Act of Sederunt (Rules of the Court of Session Amendment No.5) (Miscellaneous) 1990

JurisdictionUK Non-devolved
CitationSI 1990/2118

1990 No. 2118 (S.186)

COURT OF SESSION, SCOTLAND

Act of Sederunt (Rules of the Court of Session Amendment No.5) (Miscellaneous) 1990

Made 25th October 1990

Coming into force 19th November 1990

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 5 of the Court of Session Act 19881and of all other powers enabling them in that behalf, do hereby enact and declare:

S-1 Citation and commencement

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No.5) (Miscellaneous) 1990 and shall come into force on 19th November 1990.

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

S-2 Amendment of the Rules of the Court of Session

Amendment of the Rules of the Court of Session

2.—(1) The Rules of the Court of Session2shall be amended in accordance with the following sub-paragraphs.

(2) After rule 68G (exercise of powers of Lord President by Lord Justice Clerk)3, insert the following section and rules:–

S-SECTION 12

CAVEATS

SECTION 12.—(68H) Orders against which caveats may be lodged

A person may lodge a caveat against–

(a)

(a) interim interdict sought in an action before he has lodged defences;

(b)

(b) any other interim order sought in any action before the time within which appearance may be entered has expired;

(c)

(c) any interim order sought in a petition before he has lodged answers; provided that, for the purposes of this rule, an order under section 1 of the Administration of Justice (Scotland) Act 1972 granted in terms of the prayer, or part of the prayer, of a petition shall not be regarded as an interim order;

(d)

(d) an order for intimation, service and advertisement of a petition to wind up a company or for the appointment of an administrator to a company; or

(e)

(e) an order for intimation, service and advertisement of a petition for his sequestration.

(68I) Form, lodging and renewal of caveats

(1)

(1) A caveat shall be in Form 72 and shall be lodged in the Petition Department.

(2)

(2) A caveat shall remain in force for a period of one year from the date of lodging, and may be renewed on its expiry for a further period of a year and yearly thereafter.”.

(3) In rule 79 (motions for interim orders)4omit paragraph (3).

(4) In rule 91C (fixing and allocation of diets)5

(a)

(a) omit paragraph (4);

(b)

(b) in paragraph (5), omit the words “or (4)”; and

(c)

(c) in paragraphs (6), (7) and (8), omit the words “or 64” wherever they occur.

(5) After rule 117 (objections to issues as adjusted), insert the following rule:–

S-117A

Jury precept

117A.—(1) Not less than 14 days before the diet for jury trial, the pursuer shall attend at the General Department and request the issue of a jury precept.

(2) Where a jury precept is issued, it shall be transmitted by a clerk of session to the sheriff clerk at Edinburgh who shall prepare in accordance with such precept a list of jurors composed of an equal number of men and women.”.

(6) In rule 148 (application of commercial cause rules)6, for paragraph (2), substitute the following paragraph:–

S-2

“2 This Section applies to–

(a) an action relating to–

(i) the construction of a commercial or mercantile document;

(ii) the sale or hire purchase of goods;

(iii) the export or import of merchandise;

(iv) the carriage of goods by land, air or sea (other than an Admiralty action);

(v) a building, engineering or construction contract;

(vi) a commercial lease;

(vii) insurance;

(viii) banking;

(ix) the provision of financial services;

(x) mercantile agency;

(xi) mercantile usage or custom of trade; and

(b) an action not falling within sub-paragraph (a) but relating to a dispute of a business or commercial nature,

and any such action in which an election has been made under paragraph (1) may be referred to as a commercial action.”.

(7) In rule 188J (diet roll)7, in paragraph (8), for “(7)” substitute “(6)”.

(8) In rule 189(a)(v) (Outer House petitions)8, after the word “Acts”, insert the words “(including applications under section 245B of the Companies Act 1985)”.

(9) In rule 218A (lodging of caveats in respect of winding up petitions)9, omit paragraph (2).

(10) In rule 236 (interim orders and intimations in certain petitions)10, omit paragraph (f).

(11) In rule 251 (assignment of patent etc proceedings)11, after the word “1961” where it second occurs, insert the words “, the Trade Marks Act 193812, the Copyright, Designs and Patents Act 198813”.

(12) In rule 257E (proceedings for determination of certain disputes)14, omit the words from “and any such reference” to “Rule 148”.

(13) In rule 260P(1) (registration and enforcement of custody orders under the Family Law Act 1986: interpretation)15

(i)

(i) in the definition of “appropriate court” after the words “Northern Ireland”, insert the words “or, in relation to a specified dependent territory, the corresponding court in that territory,”;

(ii)

(ii) after the definition of “custody order”, insert the following definition:–

““dependent territory” means a territory in respect of which provision has been made by Order in Council under section 43 of the Act of 1986;”; and

(iii)

(iii) in the definition of “proper officer”, after the words “Northern Ireland”, insert the words “or, in relation to a dependent territory, the corresponding officer of the appropriate court in that territory”.

(14) In rules 260R(1), 260T(2) and 260U(3) (registration and enforcement of custody orders under the Family Law Act 1986)16, omit the words “in England and Wales or Northern Ireland” wherever they occur.

(15) In rule 268 (time and mode of appeals from inferior courts)17

(a)

(a) for paragraph (a), substitute the following paragraphs:–

S-1

“1 Except as otherwise provided in any other enactment, an appeal from an inferior court shall be marked not later than 21 days after the date of the interlocutor, judgment or determination appealed against; and shall be by note of appeal written by the appellant or his solicitor on the interlocutor sheet, minute of court, or other...

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