Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999
1999 No. 929 (S. 65)
SHERIFF COURT, SCOTLAND
Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999
Made 19th March 1999
Coming into force 1st July 1999
The Lords of Council and Session, under and by virtue of the powers conferred on them by Schedule 1, paragraphs 24(1), 28D and 28(2), Schedule 2, paragraph 7 and Schedule 3, paragraph 13(3) to the Betting Gaming and Lotteries Act 19631, Schedule 2, paragraphs 33(1), 34(1), 45 and 47, and Schedule 9, paragraph 15 to the Gaming Act 19682, section 32 of the Sheriff Courts (Scotland) Act 19713, sections 66(5A) and 75 of the Sex Discrimination Act 19754, section 39(9) of the Licensing (Scotland) Act 19765, Schedule 3, paragraph 12 to the Lotteries and Amusements Act 19766, sections 136, 139, 146, 147, 152, 153, 182(3) and 185 of the Representation of the People Act 19837, sections 114(3), 204(3) and 231(3) of the Copyright, Designs and Patents Act 19888, section 19(3) of the Trade Marks Act 19949, section 46 of the Drug Trafficking Act 199410, Regulation 5(3) of the Olympics Association Right (Infringement Proceedings) Regulations 199511, and sections 31(5) and 48 of, and Schedule 1, paragraph 11 to, the Proceeds of Crime (Scotland) Act 199512and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:
CHAPTER 1
GENERAL
Citation and commencement
1.1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 and shall come into force on 1st July 1999.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
Interpretation
1.2.—(1) In this Act of Sederunt, unless the context otherwise requires–
“Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 190713;
“sheriff clerk” includes sheriff clerk depute; and
“summary application” has the meaning given by section 3(p) of the Sheriff Courts (Scotland) Act 1907.
(2) Unless the context otherwise requires, any reference in this Act of Sederunt to a specified Chapter, Part or rule shall be construed as a reference to the Chapter, Part or rule bearing that number in this Act of Sederunt, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.
(3) Any reference in this Act of Sederunt to a numbered Form shall, unless the context otherwise requires, be construed as a reference to the Form so numbered in Schedule 1 to this Act of Sederunt and includes a form substantially to the same effect with such variation as circumstances may require.
Revocation
1.3. The Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule.
Application
1.4. Unless otherwise provided in this Act of Sederunt or in any other enactment, any application or appeal to the sheriff shall be by way of summary application and the provisions of Chapter 2 of this Act of Sederunt shall apply accordingly.
CHAPTER 2
SUMMARY APPLICATION RULES
PART I
INTERPRETATION
Interpretation
2.1. In this Chapter, unless the context otherwise requires–
“decree” includes any judgment, deliverance, interlocutor, act, order, finding or authority which may be extracted;
“defender” means any person other than the pursuer who is a party to a summary application; and
“pursuer” means any person making a summary application.
PART II
GENERAL RULES
Application
2.2. This Part applies to summary applications.
Relief from failure to comply with rules
2.3.—(1) The sheriff may relieve a party from the consequences of failure to comply with a provision in this Part which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.
(2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in this Part of these Rules under paragraph (1), he may make such order as he thinks fit to enable the summary application to proceed as if the failure to comply with the provision had not occurred.
The initial writ
2.4.—(1) Unless otherwise prescribed by any other enactment, a summary application shall be commenced by initial writ in Form 1.
(2) The initial writ shall be written, typed or printed on A4 size paper of durable quality and shall not be backed or folded.
(3) Where the pursuer has reason to believe that an agreement exists prorogating jurisdiction over the subject-matter of the summary application to another court, the initial writ shall contain details of that agreement.
(4) Where the pursuer has reason to believe that proceedings are pending before another court involving the same cause of action and between the same parties as those named in the instance of the initial writ, the initial writ shall contain details of those proceedings.
(5) An article of condescendence shall be included in the initial writ averring–
(a)
(a) the ground of jurisdiction; and
(b)
(b) the facts upon which the ground of jurisdiction is based.
(6) Where the residence, registered office or place of business, as the case may be, of the defender is not known and cannot reasonably be ascertained, the pursuer shall set out in the instance of the initial writ that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.
(7) The initial writ shall be signed by the pursuer or his solicitor (if any) and the name and address of that solicitor shall be stated on the back of every service copy of that writ.
(8) The initial writ shall include averments about those persons who appear to the pursuer to have an interest in the application and in respect of whom a warrant for citation is sought.
Order for intimation to interested persons by sheriff
2.5. The sheriff may make an order for intimation to any person who appears to him to have an interest in the summary application.
Time limits
2.6.—(1) This rule applies to a summary application where the time within which the application may be made is not otherwise prescribed.
(2) An application to which this rule applies shall be lodged with the sheriff clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the pursuer.
(3) On special cause shown, the sheriff may hear an application to which this rule applies notwithstanding that it was not lodged within the period prescribed in paragraph (2).
Warrants, forms and certificate of citation
2.7.—(1) Subject to paragraph (2), a warrant for citation, intimation or arrestment on the dependence may be signed by the sheriff or sheriff clerk.
(2) A warrant containing a period of notice shorter than the period of notice to be given to a defender under rule 3.6(1)(a) or (b), as the case may be, of the Ordinary Cause Rules or any other warrant which the sheriff clerk may not sign, shall be signed by the sheriff.
(3) Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the summary application may apply to the sheriff for the warrant.
(4) Where citation is necessary–
(a)
(a) the warrant of citation shall, subject to paragraph (5), be in Form 2; and
(b)
(b) citation shall, subject to paragraph (7) and rule 2.13 (service where address of person is not known), be in Form 3.
(5) Where a time to pay direction under the Debtors (Scotland) Act 198714may be applied for by the defender, the warrant of citation shall be in Form 4.
(6) Where a warrant of citation in accordance with Form 4 is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in Form 5.
(7) Where a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender, citation shall be in Form 6 which shall be attached to a copy of the initial writ and warrant of citation.
(8) Where citation is necessary, the certificate of citation shall be in Form 7 which shall be attached to the initial writ.
(9) Where citation is by a sheriff officer, one witness shall be sufficient for the execution of citation.
(10) Where citation is by a sheriff officer, the certificate of citation shall be signed by the sheriff officer and the witness and shall state–
(a)
(a) the method of citation; and
(b)
(b) where the method of citation was other than personal or postal citation, the full name and designation of any person to whom the citation was delivered.
(11) Where citation is executed under paragraph (3) of rule 2.11 (depositing or affixing by sheriff officer), the certificate shall include a statement–
(a)
(a) of the method of service previously attempted;
(b)
(b) of the circumstances which prevented such service being executed; and
(c)
(c) that a copy of the document was sent in accordance with the provisions of paragraph (4) of that rule.
Orders against which caveats may be lodged
2.8. A person may lodge a caveat against an interim order (other than an order under section 1 of the Administration of Justice (Scotland) Act 1972 (orders for inspection of documents and other property, etc.))15sought before service of the initial writ.
Form, lodging and renewal of caveats
2.9.—(1) A caveat shall be in Form 8 and shall be lodged with the sheriff...
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