Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2007 No. 7

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Statutory Instruments of the Scottish Parliament

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SCOTTISH STATUTORY INSTRUMENTS

2007 No. 7
COURT OF SESSION
Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2007

	Made	12th January 2007
	Coming into force in accordance with paragraph 1(1) and (2)

The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 5 of the Court of Session Act 1988[1] and of all other powers enabling them in that behalf, do hereby enact and declare:

Citation and commencement
     1. —(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2007 and, subject to sub-paragraph (2), shall come into force on 29th January 2007.

    (2) Paragraph 2(9), (10) and (20)(a) to (f) shall come into force on 26th February 2007.

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

Amendment of the Rules of the Court of Session
     2. —(1) The Rules of the Court of Session 1994[2] shall be amended in accordance with the following sub-paragraphs.

    (2) Rule 12.5(3) (selection of assessors: period for which list of nautical assessors in force) shall be omitted.

    (3) In rule 22.1(1) (making up open records), for "not less than four copies" there shall be substituted "a copy".

    (4) In rule 22.3(1)(a) (closing records), for "not less than six copies" there shall be substituted "a copy".

    (5) In rule 35.2[3] (applications for commission and diligence for recovery of documents or for orders under section 1 of the Administration of Justice (Scotland) Act 1972[4]), for paragraph (6) there shall be substituted–

(6) In rule 41.41 (form of appeal under certain Social Security Acts)[5]–

(b) paragraph (b) shall be omitted.

(7) In rule 42.16(3) (fees of solicitors), after Chapter I of the Table of Fees (table of detailed charges)[7] there shall be inserted–

" CHAPTER II

WITNESSES' FEES

1.	Skilled Persons Where it was reasonable to employ a skilled person to make investigations or to report for any purpose, any charges for such investigations and report and for any attendance at any proof or jury trial shall be allowed at a rate which the Auditor of Court shall determine is fair and reasonable.
2.	Witnesses A person who is cited to give evidence and in consequence incurs financial loss shall be allowed reimbursement, being such reasonable sum as the Auditor may determine to have been reasonably and necessarily incurred by the witness, but not exceeding £400 per day.
3.	Travelling Allowance In respect of any witness there shall be allowed a travelling allowance, being such sum as the Auditor may determine to have been reasonably and necessarily incurred by the witness in travelling from and to the witness's residence or place of business and the Court.
4.	Subsistence Allowance In respect of any witness there shall be allowed a subsistence allowance, being such sum as the Auditor may determine to have been reasonably incurred by the witness for the extra cost of subsistence during the witness's absence from the witness's home or place of business for the purpose of giving evidence, and where the witness reasonably requires to stay overnight, for the reasonable cost of board and lodging.
5.	Value Added Tax Where any witness is a taxable person in terms of the Value Added Tax Act 1983[8], the amount of value added tax may be added by the witness to the witness's note of fee, and may be paid to the witness by the Solicitor.
6.	Receipts and Vouchers Receipts and detailed vouchers for all payments claimed in respect of a witness shall be produced to the party found liable in expenses, prior to the taxation of the Account of Expenses, and to the Auditor, if the Auditor requires.
7.	Account of Fees of Witnesses The fees charged for any witness shall be stated in the Account of Expenses in a lump sum and the details of the charges shall be entered in a separate schedule appended to the Account as follows:

Name & Designation	Where From	Days Charged	Rate per Day	Travelling Subsistence Allowance	Total	Taxed Off

(8) In rule 46.9 (international oil pollution compensation fund)[9]–

(d) in paragraph (6)–

(e) in paragraph (7)–

(f) in paragraph (8)–

(9) In rule 49.27C (applications for postponement of decree under section 3A of the Act of 1976)[13]–

(10) For rule 49.72(1) (application of Part XI of Chapter 49: simplified divorce applications), for sub-paragraph (g)[14] there shall be substituted the following:–

(11) In rule 67.1[16] (application and interpretation of Chapter 67: applications under the Adoption (Scotland) Act 1978[17]), after the definition of "the Act of 1995" there shall be inserted the following:–

(12) In rule 67.21[19] (reports by local authority or adoption agency)–

(1B) Where paragraph (1A) applies, the report mentioned in paragraph (1) shall also include any available information about whether–

(13) In rule 67.22 (applications for adoption order)–

" ; and

(b) after paragraph (2) there shall be inserted the following:–

(14) In rule 67.23 (notice of petition and appointment of reporting officer and curator ad litem)–

but, for the avoidance of doubt, a reporting officer shall be appointed in any case in which the petition is founded on section 16(1)(b) of the Act, whether or not it is also founded on section 16(1)(aa) or (ab) of the Act of 1978.".

(15) In rule 67.25 (hearing of adoption petition), for paragraph (3)(a) there shall be substituted the following:–

(16) After rule 89.6 (appointment of special representatives)[20] there shall be inserted the following:–

Special representatives: further provisions

89.6A.

—(1) A special representative upon whom relevant material has been served under rule 89.7(5)(a)[

    (3) The special representative may apply by motion for authority to communicate with the relevant party or his legal representative or with any other person about the proceedings or a matter connected to the proceedings.

    (4) A notice of opposition to a motion under paragraph (3) shall be intimated to the special representative and the relevant party.

    (5) The relevant party shall not communicate with a special representative upon whom relevant material has been served under rule 89.7(5) other than through a legal representative in writing.

    (6) The special representative may, without the authority of the court, send a written acknowledgement of receipt of a communication under paragraph (5).".

(17) In rule 89.7 (permission not to disclose relevant material etc.), for paragraph (4) there shall be substituted the following:–

(18) In rule 89.8(5) (applications for permission not to disclose relevant material: further provisions)[22] for "89(2)" there shall be substituted "89.7(2)".

(19) After Chapter 92[23] there shall be inserted the following:–

" Chapter 93

LIVE LINKS

Application for live link

93.1.

—(1) On cause shown, a party may apply by motion for authority for the whole or part of–

through a live link.

(2) in paragraph (1)–

"witness" means a person who has been or may be cited to appear before the court as a witness;

"submission" means any oral submission which would otherwise be made to the court by the party or his representative in person including an oral submission in support of a motion;

"live link" means a live television link or such other arrangement as may be specified in the motion by which the witness, party or representative, as the case may be, is able to be seen and heard in the proceedings or heard in the proceedings and is able to see and hear or hear the proceedings while at a place which is outside the courtroom.".

(20) In the Appendix–

(a) in Form 49.73-A[

" The list of Contracting States is found in section 12(5)(b) of the Domicile and Matrimonial Proceedings Act 1973. As at 26th February 2007 the Contracting States are: Belgium, Cyprus, Czech Republic, Germany, Greece, Spain, Estonia, France, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Austria, Poland, Portugal, Slovak Republic, Slovenia, Finland, Sweden and the United Kingdom.".

" No application can be made in this form of divorce application for postponement of decree under section 3A of the Divorce (Scotland) Act 1976. On an application under that section, the court may postpone the grant of decree of divorce if it is satisfied that:

If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau.";

DECLARATION AND REQUEST FOR DIVORCE

" I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.";

2A.

Postponement of decree

As at 26th February 2007 "religious marriage" for the purposes of section 3A of the Divorce (Scotland) Act 1976 means a marriage solemnised by a celebrant of any Hebrew congregation (i.e. a Jewish marriage) (S.S.I. 2006/253).

In Section 11 of Part 1, the Applicant states that he/she does not apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976. You are also required to state (item (f) opposite) that you make no such application.";

(g)

I CONSENT TO DECREE OF DIVORCE BEING GRANTED IN RESPECT OF THIS APPLICATION.

(b) In Form 49.73-B[25]–

" Check the notes on page 2 to see if you also need to obtain a letter from the General Register Office stating that there is no record that your spouse has divorced you; and";

" LETTER FROM GENERAL REGISTER OFFICE. If you do not know the address of your spouse and you were married in Scotland, you must obtain a letter from the General Register Office stating that there is no record that your spouse has divorced you. The letter must be issued not more than one month before the date of posting this application to the court. If you require to obtain a letter you should apply to:

stating both husband's and wife's full names, the date and place of your marriage and requesting that a search be made to confirm that there is no record that your husband/wife has divorce you. (Note � a fee will be charged for this service).

The requirement to obtain a letter from the General Register Office does not apply if you were married outwith Scotland.".

If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau.";

" I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.";

Affidavit

" 2. When you have completed Part 1, you should take the form to a Justice of the Peace, Notary Public, Commissioner for Oaths or other duly authorised person so that your affidavit in Part 2 (page 8) can be completed and sworn.

Returning completed Application Form to court

3. When directions 1 and 2 above have all been carried out, your application is now ready to be sent to the court. With it you must enclose:–

4. Receipt of your application will be promptly acknowledged. Should you wish to withdraw the application for any reason, please contact the court immediately.

"

(ii) In the Notes on Section 4 of Part 1, for the words from "MARRIAGE CERTIFICATE" to the end there shall be substituted the following:–

The requirement to obtain a letter from the General Register Office does not apply if you were married outwith Scotland.".

If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau.";

" I do not ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976.";

(f) in Form 49.76-BA[29]–

2A.

(g) in Form 67.22 (petition for adoption order or an order under section 49(1) of the Adoption (Scotland) Act 1978), after paragraph 22 there shall be inserted–

22A.

22B.

[That by notice under section 20(4)(a) (notice that information about application for adoption order not required: England and Wales) of the Adoption and Children Act 2002 (name of parent or guardian) [and (name of parent or guardian)] stated that he [or she or they] did not wish to be informed of any application for an adoption order and that statement has not been withdrawn.]

22C.

[That the child has been placed for adoption by an adoption agency within the meaning of section 2(1) (adoption agencies in England and Wales) of the Adoption and Children Act 2002 with the petitioner(s) and the child was placed for adoption under section 19(1) (placing children with parental consent: England and Wales) of that Act with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old [or under an order made under section 21(1) (placement orders: England and Wales) of that Act and the child was at least six weeks old when that order was made]].";

(h) in Form 49.80B-B[

" Check the Notes on page 2 to see if you also need to obtain a letter from General Register Office stating that there is no record of your civil partner having dissolved the civil partnership; and";

" LETTER FROM GENERAL REGISTER OFFICE. If you do not know the address of your civil partner and your civil partnership was registered in Scotland, you must obtain a letter from the General Register Office stating that there is no record that your civil partner has had your civil partnership dissolved. The letter must be issued not more than one month before the date of posting this application to the court. If you require to obtain a letter you should apply to:

stating both civil partners' full names, the date and place of registration of your civil partnership and requesting that a search be made to confirm that there is no record that your civil partner has had your civil partnership dissolved. (Note – a fee will be charged for this service).

The requirement to obtain a letter from the General Register Office does not apply if your civil partnership was registered outwith Scotland.".

" Check the Notes on page 2 to see if you also need to obtain a letter from General Register Office stating that there is no record of your civil partner having dissolved the civil partnership;";

The requirement to obtain a letter from the General Register Office does not apply if your civil partnership was registered outwith Scotland.".

Revocation
3. Paragraph 3 of and Schedule 2 to the Act of Sederunt (Rules of the Court of Session Amendment) (Fees of Solicitors Shorthand Writers and Witnesses) 2002[32] are revoked.

A C HAMILTON
Lord President I.P.D.

Edinburgh
12th January 2007

EXPLANATORY NOTE

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

This Act of Sederunt makes miscellaneous amendments to the Rules of the Court of Session 1994 ("the Rules").

Paragraph 2(2) deletes rule 12.5(3) which relates to the period during which the list of nautical assessors approved by the Lord President is in force.

Paragraph 2(3) and (4) amends the rules in relation to the number of copies of the open and closed records to be provided by the pursuer to the other parties.

Paragraph 2(5) substitutes a new rule 35.2(6) to allow the Advocate General for Scotland to appear at the hearing of any motion under rule 35.2(1) (applications for commission and diligence for the recovery of documents or for orders under section 1 of the Administration of Justice (Scotland) Act 1972).

Paragraph 2(6) substitutes a new rule 41.41(a) which is consequential upon the provisions of the Social Security Act 1998 and provides for appeals under section 15(1) of that Act.

Paragraph 2(7) inserts a new Chapter II into the Table of Fees contained in rule 42.16(3) to make provision for witnesses' fees and paragraph 3 revokes the equivalent provision contained in S.S.I. 2002/301.

Paragraph 2(8) makes amendments to rule 46.9 which are consequential on the amendments made to the Merchant Shipping Act 1995 by the Merchant Shipping (Oil Pollution) (Supplementary Fund Protocol) Order 2006. In particular, the amendments take into account the introduction of the Supplementary Fund for pollution damage claims.

Paragraph 2(9) makes a minor amendment to rule 49.27C in relation to applications for postponement of decree of divorce.

Paragraph 2(10) substitutes a new rule 49.72(1)(g) which excludes the application of the simplified divorce procedure where an application is made under section 3A of the Divorce (Scotland) Act 1976.

Paragraph 2(11) to (15) amends Chapter 67 of the Rules in relation to applications under the Adoption (Scotland) Act 1978 to make provision consequential upon the amendments made to that Act by the Adoption and Children Act 2002.

Paragraph 2(16) to (18) amends Chapter 89 of the Rules in relation to the Prevention of Terrorism Act 2005. The amendments make provision in respect of communications about the proceedings by special representatives and clarify that rule 89.7(4) does not apply in relation to a preliminary hearing or an initial diet where the court has ordered the Deputy Principal Clerk not to notify the controlled person of the date and time of the diet and hearing. A minor correction is also made to rule 89.8(5).

Paragraph 2(19) inserts a new Chapter 93 into the Rules to make provision for the giving of evidence and the making of submissions by a live link.

Paragraph 2(20) makes miscellaneous amendments to the forms set out in the Appendix to the Rules.

Notes:

[1] 1988 c.36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 c.32, section 2(3) and by the Children (Scotland) Act 1995 c.36, Schedule 4, paragraph 45.back

[2] S.I. 1994/1443, last amended by S.S.I. 2006/294.back

[3] Rule 35.2 was amended by S.S.I. 2001/305.back

[4] 1972 c.59.back

[5] Rule 41.41 was amended by S.I. 1997/1050.back

[6] 1998 c.14.back

[7] Table of Fees last amended by S.S.I. 2006/294.back

[8] 1983 c.55.back

[9] Rule 46.9 was amended by S.I. 1996/1756.back

[10] Section 172(1)(f) was inserted by S.I. 2006/1265, article 3.back

[11] Section 176A was inserted by S.I. 2006/1265, article 6.back

[12] Section 176B was inserted by S.I. 2006/1265, article 6.back

[13] Rule 49.27C was inserted by S.S.I. 2006/206.back

[14] Rule 49.72(1)(g) was inserted by S.S.I. 2006/206.back

[15] Section 3A was inserted by section 15 of the Family Law (Scotland) Act 2006 (asp 2).back

[16] Rule 67.1 was amended by S.I. 1997/853.back

[17] 1978 c.28.back

[18] 2002 c.38.back

[19] Rule 67.21 was amended by S.I. 1997/853.back

[20] Rule 89.6 was inserted by S.S.I. 2005/153.back

[21] Rule 89.7 was inserted by S.S.I. 2005/153.back

[22] Rule 89.8 was inserted by S.S.I. 2005/153.back

[23] Chapter 92 was inserted by S.S.I. 2005/193.back

[24] Form 49.73-A was amended by S.S.I. 2005/632 and 2006/206.back

[25] Form 49.73-B was amended by S.S.I. 2005/632 and 2006/206.back

[26] Form 49.73-C was inserted by S.S.I. 2005/632.back

[27] Form 49.76-A was amended by S.S.I. 2006/206.back

[28] Form 49.76-B was amended by S.S.I. 2006/206.back

[29] Form 49.76-BA was inserted by S.S.I. 2005/632.back

[30] Form 49.80B-B was inserted by S.S.I. 2005/632 and amended by S.S.I. 2006/206.back

[31] Form 49.80B-C was inserted by S.S.I. 2005/632 and amended by S.S.I. 2006/206.back

[32] S.S.I. 2002/301.back

ISBN 978 0 11 071494 3

Prepared 23 January 2007

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	Statutory Instruments of the Scottish Parliament
You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2007 No. 7 URL: http://www.bailii.org/scot/legis/num_reg/2007/20070007.html