COURT OF SESSION 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 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 (applications for commission and diligence for recovery of documents or for orders under section 1 of the Administration of Justice (Scotland) Act 1972 ), for paragraph (6) there shall be substituted– 6 The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1). . 6 In rule 41.41 (form of appeal under certain Social Security Acts) – a for paragraph (a) there shall be substituted the following:– a an appeal under section 15(1) of the Social Security Act 1998 ; ; and 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) 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 , 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) – a in paragraph (1), after the definition of “the Fund”, there shall be inserted the following:– the Supplementary Fund” has the meaning given in section 172(1)(f) of the Act of 1995 ; b in paragraph (3), for “paragraph (1)” there shall be substituted “paragraph (2)”; c in paragraph (5)– i after “Fund” where it first appears there shall be inserted “or the Supplementary Fund”; and ii after “Fund” where it second appears there shall be inserted “or the Supplementary Fund, as the case may be”; d in paragraph (6)– i after “damage)” there shall be inserted “or section 176A of that Act (liability of the Supplementary Fund )”; and ii after “Fund” where it second and third appears there shall be inserted “or the Supplementary Fund, as the case may be”; e in paragraph (7)– i after “section 176(3)(b)” there shall be inserted “or section 176B(2)(b) ”; and ii after “Fund” there shall be inserted “or the Supplementary Fund, as the case may be”; f in paragraph (8)– i after “section 176(3)(a)” there shall be inserted “or section 176B(2)(a)”; and ii after “Fund” there shall be inserted “or the Supplementary Fund, as the case may be”. 9 In rule 49.27C (applications for postponement of decree under section 3A of the Act of 1976) – a “religious” shall be omitted; and b for “to remarry” there shall be substituted “to religious marriage”. 10 For rule 49.72(1) (application of Part XI of Chapter 49: simplified divorce applications), for sub-paragraph (g) there shall be substituted the following:– g neither party to the marriage applies for postponement of decree under section 3A of the Act of 1976 (postponement of decree where impediment to religious marriage exists). . 11 In rule 67.1 (application and interpretation of Chapter 67: applications under the Adoption (Scotland) Act 1978 ), after the definition of “the Act of 1995” there shall be inserted the following:– “the Act of 2002 ” means the Adoption and Children Act 2002 ; . 12 In rule 67.21 (reports by local authority or adoption agency)– a in paragraph (1)(ss) “and” shall be omitted; and b for paragraph (1)(t) there shall be substituted the following:– t whether the child is subject to a supervision requirement and, if so, what steps have been taken to comply with subsections (4)(c), (5), and (13) of section 73 (duration and review of supervision requirement) of the Act of 1995; u where paragraph (1A) applies, the information mentioned in paragraph (1B); and v any other information which may be of assistance to the court. ; c after paragraph (1) there shall be inserted the following:– 1A This paragraph applies where– a the child was placed for adoption under section 19(1) (placement with parental consent: England and Wales) of the Act of 2002; b the child was placed for adoption under a placement order made under section 21(1) (placement orders: England and Wales) of the Act of 2002; or c each parent or guardian has consented under section 20(1) (advance consent to adoption: England and Wales) of the Act of 2002 to the making of a future adoption order. 1B Where paragraph (1A) applies, the report mentioned in paragraph (1) shall also include any available information about whether– a any placement order has been revoked; b any of the consents referred to in section 16(3D) (consents to placement: England and Wales) of the Act of 1978 have at any time been withdrawn; c a parent or guardian of the child wishes to seek leave to oppose the petition; and d there has been a change of circumstances since the consent of the parent or guardian was given or, as the case may be, the order under section 21(1) (placement orders: England and Wales) of the Act of 2002 was made. . 13 In rule 67.22 (applications for adoption order)– a in paragraph (2) (documents to be lodged with petition)– i in sub-paragraph (e) “and” shall be omitted; and ii after sub-paragraph (f) there shall be inserted the following:– ; and where appropriate, the consent under section 19(1) (placing children with parental consent: England and Wales) of the Act of 2002 of each parent or guardian to the child being placed for adoption in the form prescribed under section 52(7) of that Act; where appropriate, the consent under section 20(1) (advance consent to adoption: England and Wales) of the Act of 2002 of each parent or guardian to the making of a future adoption order, in the form prescribed under section 52(7) of that Act; any notice given under section 20(4) (notice that information about application for adoption order not required: England and Wales) of the Act of 2002 by a parent or guardian of the child to an adoption agency; a certified copy of any placement order made under section 21(1) (placement orders: England and Wales) of the Act of 2002; and ; b after paragraph (2) there shall be inserted the following:– 3 If any of the documents required to be lodged in process under paragraph (2)(g), (h), (i) or (j) is unavailable to be lodged by reason of its being in the possession of an adoption agency, the court shall pronounce an interlocutor requiring the agency to lodge the document within four weeks. . 14 In rule 67.23 (notice of petition and appointment of reporting officer and curator ad litem)– a in paragraph (1)(b) the words after “officer” shall be omitted; and b after paragraph (1) there shall be inserted the following:– 1A The court shall not appoint a reporting officer where either or both of the following paragraphs applies:– a the child is free for adoption and is under the age of 12 years; b the petition is founded on one or other or both of section 16(1)(aa) (advance consent to adoption: England and Wales) and section 16(1)(ab) (placement of child: England and Wales) of the Act of 1978, 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:– a in a petition for an adoption order– i every person who can be found and whose agreement or consent to the making of such an order is required to be given or dispensed with; or ii where the petition is founded on either or both of section 16(1)(aa) (advance consent to adoption: England and Wales) or section 16(1)(ab) (placement of child: England and Wales) of the Act of 1978 (but not also section 16(1)(b) (agreement to adoption order) of the Act of 1978), each parent or guardian of the child except a parent or guardian who has given notice under section 20(4)(a) of the Act of 2002 that he does not wish to be informed of the application for an adoption order; . 16 After rule 89.6 (appointment of special representatives) 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) shall not communicate about the proceedings or any matter connected with the proceedings except in accordance with this rule or with the authority of the court. 2 The special representative may, without the authority of the court, communicate about the proceedings with– a the court; b the Secretary of State, or any person acting for him; c the Advocate General, or any person acting for him; d any other person, except for the relevant party or his legal representative, with whom it is necessary for administrative purposes for him to communicate about matters not connected with the substance of the proceedings. 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:– 4 Subject to paragraph (4A), the Secretary of State shall not rely upon any relevant material which is the subject of an application under paragraph (2) unless a special representative has been appointed. 4A Paragraph (4) shall not apply in respect of 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 preliminary hearing or, as the case may be, initial diet. . 18 In rule 89.8(5) (applications for permission not to disclose relevant material: further provisions) for “89(2)” there shall be substituted “89.7(2)”. 19 After Chapter 92 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– a the evidence of a witness or the party to be given; or b a submission to be made, 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 – i in the Note on Section 3 of Part 1, at the end there shall be inserted– 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. . ii section 10A of Part 1 shall be omitted; iii in the Notes on Section 11 of Part 1, at the end there shall be inserted– 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: the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage; and the other party can act so as to remove or enable or contribute to the removal of, the impediment which prevents that marriage. 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 ). If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau. ; iv in section 11 of Part 1– aa for the heading there shall be substituted “ DECLARATION AND REQUEST FOR DIVORCE ”; and bb after “application” there shall be inserted– I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976. ; v In the Notes on completing Part 2, after paragraph 2 there shall be inserted– Postponement of decree 2A Please note that 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: a the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage; and b the other party can act so as to remove or enable or contribute to the removal of, the impediment which prevents that marriage. 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. ; vi in Part 2, for paragraph (f) there shall be substituted– f I do not ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976; and g I CONSENT TO DECREE OF DIVORCE BEING GRANTED IN RESPECT OF THIS APPLICATION. . b In Form 49.73-B – i in paragraph 3(i) of the Directions for making application, for the words from “If you do not know” to the end there shall be substituted the following:– 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 ; 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:– 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: General Register Office (Scotland), Registration Branch, New Register House, Edinburgh, EH1 3YT, 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. . iii in the Note on Section 5 of Part 1, at the end there shall be inserted– 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. . iv Section 11A of Part 1 shall be omitted; v in the Notes on Section 12 of Part 1, at the end there shall be inserted– 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: the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage; and the other party can act so as to remove or enable or contribute to the removal of, the impediment which prevents that marriage. 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 ). If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau. ; vi in Section 12 of Part 1, after “application” there shall be inserted– I do NOT ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976. ; c In Form 49.73-C – i for paragraphs 2 to 5 of the directions for making application there shall be substituted the following:– 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:– i your marriage certificate (the document headed “Extract of an entry in a Register of Marriages”), which will be returned to you in due course. 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; ii either a cheque or postal order in respect of the court fee, crossed and made payable to “Scottish Court Service” or a completed form SP15, claiming exemption from the court fee. iii the interim gender recognition certificate or a certified copy of it. 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:– 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: General Register Office (Scotland), Registration Branch, New Register House, Edinburgh, EH1 3YT, 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. . iii in the Note on Section 5 of Part 1, at the end there shall be inserted– 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. ; iv in the Notes on section 11 of Part 1, at the end there shall be inserted– 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: the applicant is prevented from entering into a religious marriage by virtue of a requirement of the religion of that marriage; and the other party can act so as to remove or enable or contribute to the removal of, the impediment which prevents that marriage. 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 ). If you wish to make such an application you should consult a solicitor or Citizens' Advice Bureau. ; v in Section 11 of Part 1, after “application” there shall be inserted– I do not ask the court to postpone the grant of decree under section 3A of the Divorce (Scotland) Act 1976. ; d in Form 49.76-A , in the Note, after “award” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree of divorce where impediment to religious remarriage exists),”; e in Form 49.76-B – i after paragraph 1.(a) there shall be inserted– b that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious remarriage exists). ; ii in the Note, after “award” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree of divorce where impediment to religious remarriage exists),”; f in Form 49.76-BA – i after paragraph 2 there shall be inserted the following:– 2A Please note that no application may be made under this procedure for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree where impediment to religious remarriage exists). ; and ii in the Note, after “award” there shall be inserted “, or if you wish to apply for postponement of decree under section 3A of the Divorce (Scotland) Act 1976 (postponement of decree of divorce where impediment to religious remarriage exists),”; 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 [That each parent or guardian of the child has consented under section 20(1) (advance consent to adoption: England and Wales) of the Adoption and Children Act 2002 and has not withdrawn consent.] 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 – i in paragraph 3(i) of the Directions for making application, for the words from “If you do not know” to the end there shall be substituted the following:– 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 ; ii in the Notes on Section 4 of Part 1, for the words from “EXTRACT OF REGISTRATION OF CIVIL PARTNERSHIP” to the end there shall be substituted the following:– 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: General Register Office (Scotland), Registration Branch, New Register House, Edinburgh, EH1 3YT, 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. . iii in Form 49.80B-C – iv in paragraph 3(i) of the Directions for making application, for the words from “If you do not know” to the end there shall be substituted the following:– 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; ; v in the Notes on Section 4 of Part 1, for the words from “EXTRACT OF REGISTRATION OF CIVIL PARTNERSHIP” to the end there shall be substituted the following:– 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: General Register Office (Scotland), Registration Branch, New Register House, Edinburgh, EH1 3YT, 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. . 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 are revoked. A C HAMILTON Lord President I.P.D. Edinburgh 12th January 2007