Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Miscellaneous) 2021

Jan 20, 2021
The Act of Sederunt (Rules of the Court of Session 1994 Amendment) (Miscellaneous) 2021 was laid before the Scottish Parliament on Wednesday 20 January 2021.  
This instrument 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. Practitioners in Asylum and Immigration cases reported experiencing delays in progressing cases due to the length of time it was taking for legal aid applications to be progressed with the Scottish Legal Aid Board. As a result, agents were finding that they were enrolling numerous applications to renew the sist for a further 28 days, causing the court costs to rapidly build in the event of numerous sist applications. This extension is intended to allow agents more time to collate the information required for an application to be made to SLAB and for a subsequent decision to be made, reducing the costs for parties who require to make numerous sist applications whilst their legal aid application is considered. 

This Act of Sederunt also provides for a number of changes to the operation of Chapter 49 of the Rules of the Court of Session (family actions), stipulating that the last date for the adjustment of pleadings and the lodging of inventories of productions and lists of witnesses will be 56 days before the diet of proof. The new rules come into force on 22 February 2021 and apply to all actions proceeding under Chapter 49 of the Rules of the Court of Session, irrespective of whether they have already been raised.
The practical effect of this rule change is that copies of all productions which are intended to be used at the proof shall be intimated to the other parties no later than 56 days before proof, with only the inventory lodged with the court at this stage. The principal productions will require to be lodged with the court no later than 14 days before the proof – as parties will be providing the other parties with copies of the productions at intimation stage, the urgency to lodge the principal productions with the Offices of Court is minimised. 

This rule change follows a request from the Family Actions User Group of the Court of Session, who recognised that the current 28 day time scale is very challenging as affidavits cannot realistically be prepared until parties have had an opportunity to consider productions in a case. This leads to time constraints and often results in significant pressure upon agents. It also reduces the time available for potential settlement discussions. It is anticipated that this amendment will ensure that parties’ pleadings are in their final form at an earlier stage in proceedings and will allow parties more time to consider disputed matters prior to proof, potentially creating more opportunity for settlement. 

Practice Note No. 1 of 2021 makes an amendment to Practice Note No. 8 of 1994, excluding Family Actions proceeding under Chapter 49 from the exchange of witnesses 28 days before the proof diet.

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