Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009
| Jurisdiction | Scotland |
2009 No. 294
Sheriff Court
Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009
Made 18th August 2009
Coming into force in accordance with paragraph 1(1) and (2)
The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 19711and 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 said Act of 1971, do hereby enact and declare:
Citation, commencement and interpretation
1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 and, subject to subparagraph (2), comes into force on 1st October 2009.
(2) Paragraphs 2 to 7 come into force on 1st December 2009.
(3) This Act of Sederunt is to be inserted in the Books of Sederunt.
(4) In this Act of Sederunt—
“the 1988 Rules” means the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 19882;
“the Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 19073;
“the Summary Application Rules” means the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 19994;
“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 20025; and
“the Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 20026.
Time to pay directions and time orders
2.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.
(2) After rule 3.2 (actions relating to heritable property) insert—
“Actions relating to regulated agreements
3.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 19747—
(a) the initial writ shall include an averment that such an agreement exists and details of that agreement; and
(b) a copy of the regulated agreement shall be attached to the initial writ.”.
(3) In rule 7.3 (applications for time to pay directions or time orders in undefended causes)—
(a)
(a) after paragraph (2) insert—
“2A As soon as possible after the application of the defender is lodged, the sheriff clerk shall send a copy of it to the pursuer by first class ordinary post.”; and
(b)
(b) for paragraph (4) substitute—
“4 Where the pursuer objects to the application of the defender made in accordance with paragraph (2) he shall on the same date—
(a) complete and lodge with the sheriff clerk Form O3A;
(b) minute for decree in accordance with rule 7.2; and
(c) send a copy of Form O3A to the defender.
4A The sheriff clerk shall then fix a hearing on the application of the defender and intimate the hearing to the pursuer and the defender.
4B The hearing must be fixed for a date within 28 days of the date on which the Form O3A and the minute for decree are lodged.”.
(4) In the Schedule, for Form O3 (form of citation where application for time to pay direction and time order may be made) substitute the forms set out in Schedule 1 to this Act of Sederunt.
3.—(1) The Summary Application Rules are amended in accordance with the following subparagraphs.
(2) In rule 2.4 (the initial writ)8, after paragraph (4) insert—
“4A In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—
(a) the initial writ shall include an averment that such an agreement exists and details of the agreement; and
(b) a copy of the regulated agreement shall be lodged with the initial writ.”.
(3) In rule 2.22 (applications for time to pay directions or time orders)—
(a)
(a) in paragraph (2)(b) for “seven” substitute “14”;
(b)
(b) for paragraph (3) substitute—
“3 On lodging an application under paragraph (2)(b), the defender shall send a copy of it to the pursuer by first class ordinary post.
4 Where the pursuer objects to the application of the defender lodged under paragraph (2)(b) he shall—
(a) complete and lodge with the sheriff clerk Form 5A prior to the date fixed for the hearing of the summary application; and
(b) send a copy of that form to the defender.
5 The sheriff clerk shall then fix a hearing in relation to the application under paragraph (2)(b) and intimate the hearing to the pursuer and the defender.
6 The sheriff may determine an application under paragraph (2)(c) without the defender having to appear.”.
(4) In Form 4 in the Schedule (form of warrant of citation etc.), in paragraph (b), for “seven” substitute “fourteen”.
(5) For Form 5 in the Schedule (form of notice etc.), substitute the forms set out in Schedule 2 to this Act of Sederunt.
4.—(1) The Summary Cause Rules are amended in accordance with the following subparagraphs.
(2) After rule 4.2 (statement of claim) insert—
“Actions relating to regulated agreements
4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—
(a) the statement of claim shall include an averment that such an agreement exists and details of the agreement; and
(b) a copy of the regulated agreement shall be attached to the summons.”.
(3) In rule 7.2 (application for time to pay direction or time order)—
(a)
(a) after paragraph (1) insert—
“1A The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any response lodged under paragraph (1).”;
(b)
(b) in paragraph (2), for “two days” substitute “9 days”; and
(c)
(c) for paragraph (4) substitute—
“4 If the pursuer wishes to oppose the application for a time to pay direction or time order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s office closes for business on the day occurring 9 days before the calling date—
(a) lodge a minute in Form 19; and
(b) send a copy of that minute to the defender.”.
(4) For Form 1a (summons) in Appendix 1 substitute the form set out in Schedule 3 to this Act of Sederunt.
(5) For Form 19 (form of minute) in Appendix 1 substitute the form set out in Schedule 4 to this Act of Sederunt.
5.—(1) The Small Claim Rules are amended in accordance with the following subparagraphs.
(2) After rule 4.2 (statement of claim) insert—
“Actions relating to regulated agreements
4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—
(a) the statement of claim shall include an averment that such an agreement exists and details of the agreement; and
(b) a copy of the regulated agreement shall be attached to the summons.”.
(3) In rule 8.2 (application for time to pay direction or time order)—
(a)
(a) after paragraph (1) insert—
“1A The sheriff clerk must on receipt forthwith intimate to the pursuer a copy of any response lodged under paragraph (1).”;
(b)
(b) in paragraph (2) for “two days” substitute “9 days”; and
(c)
(c) for paragraph (4) substitute—
“4 If the pursuer wishes to oppose the application for a time to pay direction or time order made in accordance with paragraph (1)(a) he must before the time the sheriff clerk’s office closes for business on the day occurring 9 days before the hearing date—
(a) lodge a minute in Form 13; and
(b) send a copy of that minute to the defender.”.
(4) For Form 1a in Appendix 1 (summons) substitute the form set out in Schedule 5 to this Act of Sederunt.
(5) For Form 13 in Appendix 1 (form of minute) substitute the form set out in Schedule 6 to this Act of Sederunt.
6. But the Ordinary Cause Rules, Summary Application Rules, Summary Cause Rules and Small Claim Rules as they applied immediately before 1st December 2009 continue to have effect for the purpose of any application for a time to pay direction or a time order made in connection with an initial writ or summons, as the case may be, lodged before that date.
Return, calling and hearing dates
7.—(1) In rule 4.5(7) of the Summary Cause Rules (period of notice), for “seven days” substitute “14 days”.
(2) In rule 9.1(3) of the Small Claim Rules (the hearing), for “seven days” substitute “14 days”.
(3) But rule 4.5(7) of the Summary Cause Rules and rule 9.1(3) of the Small Claim Rules as they applied immediately before 1st December 2009 continue to have effect for the purpose of any summons lodged before that date.
Applications for time to pay orders
8.—(1) The 1988 Rules are amended in accordance with subparagraph (2).
(2) In Form 2 in the Schedule9, for the section beginning “The applicant’s financial position is:-” substitute the following section—
(3) But the 1988 Rules as they applied immediately before 1st October 2009 continue to have effect for the purpose of any application for a time to pay order made before that date.
Conjoined arrestment orders
9.—(1) The 1988 Rules are amended in accordance with the following subparagraphs.
(2) In Form 43 in the Schedule (application for a conjoined arrestment order)10—
(a)
(a) in paragraph 1, after the entry for “The employer” insert—
“Debtor’s place of employment : (address)”;
(b)
(b) before the paragraph beginning “The applicant asks the court” insert—
“8. A debt advice and information package was...
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