Act of Sederunt (Sheriff Court European Small Claims Procedure Rules) 2008

Scottish Statutory Instruments

2008 No. 435

SHERIFF COURT

Act of Sederunt (Sheriff Court European Small Claims Procedure Rules) 2008

Made

19th December 2008

Coming into force

12th January 2009

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971(1), and 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 that Act, do hereby enact and declare:

Citation and commencement, etc

1.—(1) This Act of Sederunt–

(a) may be cited as the Act of Sederunt (Sheriff Court European Small Claims Procedure Rules) 2008; and

(b) comes into force on 12th January 2009.

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

Interpretation

2.—(1) In this Act of Sederunt–

“the Regulation” means Regulation (EC) No.861/2007 of the European Parliament and the Council of 11th July 2007 creating a European Small Claims Procedure(2);

“the Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907(3);

“the Summary Cause Rules” means the Summary Cause Rules in Schedule 1 to the Act of Sederunt (Summary Cause Rules) 2002(4);

“the Small Claim Rules” means the Small Claim Rules in Schedule 1 to the Act of Sederunt (Small Claim Rules) 2002(5);

(2) Expressions used in both the Regulation and this Act of Sederunt have the same meaning here as there.

(3) A form referred to in this Act of Sederunt by number means the form so numbered in the Schedule to this Act of Sederunt or a form to substantially the same effect, with such variation as circumstances may require.

(4) A reference in this Act of Sederunt to a numbered Article is a reference to the Article of the Regulation so numbered.

Communication by the court

3.—(1) This rule applies where–

(a) under the Regulation or this Act of Sederunt the court requires to send a document to a person; and

(b) the Regulation does not require otherwise.

(2) The document is to be sent by the sheriff clerk.

(3) The document is to be sent–

(a) where it is being sent to an address within the United Kingdom, by first class recorded delivery;

(b) where it is being sent to an address outside the United Kingdom, by registered post.

(4) The sheriff clerk must complete a certificate of posting to which must be attached the relevant postal receipt.

Transfer to domestic procedure

4.—(1) This rule applies where, under paragraph 3 of Article 4 (commencement of the procedure) it is determined that a claim presented under the procedure established by the Regulation is outside the scope of the Regulation.

(2) The sheriff clerk must, within 21 days of the determination, send to the claimant a notice in Form 1.

(3) Where the claimant does not withdraw the claim, the proceedings shall proceed under the Ordinary Cause Rules, the Summary Cause Rules or the Small Claim Rules, as the case may be, and the sheriff is to make an order containing such provision as the sheriff thinks fit for the purpose of bringing the proceedings into line with an appropriate stage of proceedings under those rules.

(4) The provision which may be made in an order under paragraph (2) includes–

(a) provision dispensing with any provision of the rules concerned; or

(b) provision deeming any document lodged in the proceedings under the Regulation to constitute a document in proceedings under those rules.

(5) The sheriff clerk must, within 21 days of the making of the order, send to the claimant a notice in Form 2.

Ancillary applications

5.—(1) An application under paragraph 1 of Article 18 (review of judgment) is to be in Form 3.

(2) An application under paragraph 1 of Article 22 (refusal of enforcement) is to be in Form 4.

(3) An application under Article 23 (stay or limitation of enforcement) is to be in Form 5.

(4) The sheriff may make such order as the sheriff thinks fit for the progress of any such application.

A C HAMILTON

Lord President I.P.D.

Edinburgh

19th December 2008

SCHEDULE

Rule 4(2)

FORM 1 Form of notice that claim presented under European Small Claims Procedure outside scope of Regulation

Rule 4(5)

FORM 2 Form of notice that claim presented under European Small Claims Procedure transferred to domestic procedure

Rule 5(1)

FORM 3 Form of application for review of a judgement given in the European Small Claims Procedure under Article 18(1) of Regulation (EC) No 861/2007 of 11th July 2007

Rule 5(2)

FORM 4 Form of application for refusal of enforcement of a judgement given in the European Small Claims Procedure under Article 22(1) of Regulation (EC) No 861/2007 of 11th July 2007

Rule 5(3)

FORM 5 Form of application for stay or limitation of enforcement of a judgement given in the European Small Claims Procedure under Article 23(1) of Regulation (EC) No 861/2007 of 11th July 2007

Explanatory Note

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

Regulation (EC) No.861/2007 of the European Parliament and the Council of 11th July 2007 creates a European Small Claims Procedure. This Act of Sederunt provides rules in connection with proceedings in the sheriff court under that procedure. In particular, it provides:

(a) rules on communications by the court under the Regulation (see rule 3);

(b) rules on what happens when an application under that procedure is determined to be outside the scope of the Regulation (see rule 4); and

(c) rules on the form of certain ancillary applications under the Regulation (see rule 5).

(1)

1971 c. 58. Section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4), the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2), the Adults with Incapacity (Scotland) Act 2000 (asp 4), schedule 5, paragraph 13, the Debt Arrangement and Attachment (Scotland) Act 2002 (asp 17), section 43 and the Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3), section 33 and was extended by the Child Support Act 1991 (c. 48), sections 39(2) and 49 and the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(2).

(2)

O.J. No. L 199, 31.07.07, p.1.

(3)

1907 c. 51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445 and S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 560, 2003/25 and 26, 2004/197 and 350, 2005/20, 189, 638 and 648, 2006/198, 207, 293, 410 and 509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365.

(4)

S.S.I. 2002/132, amended by S.S.I, 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365.

(5)

S.S.I. 2002/133, amended by S.S.I, 2003/26, 2004/197, 2005/648, 2006/509, 2007/6, 339, 440 and 463 and 2008/121, 223 and 365.