The Court of Session now requires motions to be enrolled and opposed electronically wherever parties are capable of doing so

On 1 February 2010 the Act of Sederunt (Rules of the Court of Session Amendment No 8) (Motions Procedure) 2009 came into force. It brought into being a new procedure for intimating, opposing and enrolling motions in the Court of Session. The procedure applies in all Outer House actions except commercial actions and those initiated by petition. Although the new procedure is essentially a rollout of the pilot scheme that has been in operation amongst a small number of firms since 2007, it will be unfamiliar to most civil court practitioners. This article highlights how the new scheme differs from existing arrangements and considers some of the practical implications of the scheme for firms and solicitors.

Email accounts

The big change brought about by the new scheme is the requirement to use email accounts for “transacting motion business”, defined in the Act of Sederunt as “intimating and enrolling motions; receiving intimation of motions; intimating consent or opposition to motions; and receiving intimation of or opposition to motions”. The court invited firms to declare a generic email address for transacting motion business last November. So far 100 or so firms have declared such an account and a list of the email addresses is available on the Scottish Court Service website.

Firms who have not provided an email address are unable to conduct motion business unless they have advised the court that they do not have suitable IT facilities. Where that is the case, existing motion arrangements will continue to apply in relation to actions involving those firms. Existing arrangements will also continue to apply to actions involving party litigants, unless they have declared an email account for the purposes of the scheme.

New forms

The new scheme requires the use of two new forms. Form 23.1C, the “form of motion by email”, replaces form 23.2 and is used by the party intimating the motion for both intimation and enrolment purposes. It is very similar to form 23.2 except, crucially, that the party intimating the motion must now provide details of the email addresses to which the motion is intimated. The other new form is form 23.1D. This is the “form of opposition to motion by email” and closely resembles form 23.4 under the existing scheme.

Revised timeline

The timeline for the process changes under the new rules. Under existing arrangements standard motions require to be intimated by 12.30pm on day 1, enrolled at the court by 5pm on day 3 (unless the motion is subject to a special period of intimation) and any opposition lodged by 12.30pm on day 4. Under the new scheme, however, intimation may take place at any time prior to 5pm on day 1, the period for opposing a motion is shortened to 5pm on day 3 (unless a special period of intimation applies), and enrolment is required by 12.30pm on day 4.

Electronic intimation and opposition

Under the new scheme it is no longer valid to intimate or oppose a motion by fax or post. Instead motions are intimated or opposed electronically (in the new forms) to the declared email address of the agent for the receiving party, in the case of intimations, or the agent for the party intimating the motion, in the case of oppositions. Where the email account of the individual solicitor handling the matter is known, the motion, or opposition, is also copied to that account too. Another feature of the new scheme is that oppositions are not lodged at court by the agent for the receiving party. Instead that duty passes to the agent for the party intimating the motion.

Enrolment by email

The mechanics of enrolment change by virtue of the Act of Sederunt. Under existing arrangements, motions are enrolled at the court by hand or by post. Under the new scheme, however, they are enrolled by email in form 23.1C to the declared email address of the court (courtofsession.motions@scotcourts.gov.uk). The email is headed either “opposed motion” or “unopposed motion” depending on whether or not the motion has been opposed. Where the motion is opposed the agent for the enrolling party must also attach form 23.1D to the email enrolling the motion at court.

Lodging documents electronically

The new scheme makes provision for agents to lodge any documents referred to in a motion electronically. The documents can be attached to the email enrolling the motion in either Word or pdf format, and scanned signatures are acceptable where the document requires to be signed. However special rules apply to documents over 20 pages in length and inventories of productions.

Interlocutors

The final notable change brought about by the new rules is in relation to the distribution of interlocutors. Under the new scheme the court will issue interlocutors by email, and not by post, which should help reduce delays.

The new scheme will require firms who were not part of the pilot scheme to reorganise their internal procedures. In particular firms will have to set up and declare generic email accounts for the purposes of the new scheme (where they have not done so already), and design processes to ensure that those accounts are regularly monitored. The new forms of motion and opposition will also require to be added to firms’ style banks. Solicitors practising in the Court of Session will need to become familiar with the new rules, in particular when the new scheme applies, the timeline for the new process and the new mechanisms for intimation, opposition and enrolment. Like all new procedures it will take time for firms and solicitors to get up to speed. However the experience of the pilot scheme suggests that once that is achieved, the new scheme will be a faster and more efficient way of dealing with motion business in the Court of Session in future.

  • Gavin Deeprose, Senior Professional Support Lawyer, DLA Piper Scotland LLP

For charts and diagrams please refer to magazine or download the PDF.

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