Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008
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2008 No. 349
COURT OF SESSION
Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008
Made 24th October 2008
Coming into force in accordance with paragraph 1(1), (2) and (3)
The Lords of Council and Session, under and by virtue of the powers conferred by section 5 of the Court of Session Act 19881, and this instrument making provision for a purpose mentioned in section 2(2) of the European Communities Act 19722, and it appearing to the Lords of Council and Session that it is expedient for the reference to Regulation (EC) No. 1393/2007of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) and repealing Council Regulation (EC) No. 1348/2000to be construed as a reference to that instrument as amended from time to time, under and by virtue of the powers conferred by paragraph 1A of Schedule 2 to the European Communities Act 19723and under and by virtue of all other powers enabling them in that behalf, do hereby enact and declare:
Citation, commencement and interpretation
1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 2008 and, subject to subparagraphs (2) and (3), shall come into force on 1st December 2008.
(2) Paragraphs 7 and 9 shall come into force on 3rd November 2008.
(3) Paragraph 5 shall come into force on 13th November 2008.
(4) This Act of Sederunt shall be inserted in the Books of Sederunt.
(5) In this Act of Sederunt, “the Rules” means the Rules of the Court of Session 19944.
Amendment of the Rules
2. The Rules are amended in accordance with paragraphs 3 to 9.
Designation of parties
3.—(1) In rule 13.2 (form of summonses), in paragraph (4)–
(a)
(a) omit “and” after subparagraph (c); and
(b)
(b) after subparagraph (d) insert–
“; and
(a) if applicable, any special capacity in which the pursuer is suing or any special capacity in which the defender is being sued.”.
(2) In rule 14.4 (form of petitions), in paragraph (2)–
(a)
(a) after subparagraph (a) omit “and”; and
(b)
(b) after subparagraph (b) insert–
“; and
(a) the name, designation and address of the petitioner and a statement of any special capacity in which the petitioner is presenting the petition”.
(3) In rule 47.3 (election of procedure for commercial actions and form of summons), after paragraph 2(b) insert–
“(ba)
“(ba) specify any special capacity in which the pursuer is bringing the action or any special capacity in which the action is brought against the defender;”.
(4) In Forms 13.2-A (form of summons and backing) and 43.2-A (form of summons and backing in personal injuries action), in the instance–
(a)
(a) for “[A.B.] (designation and address), Pursuer” substitute “[A.B.] (designation, statement of any special capacity in which the pursuer is suing, and address), Pursuer”; and
(b)
(b) for “[C.D.] (designation and address), Defender” substitute “[C.D.] (designation, statement of any special capacity in which the defender is being sued, and address), Defender”.
(5) In Form 14.4 (form of petition), in the instance, for “The Petition of [A.B.] (name, designation and address of petitioner)” substitute “The Petition of [A.B.] (name, designation and address of petitioner and statement of any special capacity in which the petitioner is presenting the petition)”.
(6) In Form 58.6 (form of petition in application for judicial review), in the instance, for “[A.B.] (designation and address)” substitute “[A.B.] (designation and address and statement of any special capacity in which the petitioner is presenting the petition)”.
Dismissal of claims due to delay
4.—(1) In rule 15.1 (applications by minute), in paragraph (6)–
(a)
(a) after subparagraph (d), omit “or”; and
(b)
(b) after subparagraph (e), insert–
“; or
(a) a minute to dismiss a claim under rule 21A.”.
(2) After Chapter 21 (summary decrees) insert–
“CHAPTER 21A
DISMISSAL OF A CLAIM DUE TO DELAY
21A.—(1) Any party to a claim may, while that claim is depending before the court, apply by minute for the court to dismiss the claim due to inordinate and inexcusable delay by another party or another party’s agent in progressing the claim, resulting in unfairness.
(2) A minute under paragraph (1) shall–
(a)
(a) include a statement of the grounds on which dismissal of the claim is sought; and
(b)
(b) be lodged in the process of the action to which it relates.
(3) On lodging a minute under paragraph (2)(b), the party seeking dismissal of the claim shall enrol a motion for–
(a)
(a) intimation of the minute on any other parties to the claim; and
(b)
(b) an order for answers to the minute to be lodged in process within the period of 21 days from the date of intimation.
(4) On the expiry of the period referred to in paragraph (3)(b), the party seeking dismissal of the claim shall enrol a motion for further procedure.
(5) In determining an application made under this rule, the court may dismiss the claim if it appears to the court that–
(a)
(a) there has been an inordinate and inexcusable delay on the part of any party or any party’s agent in progressing the claim; and
(b)
(b) such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that claim.
(6) In determining whether or not to dismiss a claim under paragraph (5), the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the claim to proceed.”.
Service under the EC Service Regulation
5. In rule 16.2A (service under the Council Regulation)–
(a) for the heading substitute “Service under the EC Service Regulation”;
(b) in paragraph (1), for the definition of “Council Regulation” substitute–
““EC Service Regulation” means Regulation (EC) No. 1393/2007of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time5.”; and
(c) for “Council Regulation” wherever it otherwise appears substitute “EC Service Regulation”.
Service by post
6.—(1) In rule 16.4 (service by post), for paragraph (5) substitute–
“5 Where a document is served by a registered post service, a receipt of posting by the operator of that service shall be attached to the certificate of service”.
(2) In rule 21.2 (applications for summary decree), for paragraph (3)(b)(ii) substitute–
“(ii)
“(ii) a certificate of intimation by post in Form 16.4 in respect of each letter of intimation.”.
(3) In rule 50.2 (parties to, and service and intimation of, actions of declarator under the Presumption of Death (Scotland) Act 1977), for paragraph (8)(b) substitute–
“(b)
“(b) lodge in process a certificate of intimation of those defences by post in Form 16.4.”.
(4) In rule 50.5 (applications for variation or recall of decrees), for paragraph (4)(b) substitute–
“(b)
“(b) lodge in process a certificate of intimation of those answers by post in Form 16.4.”.
(5) In Form 16.4 (form of certificate of service, or intimation on a warrant, by post)–
(a)
(a) after “(name of defender or other person on whom served)” insert “[where applicable, by first class recorded delivery]”; and
(b)
(b) omit “The post office receipt [or certificate of posting] is attached to this certificate.”.
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