Sheriff Courts (Scotland) Act 1907

CHAPTER 37 S CAUSES UNDER THE PRESUMPTION OF DEATH (SCOTLAND) ACT 1977

Interpretation of this Chapter S

37.1. In this Chapter—

• “the Act of 1977” means the M1 Presumption of Death (Scotland) Act 1977;

• “action of declarator” means an action under section 1(1) of the Act of 1977;

• “missing person” has the meaning assigned in section 1(1) of the Act of 1977.

Marginal Citations

M1 1977 c.27.

Parties to, and service and intimation of, actions of declarator S

37.2. [F1 (1) In an action of declarator–

(a) the missing person shall be named as the defender;

(b) subject to paragraph (2), service on that person shall be executed by advertisement in such newspaper or other publication as the sheriff thinks fit of such facts relating to the missing person and set out in the initial writ as the sheriff may specify; and

(c) the period of notice shall be 21 days from the date of publication of the advertisement unless the sheriff otherwise directs.]

[F2 (2) The advertisement mentioned in paragraph (1) shall be in Form P1.]

(3) Subject to paragraph (5), in an action of declarator, the pursuer shall include a crave for a warrant for intimation to—

(a) the missing person’s—

(i) spouse, and

(ii) children, or, if he has no children, his nearest relative known to the pursuer,

(b) any person, including any insurance company, who so far as known to the pursuer has an interest in the action, and

(c) the Lord Advocate,

in the following terms:— “For intimation to (name and address) as [husband or wife, child or nearest relative] [a person having an interest in the presumed death] of (name and last known address of the missing person) and to the Lord Advocate.”.

(4) A notice of intimation in Form P2 shall be attached to the copy of the [F3 initial writ] where intimation is given on a warrant under paragraph (3).

(5) The sheriff may, on the motion of the pursuer, dispense with intimation on a person mentioned in paragraph (3)(a) or (b).

(6) An application by minute under section 1(5) of the Act of 1977 (person interested in seeking determination or appointment not sought by pursuer) shall contain a crave for the determination or appointment sought, averments in the answers to the condescendence in support of that crave and an appropriate plea-in-law.

(7) On lodging a minute under paragraph (6), the minuter shall—

(a) send a copy of the minute by registered post or the first class recorded delivery service to each person to whom intimation of the action has been made under paragraph (2); and

(b) lodge in process the Post Office receipt or certificate of posting of that minute.

Textual Amendments

F1 Sch. 1 rule 37.2(1) substituted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(20)(a)

F2 Sch. 1 rule 37.2(2) substituted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(20)(b)

F3 Words in Sch. 1 rule 37.2(4) substituted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(20)(c)

Further advertisement S

37.3. Where no minute has been lodged indicating knowledge of the present whereabouts of the missing person, at any time before the determination of the action, the sheriff may, of his own motion or on the motion of a party, make such order for further advertisement as he thinks fit.

Applications for proof S

37.4. (1) In an action of declarator where no minute has been lodged, the pursuer shall, after such further advertisement as may be ordered under rule 37.3, apply to the sheriff by motion for an order for proof.

(2) A proof ordered under paragraph (1) shall be by affidavit evidence unless the sheriff otherwise directs.

Applications for variation or recall of decree S

37.5. (1) An application under section 4(1) of the Act of 1977 (variation or recall of decree) shall be made by minute in the process of the action to which it relates.

(2) On the lodging of such a minute, the sheriff shall make an order—

(a) for service on the missing person, where his whereabouts have become known;

(b) for intimation to those persons mentioned in rule 37.2(3) or to dispense with intimation to a person mentioned in rule 37.2(3)(a) or (b); and

(c) for any answers to the minute to be lodged in process within such period as the sheriff thinks fit.

(3) An application under section 4(3) of the Act of 1977 (person interested seeking determination or appointment not sought by applicant for variation order) shall be made by lodging answers containing a crave for the determination or appointment sought.

(4) A person lodging answers containing a crave under paragraph (3) shall, as well as sending a copy of the answers to the minuter—

(a) send a copy of the answers by registered post or the first class recorded delivery service to each person on whom service or intimation of the minute was ordered; and

(b) lodge in process the Post Office receipt or certificate of posting of those answers.

Appointment of judicial factors S

37.6. (1) The Act of Sederunt (Judicial Factors Rules) 1992 F4 shall apply to an application for the appointment of a judicial factor under section 2(2)(c) or section 4(2) of the Act of 1977 as it applies to a petition for the appointment of a judicial factor.

(2) In the application of rule 37.5 (applications for variation or recall of decree) to an application under section 4(1) of the Act of 1977 in a cause in which variation or recall of the appointment of a judicial factor is sought, for references to a minute there shall be substituted references to a note.

Textual Amendments

F4 S.I. 1992/272.