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1 Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner
Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner, MacRoberts Many recent reported adjudication decisions have come from the Scottish Courts. Therefore, as part of the case notes update, we have included a brief explanation of some of the Scottish Court procedures. There are noted below certain legal terms used in Scottish Court Procedure with a brief explanation of them. This is done in an attempt to give some readers a better understanding of some of the terms used in the Scottish cases highlighted on this web-site. 1. Action: Legal proceedings before a Court in Scotland initiated by Initial Writ or Summons. 2. Adjustment (of Pleadings): The process by which a party changes its written pleadings during the period allowed by the Court for adjustment. 3. Amendment (of Pleadings): The process by which a party changes its written pleadings after the period for adjustment has expired. Amendment requires leave of the Court. 4. Appeal to Sheriff Principal: In certain circumstances an appeal may be taken from a decision of a Sheriff to the Sheriff Principal. In some cases leave of the Sheriff is required. 5. Appeal to Court of Session: In certain circumstances an appeal may be taken from a decision of a Sheriff directly to the Court of Session or from a decision of the Sheriff Principal to the Court of Session. Such an appeal may require leave of the Sheriff or Sheriff Principal who pronounced the decision. Such an appeal will be heard by the Inner House of the Court of Session. 6. Arrestment: The process of diligence under which a Pursuer (or Defender in a counterclaim) can obtain security for a claim by freezing moveable (personal) property of the debtor in the hands of third parties e.g. -
The Diligence (Scotland) Regulations 2009
Status: This is the original version (as it was originally made). This item of legislation is currently only available in its original format. SCOTTISH STATUTORY INSTRUMENTS 2009 No. 68 ENFORCEMENT DEBT DILIGENCE The Diligence (Scotland) Regulations 2009 Made - - - - 23rd February 2009 Laid before the Scottish Parliament - - - - 24th February 2009 Coming into force - - 22nd April 2009 The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 155(4), 159 and 159A(3) of the Titles to Land Consolidation (Scotland) Act 1868(1), sections 73B(2), 73G(2) and 73S(1) of the Debtors (Scotland) Act 1987(2); and sections 148(3) and 224(2) of the Bankruptcy and Diligence etc. (Scotland) Act 2007(3) and all other powers enabling them to do so. Citation and commencement 1.—(1) These Regulations may be cited as the Diligence (Scotland) Regulations 2009 and come into force on 22nd April 2009. Interpretation 2. In these Regulations– “the 1868 Act” means the Titles to Land Consolidation (Scotland) Act 1868; “the 1987 Act” means the Debtors (Scotland) Act 1987; and “the 2007 Act” means the Bankruptcy and Diligence etc. (Scotland) Act 2007. (1) 1868 c. 101 (“the 1868 Act”). Section 155 was substituted, section 159 amended, and section 159A inserted by, sections 149, 164(1) and 162 respectively of the Bankruptcy and Diligence etc. (Scotland) Act 2007 asp 3 (“the 2007 Act”). Section 164(2) inserts section 159B of the 1868 Act which contains a definition of “prescribed” relevant to the powers under which these Regulations are made. (2) 1987 c. 18 (“the 1987 Act”). -
“Inspectors” Under the Animal Health and Welfare (Scotland) Bill Introductio
SUPPLEMENTARY SUBMISSION FROM THE SCOTTISH SPCA “Inspectors” under the Animal Health and Welfare (Scotland) Bill Introduction The Animal Health and Welfare (Scotland) Bill sets out to consolidate and modernise existing animal welfare legislation. In doing this, it clarifies and codifies a number of functions relating to enforcement. Section 46 of the Bill defines Inspectors as “those appointed or authorised by Scottish Ministers”; The Policy memorandum of the Bill states that: “The Scottish SPCA will continue to carry out inspections and it is intended that individual inspectors will be authorised by the Scottish Ministers for certain purposes, such as to take possession of animals which are suffering or are in danger of suffering”; The purpose of this briefing is to explain the functions of Scottish SPCA Inspectors under current legislation, and to examine why it is necessary for Society Inspectors to be authorised under Section 46 of the Animal Health and Welfare Bill. Key Points ¾ The Scottish SPCA currently acts a reporting agency to the Procurators Fiscal, reporting cases of cruelty and neglect arising from investigations into animals in distress; ¾ Unlike its counterpart in England and Wales, the Scottish SPCA cannot actually proceed with prosecutions in relation to animal cruelty and neglect as a private prosecutor; ¾ Instead, all cases and investigations are reported to the Crown Office and Procurator Fiscal Service for proceeding; ¾ The Animal Health and Welfare Bill clarifies and codifies powers relating to animals in distress; -
A New Register For
OPENGEO A new Register for How do you manage centuries-old land registers and land registration process. Looks-wise, they’ve aged about as well as Union Jack mini skirts, SCOTLANDbut these Britpop-era computers perform drive innovation? Alastair Reid takes GeoConnexion on a simple tasks brilliantly such as producing documents-to-data journey north of the border paper maps. Paper maps bound to the paper land certificates that are still mainstays With one eye on the telly, you thumb I work for Registers of Scotland (RoS), of the buying and selling of property, but through your phone and select the banking custodians of Scotland’s land and property we live in an age when all of us demand app that tells you whether your account is in ownership records. That includes the more than paper documents at the end of the red or in the black: TV, the telephone and oldest national public land register in the a process. For property conveyancing, it is the bank overdraft all owe their existence world. The General Register of Sasines not enough simply to consider the needs to Scottish innovators. Perhaps there is began in 1617 when the monarch we call of the house owner or the bank in terms of something in our DNA that compels Scots James VI (James Itothe English) was who might want access to this information. to look at the world and think: ‘how can I on the throne. The sasine register was There are so many potential uses for it make that better?’ Our desire to challenge such an effective medium for logging and we are determined to make that the status quo has seen us revolutionise ownership deeds it still runs to this day. -
Bankruptcy and Diligence Etc. (Scotland) Act 2007 (Asp 3)
Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) Bankruptcy and Diligence etc. (Scotland) Act 2007 2007 asp 3 CONTENTS Section PART 1 BANKRUPTCY Duration of bankruptcy 1 Discharge of debtor Bankruptcy restrictions orders and undertakings 2 Bankruptcy restrictions orders and undertakings Effect of bankruptcy restrictions orders and undertakings 3 Disqualification from being appointed as receiver 4 Disqualification for nomination, election and holding office as member of local authority 5 Orders relating to disqualification The trustee in the sequestration 6 Amalgamation of offices of interim trustee and permanent trustee 7 Repeal of trustee’s residence requirement 8 Duties of trustee 9 Grounds for resignation or removal of trustee 10 Termination of interim trustee’s functions 11 Statutory meeting and election of trustee 12 Replacement of trustee acting in more than one sequestration 13 Requirement to hold money in interest bearing account Debtor applications 14 Debtor applications 15 Debtor applications by low income, low asset debtors Jurisdiction 16 Sequestration proceedings to be competent only before sheriff ii Bankruptcy and Diligence etc. (Scotland) Act 2007 (asp 3) Vesting of estate and dealings of debtor 17 Vesting of estate and dealings of debtor Income received by debtor after sequestration 18 Income received by debtor after sequestration Debtor’s home and other heritable property 19 Debtor’s home and other heritable property Protected trust deeds 20 Modification of provisions relating to protected trust deeds Modification -
The Registers of Scotland (Fees) Order 2014
Final Business and Regulatory Impact Assessment 1. Title of proposal 1. Registers of Scotland Fee Review 2014 Consultation. 2. Purpose and intended effect • Background Registers of Scotland (RoS) is a non-Ministerial Government Department within the Scottish Administration and is headed by the Keeper of the Registers of Scotland, who is currently responsible for compiling and maintaining 17 public registers relating to property and other legal documents including the General Register of Sasines (established in 1617) and the Land Register of Scotland (established by the Land Registration (Scotland) Act 1979). RoS’ work is demand led, fluctuating in response to activity in the property market. We handle around 350,000 registration transactions each year and make information from the registers publicly available. Our work is self-financing, being funded by the fees that we charge for recording, registration and for providing information from the registers. The Land Registration etc. (Scotland) Bill was passed by the Scottish Parliament on 31 May 2012 and received Royal Assent on 10 July 2012. The primary purpose of the Land Registration etc. (Scotland) Act 2012 (LR Act 2012) was to reform and restate the law of the registration of rights to land in the Land Register. The Land Register is under the management and control of the Keeper of the Registers of Scotland (the Keeper) and the Keeper is responsible for the implementation of the LR Act 2012. The law of land registration in Scotland is currently governed by the Land Registration (Scotland) Act 1979. The LR Act 2012 repeals much of the 1979 Act and the Land Registration (Scotland) Rules 2006 (the 2006 Rules) made under the powers contained under that act. -
The Scottish Bar: the Evolution of the Faculty of Advocates in Its Historical Setting, 28 La
Louisiana Law Review Volume 28 | Number 2 February 1968 The cottS ish Bar: The volutE ion of the Faculty of Advocates in Its Historical Setting Nan Wilson Repository Citation Nan Wilson, The Scottish Bar: The Evolution of the Faculty of Advocates in Its Historical Setting, 28 La. L. Rev. (1968) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol28/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. THE SCOTTISH BAR: THE EVOLUTION OF THE FACULTY OF ADVOCATES IN ITS HISTORICAL SOCIAL SETTING Nan Wilson* Although the expression "advocate" is used in early Scottish statutes such as the Act of 1424, c. 45, which provided for legal aid to the indigent, the Faculty of Advocates as such dates from 1532 when the Court of Session was constituted as a College of Justice. Before this time, though friends of litigants could appear as unpaid amateurs, there had, of course, been professional lawyers, lay and ecclesiastical, variously described as "fore- speakers," procurators and prolocutors. The functions of advo- cate and solicitor had not yet been differentiated, though the notary had been for historical reasons. The law teacher was then essentially an ecclesiastic. As early as 1455, a distinctive costume (a green tabard) for pleaders was prescribed by Act of Parliament.' Between 1496 and 1501, at least a dozen pleaders can be identified as in extensive practice before the highest courts, and procurators appeared regularly in the Sheriff Courts.2 The position of notary also flourished in Scotland as on the Continent, though from 1469 the King asserted the exclusive right to appoint candidates for that branch of legal practice. -
Guide to Professional Conduct
FACULTY OF ADVOCATEADVOCATESSSS GUIDE TO THE PROFESSIONAL CONDUCT OF ADVOCATEADVOCATESSSS Published by the Faculty of Advocates, Parliament House, Edinburgh First Published June 1988 Second Edition January 2005 Third Edition June 2006 Fourth Edition August 2007 Fifth Edition October 2008 CONTENTS Chapter Introduction Note 1. The Status, Rights and Obligations of an Advocate 2. The General Principles of Professional Conduct 3. Duties in Relation to the Faculty and other Advocates 4. Duties in Relation to the Instructing Agent 5. Duties in Relation to the Client 6. Duty to the Court and Duties Connected with Court and Similar Proceedings 7. Duty to Seek Advice 8. Instructions 9. Fees 10. Advertising, Publicity, Touting and Relations with the Media 11. Discipline 12. Dress 13. Duties of Devilmaster 14. Continuing Professional Development 15. Discrimination 16. Non Professional Activities of Practising Advocate 17. Advocates Holding a Public Office and Non-practising Advocates 18 . Work Outside Scotland 19. European Lawyers Appearing in Scotland 20. Registered European Lawyers 21. Precedence of Counsel of Other Bars 22. Proceeds of Crime Act 2 Appendices Appendix A The Declaration of Perugia Appendix B Code of Conduct for European Lawyers produced by the CCBE Appendix C Faculty of Advocates Continuous Professional Development Regulations Appendix D Direct Access Rules and associated documents Appendix E Guidance in relation to Proceeds of Crime and Money Laundering 3 INTRODUCTION The work of an Advocate is essentially the work of an individual practitioner whose conscience, guided by the advice of his seniors, is more likely to tell him how to behave than any book of rules. In places in this Guide, it has been found convenient to state "the rule" or "the general rule". -
Prescription (Scotland) Bill (SP Bill 26) As Introduced in the Scottish Parliament on 8 February 2018
This document relates to the Prescription (Scotland) Bill (SP Bill 26) as introduced in the Scottish Parliament on 8 February 2018 PRESCRIPTION (SCOTLAND) BILL —————————— POLICY MEMORANDUM INTRODUCTION 1. As required under Rule 9.3.3 of the Parliament‘s Standing Orders, this Policy Memorandum is published to accompany the Prescription (Scotland) Bill introduced in the Scottish Parliament on 8 February 2018. 2. The following other accompanying documents are published separately: Explanatory Notes (SP Bill 26–EN); a Financial Memorandum (SP Bill 26–FM); statements on legislative competence by the Presiding Officer and the Scottish Government (SP Bill 26–LC). 3. This Policy Memorandum has been prepared by the Scottish Government to set out the Government‘s policy behind the Bill. It does not form part of the Bill and has not been endorsed by the Parliament. POLICY OBJECTIVES OF THE BILL 4. The doctrine of prescription serves a vital function in the civil justice system. Negative prescription sets time-limits for when obligations (and rights), such as obligations under a contract, are extinguished. The policy objective of the Bill is to change the law of negative prescription to address certain issues which have caused or may cause difficulty in practice. These changes are designed to increase clarity, certainty and fairness as well as promote a more efficient use of resources, such as pursuers being less likely to have to raise court proceedings to preserve a right, and reduce costs for those involved in litigation and insurance. 5. The Bill makes a number of amendments to the Prescription and Limitation (Scotland) Act 1973 (‗the 1973 Act‘). -
Judicial Review Scope and Grounds
JUDICIAL REVIEW SCOPE AND GROUNDS By Scott Blair, Advocate THE TRIGONOMETRY OF JUDICIAL REVIEW In Scotland, unlike England and Wales, the judicial review jurisdiction is not limited to cases which have an element of public law. As explained by Lord President Hope in West v. Secretary of State for Scotland 1992 SC 385 at 413 the scope of judicial review is as follows: “ The following propositions are intended therefore to define the principles by reference to which the competency of all applications to the supervisory jurisdiction under Rule of Court 260B is to be determined: 1. The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument. 2. The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires. 3. The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy. By way of explanation we would emphasise these important points: (a) Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. -
Professional Services Walker Love 2012-13
Walker Love Sheriff Officers Collections Investigations understanding your needs With 11 offices across Scotland, 39 Sheriff Officers and Commissioned to operate in all six Sheriffdoms, we’ve got it covered. Walker Love is a firm of Messenger-at-Arms and Sheriff Officers. We provide a range of citation & diligence, enforcement, tracing, debt recovery and investigation services to businesses, public sector bodies, individuals and third sector organisations. Walker Love is a member of Connexx International . Services for professional service firms Citation We help our legal firm clients to trace and precognose witnesses, and Diligence deliver citations and execute diligence to recover debts. We also provide assistance with insolvency and bankruptcy proceedings. We fully appreciate that all clients are different. That’s why we £ Revenue Co llection have developed a structured yet flexible approach to dealing with and Enforcement the clients of professional services firms, which yield better results than the blanket, one size fits all approach. Our services include: • Citations & diligence ? Professional • Professional investigations Investigations • Pre-litigation enquiry reports We really do understand your needs. There will of course always be situations where debts are disputed DDebt or the individual has absconded or has become, or is on the verge +£ Recovery of becoming, insolvent. In our experience, it pays to take action as soon as possible. The most important thing when dealing with debtors is to International maintain credibility -
Scottish Courts and Tribunal Service
Public Records (Scotland) Act 2011 Assessment Report The Keeper of the Records of Scotland 5th June 2017 Scottish Courts and Tribunals Service Additional Support Needs Tribunals For Scotland Court of Session Criminal Courts Rules Council High Court of Justiciary Justice of the Peace Advisory Committee – Glasgow and Strathkelvin Justice of the Peace Advisory Committee – Grampian, Highlands and Islands Justice of the Peace Advisory Committee – Lothian and Borders Justice of the Peace Advisory Committee – North Strathclyde Justice of the Peace Advisory Committee – South Strathclyde, Dumfries and Galloway Justice of the Peace Advisory Committee – Tayside, Central and Fife Justice of the Peace Courts Lands Tribunal for Scotland Panel appointed under regulation 90C of the Council Tax Reduction (Scotland) Regulations 2012 (the Council Tax Reduction Review Panel) Private Rented Housing Panel Scottish Charity Appeals Panel Scottish Civil Justice Council Scottish Land Court Scottish Sentencing Council Sheriff Courts Assessment Report Contents 1. Public Records (Scotland) Act 2011 ..............................................................................................................................................3 2. Executive Summary .........................................................................................................................................................................4 3. Authority Background .......................................................................................................................................................................4