Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No. 3) 2011

Amendment of the 1997 Act of Sederunt

9.—(1) The 1997 Act of Sederunt is amended in accordance with the following subparagraphs.

(2) In rule 5.1 (interpretation)(1)—

(a) insert the following definitions in the appropriate sequential order—

““2011 Regulations” means the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011(2);

“Maintenance Decision” has the meaning given to “decision” by Article 2(1) of the Maintenance Regulation;

“Maintenance Regulation” means Council Regulation (EC) No 4/2009(3) of 18th December 2008 including as applied in relation to Denmark by virtue of the Agreement made on 19th October 2005 between the European Community and the Kingdom of Denmark(4);

“Maintenance Regulation State” in the application of any provision in relation to the Maintenance Regulation, refers to any of the Member States;”;

(b) omit the definition of “Hague Convention”;

(c) for the definition of “Hague Convention Country” substitute “means a country or territory specified in Schedule 1 to the Reciprocal Enforcement of Maintenance Orders (Hague Convention Countries) Order 1993(5)”.

(3) In rule 5.2 (application) after paragraph (5) insert—

“(6) Part VII of this Chapter shall have effect in relation to a Maintenance Decision.

(7) Part VIII of this Chapter shall have effect only in relation to—

(a) a Maintenance Decision made by a court in Denmark; and

(b) a Maintenance Decision to which sections 2 and 3 of Chapter IV of the Maintenance Regulation apply by virtue of Article 75(2)(a) or (b) of that Regulation.”.

(4) In rule 5.3(1)(a) (prescribed officer) for “and the 1982 Act” substitute “the 1982 Act and the 2011 Regulations”.

(5) In rule 5.4 (maintenance orders register)—

(a) in paragraph (1) for “and the 1982 Act” substitute “the 1982 Act and the Maintenance Regulation”;

(b) in paragraph (2) for “the provisions of those Acts” substitute “the relevant provisions”;

(c) in paragraph (3) for “the section of the Act and” substitute “the relevant provision including”.

(6) Omit the following rules—

(a) rule 5.15 (application for transmission of order in the Republic of Ireland);

(b) rule 5.34 (intimation of registration of, or of decision not to register, an order made in the Republic of Ireland);

(c) rule 5.35 (application to set aside registration of, or to set aside decision not to register, an order made in the Republic of Ireland).

(7) In rule 5.38(1) (applications under sections 5 or 5A of the 1982 Act)(6)—

(a) for “sections 5 or 5A” substitute “section 5A”;

(b) the heading of that rule becomes “Applications under section 5A of the 1982 Act”.

(8) After Part VI of Chapter 5 (incoming orders under the 1982 Act), insert—

“PART VII MAINTENANCE DECISIONS UNDER THE MAINTENANCE REGULATION

Application for transmission of a Maintenance Decision to another Maintenance Regulation State

5.44.— (1) This rule applies to applications under Article 40 of the Maintenance Regulation to enforce a Maintenance Decision of a sheriff in another Maintenance Regulation State.

(2) On receipt of an application in the form of a letter, the sheriff clerk will provide the applicant with a certified copy of the Maintenance Decision and a completed extract from the decision in the form of Annex I or II to the Maintenance Regulation as the case may be.

(3) The letter must be addressed to the sheriff clerk and must include—

(a) the name and National Insurance number (if known) of the parties to the proceedings;

(b) the date, or approximate date, of the proceedings in which the Maintenance Decision was made and the nature of those proceedings;

(c) the Maintenance Regulation State in which the application for recognition or enforcement has been made or is to be made; and

(d) the postal address of the applicant.

Enforcement of a Maintenance Decision made by a court in a Maintenance Regulation State other than Denmark

5.45.   The “enforcing court” under paragraph 4(2) of Schedule 1 to the 2011 Regulations, means the sheriff court having jurisdiction in the matter in accordance with Schedule 8 to the 1982 Act.

PART VIII RECOGNITION AND ENFORCEMENT OF MAINTENANCE DECISIONS MADE BY COURTS IN DENMARK ETC.

Recognition and enforcement of a Maintenance Decision made in Denmark etc.

5.46.   The “registering court” under paragraph 6(2) of Schedule 1 to the 2011 Regulations, means the sheriff court having jurisdiction in the matter in accordance with Schedule 8 to the 1982 Act.

Intimation of registration of, or refusal to register, a Maintenance Decision made in Denmark etc.

5.47.— (1) Intimation of the registration of a Maintenance Decision in accordance with Article 31 of the Maintenance Regulation shall be given by the sheriff clerk—

(a) to the payer, by sending an intimation in Form 73A; and

(b) to the payee, by sending a notice in Form 73B.

(2) Notice of a refusal to register a Maintenance Decision shall be given by the sheriff clerk to the payee, by sending a notice in Form 73C.

Application to set aside registration of, or to set aside decision not to register, a Maintenance Decision made in Denmark etc.

5.48.   An application under Article 32 of the Maintenance Regulation shall be by summary application setting out the grounds of the application.

Sist of proceedings

5.49.   An application under Article 35 of the Maintenance Regulation shall be made by motion.”.

(9) In Schedule 1 (forms)—

(a) omit Form 69 (notice of registration for enforcement in Scotland of a maintenance order made in the Republic of Ireland);

(b) in Form 70 (notice of registration for the purposes of enforcement in Scotland of a maintenance order made in the *Republic of Ireland/a Hague Convention Country)—

(i) for “of the Maintenance Orders (Reciprocal Enforcement) Act 1972 Registers” substitute “in the Maintenance Orders Register”;

(ii) omit “Republic of Ireland or”;

(iii) omit “as the case may be”;

(iv) the heading of the Form becomes “Notice of registration for the purposes of enforcement in Scotland of a maintenance order made in a Hague Convention Country”;

(c) in Form 71 (notice of a decision not to register, for the purposes of the enforcement in Scotland, a maintenance order made in the *Republic of Ireland/a Hague Convention Country)—

(i) omit “Republic of Ireland or”;

(ii) omit “as the case may be”;

(iii) omit “(Reciprocal Enforcement) Act 1972”;

(iv) the heading of the Form becomes “Notice of a decision not to register, for the purposes of the enforcement in Scotland, a Maintenance Order made in a Hague Convention Country”;

(d) in Form 72 (intimation of registration for enforcement in Scotland of a maintenance order made in a Hague Convention Country) omit “(Reciprocal Enforcement) Act 1972”;

(e) the heading of Form 73 becomes “Notice of determination by sheriff clerk of application under section 5A of the Civil Jurisdiction and Judgements Act 1982”;

(f) after Form 73 insert Forms 73A, 73B and 73C set out in Part 2 of the Schedule to this Act of Sederunt.

(1)

Rule 5.1 was last amended by S.S.I. 2009/29.

(2)

S.I. 2011/1484.

(3)

OJ No. L7, 10.1.2009, p1-79.

(4)

OJ No. L 299 16.11.2005, p. 62-70.

(5)

S.I. 1993/1593. The list of countries in Schedule 1 to that S.I. is amended by paragraph 25 of Schedule 7 to the 2011 Regulations.

(6)

Rule 5.38 was amended by S.S.I. 2009/449.