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Statutory Instruments of the Scottish Parliament |
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You are here: BAILII >> Databases >> Statutory Instruments of the Scottish Parliament >> Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 No. 463 URL: http://www.bailii.org/scot/legis/num_reg/2007/20070463.html |
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Made | 17th October 2007 | ||
Coming into force | 1st November 2007 |
(3) After rule 9.12(3)(c) (options hearing) there shall be inserted the following:–
(4) At the end of rule 9A.3(3) (exchange lists of witnesses)[3] there shall be inserted the following:–
(5) After rule 10.6(3)(c) (procedural hearing)[4] there shall be inserted the following:–
(6) In rule 28A.1(3) (pre-proof hearing)[5]–
(7) In rule 28.12(1)(d) (commissions without interrogatories) after "be responsible" there shall be inserted "in the first instance".
(8) In rule 32A.1(2) (live links)[6] at the end of the definition of "witness" there shall be inserted the following:–
(9) For rule 33.22A(4) (child welfare hearing)[7] there shall be substituted the following:–
(10) For rule 33A.23(4) (child welfare hearing in civil partnership action)[8] there shall be substituted the following:–
(11) For rule 35.10(2) (hearings in actions of multiplepoinding) there shall be substituted the following:–
(12) After rule 40.12(2)(b) (Case Management Conference)[9] there shall be inserted the following:–
(13) After Chapter 44 (equality enactments)[10] there shall be inserted the following:–
Child Witness Notice
45.2.
A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form G19.
Vulnerable Witness Application
45.3.
A vulnerable witness application lodged in accordance with section 12(6) of the Act of 2004 shall be in Form G20.
Intimation
45.4.
—(1) The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form G21 and shall be lodged with the child witness notice or vulnerable witness application.
Procedure on lodging child witness notice or vulnerable witness application
45.5.
—(1) On receipt of a child witness notice or vulnerable witness application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Review of arrangements for vulnerable witnesses
45.6.
—(1) A review application shall be in Form G22.
(2) Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).
Intimation of review application
45.7.
—(1) Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form G23 and shall be lodged together with the review application.
Procedure on lodging a review application
45.8.
—(1) On receipt of a review application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a review application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Determination of special measures
45.9.
When making an order under section 12(1) or (6) or 13(2) of the Act of 2004 the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.
Intimation of an order under section 12(1) or (6) or 13(2)
45.10.
An order under section 12(1) or (6) or 13(2) of the Act of 2004 shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Taking of evidence by commissioner
45.11.
—(1) An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.
(2) At the commission the commissioner shall–
(3) The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.
Commission on interrogatories
45.12.
—(1) Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.
(2) Any other party may lodge cross-interrogatories.
(3) The interrogatories and cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.
(4) The party who cited the vulnerable witness shall–
(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.
Commission without interrogatories
45.13.
Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–
Lodging of video record and documents
45.14.
—(1) Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the Act of 2004 the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.
(2) On the video record and any documents being lodged the sheriff clerk shall–
(b) intimate what he has noted to all parties concerned.
Custody of video record and documents
45.15.
—(1) The video record and documents referred to in rule 45.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2) Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 45.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–
Application for leave for party to be present at the commission
45.16.
An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by motion.".
(14) In Appendix 1–
Amendment of Summary Application Rules
3.
—(1) The Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999[11] shall be amended in accordance with the following sub-paragraphs.
(2) In rule 1.2(1) (interpretation), after "requires–" there shall be inserted the following:–
(3) In rule 2.32(2)(live links)[12] at the end of the definition of "witness" there shall be inserted the following:–
(4) After rule 2.32 (live links) there shall be inserted the following:–
Amendment of Summary Cause Rules
4.
—(1) The Act of Sederunt (Summary Cause Rules) 2002[13] is amended in accordance with the following sub-paragraphs.
(2) In rule 1.1(2) (interpretation), after the definition of "the 1975 Act" there shall be inserted the following:–
(3) At the end of rule 8.3(3) (purpose of hearing) there shall be inserted the following:–
(4) At the end of rule 8.6(3) (lists of witnesses), there shall be inserted the following:–
(5) After Chapter 18 (recovery of evidence and attendance of witnesses) there shall be inserted the following:–
Child Witness Notice
18A.2.
A child witness notice lodged in accordance with section 12(2) of the 2004 Act shall be in Form 26B.
Vulnerable Witness Application
18A.3.
A vulnerable witness application lodged in accordance with section 12(6) of the 2004 Act shall be in Form 26C.
Intimation
18A.4.
—(1) The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form 26D and shall be lodged with the child witness notice or vulnerable witness application.
Procedure on lodging child witness notice or vulnerable witness application
18A.5.
—(1) On receipt of a child witness notice or vulnerable witness application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Review of arrangements for vulnerable witnesses
18A.6.
—(1) A review application shall be in Form 26E.
(2) Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).
Intimation of review application
18A.7.
—(1) Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form 26F and shall be lodged together with the review application.
Procedure on lodging a review application
18A.8.
—(1) On receipt of a review application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a review application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Determination of special measures
18A.9.
When making an order under section 12(1) or (6) or 13(2) of the 2004 Act the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.
Intimation of an order under section 12(1) or (6) or 13(2)
18A.10.
An order under section 12(1) or (6) or 13(2) of the 2004 Act shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Taking of evidence by commissioner
18A.11.
—(1) An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.
(2) At the commission the commissioner shall–
(3) The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.
Commission on interrogatories
18A.12.
—(1) Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.
(2) Any other party may lodge cross-interrogatories.
(3) The interrogatories and cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.
(4) The party who cited the vulnerable witness shall–
(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.
Commission without interrogatories
18A.13.
Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–
Lodging of video record and documents
18A.14.
—(1) Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the 2004 Act the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.
(2) On the video record and any documents being lodged the sheriff clerk shall–
(b) intimate what he has noted to all parties concerned.
Custody of video record and documents
18A.15.
—(1) The video record and documents referred to in rule 18A.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2) Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 18A.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–
Application for leave for party to be present at the commission
18A.16.
An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by incidental application.".
(6) In rule 37.1(2) (live links)[14] at the end of the definition of "witness" there shall be inserted the following:–
(7) In Appendix 1–
Amendment of Small Claim Rules
5.
—(1) The Act of Sederunt (Small Claim Rules) 2002[15] shall be amended in accordance with the following sub-paragraphs.
(2) In rule 1.1(2) (interpretation), after the definition of "the 1975 Act" there shall be inserted the following:–
(3) At the end of rule 9.2(3) (purpose of hearing) there shall be inserted the following:–
(4) In rule 27.1(2) (live links)[16] at the end of the definition of "witness" there shall be inserted the following:–
(5) After Chapter 17 (recovery of evidence and attendance of witnesses) there shall be inserted the following:–
Child Witness Notice
17A.2.
A child witness notice lodged in accordance with section 12(2) of the 2004 Act shall be in Form 16B.
Vulnerable Witness Application
17A.3.
A vulnerable witness application lodged in accordance with section 12(6) of the 2004 Act shall be in Form 16C.
Intimation
17A.4.
—(1) The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form 16D and shall be lodged with the child witness notice or vulnerable witness application.
Procedure on lodging child witness notice or vulnerable witness application
17A.5.
—(1) On receipt of a child witness notice or vulnerable witness application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Review of arrangements for vulnerable witnesses
17A.6.
—(1) A review application shall be in Form 16E.
(2) Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).
Intimation of review application
17A.7.
—(1) Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.
(2) A certificate of intimation referred to in paragraph (1) shall be in Form 16F and shall be lodged together with the review application.
Procedure on lodging a review application
17A.8.
—(1) On receipt of a review application, the sheriff may–
(2) The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.
(3) An order fixing a hearing for a review application shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Determination of special measures
17A.9.
When making an order under section 12(1) or (6) or 13(2) of the 2004 Act the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.
Intimation of an order under section 12(1) or (6) or 13(2)
17A.10.
An order under section 12(1) or (6) or 13(2) of the 2004 Act shall be intimated by the sheriff clerk–
to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.
Taking of evidence by commissioner
17A.11.
—(1) An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.
(2) At the commission the commissioner shall–
(3) The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.
Commission on interrogatories
17A.12.
—(1) Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.
(2) Any other party may lodge cross-interrogatories.
(3) The interrogatories and cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.
(4) The party who cited the vulnerable witness shall–
(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.
Commission without interrogatories
17A.13.
Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–
Lodging of video record and documents
17A.14.
—(1) Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the 2004 Act the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.
(2) On the video record and any documents being lodged the sheriff clerk shall–
(b) intimate what he has noted to all parties concerned.
Custody of video record and documents
17A.15.
—(1) The video record and documents referred to in rule 17A.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.
(2) Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 17A.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–
Application for leave for party to be present at the commission
17A.16.
An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by incidental application.".
(6) In Appendix 1–
A C Hamilton
Lord President, I.P.D.
Edinburgh
17th October 2007
[2] 1907 c.51. Schedule 1 was substituted by S.I. 1993/1956 and amended by S.I. 1996/2167 and 2445, S.S.I. 2000/239 and 408, 2001/8 and 144, 2002/7, 128 and 566, 2003/25 and 26, 2004/197 and 350, 2005/20, 189, 638 and 648 and 2006/207, 293, 410 and 509, and 2007/6.back
[3] Rule 9A.3 was inserted by S.S.I. 2004/197.back
[4] Rule 10.6 was amended by S.S.I. 2004/197 and 2006/410.back
[5] Rule 28A.1 was inserted by S.S.I. 2006/410.back
[6] Rule 32A.1 was inserted by S.S.I. 2007/6.back
[7] Rule 33.22A was inserted by S.I. 1996/2167.back
[8] Rule 33A.23 was inserted by S.S.I. 2005/638.back
[9] Rule 40.12 was inserted by S.S.I. 2001/8.back
[10] Chapter 44 was inserted by S.S.I. 2006/509.back
[11] S.I. 1999/929, amended by S.S.I. 2000/18 and 387, 2001/142, 2002/7, 129, 130, 146 and 583, 2003/26, 27, 98, 261, 319, 346 and 556, 2004/197, 222, 334 and 455, 2005/61, 473, 504 and 648 and 2006/410, 437 and 509, 2007/6, 339 and 440.back
[12] Rule 2.32 was inserted by S.S.I. 2007/6.back
[13] S.S.I. 2002/132, amended by S.S.I. 2002/516, 2003/216, 2004/197, 2005/648, 2006/509 and 2007/6.back
[14] Rule 37.1 was inserted by S.S.I. 2007/6.back
[15] S.S.I. 2002/133, amended by S.S.I. 2003/26, 2004/197, 2005/648, 2006/509 and 2007/6.back
[16] Rule 27.1 was inserted by S.S.I. 2007/6.back