Delegated Powers and Law Reform Committee

Meeting date: Tuesday, September 6, 2016

Official Report 392KB pdf

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Instruments not subject to Parliamentary Procedure

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Act of Sederunt (Simple Procedure) 2016 (SSI 2016/200)

The committee may wish to note at the outset that the Lord President’s private office—LPPO—has undertaken to amend almost all of the errors in respect of which the legal brief invites the committee to report. A number of errors will be corrected in time for the commencement of the new simple procedure on 28 November 2016. However, the LPPO explains that some corrections will require further deliberation by the Scottish Civil Justice Council and, accordingly, may be resolved following implementation.

The committee may wish to welcome the LPPO’s commitment to correct the errors and to encourage it to take all steps that are available to it to correct them in time for commencement of the new procedure on 28 November 2016. Do we agree to that?

Members indicated agreement.

The committee may also wish to agree that, for an instrument of approximately 260 pages in length and one that deliberately adopts a drafting approach that is in many respects novel, the number of errors that the committee has identified in the new rules does not appear to be disproportionate. Are we agreed?

Members indicated agreement.

Rule 10.11(1) provides that a person who has particular documents

“must tell the court that the person believes them to be confidential”.

However, the provision is intended to require a person to tell the court that documents are confidential only if that person believes the documents to be confidential. The error means that the proper policy intention is not delivered. The LPPO has agreed that there is an error in that rule and proposes to change the word “that” to “if” at the next available opportunity.

Rule 11.7(3) provides that, when a special measures review application is received, the sheriff may do one of four things, but the policy intention, as confirmed by the LPPO, is that the sheriff should be able to do five things. Rule 11.7(3) omits a fifth option that enables the sheriff to vary an existing special measure. To the extent that the rule does not fully deliver the policy intention and the full suite of options that are to be available, the committee may consider that the rule is defectively drafted. The LPPO has undertaken to amend it at the next available opportunity so as to include the fifth option of varying a special measure.

With respect to those errors, does the committee wish to draw the instrument to the Parliament’s attention under reporting ground (i) as the drafting of the rules appears to be defective?

Members indicated agreement.

The definition of the term

“a case where the expenses of a claim are capped”

that is set out in paragraph 3(1) is unclear as it defines such a case by reference to a provision where a sheriff has specifically directed that an order that caps expenses is to be disapplied with the effect that the expenses are not capped. The LPPO acknowledges that there is an error in the definition and has undertaken to amend it at the next available opportunity.

Rule 10.5(3) uses the wording:

“within 2 weeks of the end of either the 4 week period or the appeal being decided, whichever is later.”

The meaning of

“the end of ... the appeal being decided”

could be clearer given that there are a number of options available to the Sheriff Appeal Court when it considers an appeal, as set out in rule 16.4. The LPPO has agreed to consider whether rule 10.5(3) can be drafted more clearly and, in particular, whether the rules can be explicit in setting out the stage in an appeal when the two-week period begins.

There is also a lack of clarity about the relationship between rules 11.3(3) and 12.3(4). Rule 11.3(3) provides that a sheriff

“must not continue a hearing to another day solely because a witness did not appear.”

Rule 12.3(4) provides that a sheriff

“may continue the hearing to another day ... only if it is necessary to do so.”

The rules do not make it clear which rule is to take precedence in circumstances where the reason why the sheriff considers it necessary to

“continue the hearing to another day”—

in the language of rule 12.3(4)—is to enable the court to hear from a witness who has not appeared. In particular, the rules do not make it clear whether rule 11.3(3) is intended to preclude the continuation of the hearing in those particular circumstances. The LPPO has undertaken to reflect upon whether the relationship between the two rules could be clarified.

Does the committee wish to draw the instrument to the Parliament’s attention under reporting ground (h), as the meaning of the provisions could be clearer?

Members indicated agreement.

The preamble to the instrument fails to cite paragraph 1A of schedule 2 to the European Communities Act 1972 as an enabling power under which the instrument is made. The committee may consider that that error constitutes a failure to follow proper drafting practice.

The preamble also fails to explain the basis for making the reference to “Service Regulation” in paragraph 3(1) of the rules an ambulatory reference. Proper drafting practice for creating an ambulatory reference is to narrate the intention to do so in the preamble to the instrument. The committee may consider that omitting to do so constitutes a failure to observe proper drafting practice, which falls to be reported under the general ground.

Paragraph 3(1) of the rules contains four definitions that do not appear in the body of the instrument. The definitions are:

“a decision absolving the responding party”;

“a decision ordering the responding party to deliver something to the claimant”;

“a decision ordering the responding party to do something for the claimant”;

and “restart a case”. The LPPO has undertaken to amend the definitions at the next available opportunity.

Further, paragraph 3(1) defines the term “child’s property administration order” as an order under section 11(1) of the Children (Scotland) Act 1995. However, the correct reference should be to section 11(1)(d) of the 1995 act. The LPPO acknowledges that lack of specification and has agreed to amend the reference at the next available opportunity.

Also, rule 18.2(2)(c) refers to rule 6.10(2). The correct reference, as confirmed by the LPPO, should be to rule 6.11(2). Again, the LPPO confirms that it will amend the error at the next available opportunity.

There is also an error in section C2 of form 20E of the rules, which contains two otiose tick boxes—those referring to

“By a next-day postal service which records delivery”

and “Other”. The LPPO has undertaken to remove those tick boxes at the next available opportunity.

Rule 19.7(16) refers to the

“Confirmation of Formal Service Notice”.

The LPPO has confirmed that that should instead refer to the “Confirmation of Formal Service”. The LPPO has undertaken to correct the error at the next available opportunity.

The heading to rule 10.9 indicates that a party may apply for a special order to recover documents “if” that party does not believe that a standard order to recover documents has been complied with. The LPPO has acknowledged that the heading to rule 10.9 does not accurately reflect the policy intention, which is that a party should be able to make an application for a special order for recovery of documents where a standard order has not been complied with, and not only when the party does not “believe” that the order has not been complied with. The LPPO has undertaken to amend the heading to rule 10.9 to better reflect the content of the rule at the next available opportunity.

10:45  

Section B2 of form 9G omits to include a tick box for an “interested person”, who is neither the claimant nor the respondent but who nevertheless is a person entitled to make an application using that form by virtue of the provision made in rule 20.6(2). Form 9G also instructs the person filling it out to refer to rule 9.10 before completing the form. Rule 9.10 is of no relevance to interested parties who may make applications using form 9G by virtue of rule 20.6. The introductory note to form 9G should also, therefore, instruct the person filling it out to refer to rule 20.6. The LPPO has acknowledged those omissions from form 9G and intends to correct them at the next available opportunity.

Therefore, with reference to the preceding errors, does the committee wish to draw the instrument to the Parliament’s attention under the general reporting ground?

Members indicated agreement.

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Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016 (SSI 2016/215)

Appendix 1A, which is called “The Personal Injury Pre-Action Protocol” and which is contained in schedule 2, should properly have been numbered 1B. In consequence, the references to appendix 3 in paragraph 3(2) of the instrument, to appendix 1A in paragraph 3(3) and in the heading of schedule 2 are errors. SSI 2016/229 is also to be considered by the committee this week. Paragraph 5 of that instrument corrects the errors timeously.

Does the committee wish to draw the instrument to the attention of the Parliament on the general reporting ground, as the instrument contains two drafting errors?

Members indicated agreement.

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Succession (Scotland) Act 2016 (Commencement, Transitional and Saving Provisions) Regulations 2016 (SSI 2016/210 (C19))

No points have been raised by our legal advisers on the instrument. Is the committee content with it?

Members indicated agreement.

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Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Rules Amendment) (No 2) (Miscellaneous) 2016 (SSI 2016/229)

No points have been raised by our legal advisers on the instrument. Is the committee content with it?

Members indicated agreement.

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Children and Young People (Scotland) Act 2014 (Commencement No 11) Partial Revocation Order 2016 (SSI 2016/233 (C20))

No points have been raised by our legal advisers on the instrument. Is the committee content with it?

Members indicated agreement.

Many thanks. That concludes that part of the agenda, so we will now move into private session.

10:48 Meeting continued in private until 10:50.