Citation and commencement

1.-(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No .5) (Time to pay directions) 1988 and shall come into force on 30th November 1988.

(2) 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(2) shall be amended in accordance with the following sub-paragraphs.

(2) After rule 88, insert the following rules:-

"SECTION 2ATIME TO PAY DIRECTIONS

Interpretation and application

88A-(1) In this section, "the Act of 1987" means the Debtors (Scotland) Act 1987(3).

(2) Words and expressions used in this section which are also used in the Act of 1987 have the same meaning as in that Act.

Notice about time to pay directions

88B-(1) In an action in which a defender may apply for a time to pay direction under section 1(1) of the Act of 1987, the pursuer shall serve on that defender a notice in form 65 and an application in form 66 at the same time as service of the summons or pleadings as amended by a minute of amendment calling him as a defender.

(2) Before serving a notice and an application under paragraph (1), the pursuer shall insert in form 65 the date by which form 66 must be returned to the court by the defender (being the date on which the induciae expire) and shall complete Part A of form 66.

Applications for time to pay directions in undefended actions

88C-(1) Where a defender does not enter appearance in an action and intends to apply for a time to pay direction and, where appropriate, recall or restriction of an arrestment, he shall complete and return the application in form 66 to the court before the date stated in form 65.

(2) Where the pursuer does not object to the application by a defender for a time to pay direction or the recall of restriction of an arrestment, he may enrol for decree in absence in terms of rule 89 stating that he does not object to the application.

(3) Where the pursuer objects to the application by a defender for a time to pay direction or the recall or restriction of an arrestment, he shall intimate-

(a)the motion for decree in absence in terms of rule 89; and

(b)the grounds of objection to the application by the defender,

in form 67 to the defender on an induciae of 7 days.

(4) On enrolling a motion for decree in absence, the pursuer shall lodge a copy of the form 67 intimated to the defender.

(5) The defender need not appear at the hearing of the motion for decree in absence and may send to the Deputy Principal Clerk written representations in response to the note of objections of the pursuer.

(6) A motion for decree in absence to which paragraph (3) applies shall be starred.

Applications for time to pay directions where appearance entered but defences not lodged

88D-(1) Where a defender, after entering appearance, does not lodge defences but intends to apply for a time to pay direction and where appropriate, recall or restriction of an arrestment, notwithstanding the date specified in form 65 as the date by which form 66 must be returned, he shall complete and return the application in form 66 to the court not later than the day on which defences would have had to be lodged in process.

(2) Rules 88C(2) to (6) shall apply to an application under this rule as they apply to an application under that rule.

Applications for time to pay directions where defences lodged

88E An application for a time to pay direction under section 1(1) of the Act of 1987 by-

(a)a defender in an action in which defences have been lodged by that defender; or

(b)a pursuer in a counter-claim or a third party,

shall be made by motion.

Applications for variation or recall of time to pay directions or arrestments

88F-(1) An application by a creditor or debtor under section 3(1) of the Act of 1987 to vary or recall a time to pay direction or to recall or restrict an arrestment shall be made by motion.

(2) A motion under paragraph (1) shall-

(a)include a brief statement of the reason for the application; and

(b)be intimated to the debtor or creditor, as the case may be, on an induciae of 14 days by recorded delivery letter.

(3) On the enrolling of a motion under paragraph (1), there shall be lodged in process-

(a)a copy of the letter of intimation and the certificate of posting; and

(b)any document to be relied on at the hearing of the motion.

Appeals

88G-(1) An application for leave to appeal under section 103(3) of the Act of 1987 shall be made within seven days of the date of the interlocutor to be appealed against.

(2) The decision of the Lord Ordinary or vacation judge granting or refusing such leave to appeal shall be final.

(3) Where such leave to appeal has been granted, an appeal under section 103(3) of the Act of 1987 shall be made by motion enrolled in the single bills before a division of the Inner House for review of the Lord Ordinary's interlocutor, within 14 days of the date on which leave was granted.

Notice for payment of interest on a decree

88H Where a creditor wishes to recover interest (other than interest awarded as a specific sum) under a decree containing a time to pay direction, the notice to be served under section 1(7) of the Act of 1987 shall be served on the debtor by the creditor-

(a)in the case of a decree containing a time to pay direction for payment by instalments, not later than 14 days before the date on which the last instalment is due to be paid; and

(b)in the case of a decree containing a time to pay direction for payment by deferred lump sum, not later than 14 days before the date on which the lump sum is to be paid.".

(3) In the Appendix, after form 64, insert forms 65, 66 and 67 in the Schedule to this Act of Sederunt.

SCHEDULE

Rule 88B(1)

FORM 65FORM OF NOTICE TO DEBTOR UNDER THE DEBTORS (SCOTLAND) ACT 1987 ABOUT TIME TO PAY DIRECTIONS

Rules 88B(1), 88C(1) and 88D(1)

FORM 66FORM OF APPLICATION FOR A TIME TO PAY DIRECTION

Rule 88C(3) and (4)

FORM 67FORM OF NOTICE OF APPLICATION FOR DECREE AND OBJECTION TO APPLICATION MADE BY DEFENDER ON FORM 66

Explanatory Note

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

This Act of Sederunt amends the Rules of the Court of Session to make provision in the rules in relation to time to pay directions under section 1 of the Debtors (Scotland) Act 1987.