Act of Sederunt (Summary Cause Rules) 2002

JurisdictionScotland
CitationSSI 2002/132

2002 No. 132

SHERIFF COURT

Act of Sederunt (Summary Cause Rules) 2002

Made 1st March 2002

Coming into force 10th June 2002

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:

S-1 Citation and commencement

Citation and commencement

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Summary Cause Rules) 2002 and shall come into force on 10th June 2002.

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

S-2 Summary Cause Rules

Summary Cause Rules

2. The provisions of Schedule 1 to this Act of Sederunt shall have effect for the purpose of providing rules for a summary cause other than a small claim.

S-3 Transitional provision

Transitional provision

3. Nothing in Schedule 1 to this Act of Sederunt shall apply to a summary cause commenced before 10th June 2002 and any such action shall proceed according to the law and practice in force immediately before that date.

S-4 Revocation

Revocation

4. The Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule except–

(a) in relation to any summary cause commenced before 10th June 2002; and

(b) for the purposes of the Act of Sederunt (Small Claim Rules) 19882.

W DOUGLAS CULLEN

Lord President, I.P.D.

Edinburgh

1st March 2002

SCHEDULE 1

Paragraph 2

SUMMARY CAUSE RULES 2002

1CHAPTER 1

Citation, interpretation and application

SCH-1.1.1

1.1. Citation, interpretation and application

(1) These Rules may be cited as the Summary Cause Rules 2002.

(2) In these Rules–

the 1907 Act” means the Sheriff Courts (Scotland) Act 19073;

the 1971 Act” means the Sheriff Courts (Scotland) Act 19714;

the 1975 Act” means the Litigants in Person (Costs and Expenses) Act 19755;

“authorised lay representative” means a person to whom section 32(1) of the Solicitors (Scotland) Act 19806(offence to prepare writs) does not apply by virtue of section 32(2)(a) of that Act;

“small claim” has the meaning assigned to it by section 35(2) of the 1971 Act7;

“summary cause” has the meaning assigned to it by section 35(1) of the 1971 Act8.

(3) Any reference to a specified Chapter or rule shall be construed as a reference to the Chapter or rule bearing that number in these Rules, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.

(4) A form referred to by number means the form so numbered in Appendix 1 to these Rules or a form substantially of the same effect with such variation as circumstances may require.

(5) The glossary in Appendix 2 to these Rules is a guide to the meaning of certain legal expressions used in these Rules, but is not to be taken as giving those expressions any meaning which they do not have in law generally.

(6) These Rules shall apply to a summary cause other than a small claim.

2CHAPTER 2

Representation

SCH-1.2.1

2.1. Representation

(1) A party may be represented by an advocate, solicitor or, subject to the following provisions of this rule, an authorised lay representative.

(2) An authorised lay representative shall not appear in court on behalf of a party except at the hearing held in terms of rule 8.2(1) and, unless the sheriff otherwise directs, any subsequent or other calling where the action is not defended on the merits or on the amount of the sum due.

(3) Subject to the provisions of this rule, an authorised lay representative may, in representing a party, do everything for the preparation and conduct of an action as may be done by an individual conducting his own action.

(4) If the sheriff finds that the authorised lay representative is–

(a)

(a) not a suitable person to represent the party; or

(b)

(b) not in fact authorised to do so,

that person must cease to represent the party.

(5) A party may be represented by a person other than an advocate or solicitor at any stage of any proceedings under the Debtors (Scotland) Act 19879, other than appeals to the sheriff principal, if the sheriff is satisfied that that person is a suitable person to represent the party at that stage and is authorised to do so.

3CHAPTER 3

Relief from failure to comply with rules

SCH-1.3.1

3.1. Dispensing power of sheriff

(1) The sheriff may relieve any party from the consequences of any failure to comply with the provisions of these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of the failure to comply with a provision in these Rules under paragraph (1), he may make such order as he thinks fit to enable the action to proceed as if the failure to comply with the provision had not occurred.

4CHAPTER 4

Commencement of action

SCH-1.4.1

4.1. Form of summons

(1) A summary cause action shall be commenced by summons, which shall be in Form 1.

(2) The form of claim in a summons may be in one of Forms 2, 3, 4, 5, 6, 7, 8 or 9.

SCH-1.4.2

4.2. Statement of claim

The pursuer must insert a statement of his claim in the summons to give the defender fair notice of the claim; and the statement must include–

(a) details of the basis of the claim including relevant dates; and

(b) if the claim arises from the supply of goods or services, a description of the goods or services and the date or dates on or between which they were supplied and, where relevant, ordered.

SCH-1.4.3

4.3. Defender’s copy summons

A copy summons shall be served on the defender–

(a) where the action is for, or includes a claim for, payment of money–

(i) in Form 1a where an application for a time to pay direction under the Debtors (Scotland) Act 1987 or time order under the Consumer Credit Act 197410may be applied for; or

(ii) in Form 1b in every other case;

(b) where the action is not for, and does not include a claim for, payment of money, in Form 1c; or

(c) in an action of multiplepoinding, in Form 1d.

SCH-1.4.4

4.4. Authentication and effect of summons

(1) A summons shall be authenticated by the sheriff clerk in some appropriate manner except where–

(a)

(a) he refuses to do so for any reason;

(b)

(b) the defender’s address is unknown; or

(c)

(c) a party seeks to alter the normal period of notice specified in rule 4.5(2).

(2) If any of paragraphs (1)(a), (b) or (c) applies, the summons shall be authenticated by the sheriff, if he thinks it appropriate.

(3) The authenticated summons shall be warrant for–

(a)

(a) service on the defender; and

(b)

(b) where the appropriate warrant has been sought in the summons–

(i) arrestment on the dependence; or

(ii) arrestment to found jurisdiction,

as the case may be.

SCH-1.4.5

4.5. Period of notice

(1) An action shall proceed after the appropriate period of notice of the summons has been given to the defender prior to the return day.

(2) The appropriate period of notice shall be–

(a)

(a) 21 days where the defender is resident or has a place of business within Europe; or

(b)

(b) 42 days where the defender is resident or has a place of business outwith Europe.

(3) The sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the form of service as he may direct, but in any case where the period of notice is reduced at least two days' notice must be given.

(4) If a period of notice expires on a Saturday, Sunday, public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk’s office is open for civil court business.

(5) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 188211, where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

(6) The sheriff clerk shall insert in the summons–

(a)

(a) the return day, which is the last day on which the defender may return a form of response to the sheriff clerk; and

(b)

(b) the calling date, which is the date set for the action to call in court.

(7) The calling date shall be seven days after the return day.

SCH-1.4.6

4.6. Intimation

Any provision in these Rules requiring papers to be sent to or any intimation to be made to any party, applicant or claimant shall be construed as if the reference to the party, applicant or claimant included a reference to the solicitor representing that party, applicant or claimant.

5CHAPTER 5

Register of Summary Causes, service and return of the summons

SCH-1.5.1

5.1. Register of Summary Causes

(1) The sheriff clerk shall keep a register of summary cause actions and incidental applications made in such actions, which shall be known as the Register of Summary Causes.

(2) There shall be entered in the Register of Summary Causes a note of all actions, together with a note of all minutes under rule 24.1(1) (recall of decree) and the entry for each action or minute must contain the following particulars where appropriate:–

(a)

(a) the names, designations and addresses of the parties;

(b)

(b) whether the parties were present or absent at any hearing, including an inspection, and the names of their representatives;

(c)

(c) the nature of the action;

(d)

(d) the amount of any claim;

(e)

(e) the date of issue of the summons;

(f)

(f) the method of service;

(g)

(g) the return day;

(h)

(h) the calling date;

(i)

(i) whether a form of response was lodged and details of it;

(j)

(j) the period of notice if shortened or extended in accordance with rule 4.5(3);

(k)

(k) details of any minute by the pursuer regarding an application for a time to pay direction or time order, or minute by the pursuer requesting decree or other order;

(l)

(l)...

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