SCHEDULES

F6first schedule ORDINARY CAUSE RULES 1993

Annotations:
Amendments (Textual)
F6

Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.

Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3

Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)

Initiation andprogress of causes

CHAPTER 27 CAUTION AND SECURITY

27 Application of this Chapter

This Chapter applies to—

a

any cause in which the sheriff has power to order a person to find caution or give other security; and

b

security for expenses ordered to be given by the election court or the sheriff under section 136(2)(i) of the M1Representation of the People Act 1983 in an election petition.

27 Form of applications

1

An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion.

2

The grounds on which such an application is made shall be set out in the motion.

27 Orders

Subject to section 726(2) of the M2Companies Act 1985 (expenses by certain limited com panies), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

Annotations:
Marginal Citations

C127 Methods of finding caution or giving security

1

A person ordered—

a

to find caution, shall do so by obtaining a bond of caution; or

b

to consign a sum of money into court, shall do so by consignation under the M3Sheriff Court Consignations (Scotland) Act 1893 in the name of the sheriff clerk.

2

The sheriff may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security.

3

Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process.

4

Where the sheriff approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process.

5

Any document lodged in process, by which an order to find caution or give other security is satisifed, shall not be borrowed from process.

C227 Cautioners and F1guarantors

A bond of caution or other security F2 shall be given only by a person who is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000 F3.

C327 Forms of bonds of caution and other securities

1

A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validity and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged.

2

A bond of caution or other security document given F4 by a person shall state whether that person is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000.

C427 Sufficiency of caution or security and objections

1

The sheriff clerk shall satisfy himself that any bond of caution, or other document lodged in process under rule 27.4(3), is in proper form.

2

A party who is dissatisified with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 27.9 (failure to find caution or give security).

C527 Insolvency or death of cautioner or guarantor

Where caution has been found by bond of caution or security has been given by guarantee and the cautioner or guarantor, as the case may be—

a

becomes apparently insolvent within the meaning assigned by section 7 of the M4Bankruptcy (Scotland) Act 1985(constitution of apparent insolvency),

b

calls a meeting of his creditors to consider the state of his affairs,

c

dies unrepresented, or

d

is a company and—

i

an F5administration, bank administration or building society special administration order or a winding up, bank insolvency or building society insolvency order has been made, or a resolution for a voluntary winding up has been passed, with respect to it,

ii

a receiver of all or any part of its undertaking has been appointed, or

iii

a voluntary arrangement (within the meaning assigned by section 1(1) of the M5Insolvency Act 1986) has been approved under Part I of that Act,

the party entitled to benefit from the caution or guarantee may apply by motion for a new security or further security to be given.

27 Failure to find caution or give security

Where a party fails to find caution or give other security (in this rule referred to as “the party in default”), any other party may apply by motion—

a

where the party in default is a pursuer, for decree of absolvitor; or

b

where the party in default is a defender or a third party, for decree by default or for such other finding or order as the sheriff thinks fit.