Sheriff Courts (Scotland) Act 1907

PART III S DEFENDED CIVIL PARTNERSHIP ACTIONS

General provisions S

[F1 33A.33B. (1) Chapters 9 (standard procedure in defended causes) and 10 (additional procedure) do not apply to a civil partnership action in which a notice of intention to defend has been lodged in accordance with rule 33A.34 (notice of intention to defend and defences etc.).

(2) Subject to paragraph (3), a civil partnership action in which a notice of intention to defend has been lodged must follow the procedure set out in this Part of this Chapter.

(3) The sheriff may, in exceptional circumstances, of the sheriff’s own motion or on the motion of a party, disapply any rule mentioned in this Part of this Chapter.]

Textual Amendments

F1 Sch. 1 rule 33A.33B inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(21) (with para. 3)

[F2 Notice of intention to defend and defences etc.] S

33A.34. (1) This rule applies where the defender in a civil partnership action seeks–

(a) to oppose any crave in the initial writ;

(b) to make a claim for–

(i) aliment;

(ii) an order for financial provision within the meaning of section 8(3) of the Act of 1985; or

(iii) a section 11 order; or

(c) an order–

(i) under section 16(1)(b) or (3) of the Act of 1985 M1 (setting aside or varying agreement as to financial provision);

(ii) under section 18 of the Act of 1985 (which relates to avoidance transactions); or

(iii) under Chapter 3 or Chapter 4 of Part 3 or section 127 of the Act of 2004; or

(d) to challenge the jurisdiction of the court.

(2) In an action to which this rule applies, the defender shall–

(a) lodge a notice of intention to defend in Form CP16 before the expiry of the period of notice [F3 and, at the same time, send a copy to the pursuer]; and

(b) make any claim or seek any order referred to in paragraph (1), as the case may be, in those defences by setting out in his defences–

(i) craves;

(ii) averments in the answers to the condescendence in support of those craves; and

(iii) appropriate pleas-in-law.

F4 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F5 (4) Where a defender opposes a crave for an order for financial provision or makes a claim in accordance with paragraph (1)(b)(ii), 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.]

[F6 (4A) Subject to paragraph (4B), where a defender intends to make an application for a section 11 order in respect of a child who is not a party to the action F7 ... the defender must—

(a) include in the notice of intention to defend a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

(b) when lodging the notice of intention to defend, submit a draft Form F9, showing the details that the defender proposes to include when the form is sent to the child.

(4B) Where the defender considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the defender must include in the notice of intention to defend—

(a) a crave to dispense with intimation and the seeking of the child’s views in Form F9;

(b) averments setting out the reasons why it is inappropriate to send Form F9 to the child.

(4C) The sheriff must be satisfied that the draft Form F9 submitted under paragraph (4A)(b) has been drafted appropriately.

(4D) The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

(4E) An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must—

(a) state that the Form F9 must be sent to the child in accordance with rule 33A.19B (views of the child – section 11 order sought by defender only);

(b) be signed by the sheriff.]

Textual Amendments

F2 Sch. 1 rule 33A.34 heading substituted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(5)(b) (with para. 15)

F3 Words in Sch. 1 rule 33A.34(2)(a) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(a) (with para. 4)

F4 Sch. 1 rule 33A.34(3) omitted (24.6.2019) by virtue of Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(b) (with para. 4)

F5 Sch. 1 rule 33A.34(4) inserted (1.8.2012) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2012 (S.S.I. 2012/188), paras. 1(1), 4(5)(a) (with para. 15) (as amended by S.S.I. 2012/221, paras. 1(1), 2(2)(b))

F6 Sch. 1 rule 33A.34(4A)-(4E) inserted (24.6.2019) by Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Views of the Child) 2019 (S.S.I. 2019/123), paras. 1(2), 3(17)(c) (with para. 4)

F7 Words in Sch. 1 rule 33A.34(4A) omitted (25.9.2023) by virtue of Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(22) (with para. 3)

Marginal Citations

M1 Section 16(3) was amended by the Child Support, Pensions and Social Security Act 2000 (c. 19), Schedule 3, paragraph 5.

Abandonment by pursuer S

33A.35. Notwithstanding abandonment by a pursuer of a civil partnership action, the court may allow a defender to pursue an order or claim sought in his defences; and the proceedings in relation to that order or claim shall continue in dependence as if a separate cause.

Attendance of parties at Case Management Hearings S

[F8 33A.36. All parties must, except on cause shown, attend personally case management hearings under rules 33A.36J (Initial Case Management Hearing) and 33A.36P (Full Case Management Hearing).]

Textual Amendments

F8 Sch. 1 rule 33A.36 substituted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(23) (with para. 3)

Fixing of date and time for Initial Case Management Hearing S

[F9 33A.36A. (1) On the lodging of a notice of intention to defend under rule 33A.34 (notice of intention to defend and defences etc.) the sheriff clerk must fix a date and time for an Initial Case Management Hearing which date must be on the first suitable court day occurring not sooner than 21 days and not later than 49 days after the last date for the lodging of the notice of intention to defend.

(2) In cases involving a crave for a section 11 order the sheriff must have regard to holding the Initial Case Management Hearing and the Child Welfare Hearing at the same time.

(3) On fixing the date for the Initial Case Management Hearing, the sheriff clerk must—

(a) intimate forthwith to the parties in Form G5A—

(i) the last date for lodging defences;

(ii) the date for the return of the initial writ;

(iii) the date of the Initial Case Management Hearing;

(iv) whether a Child Welfare Hearing is to be held at the same time as the Initial Case Management Hearing;

(b) prepare an interlocutor addressing all of the matters in sub-paragraph (a) for the sheriff to sign.

(4) The fixing of the date of the Initial Case Management Hearing does not affect the right of a party to make any incidental application to the court.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Alteration of date and time for Initial Case Management Hearing S

33A.36B. (1) Subject to paragraph (2), at any time before the date and time fixed under rule 33A.36A (fixing of date and time for Initial Case Management Hearing) or under this rule, the sheriff may of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

(a) discharge the Initial Case Management Hearing or, where fixed, the Child Welfare Hearing or both, as the case may be; and

(b) fix a new date and time for either the Initial Case Management Hearing or the Child Welfare Hearing or both, as the case may be.

(2) The date and time of any hearing fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing but must be fixed for a date within the period specified in rule 33A.36A(1) or the first available court date thereafter.

(3) Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

(a) fix a date, time and place for the parties to be heard;

(b) prepare and sign an interlocutor recording those dates, times and places for the sheriff to sign.

(4) The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

(5) On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

(a) that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

(b) the last date for lodging defences, if appropriate;

(c) the last date for adjustment, if appropriate;

(d) the new date and time fixed for any hearing under paragraph (1)(b).

(6) Any reference in these Rules to the Initial Case Management Hearing, the Child Welfare Hearing or a continuation of either includes a reference to an Initial Case Management Hearing or Child Welfare Hearing for which a date and time has been fixed under this rule.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Return of initial writ S

33A.36C. Subject to rule 33A.36D (lodging of pleadings before Initial Case Management Hearing) the pursuer must return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days of the expiry of the period of notice in accordance with the date intimated on Form G5A.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Lodging of pleadings before Initial Case Management Hearing S

33A.36D. Where any hearing, whether by motion or otherwise, is fixed before the Initial Case Management Hearing, each party shall lodge in process a copy of the party’s pleadings, or where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Process folder S

33A.36E. (1) On receipt of the notice of intention to defend, the sheriff clerk must prepare a process folder which must include—

(a) interlocutor sheets;

(b) duplicate interlocutor sheets;

(c) a production file;

(d) a motion file;

(e) an inventory of process.

(2) Any production or part of process lodged in cause must be placed in the process folder.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Defences S

33A.36F. (1) Where a notice of intention to defend has been lodged, the defender must lodge defences within 14 days after the expiry of the period of notice.

(2) Defences must be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and must have appended a note of the pleas-in-law of the defender.

(3) Defences which include a counterclaim must commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and must include—

(a) answers to the condescendence of the initial writ;

(b) a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences;

(c) appropriate pleas-in-law.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Implied admissions S

33A.33G. Every statement of fact made by a party must be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party will be deemed to have admitted that statement of fact.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Sisting S

33A.36H. (1) The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, sist the action until a specified date.

(2) Where the action is sisted, the sheriff clerk must—

(a) prepare an interlocutor specifying the reason for the sist and the date specified in paragraph (1) for the sheriff to sign;

(b) fix a date for a review of sist hearing not later than 30 days following the expiration of the sist;

(c) intimate the date of the review of sist hearing to each party.

(3) Where a cause has been sisted, any period for adjustment before the sist is to be reckoned as a part of the period for adjustment.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Open record S

33A.36I. The sheriff may, at any time before the closing of the record in a civil partnership action, of the sheriff’s own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Initial Case Management Hearing S

33A.36J. (1) At the Initial Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2) It is be the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

(3) At the Initial Case Management Hearing each party must address the court on—

(a) any matters that are capable of agreement;

(b) the matters that are in dispute between the parties;

(c) any matters of potential complexity or difficulty;

(d) any valuations that are likely to be required;

(e) any skilled witness evidence that is likely to be required and the scope for joint instruction;

(f) whether additional steps require to be taken to give a child an opportunity to express the child’s views;

(g) whether steps require to be taken to investigate any facts or circumstances relating to a child;

(h) the suitability of the action for referral to mediation;

(i) whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

(j) the scope for use of affidavits and other documents in place of oral evidence;

(k) the extent to which the parties have complied with any orders made by the court;

(l) the number and availability of witnesses;

(m) the content, volume and form of productions;

(n) the requirement for access to IT equipment to view productions;

(o) whether sanction is sought for the employment of counsel;

(p) the progress of any legal aid application.

(4) At the Initial Case Management Hearing, the sheriff must fix a date and time for a Full Case Management Hearing which date must be on the first suitable court day occurring—

(a) in cases involving a crave for a section 11 order only, not sooner than 16 weeks and not later than 24 weeks after the last date for the lodging of defences;

(b) in all other cases, not sooner than 20 weeks and not later than 24 weeks after the last date for the lodging of defences.

(5) Following the Initial Case Management Hearing the sheriff clerk must intimate forthwith to the parties in Form G6B—

(a) the last date for lodging a note of the basis for any preliminary pleas;

(b) the last date for adjustment;

(c) the last date for lodging a copy of the record;

(d) the date of the Full Case Management Hearing.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Alteration of date and time for Full Case Management Hearing S

33A.36K. (1) Subject to paragraph (2), at any time before the date and time fixed under rule 33A.36J (Initial Case Management Hearing) or under this rule, the sheriff may, of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

(a) discharge the Full Case Management Hearing; and

(b) fix a new date and time for a Full Case Management Hearing.

(2) The date and time of any hearing to be fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing, but must be fixed for a date within the relevant period specified in rule 33A.36J(4) or the first available court date thereafter.

(3) Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

(a) fix a date, time and place for the parties to be heard;

(b) prepare an interlocutor recording those dates, times and places for the sheriff to sign.

(4) The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

(5) On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

(a) that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

(b) the last date for lodging a note of basis of preliminary pleas, if appropriate;

(c) the last date for adjustment, if appropriate;

(d) the last date for lodging a copy of the record, if appropriate;

(e) the new date and time fixed for the hearing under paragraph (1)(b).

(6) Any reference in these Rules to the Full Case Management Hearing includes a reference to a Full Case Management Hearing for which a date and time has been fixed under this rule.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Pre-Hearing Meeting S

33A.36L. (1) In advance of the Full Case Management Hearing the parties must hold a pre-hearing meeting, at which parties must—

(a) discuss settlement of the action;

(b) agree, so far as is possible, the matters which are not in dispute between them;

(c) discuss the information referred to in rule 33A.36P(3) (Full Case Management Hearing).

(2) Not later than 2 days before the Full Case Management Hearing the pursuer must lodge with the court a joint minute of the pre-hearing meeting signed by both parties, addressing the points in rule 33A.36P(3) or explain to the sheriff why such a minute has not been lodged.

(3) If a party is not present during the pre-hearing meeting, that party’s representative must be able to contact the party during the meeting and be in full possession of all relevant facts.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Adjustment of pleadings S

33A.36M. (1) Parties may adjust their pleadings until 14 days before the date of the Full Case Management Hearing or any continuation of it.

(2) Any adjustments must be exchanged between parties and not lodged in process.

(3) Parties are responsible for maintaining a record of adjustments made during the period for adjustment.

(4) No adjustments are permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Record for Full Case Management Hearing S

33A.36N. (1) The pursuer must, at the end of the period for adjustment referred to in rule 33A.36M(1) (adjustment of pleadings) and before the Full Case Management Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record.

(2) Not later than 2 days before the Full Case Management Hearing, the pursuer must lodge a certified copy of the record in process.

(3) Where the Full Case Management Hearing is continued under rule 33A.36P(7) and further adjustment or amendment is made to the record, a copy of the record as adjusted or amended, certified by the pursuer, must be lodged in process not later than 2 days before the Full Case Management Hearing so continued.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Exchange of lists of witnesses S

33A.36O. (1) Not later than 7 days before the Full Case Management Hearing, each party must—

(a) intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence they intend to rely at proof;

(b) lodge a copy of that list in process.

(2) A party who seeks to rely on the evidence of a person not on the list intimated under paragraph (1)(a) must, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(3) The list of witnesses intimated under paragraph (1)(a) must include—

(a) the name, occupation (where known) and address of each witness;

(b) a summary of up to 50 words on the matters to which each witness is expected to speak;

(c) details of whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Vulnerable Witnesses (Scotland) Act 2004 and whether any child witness notice under section 12(2) of that Act or vulnerable witness application under section 12(6) of that Act has been lodged in respect of that witness.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Full Case Management Hearing S

33A.36P. (1) At the Full Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2) It is the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

(3) At the Full Case Management Hearing each party must address the court on—

(a) any matters that are capable of agreement;

(b) the matters that are in dispute between the parties;

(c) any matters of potential complexity or difficulty;

(d) any valuations that are likely to be required;

(e) any expert or skilled witness evidence that is likely to be required and the scope for joint instruction;

(f) whether additional steps require to be taken to give a child an opportunity to express the child’s views;

(g) whether steps require to be taken to investigate any facts or circumstances relating to a child;

(h) the suitability of the action for referral to mediation;

(i) whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

(j) the scope for use of affidavits and other documents in place of oral evidence;

(k) the extent to which the parties have complied with any orders made by the court;

(l) the number and availability of witnesses;

(m) the content, volume and form of productions;

(n) the requirement for access to IT equipment to view productions;

(o) whether sanction is sought for the employment of counsel;

(p) the progress of any legal aid application.

(4) After having heard parties at the Full Case Management Hearing the sheriff must close the record, fix a pre-proof hearing in accordance with Chapter 28A (pre-proof hearing) and—

(a) appoint the action to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such matter as the sheriff thinks fit;

(b) consider any note lodged under rule 22.1 (note of basis of preliminary pleas), appoint the cause to a proof before answer and make such orders as to the extent of the proof, the lodging of a joint minute of admissions or agreement, or such other matters as the sheriff thinks fit; or

(c) consider any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

(5) The diet fixed under paragraph (4)—

(a) is to be assigned for the appropriate number of days for resolution of the issues with reference to the information provided under paragraph (3) and subject to paragraph (6);

(b) may only be extended or varied on exceptional cause shown and subject to such orders (including awards of expenses) as the sheriff considers appropriate.

(6) The sheriff may make such orders as thought fit to ensure compliance with this rule and the expeditious resolution of the issues in dispute, including—

(a) restricting the issues for proof;

(b) the scope for instruction of a joint expert or a meeting between skilled persons;

(c) excluding specified documents, reports or witnesses from proof;

(d) fixing other hearings;

(e) awarding expenses.

(7) The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, allow a continuation of the Full Case Management Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

(8) On closing the record—

(a) where there are no adjustments made since the lodging of the record under rule 33A.36N (record for Full Case Management Hearings), that record becomes the closed record;

(b) where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Judicial continuity S

33A.36Q. Where possible, the same sheriff is to preside—

(a) the Initial Case Management Hearings;

(b) the Full Case Management Hearing;

(c) the pre-proof hearing;

(d) where fixed, any—

(i) Child Welfare Hearing;

(ii) proof;

(iii) proof before answer;

(iv) debate.]

Textual Amendments

F9 Sch. 1 rules 33A.36A-33A.36Q inserted (25.9.2023) by Act of Sederunt (Ordinary Cause Rules 1993 Amendment) (Case Management of Defended Family and Civil Partnership Actions) 2022 (S.S.I. 2022/289), paras. 1(2), 2(24) (with para. 3)

Decree by default S

33A.37. (1) In a civil partnership action in which the defender has lodged a notice of intention to defend, where a party fails–

(a) to lodge, or intimate the lodging of, any production or part of process;

(b) to implement an order of the sheriff within a specified period; F10 . . .

(c) to appear or be represented at any diet, [F11 or

(d) otherwise to comply with any requirement imposed upon that party by these Rules]

that party shall be in default.

(2) Where a party is in default under paragraph (1), the sheriff may–

(a) where the civil partnership action is one mentioned in rule 33A.1(1) (a) [F12 (b) or (f)], allow that action to proceed as undefended under Part II of this Chapter; or

(b) where the civil partnership action is one mentioned in rule 33A.1(1)(c) to (e), grant decree as craved; or

(c) grant decree of absolvitor; or

(d) dismiss the civil partnership action or any claim made or order sought; [F13 or]

[F14 (da) make such other order as he thinks fit to secure the expeditious progress of the cause; and]

(e) award expenses.

(3) Where no party appears at a diet in a civil partnership action, the sheriff may dismiss that action.

(4) In a civil partnership action, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process, or for intimating or implementing any order.

Textual Amendments

F10 Word in Sch. 1 rule 33.37(1)(b) omitted (18.8.2006) by virtue of Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(a)

F11 Sch. 1 rule 33.37(1)(d) and word inserted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(b)

F12 Words in Sch. 1 rule 33A.37(2)(a) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(49)}

F13 Word in Sch. 1 rule 33A.37(2)(d) substituted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(c)

F14 Sch. 1 rule 33A.37(2)(da) inserted (18.8.2006) by Act of Sederunt (Ordinary Cause and Summary Application Rules) Amendment (Miscellaneous) 2006 (S.S.I. 2006/410), art. 2(10)(d)