Made | 10th February 2004 | ||
Coming into force | 1st March 2004 |
(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.".
(4) In rule 16.6(1) (translations of documents) at the beginning there shall be inserted "Subject to rule 16.2A,".
(5) In rule 16.8(1) (intimation on a warrant to intimate) after "rule 16.2 (service furth of United Kingdom)," there shall be inserted "rule 16.2A (service under the Council Regulation),".
(6) Rule 26.6(A1) shall be omitted.
(7) After Rule 26.6(1) there shall be inserted the following:-
(8) After Chapter 32 there shall be inserted the following:-
(b) certify on the interlocutor sheet that such written intimation has been given.
(4) A failure by the Deputy Principal Clerk to comply with paragraph (3) shall not affect the validity of any transfer of a cause.
Receipt of transfers from the Competition Appeal Tribunal
32A.2.
On receipt of documentation in respect of a claim which has been directed to be transferred to the court by the Competition Appeal Tribunal, the Deputy Principal Clerk of Session shall -
Motion for further procedure and lodging of process in transfers from the Competition Appeal Tribunal
32A.3.
- (1) Within 14 days after the date of receipt of documentation referred to in rule 32A.2 (receipt of transfers from the Competition Appeal Tribunal) -
shall apply by motion for an order for such further procedure as he desires; and the cause shall proceed as if it had been an action in the court initiated by summons.
(2) On applying by motion under paragraph (1) the party shall make up and lodge a process incorporating the documentation referred to in rule 32A.2 (receipt of transfers from the Competition Appeal Tribunal) unless the documentation includes a process previously transferred to the Competition Appeal Tribunal under rule 32A.1 (transfers to the Competition Appeal Tribunal).
(3) A motion under paragraph (1) shall be disposed of by the Lord Ordinary.
Reponing against a failure to comply with rule 32A.3(1) or (2)
32A.4.
- (1) Where -
(2) The party enrolling a motion under paragraph (1), where the failure is a failure to lodge a process under rule 32A.3, shall on enrolling the motion, lodge such a process and shall apply by motion for an order for such further procedure as he desires.
(3) A motion under paragraph (1) shall be granted only on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.
Insistence in transfer by another party
32A.5.
Where -
Re-transmission to Registrar of the Competition Appeal Tribunal
32A.6.
Where, on the expiry of 21 days after the receipt of the documentation referred to in rule 32A.2 (intimation of the date of receipt of documentation), no motion has been enrolled under rule 32A.4 (reponing against failure to comply with rule 32A.3(1) or (2)) and no motion has been enrolled under rule 32A.5 (insistence on transfer by another party), the transfer shall be deemed to be abandoned and the Deputy Principal Clerk shall -
(9) For rule 40.21 there shall be substituted the following:-
he may apply by motion for authority to do so.
(3) Where the court has granted authority under paragraph (2), an interpreter shall be provided by the court.".
(10) In rule 41.4 (application and interpretation of Part II of Chapter 41) for "X" there shall be substituted "XI".
(11) In rule 41.25 (appeals relating to penalties) -
(c) in paragraph (2) for "or (e)" there shall be substituted ", (e) or (f)"; and
(d) in paragraph (4) before "the Special Commissioners" there shall be inserted "the General Commissioners,".
(12) Before rule 49.89 there shall be inserted the heading "Directions".
(13) In rule 58.8A -
(14) For Part V of Chapter 62 there shall be substituted the following:-
Disapplication of certain rules to this Part
62.27.
The following provisions shall not apply to an application under this Part in addition to those rules mentioned in rule 62.1:-
Enforcement of judgments, authentic instruments or court settlements from another Contracting State or Member State
62.28.
- (1) An application under -
shall be made by petition in Form 62.28.
(2) Subject to paragraph (3), there shall be produced with the petition-
(3) Paragraph (2)(b) and (d) shall not apply to a petition under Article 38 (enforcement of judgment from another Member State), Article 57 (enforcement of authentic instrument from another Member State) or Article 58 (enforcement of settlement from another Member State) of the Council Regulation but there shall be produced with such a petition a certificate under Article 54 (standard form of certificate of judgment), Article 57 (standard form of certificate of authentic instrument) or Article 58 (standard form of certificate of court settlement) of the Council Regulation.
(4) Where the petitioner does not produce a document required under paragraph (2)(a) to (d) or (3), the court may -
Protective measures and interim interdict
62.29.
- (1) On lodging a petition, the petitioner may, at any time until the expiry of the period for lodging an appeal referred to in rule 62.34 or its disposal, apply by motion for a warrant for the execution of protective measures.
(2) On lodging such a petition, the petitioner may, at any time until the expiry of the period for lodging an appeal mentioned in rule 62.34 or its disposal, apply by motion for an interim interdict.
Warrant for registration under the Act of 1982 or the Council Regulation
62.30.
- (1) The court shall, on being satisfied that the petition complies with the requirements of the Act of 1982 or, as the case may be, the Council Regulation, pronounce an interlocutor -
(2) The interlocutor pronounced under paragraph (1) shall specify -
Intimation to petitioner
62.31.
Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall intimate such interlocutor to the petitioner by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service.
Registration under the Act of 1982 or the Council Regulation
62.32.
- (1) Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall enter the judgment in a register of judgments, authentic instruments and court settlements under the Act of 1982 and the Council Regulation kept in the Petition Department.
(2) On presentation by the petitioner to the Keeper of the Registers of -
they shall be registered in the register of judgments of the Books of Council and Session.
(3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered judgment with a warrant for execution.
Service of warrant for registration under the Act of 1982 or the Council Regulation
62.33.
The petitioner shall serve a copy of the interlocutor granting warrant for registration of a judgment and a notice in Form 62.33 on the person liable under the judgment.
Appeals under the Act of 1982 or the Council Regulation
62.34.
- (1) An appeal under Article 37 of the convention in Schedule 1 or 3C to the Act of 1982 (appeal against granting of warrant for registration) or an appeal under Article 43 (appeals by either party) of the Council Regulation against the granting of a warrant for registration shall be made by motion -
(2) An appeal under Article 40 of the convention in Schedule 1 or 3C to the Act of 1982 (appeal against refusal to grant warrant for registration) or an appeal under Article 43 (appeals by either party) of the Council Regulation against a refusal to grant warrant for registration shall be made by motion -
(3) Where the respondent in any such appeal is domiciled furth of the United Kingdom -
(4) Where an appeal under paragraph (1) is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.
Reclaiming under the Act of 1982 or the Council Regulation
62.35.
- (1) Any party dissatisfied with the interlocutor of the Lord Ordinary in any appeal mentioned in rule 62.34 (appeals under the Act of 1982 or the Council Regulation) may reclaim on a point of law against that interlocutor.
(2) Where a reclaiming motion under paragraph (1) against the registration of a judgment is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.
Recognition of judgments from another Contracting State or Member State
62.36.
- (1) For the purposes of Article 26 of the convention in Schedule 1 or 3C to the Act of 1982 and Article 33 of the Council Regulation, an interlocutor pronounced under rule 62.30(1) (warrant for registration under the Act of 1982 or the Council Regulation) shall imply recognition of the judgment so dealt with.
(2) In an application under Article 26(2) of the convention in Schedule 1 or 3C to the Act of 1982 (application for recognition of a judgment) or Article 33(2) of the Council Regulation (application for recognition of a judgment), rules 62.26 to 62.35 shall apply to such an application as they apply to an application under Article 31 of that convention, subject to the following provisions:-
Enforcement of judgments from another part of the United Kingdom in Scotland (money provisions)
62.37.
- (1) An application under paragraph 5 of Schedule 6 to the Act of 1982 (application for registration in the Court of Session of a certificate in relation to a money provision in a judgment from another part of the United Kingdom) shall be made by presenting to the Keeper of the Registers -
(2) On presentation of the certificate mentioned in paragraph (1)(a), the Keeper of the Registers shall -
(3) An application under -
shall be made by petition.
Enforcement of judgments from another part of the United Kingdom in Scotland (non-money provisions)
62.38.
- (1) An application under paragraph 5 of Schedule 7 to the Act of 1982 (application for registration in the Court of Session of a non-money provision in a judgment from another part of the United Kingdom) shall be made by petition in Form 62.38.
(2) There shall be produced with the petition under paragraph (1) -
(3) The petition under paragraph (1) shall be heard by the Lord Ordinary in chambers and shall not require any appearance for the applicant unless the court so requires.
(4) The court shall, on being satisfied that the petition complies with the requirements of section 18 of, and Schedule 7 to, the Act of 1982[11], pronounce an interlocutor -
(5) Where the court pronounces an interlocutor under paragraph (4), rule 62.32 shall apply to the registration of a judgment under this rule as it applies to the registration of a judgment under that rule.
(6) An application under -
shall be made by petition.
Cancellation of registration under the Act of 1982 or the Council Regulation
62.39.
Where -
a certificate to that effect by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment, certificate or other documents to the person who applied for registration.
Enforcement in another Contracting State or Member State of Court of Session judgments etc.
62.40.
- (1) Where a person seeks to apply under section 12 of the Act of 1982[12] for recognition or enforcement in another Contracting State of a judgment given by the court or a court settlement in the court, he shall apply by letter to the Deputy Principal Clerk for-
(2) Where a person seeks to apply under Chapter III of the Council Regulation for recognition or enforcement in another Member State of a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for -
(3) The Deputy Principal Clerk shall not issue a certificate under paragraph (1)(a) or 2(a) unless there is produced to him an execution of service of the judgment on the person on whom it is sought to be enforced.
(4) Where a person seeks to apply under Article 50 of the convention in Schedule 1 or 3C to the Act of 1982 for enforcement of an authentic instrument or court settlement registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for -
(5) Where a person seeks to apply under Article 57 or 58 of the Council Regulation for enforcement in another Member State of an authentic instrument or court settlement registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for -
(6) The Keeper of the Registers shall not issue a certificate under paragraph (4) or (5) unless there is produced to him an affidavit verifying that enforcement has not been suspended and that the time available for enforcement has not expired.
Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (money provisions)
62.41.
- (1) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a money provision in a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for a certificate in Form 62.41 A.
(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating -
(3) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for -
(4) The Keeper of the Registers shall not issue a certificate under paragraph (3) unless there is produced to him an affidavit which includes the statements required under paragraph (2)(a), (c) and (d).
Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (non-money provisions)
62.42.
- (1) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a judgment of the court, he shall apply by letter to the Deputy Principal Clerk for -
(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating -
(3) Where the Deputy Principal Clerk issues a certificate in Form 62.42-A, he shall attach it to the certified copy judgment.
(4) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for -
(4) The Keeper of the Registers shall not issue a certificate under paragraph (4) unless there is produced to him an affidavit referred to in paragraph (2).
(5) Where the Keeper of the Registers issues a certificate in Form 62.42-B, he shall attach it to the extract of the document.".
(15) In rule 64.2(2)(a) and rule 64.6 for "Form 64 A" there shall be substituted "Form 64.6".
(16) In rule 64.9(a) for "Form 64-B" there shall be substituted "Form 64.9".
(17) For Part IV of Chapter 67 there shall be substituted the following:-
Application of Part III to this Part
67.34.
Part III (adoption), except the following rules, shall apply to the petition:-
Applications for Convention adoption orders
67.35.
- (1) An application for a Convention adoption order shall be made by petition in Form 67.22.
(2) The petition shall include averments in relation to -
(3) Where the United Kingdom is the receiving state, and the child is over the age of twelve years the petition shall also include averments in relation to -
to the making of the order.
(4) Where the United Kingdom is the State of origin, the petition shall also include averments as to whether the child is free for adoption by virtue of an order made under section 18 of the Act of 1978[15], section 18 of the Adoption Act 1976[16], or article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987[17].
(5) The prayer of the petition shall include a crave that the court direct the Registrar General for Scotland to insert the words "Convention Order" in the entry to be made by him in the Adopted Children Register regarding the adoption.
Investigations by curator ad litem
67.36.
- (1) The curator ad litem appointed under rule 67.23(1)(b) by virtue of rule 67.34 (application of Part III to this Part) shall also investigate the averments referred to in rule 67.35(2) and shall include the results of his investigations in his report.
(2) Where in the course of his investigations, the curator ad litem requires a report from any authority outside Great Britain, he shall request the local authority to request that other authority to provide that report.
Annulment etc. of overseas adoptions
67.37.
- (1) This rule applies to an application for an order under section 47 of the Act of 1978 (annulment etc. of overseas adoptions)[18].
(2) An application mentioned in paragraph (1) shall be made by petition.
(3) An application under section 47(1) of the Act of 1978 shall not, except with the leave of the court, be made later than two years after the date of the adoption to which it relates.
(4) Where the adopted person is under the age of 18 years on the date of the presentation of a petition under this rule, the court shall appoint a curator ad litem with the duties mentioned in rule 67.24(2).
(5) On the court pronouncing an interlocutor making an order referred to in paragraph (1), the Deputy Principal Clerk shall send a notice of the order to the Registrar General for Scotland specifying -
Directions as to the status conferred by adoption
67.38.
An application under section 39(2A) of the Act of 1978 (application for direction as to status conferred by adoption)[19] shall be made by petition.".
(18) In the annexe:
Cullen of Whitekirk
Lord President I.P.D.
Edinburgh
10th February 2004
(i) | My spouse and I are habitually resident in Scotland | |
(ii) | My spouse and I were last habitually resident in Scotland, and one of us still resides there | |
(iii) | My spouse is habitually resident in Scotland | |
(iv) | I am habitually resident in Scotland having resided there for at least a year immediately before this application was made | |
(v) | I am habitually resident in Scotland having resided there for at least six months immediately before this application was made and am domiciled in Scotland | |
(vi) | My spouse and I are domiciled in Scotland |
(i) | I consider myself to be domiciled in Scotland | |
(ii) | My spouse considers himself or herself to be domiciled in Scotland |
(iii) | No court of a Contracting State has jurisdiction under the Council Regulation |
(i) | I have lived at the address shown above for at least 40 days immediately before the date I signed this application | |
(ii) | My spouse has lived at the address shown above for at least 40 days immediately before the date I signed this application |
[2] 1982 c.27; sections 4 and 12 were amended by articles 2(2) and 5(2)(c) respectively of S.I. 1993/604 and section 48 was amended by paragraph 17(c)(v) of Schedule 2 to S.I. 2001/3929.back
[3] 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
[4] S.I. 1994/1443, last amended by S.S.I. 2003/537.back
[5] O.J. L 160, 30.6.2000, p.37.back
[8] Section 1(3) of the Act of 1982 was amended by the Civil Jurisdiction and Judgments Act 1991 c.12, section 2(5).back
[9] O.J. No. L 012, 16.01.2001, p.1.back
[10] Section 4 was amended by the Civil Jurisdiction and Judgments Act 1991 c.12, Schedule 2, paragraph 2 and was extended to authentic instruments and court settlements by S.I. 1993/604. Schedule 1 was substituted by S.I. 1990/2591 and amended by S.I. 2000/1824. Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991, section 1(3) and Schedule 1.back
[11] Section 18 was amended by S.I. 2003/425.back
[12] Section 12 was extended to court settlements by S.I. 1993/604.back
[13] Section 65 of the Adoption (Scotland) Act 1978 (c.28) provides that "the Convention" means the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29th May 1993. Section 65 was amended by the Adoption (Intercountry Aspects) Act 1999 c.18.back
[14] Section 49 was amended by the Children (Scotland) Act 1995 c.36, Schedule 2, paragraph 23.back
[15] Section 18 was amended by the Children (Scotland) Act 1995 c.36, Schedule 2, paragraph 11(d).back
[16] 1976 c.36. Section 18 was amended by the Children Act 1989 c.41, Schedule 10(I), paragraph 6(3).back
[17] S.I. 1987/2203 (N.I. 22).back
[18] Section 47 was amended by the Adoption (Intercountry Aspects) Act 1999 (c.18), section 6(2).back
[19] Section 39 was amended by Adoption (Intercountry Aspects) Act 1999 c.18, section 5(2).back
© Crown copyright 2004 | Prepared 19 February 2004 |