Act of Sederunt

Act of Sederunt (literally Act of Session; with sederunt a term meaning a session or meeting of a court.[1]) 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 recently reconfirmed by the Parliament of the United Kingdom in the Court of Session Act 1988.[2][3] 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.[4][5][6] The College of Justice regulates procedure for criminal trials through Acts of Adjournal.[7] A quorum of nine judges is required to pass an act of Sederunt.[8]

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.[9]

History

Since its founding the Court of Session was given considerable scope to regulate its own affairs through Acts of Sederunt.[2][10][11] 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.[12] This was found questionable in a letter address to Robert Peel; who was Home Secretary in 1823.[13] 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.[14] Such acts had also regulated what may happen in the High Court of Justiciary, thereby extending into regulating criminal law.[15] 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.[14] Though the Sheriff Courts (Scotland) Act 1971 enabled the Court of Session to regulate the civil procedures of the Sheriff Courts of Scotland,[4] the Court had previously assumed the power to regulate procedures for Sheriffs.[16]

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.[17] 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.[18] 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.[19] Such power was used to recognise the right of audience of members of the Association of Commercial Attorneys.[20] 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.[21]

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.[22]

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.[23]

“ 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:

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::- ”

[3][24]

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:-[4][25]

[26]

 ”

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:[3] ”

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:[27] ”

References

  1. ↑ "Sederunt". Dictionary of Difficult Words. Retrieved 2007-11-21.
  2. 1 2 Samuel Rosenbaum (1915), "Rule-Making in the Courts of the Empire", Journal of the Society of Comparative Legislation, New Series (British Institute of International and Comparative Law) 15 (2), pp. 132–133, JSTOR 752486
  3. 1 2 3 "Section 5, Court of Session Act 1988", Acts of the United Kingdom Parliament (Office of Public Sector Information) 1988 (36), p. 5, retrieved 2009-08-29
  4. 1 2 3 "Sheriff Courts (Scotland) Act 1971", Acts of the United Kingdom Parliament (UK Statute Law Database) 1971 (58), 1971-06-27, pp. 32–34, retrieved 2009-08-29, the Court of Session may by act of sederunt regulate and prescribe the procedure and practice to be followed in any civil proceedings in the sheriff court
  5. ↑ "Sheriff Courts (Scotland) Act 1907", Acts of the United Kingdom Parliament (UK Statute Law Database) 1907 (5), 1907, p. 40, retrieved 2007-11-26, The Court of Session may from time to time, by Act of Sederunt, make such regulations, for regulating the fees of agents
  6. ↑ "Execution of Diligence (Scotland) Act 1926", Acts of the United Kingdom Parliament (UK Statute Law Database) 1926 (16), p. 6, retrieved 2007-11-26, The Court of Session may by Act of Sederunt and fix the fees payable to messengers-at-arms, sheriff officers or others
  7. ↑ "Section 305, Criminal Proceedings (Scotland) Act 1995", Acts of the United Kingdom Parliament (Office of Public Sector Information) 1995 (23), p. 305, archived from the original on 7 November 2007, retrieved 2007-11-22, The High Court may by Act of Adjournal… regulate the practice and procedure in relation to criminal procedure
  8. ↑ Encyclopædia Britannica, 14th Edition: "Act of Sederunt". Online Encyclopedia. Retrieved 2007-11-21.
  9. ↑ "Civil Procedure Act 1997", Acts of the United Kingdom Parliament (Statute Law Database) 1997 (12), p. 3, retrieved 2009-08-29, A statutory instrument containing Civil Procedure Rules shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  10. ↑ John Erskine; George Mackenzie; James Ivory (1824), "An institute of the law of Scotland: in four books : in the order of Sir George Mackenzie's Institutions of that law", 19th-century legal treatises (Bell & Bradfute) (4217-4230), p. 16, retrieved 2009-08-29, for the court of session have a delegated power from the parliament, to make such statutes as they think proper for the ordering of process and the expediting of justice, 1540, "C.95"
  11. ↑ James Lorimer (2000), A Handbook of the Law of Scotland, Adamant Media Corporation, p. 3, ISBN 0-543-96733-6, retrieved 2009-08-29, the Court having a delegated power from Parliament to "make sik actes, statutes, and ordinances, as they sall thinke expedient, ordouring proces, and haistie expedition of justice."
  12. ↑ "The land laws, as they affect landowners, farmers, workers, and consumers.", LSE Selected Pamphlets (null), 1879, pp. 6–7, JSTOR 60217587, In 1756 the Judges of the Court of Session in Scotland, not in any case which was judicially before them, but assuming the functions of Parliament, passed an Act "Anent removings."
  13. ↑ "A letter to the Right Hon. Robert Peel on the courts of law in Scotland.", Hume Tracts (University College London), 1823, p. 5, JSTOR 60210401, during the same period by the Court of Session, in virtue of their legislative, and most questionable, powers.
  14. 1 2 Wallace, Robert (1830), "Letter to Sir Edward Burtenshaw Sugden, solicitor-general of England", Hume Tracts (University College London), p. 29, JSTOR 60205997, practice of making Acts of Sederunt, that he had arrived at the conviction that they were illegal
  15. ↑ John Martin (1793), "A letter to the Earl of Lauderdale: to prove that the High Court of Parliament has a jurisdiction in cases of appeal against the judgments of the Court of Justiciary in Scotland", Cowen Tracts (Newcastle University), p. 42, JSTOR 60202345, for we find instances in which that court has controuled the Court of Justiciary by acts of Sederunt, and even reversed its sentences.
  16. ↑ "Remarks on law reform relative to the civil and criminal jurisdiction of sheriffs in Scotland.", Hume Tracts (University College London) 1837, 1837, p. 5, JSTOR 60209841, It should be mentioned, that by a late act of sederunt of the Court of Session, it is competent to the sheriff-substitute to refuse to allow the appeal to the sheriff-depute against any interlocutor which, in his opinion, ought to be carried into immediate effect.
  17. ↑ R. D. Carswell (1823), "The Origins of the Legal Profession in Scotland", The American Journal of Legal History (Temple University) 11 (1), p. 44, JSTOR 844504, procuratouris or advocattis may compeir and procuir in all civile actionis for the perseware [plaintiff] in persewing or for the defendare [defendant] in his defence.
  18. ↑ Edwin R. Keedy (1913), "Criminal Procedure in Scotland", Journal of the American Institute of Criminal Law and Criminology (Northwestern University) 3 (5), p. 737, JSTOR 1132916, The qualifications for law agents are fixed by acts of Parliament and various Acts of Sederunt, passed by the Court of Session
  19. ↑ "Sections 25 to 29, Law Reform (Miscellaneous Provisions) (Scotland) Act 1990", Acts of the United Kingdom Parliament (Office of Public Sector Information) 1990 (40), pp. 25–29, retrieved 2009-08-29
  20. ↑ Scottish Statutory Instrument 2009 No. 0163 Act of Sederunt (Sections 25 to 29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990) (Association of Commercial Attorneys) 2009 (No. 163) (Coming into force 2009-05-20)
  21. ↑ Beth Innocenti Manolescu (2002), "George Mackenzie on Scottish Judicial Rhetoric", Rhetorica (University of California Press) 20 (3), p. 283, JSTOR 20135775, it is illegal by an Act of Sederunt prescribing syllogistic rather than rhetorical pleading
  22. ↑ "Section 6, Court of Session Act 1988", Acts of the United Kingdom Parliament (Office of Public Sector Information) 1988 (36), p. 6, retrieved 2007-11-22, Allocation of business etc. by act of sederunt… for the allocation of the causes before the Inner House among the Divisions thereof and of the causes before the Outer House among the Lords Ordinary
  23. ↑ Statutory Instrument 1997 No. 1720 Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (No. 1720 (S.129)) (Coming into force 1997-08-01)
  24. ↑ "Sheriff Courts (Scotland) Act 1971", Acts of the United Kingdom Parliament (UK Statute Law Database) 1971 (58), 1971-06-27, p. 34, retrieved 2009-08-29, the Council shall keep under review the procedure and practice followed in civil proceedings in the sheriff court
  25. ↑ Scottish Statutory Instrument 2006 No. 0198 Act of Sederunt (Sheriff Court Caveat Rules) 2006 (Coming into force 2006-04-28)
  26. ↑ Scottish Statutory Instrument 2004 No. 0515 Act of Sederunt (Fees of Messengers-at-Arms) 2004 (Coming into force 2005-01-01)
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