judgments, etc.) of the Rules of the Court of Session 1994 to allow documents which are to be given to or issued by the Keeper of the Registers of Scotland under that chapter to be signed and transmitted electronically. The Act of Sederunt was made on 20 September 2022 and will come into force on 01 October 2022.

Act of Sederunt (Simple Procedure Amendment)(Miscellaneous) 2022/211
17 June 2022

This Act of Sederunt amends the Simple Procedure Rules 2016 as a result of the outputs Scottish Civil Justice Council's Review of Simple Procedure. The instrument makes amendments to the rules, forms and standard orders which are designed to create operational efficiencies. The Act of Sederunt was made on 15 June and will come into force on 28 November 2022.


Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Appeal Court Rules Amendment) (Miscellaneous) 2022 
21 April 2022

This Act of Sederunt amends the Rules of the Court of Session 1994 as a consequence of the enactment of the Economic Crime (Transparency and Enforcement) Act 2022 (c.10). That Act amends the Proceeds of Crime Act 2002 (c.29) to insert sections 396DA and 396DB which make provision concerning the period for which an interim freezing order has effect. This Act of Sederunt also makes court rule amendments to the Sheriff Appeal Court Rules 2021 and 2015 to correct a cross-referencing error in those Rules.


Act of Sederunt (Simple Procedure Amendment) (Civil Online) 2022
03 March 2022

This Act of Sederunt amends the Act of Sederunt (Simple Procedure) 2016 so as to require all simple procedure claims to be submitted using Civil Online or the internet interface to the Scottish Courts and Tribunals Service’s case management system. It makes permanent the temporary modifications introduced by Act of Sederunt (Simple Procedure Amendment) (Civil Online) 2020, which were extended for a further period by Act of Sederunt (Simple Procedure Amendment) (Civil Online) 2021. It revokes both of those Acts of Sederunt in consequence of the temporary modifications being converted into amendments by this Act of Sederunt.

Claims may still be sent using one of the other methods mentioned in rule 6.6 of the Simple Procedure Rules but when doing so claimants will require to provide a note, to accompany the Claim Form, explaining why it could not have been sent using either the portal on the Scottish Courts and Tribunals Service website or the Scottish Courts and Tribunals Service’s internet interface to its case management system. The sheriff will only permit the claim to be registered if the sheriff considers, from the explanation given in the note, that the claimant could not have sent it using either the portal or the interface. 


Act of Sederunt (Sheriff Appeal Court Rules) 2021/468

13 December 2021

This Act of Sederunt consolidates and restates the Act of Sederunt (Sheriff Appeal
Court Rules) 2015 (S.S.I. 2015/356) with modifications. It makes provision about the procedure to
be followed in appeals to the Sheriff Appeal Court in civil proceedings and comes into force on 6 January 2022. A Policy Note is available to accompany the new rules. Full story

Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules 1999 and Sheriff Appeal Court Rules Amendment) (Age of Criminal Responsibility (Scotland) Act 2019) 2021
03 December 2021

This Act of Sederunt provides new court rules for handling applications to the court arising under the Age of Criminal Responsibility (Scotland) Act 2019. The rules were made by the Court of Session on 02 December 2021, laid before the Scottish Parliament on 03 December 2021 and will come into force on 17 December 2021. 

Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Miscellaneous) (No.2) 2021/434  
29 November 2021

The Act of Sederunt inserts a new rule in to Chapter 14 of the Rules of Court of Session 1994. The rule provides that any application made under an enactment to report a matter to the court due to obstruction or for enforcement is to be made by petition presented in the Outer House. Examples of such application can be found in the Scottish Biometrics Commissioner Act 2020 (asp 8). The rule will apply to similar provisions that may be enacted by future legislation.

It also makes consequential amendments arising from this rule change in that the existing provisions in rule 95.2 have been revoked as they are no longer required.

The rules were made by the Court of Session on 24 November 2021, laid before the Scottish Parliament on 29 November 2021 and come in to force on 01 January 2022.

Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2021
21 Sept, 2021

This Act of Sederunt amends the Rules of the Court of Session 1994 and Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986 in consequence of amendments made by:


— the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026) (“the 2021 Rules”) to the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 (S.I. 2018/1082) (“the CVAA Rules”); and

— the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Schedule 10) Regulations 2021 (S.I. 2021/1029) (“the 2021 Regulations”) to substitute a new schedule 10 of the Corporate Insolvency and Governance Act 2020 (c.12) (“the 2020 Act”).

The 2021 Rules provide for permanent moratorium rules to replace those enacted on a temporary basis by section 3 and Part 4 of schedule 4 of the 2020 Act.

Aside from paragraphs 2(5), 2(6), 3(4) and (5), this Act of Sederunt comes into force on 1st October 2021. Paragraphs 2(5), 2(6), 3(4) and (5) come into force on 29th September 2021 because the 2021 Regulations substitute the new schedule 10 of the 2020 Act from that earlier date.

Paragraph 2(2) of this Act of Sederunt makes provision for the new court remedy created in new rule 5.22A of the CVAA Rules. Paragraph 2(3) substitutes a new rule 74.3C into the Rules of the Court of Session 1994 (“RCS”) to reflect new procedural requirements created by the 2021 Rules and to make those steps clearer. New rule 74.3CA of the RCS make provision for minimum mandatory service of listed applications to the Court. Paragraph 2(4) makes provision to adjust a statutory cross-reference in the RCS in consequence of the creation of permanent moratorium rules by the 2021 Rules. Equivalent provision is made in paragraph 3 in respect of the sheriff court.

Paragraphs 2(5) and 3(4) make provision about how applications to disapply restrictions on winding-up petitions are to be made. Provision is required as a consequence of the substitution of a new schedule 10 to the 2020 Act by the 2021 Regulations. As a result of the repeal of paragraph 20 of schedule 10 by the 2021 Regulations, paragraphs 2(6) and 3(5) of this Act of Sederunt remove provision from the court rules about how applications under paragraph 20 are made.

Consequential revocations are made in paragraph 4 to remove spent court rules. Saving provision is made at paragraph 5 so that the court rules in place before the coming into force date of this Act of Sederunt will continue to govern pre-existing moratoriums and pre-existing applications to the court for them.

Act of Sederunt (Simple Procedure Amendment) (Civil Online) 2021

01 Sept, 2021
This Act of Sederunt amends the Act of Sederunt (Simple Procedure Amendment) (Civil Online) 2020. That Act of Sederunt made temporary modifications to require all simple procedure claims to be submitted using Civil Online or the internet interface to the Scottish Courts and Tribunals Service’s case management system. The modifications are due to expire on 30th September 2021. This Act of Sederunt amends that expiry date to substitute a new date of expiry of 31st March 2022 so as to extend the life of the provisions for a period of 6 months.

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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”.

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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.

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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”). 

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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. 

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Views of the child in Family and Civil Partnership actions

Apr 02, 2019

Views of the child in family and civil partnership actions

The Family Law Committee (“FLC”) of the Scottish Civil Justice Council (“SCJC”) has been working for some time on an instrument that will replace the court form used to seek the views of children in family and civil partnership actions.  The Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 was laid before the Scottish Parliament on Friday, 29 March 2019.  It inserts new forms to replace existing Forms F9 and CP7 in Chapters 33 and 33A respectively of the Ordinary Cause Rules (“OCR”) and Form 49.8-N in Chapter 49 of the Rules of the Court of Session (“RCS”).  The new rules come into force on 24 June 2019.

Background

It has long been recognised that there is a need to overhaul the forms currently used for intimation to a child in family actions involving a crave for a section 11 order[1] – not only in terms of making the design more child-friendly, but also simplifying some of the vocabulary used.  This is particularly important since the forms do not only inform children about the section 11 order that the court has been asked to make, they also provide an opportunity for children to let the court know their views.  

The SCJC has consulted children and young people, as well as a number of organisations that work with and represent them, about how the existing forms could be improved.  The FLC has incorporated many of the suggestions and feedback received from children and young people. A graphic designer was appointed to give the forms a more colourful and child-friendly ‘look and feel’.   

Rather than simply replacing the existing form with a revamped document, the FLC decided to take the opportunity to flesh out what the current rules say about sending the form to a child.  Among other things, the new instrument makes provision about the point at which the form should be sent, who should send it, and makes sure the child’s views are sought when a party makes an application after final decree. 

The FLC acknowledges that a form is not always the most appropriate way to obtain a child’s views.  The Scottish Government has indicated that it intends to introduce a Family Law Bill into the Scottish Parliament, which is likely to include provisions on how best to obtain the views of the child.  In the meantime, the instrument replaces the existing form and introduces new rules providing clarity about its use.  Additionally, the Scottish Courts and Tribunals Service plans to look into the possibility of enabling children to submit their completed forms electronically.

Summary of key changes made by the draft instrument

In order to simplify discussion of the instrument, the key changes are explained with reference to Chapter 33 OCR and Form F9.  The changes that have been made to Chapter 33A are almost identical, and Chapter 49 RCS has been aligned with this as far as possible (although some adaptations were necessary due to differences in Court of Session and sheriff court procedure). 

The Act of Sederunt amends three chapters in total: Chapter 33 OCR (family actions), Chapter 33A OCR (civil partnership actions) and Chapter 49 RCS (family actions).  Further, the instrument does not only insert new rules relating to principal proceedings; it makes provision about post-decree applications too.  The need to set out any new provisions in numerous different places in the court rules inevitably makes this amending instrument somewhat repetitive.

Procedural clarity

Existing court rules do not make any provision about the point at which the Form F9 should be sent to the child, nor do they say which party is responsible for sending it.  In practice, this can mean that the form is sent to the child as soon as the pursuer has raised the action and obtained warrant to intimate.  At that point in time, it is not known whether or not the action will be defended or whether the defender will seek a section 11 order. 

Where it turns out that both parties seek a section 11 order, there is the possibility that the child will be sent a second Form F9 – this time asking for views on the order sought by the defender.  FLC members thought this was far from ideal, echoing the comments of consultees that it can be demoralising for children to be repeatedly asked for views.

The instrument therefore sets out detailed rules about this – see, for example, new rules 33.19 to 33.19C.  These rules make it clear that the Form F9 should not be sent to the child until it is known whether the action will be defended.  They also specify which party should send the form and when, depending on who seeks a section 11 order. 

It will normally fall to the pursuer to send the form, even where both parties seek a section 11 order (in those cases, the pursuer must include wording in the form to describe the section 11 order sought by the defender).  The defender will only send the form to the child where he/she is the only party seeking a section 11 order (i.e. where the initial writ or summons does not include a crave for a section 11 order).

In addition to these standard default provisions, new rule 33.19D gives the sheriff the discretion to order a Form F9 to be sent to a child at any time.  This could be useful in cases where a young child was not initially sent a form, but time has passed and he / she is now older and mature enough to express a view.  It also covers situations where the child did receive a form, but due to the passage of time the sheriff thinks it would be appropriate for another one to be sent – just in case the child’s views have changed, for example.

The instrument also includes rules about sending a Form F9 to a child in situations where a party lodges a minute for variation of a decree relating to a section 11 order (see, for example, new rules 33.44A to 33.44D).  These rules mirror the procedure that applies in the principal proceedings.

Judicial oversight of the forms to be sent to the child

As part of the consultation exercise, some concerns were expressed about the possibility of parties sending inappropriately framed forms to children.  The main worry was that the dispute might be described in language intended to influence the child or using difficult legal terminology.

As a way of addressing this, it was agreed that a draft Form F9 should be submitted to the court along with the initial writ / summons (or notice of intention to defend / defences, where applicable), showing the details that the party proposes to include when the form is sent to the child.  The court must be satisfied that the draft form has been prepared appropriately.  An example of these provisions can be seen at rule 33.7A (1)(b) and (3).

Sending the forms to young children

The FLC had concerns that in many cases, parties ask the court to dispense with intimation in Form F9 simply because the child is under 12 years of age.  In part, this may be due to section 11(10) of the Children (Scotland) Act 1995, which provides that ‘a child twelve years of age or more shall be presumed to be of sufficient age and maturity to form a view’

FLC members are very keen to bring about a culture change.  Many children a lot younger than 12 are capable of filling in a form to express their views, even if they require help to do so.  New rule 33.7A (2) therefore provides that where the pursuer ‘considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age)’, the initial writ must contain a crave to dispense with intimation in Form F9 and state the reasons why it is inappropriate to send Form F9 to the child.

Guidance published by the SCJC

The SCJC has published guidance to assist with preparing and sending the new Form F9.  This is published on the ‘Publications’ page of the SCJC’s website[2]. 

 

[1] An order under section 11 of the Children (Scotland) Act 1995 relating to parental responsibilities and rights (such as contact arrangements, where the child should live, etc).

[2] www.scottishciviljusticecouncil.gov.uk

Providing Feedback

The SCJC welcomes feedback on any aspect of court rules.

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