Act of Sederunt

Act of Sederunt (literally Act of Session; with sederunt a term meaning a session or meeting of a court.) in Scots law, is an ordinance for regulating the forms of judicial procedure (hearings and trials) before the Court of Session (the supreme civil court of Scotland), sheriff courts in civil session, and for setting fees for messengers-at-arms and sheriff officers enacted by the Lords of Session under authority of a power originally conferred on the founding of the Court of Session in 1532 and granted exclusively to them by an act of the Parliament of Scotland in 1540, c. 93. The power to pass Acts of Sederunt was reconfirmed by the Parliament of the United Kingdom in the Court of Session Act 1988. Further powers have been added to regulate the civil procedures of the sheriff courts of Scotland by the Sheriff Courts (Scotland) Act 1971, along with powers to set fees for messengers-at-arms and sheriff officers who are responsible for serving writs, decrees and diligences in Scotland. The College of Justice regulates procedure for criminal trials through Acts of Adjournal. A quorum of nine judges is required to pass an act of Sederunt.

Acts of Sederunt take effect as a form of secondary legislation as a Scottish Statutory Instrument but are only laid before the Scottish Parliament where required by statute. Whereas in England and Wales the Civil Procedure Rules are drawn up by the Civil Justice Council and are laid before Parliament as a Statutory Instrument subject to negative procedure.

History

Since its founding the Court of Session was given considerable scope to regulate its own affairs through Acts of Sederunt. The court shared this power with the Parliament of Scotland until 1540 when it was given the exclusive power to pass Acts of Sederunt by c.93 of that year.

The powers of Acts of Sederunt extended into primary legislation with the Lords of Session passing Acts which created judicial precedent without any case being subject to adjudication. This was found questionable in a letter address to Robert Peel; who was Home Secretary in 1823. In the 19th century there were those who felt the power of the Court to pass Acts of Sederunt without Parliamentary approval was ultra vires (beyond the powers) of the Court. Such acts had also regulated what may happen in the High Court of Justiciary, thereby extending into regulating criminal law. Therefore, Robert Wallace and a meeting of the Country of Renfrew resolved that the power to make Acts of Sederunt should belong to Parliament alone, as they were legislative acts. Though the Sheriff Courts (Scotland) Act 1971 enabled the Court of Session to regulate the civil procedures of the sheriff courts of Scotland, the court had previously assumed the power to regulate procedures for sheriffs.

The Faculty of Advocates, the body of counsel with rights of audience in the Court of Session and High Court of Justiciary, is constituted as part of the College of Justice with its power to admit new advocates (called "intrants") devolved to it by the Court of Session by Acts of Sederunt. The court having regulated who may serve as counsel from its founding through in acts of 1532 and 1590. The same act also made liable any procurator to pay compensation who was "ignorant and unprepared". Solicitors had their rights of audience in the lower courts regulated by Acts of Sederunt, and before the founding of the Law Society of Scotland, older societies such as the Writers to the Signet, Society of Solicitors in the Supreme Courts of Scotland and Royal Faculty of Procurators in Glasgow existed to support their members. Recently a professional or other body can be granted rights of audience before a specific court for a specific purpose due to Sections 25 to 29 of Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40) the Court of Session gives effect to any scheme already approved by the Lord President. Such power was used to recognise the right of audience of members of the Association of Commercial Attorneys. The manner in which counsel is able to present oral argument is regulated by Act of Sederunt, with an early example prescribing syllogistic as opposed to rhetorical pleading.

Section 4 of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 removed the power of the Court of Session to regulate fees payable to the courts and legal agents covered by the Legal Aid system, with the power to make orders transferred to the Secretary of State.

Purposes of Acts of Sederunt

Acts of Sederunt are used primarily to regulate civil procedure in the Court of Session and sheriff courts in Scotland. The Court of Session 1988 has an exhaustive list of how the court may regulate procedure and allocate business via Acts of Sederunt. The fees for messengers-at-arms (court officers), solicitors practising before the court, timings of certain appeals, the form of summons, writs, petitions, etc. are examples of procedures regulated by these acts. They also determine certain business which should be laid on the respective rolls and before the Inner House or Outer House, and laying certain powers of trustees.

The Court shall have power by act of sederunt—

• (a) to regulate and prescribe the procedure and practice to be followed in various categories of causes in the Court or in execution or diligence following on such causes, whether originating in the said Court or brought there by way of appeal, removal, remit, stated case, or other like process, and any matters incidental or relating to any such procedure or practice including (but without prejudice to the foregoing generality) the manner in which, the time within which, and the conditions on which any interlocutor of a Lord Ordinary may be submitted to the review of the Inner House, or any application to the Court, or any thing required or authorised to be done in relation to any such causes as aforesaid shall or may be made or done; .
• (b) to prescribe the form of any summons, defence, petition, answer, writ, pleading, extract of a decree or other document whatsoever to be used in, or for the purposes of, any such causes as aforesaid, or in, or for the purposes of, execution or diligence following on such causes and the manner in which, and the person by whom, any such summons, petition, writ, pleading, extract of a decree or document shall be signed or authenticated;
• (c) to prescribe the manner in which, the time within which, and the conditions on which any verdict of a jury may be submitted to the review of the Inner House on any ground set out in section 29 of this Act; .
• (d) to regulate the production and recovery of documents; .
• (e) to provide in any category of causes before the Court, for the admission in lieu of parole evidence of written statements (including affidavits) and reports, on such conditions as may be prescribed; .
• (f) to provide for the payment into Court and the investment or application of sums of money awarded in any action of damages in the Court to a pupil or a minor; .
• (g) to regulate the fees of solicitors practising before the Court (other than such fees as the Secretary of State may regulate under or by virtue of section 33 of the [1986 c. 47.] Legal Aid (Scotland) Act 1986); .
• (h) to regulate the expenses which may be awarded to parties in causes before the Court; .
• (i) to regulate the summoning, remuneration, and duties of assessors; .
• (j) to fix the ordinary sessions of the Court and to regulate the days on which and times at which the Court shall sit; .
• (k) to prescribe the matters with which the vacation judge may deal; .
• (l) to make such regulations as may be necessary to carry out the provisions of this Act or of any Act conferring powers or imposing duties on the Court or relating to proceedings therein; and .
• (m) to modify, amend or repeal any provision of any enactment including this Act relating to matters with respect to which an act of sederunt may be made under this Act.

Court procedure

Rules of the Court of Session

Rules for the functioning of the Court of Session are developed by the Scottish Civil Justice Council, which was established by the Scottish Civil Justice Council and Criminal Legal Assistance Act 2013. The Council prepares draft rules of procedure for the civil courts and advises the Lord President on the development of the civil justice system in Scotland. The SCJC will consider changes to practice and procedure in response to policy initiatives, by specific request, or of its own accord.

Membership of the Council is provided for in the 2013 Act. The Council is chaired by the Lord President, Lord Gill, and membership includes:

• The Chief Executive of the Scottish Court Service (Eric McQueen)
• The Chief Executive of the Scottish Legal Aid Board (Lindsay Montgomery CBE)
• One member of Scottish Government staff (Jan Marshall)
• At least four members of the judiciary, including at least one judge of the Court of Session and at least one sheriff principal or sheriff (Rt. Hon. Lord Menzies, Rt. Hon Lord Tyre, Sheriff Principal Mhairi M. Stephen and Sheriff Ian R Abercrombie QC)
• At least two practicing advocates (James Wolffe QC and Sarah Wolffe QC)
• At least two practicing solicitors (Eric Baijal and Duncan Murray)
• At least two consumer representative members (Ian Maxwell, Families Need Fathers and Lauren Wood, Citizens Advice Scotland)
• Up to six LP members (Employment Judge Joseph d'Inverno and Professor Fances Wasoff, Edinburgh University).

Sheriff court rules

Rules for the functioning of civil procedure in the sheriff courts are also prepared by the Scottish Civil Justice Council.

Enacting formulae

Acts of Sederunt, like other legislation in the United Kingdom, are introduced by enacting formulae. Those for the regulation of procedure in the Court of Session begin:

The Lords of Council and Session, under and by virtue of the powers conferred on them by section 5 of the Court of Session Act 1988 and of all other powers enabling them in that behalf, do hereby enact and declare::-

Those for the regulation of procedure in the sheriff courts begin:

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971 and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the Sheriff Courts (Scotland) Act 1971, do hereby enact and declare:-

Those for setting the fees of messengers-at-arms are enacted:

The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 6 of the Execution of Diligence (Scotland) Act 1926, section 5 of the Court of Session Act 1988 and of all other powers enabling them in that behalf, with the concurrence of the Lord Lyon King of Arms do hereby enact and declare:

Those for setting the fees of sheriff officers are enacted:

The Lords of Council and Session, under and by virtue of the powers conferred upon them by section 40 of the Sheriff Courts (Scotland) Act 1907, section 6 of the Execution of Diligence (Scotland) Act 1926 and of all other powers enabling them in that behalf, do hereby enact and declare: