Act of Sederunt (Requirements of Writing) 1996

Statutory Instruments

1996 No. 1534 (S.136)

SHERIFF COURT, SCOTLAND

Act of Sederunt (Requirements of Writing) 1996

Made

6th June 1996

Coming into force

1st July 1996

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 32 of the Sheriff Courts (Scotland) Act 1971(1) and of all other powers enabling them in that behalf, having approved, with modifications, 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

1.—(1) This Act of Sederunt may be cited as the Act of Sederunt (Requirements of Writing) 1996 and shall come into force on 1st July 1996.

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

Interpretation

2.—(1) In this Act of Sederunt, “the Act of 1995” means the Requirements of Writing (Scotland) Act 1995(2).

(2) Unless the context otherwise requires, words and expressions used in this Act of Sederunt which are also used in the Act of 1995 have the same meaning as in that Act.

(3) Unless the context otherwise requires, a reference to a specified paragraph or form is a reference to the paragraph so specified, or the form so specified in the Schedule, in this Act of Sederunt.

Application

3.—(1) Subject to sub-paragraph (2) below, this Act of Sederunt shall apply to an application under the following provisions of the Act of 1995:—

• section 4(1) or (2),

• section 5(6),

• paragraph 2(1) or (2) of Schedule 1,

• paragraph 7 of Schedule 3,

• paragraph 14 of Schedule 3.

(2) This Act of Sederunt shall not apply to an application under a provision mentioned in sub-paragraph (1) above which is a summary application within the meaning of section 3 of the Sheriff Courts (Scotland) Act 1907(3).

Application in commissary proceedings

4.  An application to which this Act of Sederunt applies for a certificate or decree in connection with a document, made incidental to and in the course of an application for confirmation of an executor, shall be made as nearly as may be in accordance with Form 1.

Application in other proceedings

5.  An application to which this Act of Sederunt applies for a certificate or decree in connection with a document, made incidental to and in the course of any proceedings other than an application for confirmation of an executor, shall be made by minute, incidental application or note, as appropriate, in those proceedings.

Intimation

6.—(1) Except where it appears to the sheriff that an application under paragraph 4 should be intimated to a person having an interest, the application shall be considered and determined by the sheriff without intimation or any period of notice.

(2) Where it appears to the sheriff that an application under paragraph 4 should be intimated, the application shall be intimated to such persons and in such manner as the sheriff shall direct.

Affidavit evidence

7.  Evidence given by affidavit in an application under paragraph 4 or 5 shall be made as nearly as may be in accordance with Form 2.

Decree, interlocutor and certificate

8.  Where the sheriff grants an application under paragraph 4 or 5 he shall—

(a) where the document has been registered in the Books of Council and Session or the sheriff court books, grant decree in those terms; or

(b) in any other case—

(i) issue an interlocutor; and

(ii) direct the sheriff clerk to endorse a certificate on the document as nearly as may be in accordance with Form 3.

Hope of Craighead

Lord President, I.P.D.

Edinburgh,

6th June 1996

Paragraphs 4, 7 and 8

SCHEDULE

Paragraph 4

FORM 1 Form of application

Paragraph 7

FORM 2 Form of affidavit

Paragraph 8

FORM 3 Form of certificate of sheriff clerk

Explanatory Note

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

This Act of Sederunt makes provision for the procedure to be followed in respect of applications under the Requirements of Writing (Scotland) Act 1995 to the court for authentication of documents which do not attract the statutory presumptions about subscription of a deed. It also provides draft forms of application, affidavit and certificate.

(1)

1971 c. 58; section 32 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), Schedule 2, paragraph 12, by the Civil Evidence (Scotland) Act 1988 (c. 32), section 2(4) and by the Children (Scotland) Act 1995 (c. 36), Schedule 4, paragraph 18(2).

(2)

1995 c. 7.

(3)

1907 c. 51.