Act of Sederunt (Rules of the Court of Session 1994) 1994

PART I S SERVICE AND INTIMATION

Methods and manner of service S

16.1.—(1) Subject to any other provision in these Rules or any other enactment, service of a document required under these Rules on a person shall be executed–

(a) in the case of an individual–

(i) personally, by tendering the document and any citation or notice, as the case may be, to that individual;

(ii) by leaving the document and any citation or notice, as the case may be, in the hands of a person, or failing which, depositing it, in a dwelling place where the person executing service, after due enquiry, has reasonable grounds for believing that that individual resides but is not available;

(iii) by leaving the document and any citation or notice, as the case may be, in the hands of a person at, or depositing it in, a place of business where the person executing service, after due enquiry, has reasonable grounds for believing that that individual carries on business; or

(iv) by posting the document and any citation or notice, as the case may be, to the known dwelling place of that individual;

(b) in the case of any other person–

(i) by leaving the document and any citation or notice, as the case may be, in the hands of an individual at, or depositing it in, the registered office, other official address or a place of business, of that other person, in such a way that it is likely to come to the attention of that other person; or

(ii) by posting the document and any citation or notice, as the case may be, to the registered office, other official address or a place of business, of that other person.

(2) Service of a principal writ on a person whose known residence is the same as that of the party on whose behalf service is to be executed shall be executed personally.

(3) Subject to paragraph (4), where service has been executed, the party on whose behalf service has been executed shall attach to the document served and lodge in process–

(a) a certificate of service as required by these Rules;

(b) a copy of any notice or advertisement ordered to be published; and

(c) a copy of any interlocutor ordering service of that document.

(4) In relation to a petition or note, where service has been executed by a petitioner or noter, he shall attach the documents required by paragraph (3)(a) and (b) to a copy of the petition or note, as the case may be, marked “Execution Copy” and certified a true copy.

Commencement Information

I1 Sch. 2 rule 16.1 in force at 5.9.1994, see para. 1(1)

Service furth of United Kingdom S

16.2.—(1) Subject to any other enactment, this rule applies to service of a document on a person on whom service is to be executed in a country furth of the United Kingdom.

(2) Service under this rule may be executed by any of the following methods of service, if, and in a manner, permitted under a convention providing for service in that country or by the laws of that country:–

(a) by post to the known residence, registered office or place of business, as the case may be, of the person on whom service is to be executed;

(b) through the central, or other appropriate, authority of that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(c) through a British consular office in that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(d) by an huissier, other judicial officer or competent official of that country, at the request of a messenger-at-arms, a party or his agent; or

(e) personally by the party executing service or his authorised agent tendering the document and the citation (if any) to the person on whom service is to be executed.

(3) Where service is to be executed through a central, or other appropriate, authority, or through a British consular officer, at the request of the Secretary of State for Foreign and Commonwealth Affairs, the party executing service shall–

(a) send a copy of the document, with a request for service by the method indicated in the request, to the Secretary of State for Foreign and Commonwealth Affairs; and

(b) lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4) Where service is to be executed by an huissier, other judicial officer or competent official at the request of a messenger-at-arms–

(a) the messenger-at-arms shall send a copy of the document with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b) the party on whose behalf service has been executed shall lodge in process a certificate of the official who executed service stating that it has been, and the manner in which it was, served.

(5) Where service has been executed personally by the party executing service or his authorised agent–

(a) the execution of service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address); and

(b) the person who executed service shall complete a certificate of service in Form 16.2.

(6) Where service is executed by a method mentioned in paragraph (2)(a) or (e), the party executing service shall lodge in process a certificate by a person qualified in the law of the country, or a duly accredited representative of the country, in which service was executed stating that the method of service used is permitted by the law of that country.

Commencement Information

I2 Sch. 2 rule 16.2 in force at 5.9.1994, see para. 1(1)

[F1 Service under the Council Regulation S

16.2A.— (1) In this rule—

“competent receiving agency” and “Member State” have the same meaning as in the Council Regulation; and

“Council Regulation” means Council Regulation (E.C.) No. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

(2) This rule applies to service of a document under the Council Regulation on a person on whom service is to be executed in a Member State other than the United Kingdom.

(3) Where a document is being served by a competent receiving authority under Article 7 of the Council Regulation, rule 16.6(1) (translations of documents) shall not apply.

(4) Where a document has been served by a competent receiving authority under Article 7 of the Council Regulation, the party executing service shall lodge the certificate of service mentioned in Article 10 of the Council Regulation.]

Textual Amendments

F1 Sch. 2 rule 16.2A inserted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(3)

Service by messenger-at-arms S

16.3.—(1) Service by a method mentioned in rule 16.1(1)(a)(i), (ii) or (iii), or (b)(i), shall be executed by a messenger-at-arms who shall–

(a) explain the purpose of service to any person on whom he executes service;

(b) complete a citation or notice, as the case may be, and a certificate of service in Form 16.3; and

(c) send the certificate of service to the pursuer.

(2) Such service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address).

(3) Where service is executed by a method mentioned in rule 16.1(1)(a)(ii) or (iii), or (b)(i), and the document served is left in the hands of a person other than the person on whom service is to be executed, that document and the citation or notice of intimation, as the case may be, shall be placed in an envelope (bearing the notice specified in rule 16.4(2)) and sealed by the messenger-at-arms.

(4) [F2 Subject to paragraph (4A),] a messenger-at-arms shall, when he executes service of a document, have in his possession–

(a) in the case of service of a copy of a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is, and

(b) where an interlocutor has been pronounced allowing service of the document, a certified copy of that interlocutor,

which he shall show, if required, to the person on whom he executes service.

[F3 (4A) Where the firm which employs the messenger-at-arms has in its possession—

(a) the principal writ or a certified copy of it, it shall be competent for the messenger-at-arms to execute service of the document without having that writ or certified copy in his possession, in which case he shall, if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the principal writ or certified copy to the person;

(b) a certified copy of the interlocutor, it shall be competent for the messenger-at-arms to execute service of the document if he has in his possession a facsimile copy of the certified copy interlocutor which he shall show, if required, to the person on whom he executes service.]

(5) The certificate of service required under paragraph (1) shall include the full name and designation of any person in whose hands any document and the citation or notice, as the case may be, were left.

(6) In the application of this rule to service in a part of the United Kingdom furth of Scotland, reference to a messenger-at-arms shall be construed as a reference to a person entitled to serve Supreme Court writs in that part.

Textual Amendments

F2 Words in Sch. 2 rule 16.3(4) inserted (18.9.2001) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 2001 (S.S.I. 2001/305), paras. 1(1)(b), 2(1)

F3 Sch. 2 rule 16.3(4A) inserted (18.9.2001) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 2001 (S.S.I. 2001/305), paras. 1(1)(b), 2(2)

Commencement Information

I3 Sch. 2 rule 16.3 in force at 5.9.1994, see para. 1(1)

Service by post S

16.4.—(1) This rule applies to service of a document by post [F4 but is subject to rule 61.2(3) and (4) (order as respects intimation of petition for appointment of judicial factor)].

(2) Service by post shall be executed by–

(a) a messenger-at-arms, or

(b) an agent,

posting a copy of the document to be served with any citation or notice, as the case may be, by registered post or the first class recorded delivery service addressed to the person on whom service is to be executed and having on the face of the envelope a notice in the following terms:– “This envelope contains a citation to, or intimation from, the Court of Session. If delivery of the letter cannot be made it must be returned immediately to the Deputy Principal Clerk of Session, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ.”.

(3) Where English is not an official language of the country in which service is to be executed, a translation in an official language of that country of the notice required under paragraph (2) shall appear on the face of the envelope.

(4) The person executing service of a document shall complete–

(a) a citation or notice, as the case may be; and

(b) a certificate of service in Form 16.4.

(5) A Post Office receipt of posting by registered post or a certificate of posting by the first class recorded delivery service, as the case may be, issued and stamped by the Post Office shall be attached to the certificate of service.

(6) The date of execution of service shall be deemed to be the day after the date of posting.

(7) Subject to rule 16.11 (no objection to regularity of service or intimation), the execution of service by post shall be valid unless the person on whom service was sought to have been made proves that the envelope and its contents were not tendered or left at his address.

Textual Amendments

F4 Words in Sch. 2 rule 16.4(1) inserted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 4

Commencement Information

I4 Sch. 2 rule 16.4 in force at 5.9.1994, see para. 1(1)

Service where address of person is not known S

16.5.—(1) Where the residence of the person to be served with a document is not known and cannot reasonably be ascertained or service on that person cannot be executed under rule 16.1 (methods and manner of service) or 16.2 (service furth of United Kingdom), the party who wishes to execute service may apply by motion–

(a) for an order for service by the publication of an advertisement in a specified newspaper circulating in the area of the last known residence of that person or elsewhere; or

(b) on special cause shown, for an order to dispense with service; and

(c) stating the last known residence of that person and what steps have been taken to ascertain his present whereabouts.

(2) On enrolling such a motion, a copy of the document to be served shall be lodged with the Deputy Principal Clerk who shall retain it for a period of three years and from whom it may be uplifted by the person for whom it is intended.

(3) Where an intelocutor has been pronounced ordering publication of an advertisement under this rule–

(a) the advertisement shall be in Form 16.5; and

(b) publication of the advertisement shall have effect as if service of the document had been executed on the date of publication.

(4) Where an interlocutor has been pronounced dispensing with service under this rule–

(a) service of the document shall be deemed to have been executed on the date of the interlocutor; and

(b) the period of notice shall be dispensed with.

(5) A motion under paragraph (1) made before calling shall be heard in chambers.

(6) Where publication of an advertisement has been made under this rule, there shall be lodged in process–

(a) a copy of the newspaper containing the advertisement; or

(b) a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

Commencement Information

I5 Sch. 2 rule 16.5 in force at 5.9.1994, see para. 1(1)

Translations of documents served or advertised abroad S

16.6.—(1)  [F5 Subject to rule 16.2A,] where English is not an official language of the country in which a document is to be served, the document shall be accompanied by a translation in an official language of that country.

(2) An advertisement authorised under rule 16.5 (service where address of person is not known) to be published in a newspaper in a country in which English is not an official language of that country shall be in an official language of that country.

(3) With any certificate of service, or advertisement under rule 16.5, in a language other than English there shall be lodged a translation in English.

(4) A translation under this rule shall be certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Textual Amendments

F5 Words in Sch. 2 rule 16.6(1) inserted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(4)

Commencement Information

I6 Sch. 2 rule 16.6 in force at 5.9.1994, see para. 1(1)

Intimation of documents S

16.7.—(1) Subject to rule 16.8 (intimation on a warrant to intimate), rule 16.9 (written intimation) and any other provision in these Rules, where intimation of a document is to be given under these Rules to any person, the intimation shall be given–

(a) personally, by tendering the document and the notice of intimation (if any) to that person; or

(b) by registered post or the first class recorded delivery service–

(i) in the case of an individual, addressed to the known, or last known, dwelling place or a place of business of that individual; or

(ii) in the case of any other person, addressed to the registered office, other official address or a place of business of that person.

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach to the principal writ or lodge in process, as the case may be–

(a) certificate of intimation in Form 16.7;

(b) a copy of any notice of intimation which was intimated; and

(c) a copy of any interlocutor ordering the intimation.

Commencement Information

I7 Sch. 2 rule 16.7 in force at 5.9.1994, see para. 1(1)

Intimation on a warrant to intimate S

16.8.—(1) Where intimation of a document is to be given to a person for whom a warrant to intimate has been obtained, the intimation shall be made in the same manner as service of a document; and the following rules shall, with the necessary modifications, apply to that intimation as they apply to service of a document:–

• rule 16.1 (methods and manner of service),

• rule 16.2 (service furth of United Kingdom),

• [F6 rule 16.2A (service under the Council Regulation),]

• rule 16.3 (service by messenger-at-arms),

• rule 16.4 (service by post),

• rule 16.5 (serv ice where address of person is not known),

• rule 16.6 (translations of documents served or advertised abroad).

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach a copy of any notice of intimation to the certificate of intimation.

Textual Amendments

F6 Words in Sch. 2 rule 16.8(1) inserted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(5)

Commencement Information

I8 Sch. 2 rule 16.8 in force at 5.9.1994, see para. 1(1)

Written intimation S

16.9.  Where a provision in these Rules requires written intimation to be given to a person, that intimation may be made by first class post or other means of delivery to that person.

Commencement Information

I9 Sch. 2 rule 16.9 in force at 5.9.1994, see para. 1(1)

Acceptance of service or intimation and dispensing with period of notice S

16.10.—(1) An agent may accept service or intimation of a document on behalf of the person on whom service is to be executed or to whom intimation is to be given and may dispense with any period of notice.

(2) A person on whom service of a document is executed or to whom intimation of a document is given may dispense with any period of notice as respects him in relation to that document.

(3) Where a period of notice is dispensed with under paragraph (1) or (2), it shall be deemed to expire on the day on which the party on whose behalf service is executed or intimation is given receives written intimation that the period of notice has been dispensed with.

Commencement Information

I10 Sch. 2 rule 16.10 in force at 5.9.1994, see para. 1(1)

No objection to regularity of service or intimation S

16.11.—(1) A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation.

(2) Nothing in paragraph (1) shall preclude a person from pleading that the court has no jurisdiction.

Commencement Information

I11 Sch. 2 rule 16.11 in force at 5.9.1994, see para. 1(1)