Act of Sederunt (Rules of the Court of Session Amendment No.1) (Miscellaneous) 1990
| Jurisdiction | UK Non-devolved |
| Citation | SI 1990/705 |
1990 No. 705 (S.86)
COURT OF SESSION, SCOTLAND
Act of Sederunt (Rules of the Court of Session Amendment No.1) (Miscellaneous) 1990
Made 16th March 1990
Coming into force 9th April 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:
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.1) (Miscellaneous) 1990 and shall come into force on 9th April 1990.
(2) This Act of Sederunt shall be inserted in the Books of Sederunt.
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) In rule 74 (signeting; service; diligence etc)–
(a)
(a) in paragraph (g)–
(i) after the words “on the dependence of an action”, insert the words “or for authority to move an arrested vessel”;
(ii) for the words from “letter addressed” to “pursuer”, substitute the word “motion”; and
(iii) omit the words “, and his interlocutor shall be written on the principal summons”; and
(b)
(b) in paragraph (h), after the words “on the dependence of an action”, insert the words “or for authority to move an arrested vessel”.
(3) In rule 74A (citation and service)3–
(a)
(a) in paragraph (1)(b)(i), for the words “resident at, or depositing it in, the dwelling place”, substitute the words “person, or depositing it, in the dwelling place”;
(b)
(b) in paragraph (1)(b)(ii), for the words from “in the hands of a responsible employee” to “of the defender at”, substitute the words “at, or depositing it in,”;
(c)
(c) in paragraph (1)(b)(iii), for the words “depositing the citation in that place”, substitute the words “leaving the citation at, or depositing it in, that place”;
(d)
(d) in paragraph (4)(a)–
(i) after the words “dwelling place” insert the words “, registered office”; and
(ii) at the end, insert the words “whose name and designation he shall ascertain and enter in the execution”; and
(e)
(e) after paragraph (4)(b), insert the following sub-paragraph:–
“(c)
“(c) where left with a person other than the defender, be placed in a sealed envelope (bearing the notice in paragraph (6)) the messenger-at-arms together with the summons or other document served.”.
(4) In rule 78(d) (calling of summons), omit the words from “; and along with” to “a later date”.
(5) In rule 83 (defences), omit paragraph (c).
(6) In rule 89 (decree in absence)4, omit paragraphs (g) and (h).
(7) In rule 89B(1) (summary decree)5, omit sub-paragraph (b).
(8) In rule 102A (letters of request)6, at the end, insert the following paragraph–
“5 A person who is served with an order requiring him to give evidence, or is cited to attend to give evidence by virtue of such an order, may apply to the court by motion in the Single Bills to have the order varied or recalled.”.
(9) After rule 134D (appeal in claim for provisional damages)7insert the following section and rule:–
“LODGING OF DOCUMENTS FOUNDED ON
SECTION 12.—(134E) Lodging of documents founded on
(1)
(1) Any deed, writing or other document founded on by a party in his pleadings shall, so far as in his possession or within his control, be lodged in process by that party–
(a) when founded on in the summons or condescendence annexed thereto, at the time of lodging the summons for calling;
(b) when founded on in defences, at the time of lodging the defences;
(c) when founded on in an adjustment to the pleadings, at the time when such an adjustment is intimated; and
(d) when founded on in any minute, answers thereto or adjustments on such a minute and answers, at the time of lodging the minute or answers or intimating the adjustments, as the case may be.
(2)
(2) Paragraph (1) shall be without prejudice to any power of the court to order production of any document or grant a commission and diligence for recovery of it.
(3)
(3) Where a party fails to lodge a deed, writing or other document in accordance with paragraph (1), he may be found liable in the expenses of any order for prod uction or for commission and diligence for recovery of it obtained by another party to the action.”
(10) In rule 140–
(a)
(a) in paragraph (d) (recall of arrestment in admiralty causes)–
(i) after the words “such arrestment recalled”, insert the words “or to seek authority to move an arrested vessel”;
(ii) for the words from “letter addressed” to “recall of the arrestment”, substitute the word “motion”; and
(iii) omit the words from “; and the interlocutor recalling” to “the principal summons”.
(b)
(b) after paragraph (d), insert the following paragraph:–
“(dd)
“(dd) Rule 74(h) shall apply to an application for recall of an arrestment on the dependence of an action or for authority to move an arrested vessel made after calling in an action in rem.”.
(11) In rule 168A (defended consistorial actions)8, omit paragraph (4).
(12) In rule 170B (parental rights etc in consistorial causes)9–
(a)
(a) in paragraphs (6)(a)(iii) (intimation to third parties), for the words “parental rights” where it second occurs, substitute the word “custody”;
(b)
(b) for paragraph (8), substitute the following paragraph:–
“8 Applications after decree in relation to children. An application made after decree for, or for the variation or recall of, an order–
(a) relating to the parental rights of a child;
(b) under Part II of the Act of 1958; or
(c) for aliment for a child under 18 years of age,
shall be made in the process of the original action.”;
(c)
(c) for paragraph (9), substitute the following paragraph:–
“9 Interim extract. A final decree in an action in which an application may be made under paragraph (8) shall be capable only of interim extract.”;
(d)
(d) after paragraph (13) (application for interdict under the Family Law Act 198645), insert the following paragraphs:–
“14 Applications for custody to which Part II of the Children Act 1975 applies–
(a) Where in an action a person (“the minuter”) applies by minute for custody of a child, the court shall on granting leave to the minuter to be sisted as a party, order the minuter to give notice–
(i) at the same time to each known parent of the child in Form 68 together with, where the minuter is not a parent, tutor, curator, or guardian of the child, a consent form in Form 69; and
(ii) where the minuter is not a parent of the child and he resides in Scotland when the minute is presented, within seven days to the local authority within whose area the minuter resides in Form 70; or
(iii) where the minuter is not a parent of the child and he does not reside in Scotland when the minute is presented, in Form 70 within such time as the court shall determine to such local authority as the court shall specify.
(b) Where a parent, tutor, curator or guardian consents to the minuter being granted custody of a child, he shall–
(i) complete and sign a consent form in Form 69;
(ii) have his signature witnessed; and
(iii) return the form to the minuter.
(c) At any stage of the cause, where it appears to the court to be desirable in the circumstances of the case in order to safeguard the interests of a child, the court shall appoint a curator ad litem.
(d) A curator ad litem appointed under sub-paragraph (c) shall have the following duties:–
(i) to enquire into, so far as he considers necessary the matters averred in the minute and in any report by a local authority under sub-paragraph (e);
(ii) to enquire into any other matters which appear to him to be relevant;
(iii) to consider whether the granting of custody to the minuter is in the interests of the child;
(iv) to perform such other duties as appear to him to be necessary or as the court may require; and
(v) to prepare a report in relation to the exercise of the above duties.
(e) On completion of a report under section 49(2) of the Children Act 197510, the local authority shall–
(i) lodge three copies of the report in process; and
(ii) where a curator ad litem has been appointed, send a copy of the report to him.
(f) The curator ad litem shall, on completion of his report, lodge three copies of it in process.
(g) On receipt of the report of the local authority, and, where a curator ad litem has been appointed, the report of the curator ad litem, the General Department shall–
(i) inform the minuter that a report has been lodged; and
(ii) make available to the minuter, and to every other party, a copy of each report.
(h) This paragraph shall, with the necessary modifications apply to a pursuer or defender who is not a parent of a child in respect of whom custody is sought as it applies to a person who applies by minute.
15 Referral to family conciliation service. In any action where the custody of, or access to, a child is in dispute, the court may, at any stage of the action where it considers it appropriate to do so and the parties to the dispute agree, refer that dispute to a specified Family Conciliation Service.”.
(13) In rule 170D (applications for financial provision)11–
(a)
(a) in paragraph (2) (application by defender for financial provision in divorce action), after the word “seeks”, insert the following words “; and, where a defender makes such a claim, he may apply in his defences for a warrant to use any form of diligence which would be competent on the dependence had the claim been concluded for in a summons, and the application shall be made and dealt with as in like manner as, and any warrant granted shall have effect as if granted under, rule 84(c)”; and
(b)
(b) at the end, insert the following paragraph:–
“12 Subsequent applications for incidental orders. An application for an incidental order (within the meaning of section 14(2) of the Act of 1985) after the grant or refusal of...
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