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SCOTTISH STATUTORY INSTRUMENTS


2004 No. 52

COURT OF SESSION

Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004

  Made 10th February 2004 
  Coming into force 1st March 2004 

The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 59 of the Adoption (Scotland) Act 1978[1], sections 4, 12 and 48 of the Civil Jurisdiction and Judgments Act 1982[2], section 5 of the Court of Session Act 1988[3] and 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) (Miscellaneous) 2004 and shall come into force on 1st March 2004.

    (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 Session 1994[4] shall be amended in accordance with the following sub-paragraphs.

    (2) In rule 10.1(2) (terms of court) "annually" shall be omitted.

    (3) After rule 16.2 (service furth of United Kingdom) there shall be inserted the following:-

    (4) In rule 16.6(1) (translations of documents) at the beginning there shall be inserted "Subject to rule 16.2A,".

    (5) In rule 16.8(1) (intimation on a warrant to intimate) after "rule 16.2 (service furth of United Kingdom)," there shall be inserted "rule 16.2A (service under the Council Regulation),".

    (6) Rule 26.6(A1) shall be omitted.

    (7) After Rule 26.6(1) there shall be inserted the following:-

    (8) After Chapter 32 there shall be inserted the following:-

    (9) For rule 40.21 there shall be substituted the following:-

    (10) In rule 41.4 (application and interpretation of Part II of Chapter 41) for "X" there shall be substituted "XI".

    (11) In rule 41.25 (appeals relating to penalties) - 

    (12) Before rule 49.89 there shall be inserted the heading "Directions".

    (13) In rule 58.8A - 

    (14) For Part V of Chapter 62 there shall be substituted the following:-

    (15) In rule 64.2(2)(a) and rule 64.6 for "Form 64 A" there shall be substituted "Form 64.6".

    (16) In rule 64.9(a) for "Form 64-B" there shall be substituted "Form 64.9".

    (17) For Part IV of Chapter 67 there shall be substituted the following:-

    (18) In the annexe:


Cullen of Whitekirk
Lord President I.P.D.

Edinburgh
10th February 2004



SCHEDULE


PART 1

JURISDICTION

Please indicate with a tick (() in the appropriate box or boxes which of the following apply:

PART A

(i) My spouse and I are habitually resident in Scotland opensquare
(ii) My spouse and I were last habitually resident in Scotland, and one of us still resides there opensquare
(iii) My spouse is habitually resident in Scotland opensquare
(iv) I am habitually resident in Scotland having resided there for at least a year immediately before this application was made opensquare
(v) I am habitually resident in Scotland having resided there for at least six months immediately before this application was made and am domiciled in Scotland opensquare
(vi) My spouse and I are domiciled in Scotland opensquare

Part B applies where the defender is not a national of a Contracting State (other than the UK or Ireland) or domiciled in Ireland

PART B

(i) I consider myself to be domiciled in Scotland opensquare
(ii) My spouse considers himself or herself to be domiciled in Scotland opensquare

AND

(iii) No court of a Contracting State has jurisdiction under the Council Regulation opensquare

PART C

(i) I have lived at the address shown above for at least 40 days immediately before the date I signed this application opensquare
(ii) My spouse has lived at the address shown above for at least 40 days immediately before the date I signed this application opensquare



PART 2



FORM 62.28

Rule 62.28

Form of petition for registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 or under Article 38, Article 57 or Article 58 of the Council Regulation

UNTO THE RIGHT HONOURABLE THE LORDS OF COUNCIL AND SESSION

PETITION

of

[A.B.] (designation and address)

under the Civil Jurisdiction and
Judgements Act 1982 [or under Council Regulation (E.C.) No. 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters]

for registration of

a judgment [or authentic instrument or court settlement] [of the (name of court)]

dated the      day of

HUMBLY SHEWETH:-

     1. That this petition is presented by (name) to register a judgment [or authentic instrument or court settlement] [of the (name of court) of (date of judgement)].

     2. That in the cause in which the judgment [or as the case may be] was pronounced, A.B. was pursuer [or defender or (as the case may be)] and [C.D.] was defender [or pursuer or as the case may be].

     3. That the petitioner is a party having an interest to enforce the judgment [or as the case may be] because (state reasons).

     4. That this petition is supported by the affidavit of (name of deponent) and the documents produced with it.

     5. That the petitioner seeks warrant to register the judgment [or as the case may be] [and for decree in terms thereof] [and for decree to be pronounced in the following or such other terms as to the court may seem proper:- (state terms in which decree is to be pronounced in accordance with Scots law)].

     6. That the petitioner seeks the authority of the court to execute the protective measure[s] of (state measures), for the following reasons (state reasons).

     7. That this petition is made under section 4 of, and Article 31 [or 50] of the Convention in Schedule 1 [or 3C] to, the Civil Jurisdiction and Judgments Act 1982 [or under Article 38 [or 57 or 58] of Council Regulation (E.C.) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters] and rule 62.28 of the Rules of the Court of Session 1994.

According to Justice etc.

(signed)

Petitioner

[or Solicitor [or Agent] for Petitioner]

(Address of Solicitor or Agent)

[or counsel or other person having a right of audience]



FORM 62.33

Rule 62.33

Form of notice of decree and warrant for registration of a judgment under section 4 of the Civil Jurisdiction and Judgments Act 1982 or under Article 38, Article 57 or Article 58 of the Council Regulation

IN THE COURT OF SESSION

in the

PETITION

of

     [A.B.] (designation and address)

under section 4 of the Civil Jurisdiction and Judgments Act 1982 [or under Article 38 [or 57 or 58] of Council Regulation (E.C.) No. 22/2002 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial mattters]

Date: (date of posting or other method of service)

To: (name of person against whom judgment was given and decree and warrant granted)

TAKE NOTICE

That an interlocutor dated the      day of     , a certified copy of which is attached was pronounced at the Court of Session granting decree and warrant for registration of the judgment [or as the case may be] [of the (name of court) dated the      day of     , for (state briefly the terms of the judgment).

You have the right to appeal to a Lord Ordinary in the Outer House of the Court of Session, Parliament Square, Edinburgh EH1 1RQ against the interlocutor granting decree and warrant for registration within one month [or two months as the case may be] after the date of service of this notice upon you. The date of service is the date stated at the top of this notice unless service has been executed by post in which case the date of service is the day after that date.

An appeal must be by motion enrolled in the process of the petition.

The registered judgment and decree of the Court of Session may not be enforced in Scotland until the expiry of the period within which you may appeal and any appeal has been disposed of.

Intimation of an appeal should be made to the petitioner, [A.B.], at the following address for service in Scotland:- (address)

(Signed)

Messenger-at-Arms

[or Petitioner [or Solicitor [or Agent] for Petitioner]]

(Address)



EXPLANATORY NOTE

(This note is not part of the Act of Sederunt)


This Act of Sederunt makes miscellaneous amendments to the Rules of the Court of Session 1994 (S.I. 1994/1443) ('the Rules').

Paragraph 2(2) makes a minor amendment to rule 10.1(2) (terms of court).

Paragraph 2(3), (4) and (5) makes provision in the Rules in connection with the service of documents under Council Regulation (E.C.) No. 1348/2000 on the service in the Member States of
judicial and extrajudicial documents in civil or commercial matters.

Paragraph 2(7), (10), (12), (13), (15), and (16) makes amendments to remove or correct minor errors and inconsistencies in the Rules.

Paragraph 2(8) makes provision for the transfer of proceedings between the Court of Session and the Competition Appeal Tribunal.

Paragraph 2(9) makes minor amendments to rule 40.21 (use of Gaelic in appeals from inferior courts).

Paragraph 2(11) makes provision in the Rules in connection with appeals under paragraph 4(1) of Schedule 2 to the Tax Credits Act 2002 (appeals from General or Special Commissioners in relation to penalties).

Paragraph 2(14) makes provision in the Rules in connection with the recognition and enforcement of judgments under Council Regulation (E.C.) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Paragraph 2(17) makes provision in the Rules in connection with inter-country adoption.

Paragraph 2(18) makes various amendments to Forms in the Rules.


Notes:

[1] 1978 c.28; section 59 was amended by the Children (Scotland) Act 1995 c.36, Schedule 2, paragraph 27.back

[2] 1982 c.27; sections 4 and 12 were amended by articles 2(2) and 5(2)(c) respectively of S.I. 1993/604 and section 48 was amended by paragraph 17(c)(v) of Schedule 2 to S.I. 2001/3929.back

[3] 1988 c.36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 c.32, section 2(3) and by the Children (Scotland) Act 1995 c.36, Schedule 4, paragraph 45.back

[4] S.I. 1994/1443, last amended by S.S.I. 2003/537.back

[5] O.J. L 160, 30.6.2000, p.37.back

[6] 2002 c.21.back

[7] 1982 c.27.back

[8] Section 1(3) of the Act of 1982 was amended by the Civil Jurisdiction and Judgments Act 1991 c.12, section 2(5).back

[9] O.J. No. L 012, 16.01.2001, p.1.back

[10] Section 4 was amended by the Civil Jurisdiction and Judgments Act 1991 c.12, Schedule 2, paragraph 2 and was extended to authentic instruments and court settlements by S.I. 1993/604. Schedule 1 was substituted by S.I. 1990/2591 and amended by S.I. 2000/1824. Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991, section 1(3) and Schedule 1.back

[11] Section 18 was amended by S.I. 2003/425.back

[12] Section 12 was extended to court settlements by S.I. 1993/604.back

[13] Section 65 of the Adoption (Scotland) Act 1978 (c.28) provides that "the Convention" means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993. Section 65 was amended by the Adoption (Intercountry Aspects) Act 1999 c.18.back

[14] Section 49 was amended by the Children (Scotland) Act 1995 c.36, Schedule 2, paragraph 23.back

[15] Section 18 was amended by the Children (Scotland) Act 1995 c.36, Schedule 2, paragraph 11(d).back

[16] 1976 c.36. Section 18 was amended by the Children Act 1989 c.41, Schedule 10(I), paragraph 6(3).back

[17] S.I. 1987/2203 (N.I. 22).back

[18] Section 47 was amended by the Adoption (Intercountry Aspects) Act 1999 (c.18), section 6(2).back

[19] Section 39 was amended by Adoption (Intercountry Aspects) Act 1999 c.18, section 5(2).back



ISBN 0 11062622 2


 
© Crown copyright 2004
Prepared 19 February 2004


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