Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012

JurisdictionScotland
CitationSSI 2012/188

2012 No. 188

Sheriff Court

Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012

Made 6th June 2012

Laid before the Scottish Parliament 8th June 2012

Coming into force 1st August 2012

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 19711and section 114 of the Adoption and Children (Scotland) Act 20072as modified and applied in relation to parental orders under section 54 of the Human Fertilisation and Embryology Act 20083and applications for such orders by regulation 4 of, and Schedule 3 to, the Human Fertilisation and Embryology (Parental Orders) Regulations 20104and 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
S-1 Citation, commencement and interpretation

Citation, commencement and interpretation

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 and subject to paragraph 15, comes into force on 1st August 2012.

(2) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.

(3) In this Act of Sederunt the “Ordinary Cause Rules” means the Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 19075.

Ordinary Cause Rules: pronouncement of decision
S-2 Ordinary Cause Rules: pronouncement of decision

Ordinary Cause Rules: pronouncement of decision

2.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2) For rule 12.2 (further provisions in relation to interlocutors)6substitute—

S-12.2

12.2.—(1) The sheriff may sign an interlocutor when outwith his or her sheriffdom.

(2) At any time before extract, the sheriff may correct any clerical or incidental error in an interlocutor or note attached to it.

(3) Paragraphs (4) and (5) apply in any cause other than—

(a)

(a) an undefended family action within the meaning of rule 33.1(1); or

(b)

(b) an undefended civil partnership action within the meaning of rule 33A.1(1).

(4) At the conclusion of any hearing in which evidence has been led, the sheriff shall either—

(a)

(a) pronounce an extempore judgment in accordance with rule 12.3; or

(b)

(b) reserve judgment in accordance with rule 12.4.

(5) In circumstances other than those mentioned in paragraph (4), the sheriff may, and must when requested by a party, append to the interlocutor a note setting out the reasons for the decision.

(6) A party must make a request under paragraph (5) in writing within 7 days of the date of the interlocutor.

(7) Where a party requests a note of reasons other than in accordance with paragraph (6), the sheriff may provide such a note.

S-12.3

Extempore judgments

12.3.—(1) This rule applies where a sheriff pronounces an extempore judgment in accordance with rule 12.2(4)(a).

(2) The sheriff must state briefly the grounds of his or her decision, including the reasons for his or her decision on any questions of fact or law or of admissibility of evidence.

(3) The sheriff may, and must if requested to do so by a party, append to the interlocutor a note setting out the matters referred to in paragraph (2) and his or her findings in fact and law.

(4) A party must make a request under paragraph (3) in writing within 7 days of the date of the extempore judgment.

(5) Where a party requests a note of reasons other than in accordance with paragraph (4), the sheriff may provide such a note.

S-12.4

Reserved judgments

12.4.—(1) This rule applies where a sheriff reserves judgment in accordance with rule 12.2(4)(b).

(2) The sheriff must give to the sheriff clerk—

(a)

(a) an interlocutor giving effect to the sheriff’s decision and incorporating findings in fact and law; and

(b)

(b) a note stating briefly the grounds of his or her decision, including the reasons for his or her decision on any questions of fact or law or of admissibility of evidence.

(3) The date of the interlocutor is the date on which it is received by the sheriff clerk.

(4) The sheriff clerk must forthwith send a copy of the documents mentioned in paragraph (2) to each party.”.

Ordinary Cause Rules: summary decree
S-3 Ordinary Cause Rules: summary decree

Ordinary Cause Rules: summary decree

3.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2) For rule 17.2 (applications for summary decree) and rule 17.3 (application of summary decree to counterclaims, etc.) substitute—

S-17.2

Applications for summary decree

17.2.—(1) Subject to paragraphs (2) to (4), a party to an action may, at any time after defences have been lodged, apply by motion for summary decree in accordance with rule 15.1(1)(b) (lodging of motions).

(2) An application may only be made on the grounds that—

(a)

(a) an opposing party’s case (or any part of it) has no real prospect of success; and

(b)

(b) there exists no other compelling reason why summary decree should not be granted at that stage.

(3) The party enrolling the motion may request the sheriff—

(a)

(a) to grant decree in terms of all or any of the craves of the initial writ or counterclaim;

(b)

(b) to dismiss a cause or to absolve any party from any crave directed against him or her;

(c)

(c) to pronounce an interlocutor sustaining or repelling any plea-in-law; or

(d)

(d) to dispose of the whole or part of the subject-matter of the cause.

(4) The sheriff may—

(a)

(a) grant the motion in whole or in part, if satisfied that the conditions in subparagraph (2) are met,

(b)

(b) ordain any party, or a partner, director, officer or office-bearer of any party—

(i) to produce any relevant document or article; or

(ii) to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.

(5) Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change in circumstances.”.

(3) Rule 40.11 (applications for summary decree in a commercial action) is omitted.

Family actions: financial information
S-4 Family actions: financial information

Family actions: financial information

4.—(1) The Ordinary Cause Rules are amended in accordance with the following subparagraphs.

(2) In rule 33.9 (productions in action of divorce or where section 11 order may be made)7

(a)

(a) after subparagraph (b), insert—

“(c)

“(c) in an action which includes a crave for an order for financial provision, the pursuer must lodge a completed Form F13A signed by the pursuer with the initial writ or minute of amendment as the case may be.”;

(b)

(b) the heading of that rule becomes “Productions in action of divorce or where a section 11 order or order for financial provision may be made”.

(3) In rule 33.34 (notice of intention to defend and defences)8

(a)

(a) after paragraph (3) insert—

S-4

“4 Where a defender opposes a crave for an order for financial provision or makes a claim in accordance with paragraph (1)(b)(ii), (iii) or (c)(i), the defender must lodge a completed Form F13A signed by the defender with the defences, minute of amendment or answers as the case may be.”;

(b)

(b) the heading of that rule becomes “Notice of intention to defend and defences etc.”.

(4) In rule 33A.9 (productions in action of dissolution of civil partnership or where section 11 order may be made)9

(a)

(a) after paragraph (4), insert—

S-5

“5 In a civil partnership action which includes a crave for an order for financial provision, the pursuer must lodge a completed Form CP13A signed by the pursuer with the initial writ or minute of amendment as the case may be.”;

(b)

(b) the heading of that rule becomes “Productions in action of dissolution of civil partnership or where a section 11 order or order for financial provision may be made”.

(5) In rule 33A.34 (notice of intention to defend and defences)—

(a)

(a) after paragraph (3) insert—

S-4

“4 Where a defender opposes a crave for an order for financial provision or makes a claim in accordance with paragraph (1)(b)(ii), (iii) or (c)(i), the defender must lodge a completed Form CP13A signed by the defender with the defences, minute of amendment or answers as the case may be.”;

(b)

(b) the heading of that rule becomes “Notice of intention to defend and defences etc.”.

(6) In Appendix 1, insert the Forms set out in Schedule 1 to this Act of Sederunt in the following places—

(a)

(a) after Form F13 (Form of intimation to person with whom an improper association is alleged to have occurred) insert Form F13A (Form of statement of matrimonial property);

(b)

(b) after Form CP13 (Form of intimation to person with whom an association is alleged to have occurred in a civil partnership action)10insert Form CP13A (Form of statement of civil partnership property).

Ordinary Cause Rules: Applications under section 28 or 29 of the Family Law (Scotland) Act 2006

Ordinary Cause Rules: Applications under section 28 or 29 of the Family Law (Scotland) Act 2006

S-5 Chapter 33 (family actions) of the Ordinary Cause Rules is...

5.—(1) Chapter 33 (family actions)11of the Ordinary Cause Rules is amended in accordance with the following subparagraphs.

(2) In rule 33.1 (interpretation of Chapter 33: family actions)12

(a)

(a) after paragraph (1)(p) insert—

“(q)

“(q) an application under section 28 or 29 of the Act of 2006 (financial provision for former co-habitants)13.”;

(b)

(b) in paragraph (2) after the definition of “the Act of 1995” insert—

““the Act of 2006” means the Family Law (Scotland) Act 2006;”.

(3) After rule 33.6 (averments where aliment or financial provision sought)14

S-33.6A

Application by survivor for provision on intestacy

33.6A.—(1) In an action for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy), the pursuer shall call the deceased’s executor as a defender.

...

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