Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 2001

Explanatory Note

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

This Act of Sederunt makes various miscellaneous amendments to the Rules of the Court of Session.

Paragraph 2 amends rule 16.3 to regularise the current practice so that it is permissible, if the firm employing a messenger-at-arms has the relevant document or copy interlocutor in its possession, for the messenger-at-arms to effect service without having it in his possession.

Paragraph 3 amends rule 26.6 to provide that in a case where a minute of amendment has been lodged in third party proceedings but the pleadings have not been amended in accordance with the minute, a motion for decree against the third party may not be enrolled unless a motion is enrolled to have the pleadings so amended. By virtue of the amendment to rule 26.4, the minute should have been served with the third party notice.

Paragraph 4 makes a minor amendment to rule 29.1(2)(a) for the sake of clarity.

Paragraph 5 amends rule 31.2 to ensure that when on the transfer of an undertaking liability would transfer by statute to the new owner, any person who is party to a court action can join the new owner to the action for the purpose of receiving damage where liability is proved.

Paragraph 6 amends rule 35.2 to make it clear that where sought documents or property are in the hands of a reserved organisation service is on the Advocate General for Scotland, where they are in the hands of a devolved organisation service is on the Lord Advocate, and where there may be doubt, service is on both.

Paragraph 7 replaces rule 36.8 following the decision in Glaser-v-Glaser. A party who wishes a statement to be received in evidence will require to lodge the statement and intimate to the other parties that he has done so.

Paragraph 8 amends rule 40.7A so as to make appeals against orders made under section 11(1) of the Children (Scotland) Act 1995 subject to the fast-track procedures.

Paragraph 9 inserts a new rule 40.21 making provision for the use of Gaelic.

Paragraph 10 removes the ability of the court in rule 42.1(2)(a) to extend the period for lodging an account of expenses.

Paragraph 11 amends rule 42.2 by inserting provisions dealing with the requirement on the party found liable in expenses to intimate any points of objection to the expenses and with any failure to do so.

Paragraph 12 amends rule 42.13 to provide that charges for the attendance of a witness may be allowed if a party has enrolled a motion for the name of the witness to be noted in the minute of proceedings at any time before the taxation diet; and to allow for an expert witness motion to be enrolled at any time up to the diet of taxation, the expenses of such a motion being borne by the party enrolling it.

Paragraph 13 amends Form 43.3 to alert the connected person that his right may be time barred in spite of the periods mentioned.

Paragraph 14 amends rule 62.61 so as to apply Part X of Chapter 62 to orders under Article 20 of the “Rwanda” Order 1996 (S.I. 1996/1296).

Paragraph 15 amends rule 70.52 following the decision in D-v-B to make it clear that an application under the Hague Convention is an application for organising or protecting rights of access granted by another court under the Convention or for securing any conditions attached to such rights of access.

Paragraph 16, 17 and 18 make various changes in respect of the Chapter inserted as Chapter 82 by S.S.I. 2001/92. Paragraph 17(a) renumbers it as Chapter 83. Paragraphs 16 and 17(b) and (d) make consequential changes to various references and cross-references. Paragraph 18 ensures that the Chapter appears in the correct place. (A Chapter 82 had previously been inserted by S.S.I. 2000/316.) Paragraph 17(c) corrects references to the EC Treaty (as amended by the Treaty of Amsterdam).