Act of Sederunt (Rules of the Court of Session 1994) 1994

Initiation and progress of proceedings

CHAPTER 13SUMMONSES, NOTICE, WARRANTS AND CALLING

Initiation of causes by summons

13.1  Subject to any other provision in these Rules, all causes originating in the court shall be commenced in the Outer House by summons.

Form of summonses

13.2.—(1) Subject to any other provision in these Rules, a summons shall be in Form 13.2–A.

(2) A conclusion in a summons shall be stated in accordance with the appropriate style, if any, in Form 13.2–B.

(3) Subject to rule 46.6(3) (no condescendence or pleas-in-law in ship collision actions), there shall be annexed to a summons–

(a)a statement, in the form of numbered articles of the condescendence, of the averments of fact which form the grounds of the claim; and

(b)appropriate pleas-in law.

(4) A condescendence shall include averments stating–

(a)in an action to which the Civil Jurisdiction and Judgments Act 1982(1) applies, the domicile of the defender (to be determined in accordance with the provisions of that Act) so far as known to the pursuer;

(b)the ground of jurisdiction of the court, unless jurisdiction would arise only if the defender prorogated the jurisdiction of the court without contesting jurisdiction;

(c)unless the court has exclusive jurisdiction, whether or not there is an agreement prorogating the jurisdiction of a court in another country; and

(d)whether or not there are proceedings involving the same cause of action in subsistence between the parties in a country to which the convention in Schedule 1 or 3C to the Civil Jurisdiction and Judgments Act 1982(2) applies and the date any such proceedings commenced.

(5) A summons may include warrants for diligence and intimation in so far as permitted under these Rules.

Address of defender

13.3.  In a summons, the pursuer shall–

(a)set out in the instance the known residence, registered office, other official address or place of business of the defender where he is to be served; or

(b)where that residence, office, address or place, as the case may be, is not known and cannot reasonably be ascertained, set out in the instance that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.

Period of notice in summonses

13.4.—(1) Subject to any other provision in these Rules, the period of notice in a summons shall be–

(a)in the case of service within Europe, 21 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrant for intimation;

(b)in the case of service furth of Europe under rule 16.2(2) (d) or (e) (service by an huissier etc. or personally), 21 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrant for intimation;

(c)in the case of service furth of Europe other than under sub-paragraph (b), 42 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrrant for intimation; and

(d)in the case of service by advertisement under rule 16.5 (service where address of person is not known), other than in an action to which rule 49.12 (notice of family actions by advertisement) applies, 6 months from the date of publication of the advertisement.

(2) An application may be made by motion to shorten or extend the period of notice in a summons.

(3) Where a motion under paragraph (2) is made after signeting of the summons but before service–

(a)the summons shall be produced to the court; and

(b)the decision of the Lord Ordinary on the motion shall be final and not subject to review.

Signeting

13.5.—(1) A summons shall pass the signet.

(2) No summons shall bear any date but the date of signeting, which date shall be treated as the date of the summons.

(3) A summons shall be signeted and registered by a clerk of session acting under authority from the Principal Clerk (by virtue of a commission granted to him by the Keeper of the Signet).

(4) Subject to paragraph (5), a summons shall be presented to the General Department during its normal office hours for signeting and registration.

(5) In an emergency, a summons may be signeted and registered outwith the normal office hours.

Warrants in summonses

13.6.  When signeted, a summons shall be authority for–

(a)service on the defender designed in the instance;

(b)subject to any other provision in these Rules and the provisions of any other enactment or rule of law, arrestment to found jurisdiction where a warrant in the appropriate form in Form 13.2–A has been inserted in the summons;

(c)subject to any other provision in these Rules and the provisions of any other enactment or rule of law, diligence by–

(i)inhibition on the dependence of the action,

(ii)arrestment on the dependence of the action where there is a conclusion for the payment of money,

(iii)arrestment in rem, or

(iv)dismantling a ship,

where a warrant in the appropriate form in Form 13.2–A has been inserted in the summons; and

(d)intimation of the summons on any person on whom intimation is required by these Rules where a warrant for that purpose has been inserted in the summons.

Service and intimation of summonses

13.7.—(1) Where a summons is to be executed, a copy of the summons which has passed the signet shall be–

(a)served on the defender with a citation in Form 13.7 attached to it; and

(b)intimated to any person named in a warrant for intimation.

(2) Where service of a summons is not executed within a year and a day after the date of signeting, the instance shall fall.

Warrants after signeting

13.8.—(1) Where a warrant for diligence mentioned in rule 13.6(c) or for intimation referred to in rule 13.6(d) is not obtained when the summons is signeted, the pursuer may apply by motion for such a warrant at any stage of the action.

(2) Where a minute of amendment is lodged by a pursurer under rule 24.2 calling an additional or substitute defender, the pursuer may apply by motion for warrant to use any form of diligence which would have been permitted under rule 13.6(c) in a separate action.

(3) A certified copy of the interlocutor granting warrant for diligence applied for under this rule shall be sufficient authority for execution of the diligence.

Effect of warrants for inhibition on dependence

13.9.—(1) A warrant for inhibition on the dependence in a summons, or in a certified copy of an interlocutor granted on a motion under rule 13.8(3), shall have the same effect as letters of inhibition and may be executed at the same time as the summons is served or at any time thereafter.

(2) A summons, or a certified copy of the interlocutor, containing a warrant for inhibition on the dependence and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(3) A notice of the certified copy of the interlocutor containing a warrant for inhibition on the dependence may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868(3); and such registration shall have the same effect as registration of a notice under that section.

Recall etc. of arrestment or inhibition

13.10.—(1) An application by any person having an interest–

(a)to loose, restrict or recall an arrestment, or

(b)to recall, in whole or in part, an inhibition,

mentioned in rule 13.6(c) shall be made by motion.

(2) Where the court grants a motion under paragraph (1), it may do so, on such conditions, if any, as to caution or other security and expenses as it thinks fit.

(3) Where a motion under paragraph (1) is enrolled before calling of the summons, the pursuer shall produce the principal summons, or a copy of it, with the certificate of execution of service of the arrestment or inhibition, as the case may be.

Movement of arrested property

13.11.—(1) Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment mentioned in rule 13.6.

(2) Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

(3) A warrant granted on a motion under paragraph (1) shall be without prejudice to the validity and subsistence of the arrestment.

Intimation of actions relating to heritable property

13.12.—(1) In an action relating to heritable property, it shall not be necessary to call a person as a defender by reason only of any interest he may have as the holder of a heritable security over the heritable property; but intimation of the summons shall be given to that person by notice of intimation in Form 13.12 attached to a copy of the summons.

(2) A warrant for intimation under paragraph (1) shall be inserted in the summons by the pursuer in the following terms:— “Warrant to intimate to (name and address) as a person who is believed to be a heritable creditor of the defender.”.

(3) A person on whom intimation has been made under this rule may apply by motion for leave to be sisted as a party and to lodge defences.

Calling

13.13.—(1) A summons shall not be called earlier than the day on which the period of notice expires.

(2) A summons shall be lodged for calling not later than 12.30 p.m. on the second day before that on which it is to be called.

(3) A summons may be called–

(a)during session, on a sederunt day; or

(b)in vacation, on a calling day of which notice has been given in the rolls.

(4) A summons lodged for calling shall be accompanied by a typewritten slip containing the instance, subject to the following provisions:–

(a)where there is more than one pursuer or defender, the slip shall contain only the name and designation of the first pursuer or defender, as the case may be, followed by the words “and Another [or Others, as the case may be]”; and

(b)in naming and designing a pursuer or defender who is a body of persons (such as a trust or a partnership), whether individual members are also parties or not, it shall be sufficient to use the collective name of that body.

(5) The calling of a summons shall be published in the rolls on the date on which the summons calls.

(6) Where a summons has not called within a year and a day after the expiry of the period of notice, the instance shall fall.

Protestation for not calling summons

13.14.—(1) Where the pursuer does not lodge the summons for calling within 7 days after the date on which the period of notice expires, the defender, on production of the service copy summons, may apply by motion for an order ordaining the pursuer to lodge the summons for calling within 7 days, or such other period as the court thinks fit, after the date of the order.

(2) Where the court pronounces an interlocutor under paragraph (1), the defender shall serve a certified copy of that interlocutor on the pursuer.

(3) Where the pursuer fails to lodge the summons within the period ordered by the court under paragraph (1), the defender may apply by motion–

(a)for declarator that the instance has fallen;

(b)for recall of any diligence mentioned in rule 13.6(c) which has been executed; and

(c)for payment to the defender of his expenses of process under this rule.

(4) An interlocutor granting a motion under paragraph (3) shall be final and not subject to review.

CHAPTER 14PETITIONS

Application of this Chapter

14.1.  Subject to any other provisions in these Rules, this Chapter applies to a petition presented to the court.

Applications by petition in the Outer House

14.2.  Subject to any other provision in these Rules, the following applications to the court shall be made by petition presented in the Outer House:–

(a)an application for the appointment of a judicial factor, a factor loco absentis, a factor pending litigation or a curator bonis;

(b)an application for the appointment of a judicial factor on the estate of a partnership or joint adventure;

(c)an application to the nobile officium of the court which relates to–

(i)the administration of a trust;

(ii)the office of trustee; or

(iii)a public trust;

(d)a petition and complaint for breach of interdict;

(e)an application to the supervisory jurisdiction of the court;

(f)an application for suspension, suspension and interdict, and suspension and liberation;

(g)an application to recall an arrestment or inhibition other than in a cause depending before the court; and

(h)a petition or other application under these Rules or any other enactment or rule of law.

Applications by petition in the Inner House

14.3.  Any of the following applications shall be made by petition presented in the Inner House:–

(a)a petition and complaint other than for breach of interdict;

(b)an application under any enactment relating to solicitors or notaries public;

(c)an application which is, by virtue of these Rules or any other enactment, to be by petition and is incidental to a cause depending before the Inner House;

(d)an application to the nobile officium of the court other than an application mentioned in rule 14.2(c) (applications relating to the administration of a trust, the office of trustee or a public trust);

(e)a petition by trustees for directions under Part II of Chapter 63;

(f)an application under section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975(4) (assistance in obtaining evidence for civil proceedings in another jurisdiction);

(g)an application under section 1 of the Trusts (Scotland) Act 1961(5) (variation or revocation of trusts);

(h)an application under section 49 of the Insurance Companies Act 1982(6) (sanction for transfer of long term business);

(i)an application under section 136 (order for confirmation of reduction of share capital) or section 425 (order for meeting for compromise or arrangement) of the Companies Act 1985(7);

(j)an application under section 17(6), 18(7), 20(7), 20(11)(b), 21(5), 21(7) or 21(10) of, or under paragraph 20 of Schedule 1 to, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(8) (orders in relation to conveyancing or executry practitioners); and

(k)an application required to be made to the Inner House under any enactment.

Form of petitions

14.4.—(1) A petition shall be in Form 14.4.

(2) A petition shall include–

(a)a statement of facts in numbered paragraphs setting out the facts and circumstances on which the petition is founded; and

(b)a prayer setting out the orders sought.

(3) In a petitio n presented under an enactment, the statement of facts shall expressly refer to the relevant provision under the authority of which the petition is presented.

(4) Where a petition is one to which the Civil Jurisdiction and Judgments Act 1982(9) applies, the statement of facts shall include averments stating–

(a)the ground of jurisdiction of the court, unless jurisdiction would arise only if the respondent prorogated the jurisdiction of the court without contesting jurisdiction;

(b)unless the court has exclusive jurisdiction, whether or not there is an agreement prorogating the jurisdiction of a court in another country; and

(c)whether or not there are proceedings involving the same cause of action in subsistence between the parties in a country to which the convention in Schedule 1 or 3C to that Act(10) applies and the date any such proceedings commenced.

(5) The prayer of a petition shall crave warrant for such intimation, service and advertisement as may be necessary having regard to the nature of the petition, or as the petitioner may seek; and the name, address and capacity of each person on whom service of the petition is sought shall be set out in a schedule annexed to, and referred to in, the prayer of the petition.

(6) Where it is sought in a petition–

(a)to dispense with intimation, service or advertisement, or

(b)to shorten or extend the period of notice,

the appropriate order shall be craved in the prayer, and the grounds on which the order is sought shall be set out in the statement of facts.

First order in petitions

14.5.—(1) Subject to paragraph (2), a petition on being lodged shall, without a motion being enrolled–

(a)during term, appear in the rolls for the first available day after lodging, in the Motion Roll or Single Bills, as the case may be, for an order for such intimation, service and advertisement as may be necessary; or

(b)during session outwith a term, be brought before the Lord Ordinary for such an order; or

(c)during vaction, be brought before the vacation judge for such an order.

(2) Where a petitioner seeks–

(a)to dispense with intimation, service or advertisement on any person, or

(b)any interim order,

he shall apply by motion for such order as appears appropriate.

(3) On disposing of a motion under paragraph (2), the court shall make such order as it thinks fit.

Period of notice for lodging answers

14.6.—(1) Subject to any other provision in these Rules, the period of notice for lodging answers to a petition shall be–

(a)in the case of service, intimation or advertisement within Europe, 21 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(b)in the case of service or intimation furth of Europe under rule 16.2(2)(d) or (e) (service by an huissier etc. or personally), 21 days from whichever is the later of the date of execution of service or the giving of intimation;

(c)in the case of service or intimation furth of Europe other than under sub-paragraph (b), or advertisement furth of Europe, 42 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(d)in the case of service by advertisement under rule 16.5 (service where address of person is not known), 6 months from the date of publication of the advertisement.

(2) An application may be made by motion to shorten or extend the period of notice.

(3) Where a motion under paragraph (2) is made in a petition at the time that an order for intimation, service or advertisement is made under rule 14.5 (first order in petitions), the decision of the court on the motion shall be final and not subject to review.

Intimation and service of petitions

14.7.—(1) A petition shall be intimated–

(a)on the walls of the court; and

(b)in such other manner as the court thinks fit.

(2) A copy of the petition shall be served on every person, specified in the petition or by the court as a person on whom the petition is to be served, with a citation in Form 14.7 attached to it.

Procedure where answers lodged

14.8.  Where answers to a petition have been lodged, the petitioner shall, within 28 days after the expiry of the period of notice, apply by motion for such further procedure as he seeks, and the court shall make such order for further procedure as it thinks fit.

Unopposed petitions

14.9.—(1) Subject to paragraph (2), where the period of notice has expired without answers being lodged, the court shall, on the motion of the petitioner, after such further procedure and inquiry into the grounds of the petition, if any, as it thinks fit, dispose of the petition.

(2) Where–

(a)the prayer of the petition seeks an order directed against a person,

(b)service of the petition has been made on that person furth of the United Kingdom under rule 16.2, and

(c)such order has been granted without that person having lodged answers,

a certified copy of the interlocutor granting the order shall be served forthwith by the petitioner on that person.

(3) The court may, on the motion of a person to whom paragraph (2) applies, recall the interlocutor and allow answers to be lodged if–

(a)that person–

(i)without any fault on his part, did not have knowledge of the petition in suffieient time to lodge answers;

(ii)has disclosed a prima facie answer to the petition on the merits; and

(iii)has enrolled the motion for recall within a reasonable time after he had knowledge of the petition; and

(b)the motion is enrolled before the expiry of one year from the date of the interlocutor sought to be recalled.

(4) The recall of an interlocutor under paragraph (3) shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that interlocutor.

(5) The provisions of this rule are without prejudice to the power of the court to make any interim appointment or order at any stage of the cause.

CHAPTER 15APPLICATIONS BY MINUTE OR NOTE

Applications by minute

15.1.—(1) Subject to paragraph (6) and to any other provision in these Rules, this rule applies to any application to the court by minute in a cause.

(2) A minute shall–

(a)include a crave, a statement of facts and appropriate pleas-in-law; and

(b)be lodged in the process of the cause to which it relates.

(3) On lodging a minute, the minuter shall enrol a motion, as appropriate–

(a)for a warrant for service of the minute on a person who has not entered the process of the cause;

(b)where the cause is not a depending cause, for service of the minute on parties to that cause;

(c)for intimation of the minute to any person;

(d)to dispense with service on, or intimation to, a person; and

(e)for an order for any answers to the minute to be lodged in process within the period of notice.

(4) A notice in Form 15.1 shall be attached to the minute to be served or intimated under paragraph (3).

(5) After the expiry of the period of notice, the court shall, on the motion of any party, after such further procedure, if any, as it thinks fit, determine the application.

(6) This rule shall not apply to–

(a)a minute of abandonment;

(b)a minute of amendment;

(c)a minute of sist;

(d)a minute of transference; or

(e)a minute of objection to a minute of transference.

Applications by note

15.2.—(1) Subject to paragraph (4) and to any other provision in these Rules, this rule applies to any application to the court by note in a cause.

(2) A note shall–

(a)include a statement of facts and a prayer; and

(b)be lodged in the process of the cause to which it relates.

(3) The following provisions of Chapter 14 (petitions) shall, with the necessary modifications and the modification mentioned below, apply to a note under this rule as they apply to a petition:–

• rule 14.5 (first order in petitions),

• rule 14.6 (period of notice for lodging answers),

• rule 14.7 (intimation and service of petitions) with the substitution in paragraph (2) of that rule of the words “a notice in Form 15.2” for the words a “a citation in form 14.7”,

• rule 14.8 (procedure where answers lodged),

• rule 14.9 (unopposed petitions).

(4) This rule shall not apply to–

(a)a note to the Extractor; or

(b)a note of objection.

CHAPTER 16SERVICE, INTIMATION AND DILIGENCE

PART ISERVICE AND INTIMATION

Methods and manner of service

16.1.—(1) Subject to any other provision in these Rules or any other enactment, service of a document required under these Rules on a person shall be executed–

(a)in the case of an individual–

(i)personally, by tendering the document and any citation or notice, as the case may be, to that individual;

(ii)by leaving the document and any citation or notice, as the case may be, in the hands of a person, or failing which, depositing it, in a dwelling place where the person executing service, after due enquiry, has reasonable grounds for believing that that individual resides but is not available;

(iii)by leaving the document and any citation or notice, as the case may be, in the hands of a person at, or depositing it in, a place of business where the person executing service, after due enquiry, has reasonable grounds for believing that that individual carries on business; or

(iv)by posting the document and any citation or notice, as the case may be, to the known dwelling place of that individual;

(b)in the case of any other person–

(i)by leaving the document and any citation or notice, as the case may be, in the hands of an individual at, or depositing it in, the registered office, other official address or a place of business, of that other person, in such a way that it is likely to come to the attention of that other person; or

(ii)by posting the document and any citation or notice, as the case may be, to the registered office, other official address or a place of business, of that other person.

(2) Service of a principal writ on a person whose known residence is the same as that of the party on whose behalf service is to be executed shall be executed personally.

(3) Subject to paragraph (4), where service has been executed, the party on whose behalf service has been executed shall attach to the document served and lodge in process–

(a)a certificate of service as required by these Rules;

(b)a copy of any notice or advertisement ordered to be published; and

(c)a copy of any interlocutor ordering service of that document.

(4) In relation to a petition or note, where service has been executed by a petitioner or noter, he shall attach the documents required by paragraph (3)(a) and (b) to a copy of the petition or note, as the case may be, marked “Execution Copy” and certified a true copy.

Service furth of United Kingdom

16.2.—(1) Subject to any other enactment, this rule applies to service of a document on a person on whom service is to be executed in a country furth of the United Kingdom.

(2) Service under this rule may be executed by any of the following methods of service, if, and in a manner, permitted under a convention providing for service in that country or by the laws of that country:–

(a)by post to the known residence, registered office or place of business, as the case may be, of the person on whom service is to be executed;

(b)through the central, or other appropriate, authority of that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(c)through a British consular office in that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(d)by an huissier, other judicial officer or competent official of that country, at the request of a messenger-at-arms, a party or his agent; or

(e)personally by the party executing service or his authorised agent tendering the document and the citation (if any) to the person on whom service is to be executed.

(3) Where service is to be executed through a central, or other appropriate, authority, or through a British consular officer, at the request of the Secretary of State for Foreign and Commonwealth Affairs, the party executing service shall–

(a)send a copy of the document, with a request for service by the method indicated in the request, to the Secretary of State for Foreign and Commonwealth Affairs; and

(b)lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4) Where service is to be executed by an huissier, other judicial officer or competent official at the request of a messenger-at-arms–

(a)the messenger-at-arms shall send a copy of the document with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b)the party on whose behalf service has been executed shall lodge in process a certificate of the official who executed service stating that it has been, and the manner in which it was, served.

(5) Where service has been executed personally by the party executing service or his authorised agent–

(a)the execution of service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address); and

(b)the person who executed service shall complete a certificate of service in Form 16.2.

(6) Where service is executed by a method mentioned in paragraph (2)(a) or (e), the party executing service shall lodge in process a certificate by a person qualified in the law of the country, or a duly accredited representative of the country, in which service was executed stating that the method of service used is permitted by the law of that country.

Service by messenger-at-arms

16.3.—(1) Service by a method mentioned in rule 16.1(1)(a)(i), (ii) or (iii), or (b)(i), shall be executed by a messenger-at-arms who shall–

(a)explain the purpose of service to any person on whom he executes service;

(b)complete a citation or notice, as the case may be, and a certificate of service in Form 16.3; and

(c)send the certificate of service to the pursuer.

(2) Such service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address).

(3) Where service is executed by a method mentioned in rule 16.1(1)(a)(ii) or (iii), or (b)(i), and the document served is left in the hands of a person other than the person on whom service is to be executed, that document and the citation or notice of intimation, as the case may be, shall be placed in an envelope (bearing the notice specified in rule 16.4(2)) and sealed by the messenger-at-arms.

(4) A messenger-at-arms shall, when he executes service of a document, have in his possession–

(a)in the case of service of a copy of a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is, and

(b)where an interlocutor has been pronounced allowing service of the document, a certified copy of that interlocutor,

which he shall show, if required, to the person on whom he executes service.

(5) The certificate of service required under paragraph (1) shall include the full name and designation of any person in whose hands any document and the citation or notice, as the case may be, were left.

(6) In the application of this rule to service in a part of the United Kingdom furth of Scotland, reference to a messenger-at-arms shall be construed as a reference to a person entitled to serve Supreme Court writs in that part.

Service by post

16.4.—(1) This rule applies to service of a document by post.

(2) Service by post shall be executed by–

(a)a messenger-at-arms, or

(b)an agent,

posting a copy of the document to be served with any citation or notice, as the case may be, by registered post or the first class recorded delivery service addressed to the person on whom service is to be executed and having on the face of the envelope a notice in the following terms:– “This envelope contains a citation to, or intimation from, the Court of Session. If delivery of the letter cannot be made it must be returned immediately to the Deputy Principal Clerk of Session, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ.”.

(3) Where English is not an official language of the country in which service is to be executed, a translation in an official language of that country of the notice required under paragraph (2) shall appear on the face of the envelope.

(4) The person executing service of a document shall complete–

(a)a citation or notice, as the case may be; and

(b)a certificate of service in Form 16.4.

(5) A Post Office receipt of posting by registered post or a certificate of posting by the first class recorded delivery service, as the case may be, issued and stamped by the Post Office shall be attached to the certificate of service.

(6) The date of execution of service shall be deemed to be the day after the date of posting.

(7) Subject to rule 16.11 (no objection to regularity of service or intimation), the execution of service by post shall be valid unless the person on whom service was sought to have been made proves that the envelope and its contents were not tendered or left at his address.

Service where address of person is not known

16.5.—(1) Where the residence of the person to be served with a document is not known and cannot reasonably be ascertained or service on that person cannot be executed under rule 16.1 (methods and manner of service) or 16.2 (service furth of United Kingdom), the party who wishes to execute service may apply by motion–

(a)for an order for service by the publication of an advertisement in a specified newspaper circulating in the area of the last known residence of that person or elsewhere; or

(b)on special cause shown, for an order to dispense with service; and

(c)stating the last known residence of that person and what steps have been taken to ascertain his present whereabouts.

(2) On enrolling such a motion, a copy of the document to be served shall be lodged with the Deputy Principal Clerk who shall retain it for a period of three years and from whom it may be uplifted by the person for whom it is intended.

(3) Where an intelocutor has been pronounced ordering publication of an advertisement under this rule–

(a)the advertisement shall be in Form 16.5; and

(b)publication of the advertisement shall have effect as if service of the document had been executed on the date of publication.

(4) Where an interlocutor has been pronounced dispensing with service under this rule–

(a)service of the document shall be deemed to have been executed on the date of the interlocutor; and

(b)the period of notice shall be dispensed with.

(5) A motion under paragraph (1) made before calling shall be heard in chambers.

(6) Where publication of an advertisement has been made under this rule, there shall be lodged in process–

(a)a copy of the newspaper containing the advertisement; or

(b)a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

Translations of documents served or advertised abroad

16.6.—(1) Where English is not an official language of the country in which a document is to be served, the document shall be accompanied by a translation in an official language of that country.

(2) An advertisement authorised under rule 16.5 (service where address of person is not known) to be published in a newspaper in a country in which English is not an official language of that country shall be in an official language of that country.

(3) With any certificate of service, or advertisement under rule 16.5, in a language other than English there shall be lodged a translation in English.

(4) A translation under this rule shall be certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Intimation of documents

16.7.—(1) Subject to rule 16.8 (intimation on a warrant to intimate), rule 16.9 (written intimation) and any other provision in these Rules, where intimation of a document is to be given under these Rules to any person, the intimation shall be given–

(a)personally, by tendering the document and the notice of intimation (if any) to that person; or

(b)by registered post or the first class recorded delivery service–

(i)in the case of an individual, addressed to the known, or last known, dwelling place or a place of business of that individual; or

(ii)in the case of any other person, addressed to the registered office, other official address or a place of business of that person.

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach to the principal writ or lodge in process, as the case may be–

(a)certificate of intimation in Form 16.7;

(b)a copy of any notice of intimation which was intimated; and

(c)a copy of any interlocutor ordering the intimation.

Intimation on a warrant to intimate

16.8.—(1) Where intimation of a document is to be given to a person for whom a warrant to intimate has been obtained, the intimation shall be made in the same manner as service of a document; and the following rules shall, with the necessary modifications, apply to that intimation as they apply to service of a document:–

• rule 16.1 (methods and manner of service),

• rule 16.2 (service furth of United Kingdom),

• rule 16.3 (service by messenger-at-arms),

• rule 16.4 (service by post),

• rule 16.5 (serv ice where address of person is not known),

• rule 16.6 (translations of documents served or advertised abroad).

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach a copy of any notice of intimation to the certificate of intimation.

Written intimation

16.9.  Where a provision in these Rules requires written intimation to be given to a person, that intimation may be made by first class post or other means of delivery to that person.

Acceptance of service or intimation and dispensing with period of notice

16.10.—(1) An agent may accept service or intimation of a document on behalf of the person on whom service is to be executed or to whom intimation is to be given and may dispense with any period of notice.

(2) A person on whom service of a document is executed or to whom intimation of a document is given may dispense with any period of notice as respects him in relation to that document.

(3) Where a period of notice is dispensed with under paragraph (1) or (2), it shall be deemed to expire on the day on which the party on whose behalf service is executed or intimation is given receives written intimation that the period of notice has been dispensed with.

No objection to regularity of service or intimation

16.11.—(1) A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation.

(2) Nothing in paragraph (1) shall preclude a person from pleading that the court has no jurisdiction.

PART IIDILIGENCE

Excution of diligence

16.12.—(1) This rule applies to–

(a)the execution of any diligence on a warrant, act or decree of the court other than–

(i)an arrestment to which rule 16.13 (arrestment of ships and arrestment in rem of cargo on board ship) applies; or

(ii)an arrestment to which rule 16.14(1) (arrestment in rem of cargo landed or transhipped) applies; and

(b)diligence in execution of a writ registered for execution in the Books of Council and Session.

(2) Subject to the following paragraphs of this rule, the execution of any diligence by virtue of these Rules on a person shall be executed by a messenger-at-arms in the same manner as service of a document is permitted under rule 16.1(1)(a)(i), (ii) or (iii) or (b)(i) (methods and manner of service); and, where appropriate, the following provisions of Part I (service and intimation) shall, with the necessary modifications, apply to the execution of diligence as they apply to service of a document:–

• rule 16.3(1) to (4) (service by messenger-at-arms),

• rule 16.4(2)(a), (3), (6) and (7) (service by post).

(3) In the application under this rule, by virtue of paragraph (2), of–

(a)sub-paragraph (b) of paragraph (1) of rule 16.3 (completion of citation or notice and certificate of service) for the reference to Form 16.3 in that sub-paragraph there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15 (forms for diligence); and

(b)sub-paragraph (b) of paragraph (4) of rule 16.4 (completion of citation or notice and certificate of service), for the reference to Form 16.4 in that sub-paragraph, there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15.

(4) The execution of such diligence on–

(a)an individual who is resident furth of Scotland,

(b)a person who has no registered office, other official address or a place of business in Scotland,

(c)a person whose residence is not known and cannot reasonably be ascertained, or

(d)a person on whom service cannot be executed in a manner permitted under paragraph (2),

shall be executed edictally by a messenger-at-arms leaving or depositing the appropriate schedule mentioned in rule 16.15. at the office of the Extractor.

(5) Where the execution of diligence is made edictally under paragraph (4), a copy of the schedule left at the office of the Extractor shall be sent by a messenger-at-arms by registered post or the first class recorded delivery service to the place furth of Scotland where the person on whom diligence is executed edictally resides, has his registered office, official address or place of business, as the case may be, or such last known place.

(6) A messenger-at-arms executing diligence shall have in his possession–

(a)in the case of diligence on a warrant in a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is,

(b)in the case of diligence on a warrant in an interlocutor, a certified copy of that interlocutor, or

(c)in the case of diligence on an extract of an act or a decree, or a document registered in the Books of Council and Session, the extract,

which he shall show, if required, to any person on whom he executes diligence.

(7) The party on whose behalf diligence has been executed in a cause depending before the court shall attach the certificate of execution to the document containing the warrant for diligence.

Arrestment of ships and arrestment in rem of cargo on board ship

16.13.—(1) An arrestment of a ship in rem or on the dependence, or an arrestment in rem of cargo on board ship, may be executed on any day by a messenger-at-arms who shall affix the schedule of arrestment–

(a)to the mainmast of the ship;

(b)to the single mast of the ship; or

(c)where there is no mast, to some prominent part of the ship.

(2) In the execution of an arrestment of a ship on the dependence, the messenger-at-arms shall, in addition to complying with paragraph (1), mark the initials “ER” above the place where the schedule of arrestment is fixed.

(3) On executing an arrestment under paragraph (1), the messenger-at-arms shall deliver a copy of the schedule of arrestment and a copy of the certificate of execution of it to the master of the ship, or other person on board in charge of the ship or cargo, as the case may be, as representing the owners of, or parties interested in, the ship or cargo, as the case may be.

(4) Where the schedule of arrestment and the copy of the certificate of execution of it cannot be delivered as required under paragraph (3)–

(a)the certificate of execution shall state that fact; and

(b)either–

(i)the arrestment shall be executed by serving it on the harbour master of the port where the ship lies; or

(ii)where there is no harbour master, or the ship is not in a harbour, the pursuer shall enrol a motion for such further order as to intimation and advertisement, if any, as may be necessary.

(5) A copy of the schedule of arrestment and a copy of the certificate of excution of it shall be delivered by the messenger-at-arms to the harbour master, if any, of any port where the ship lies.

(6) In this rule, “ship” has the meaning assigned in section 48(f) of the Administration of Justice Act 1956(11).

Arrestment of cargo

16.14.—(1) Where cargo has been, or is in the course of being, landed or transhipped, whether or not it has been delivered to its owner or his agent, any arrestment in rem of the cargo shall be executed by a messenger-at-arms who shall serve the schedule of arrestment–

(a)on the custodian for the time being of such cargo; or

(b)where the cargo has been landed on the quay or into a shed of any port or harbour authority, to the harbour master.

(2) An arrestment, other than an arrestment to which paraghraph (1) applies, of cargo on board ship may be executed on any day by a messenger-at-arms who shall serve the schedule of arrestment on the owner of the cargo or other proper arrestee.

Forms for diligence

16.15.—(1) In the execution of diligence, the following forms shall be used:–

(a)in the case of an arrestment to found jurisdiction, a schedule in Form 16.15—A and a certificate of execution in Form 16.15–H;

(b)Subject to sub-paragraph (e), in the case of an arrestment on the dependence, a schedule in Form 16.15–B and a certificate of execution in Form 16.15–H;

(c)in the case of an arrestment in rem of a ship or cargo to enforce a maritime hypothec or lien, a schedule in Form 16.15—C and a certificate of execution in Form 16.15–I;

(d)in the case of an arrestment in rem of a ship to enforce a non-pecuniary claim, a schedule in Form 16.15–D and a certificate of execution in Form 16.15–I;

(e)in the case of an arrestment of a ship or cargo on board ship on the dependence, a schedule in Form 16.15–B and a certificate of execution in Form 16.15–J;

(f)subject to paragraph (g), in the case of an arrestment in execution, a schedule in Form 16.15–E and a certificate of execution in form 16.15–H;

(g)in the case of an earnings arrestment, or a current maintenance arrestment, within the meaning of Part III of the Debtors (Scotland) Act 1987(12), a schedule in Form 30 (in respect of an earnings arrestment), or Form 34 (in respect of a current maintenance arrestment), and a certificate of execution in Form 60, in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988(13);

(h)in the case of an inhibition, a schedule in Form 16.15–F and a certificate of execution in Form 16.15–H;

(i)in the case of the execution of a charge for payment of money, a charge in Form 16.15—G and a certificate of execution in Form 16.15.–K; and

(j)in the case of a poinding, a schedule in Form 5, and a certificate of execution in Form 60, in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988.

(2) Where two or more of the arrestments mentioned in paragraph (1)(a), (b), (c) and (d) are to be executed, they may be combined in one schedule of arrestment.

CHAPTER 17APPEARANCE IN ACTIONS

Entering appearance

17.1.—(1) Appearance in an action shall be entered within 3 days after the date on which the summons has called by the defender requesting a clerk of session in the appropriate section of the General Department to mark on the summons–

(a)the names of the counsel, or other person having a right of audience, and the agent acting for him; or

(b)that he appears for himself.

(2) On entering appearance, the defender shall give written intimation to the pursuer that appearance has been entered.

(3) On entering appearance, the defender shall have the right to borrow any production which has been lodged in process.

Appearance not to imply acceptance of jurisdiction

17.2.  The entering of appearance shall not imply acceptance of the jurisdiction of the court.

CHAPTER 18DEFENCES AND ANSWERS

Form and lodging of defences

18.1.—(1) Defences to an action shall consist of–

(a)numbered answers corresponding to the articles of the condescendence annexed to the summons; and

(b)appropriate pleas-in-law.

(2) Subject to rule 46.6 (ship collisions and preliminary acts), defences to an action shall be lodged in process within 7 days after the date on which the summons has called, or, if the seventh day is in vacation, on the next day on which a summons may be called.

Contesting jurisdiction

18.2.—(1) Where a defender seeks to contest the jurisdiction of the court, he may–

(a)lodge defences relating both to jurisdiction and the substantive issues of the action without submitting to the jurisdiction of the court; or

(b)lodge defences relating only to the question of jurisdiction in the first instance.

(2) Where a defender lodges defences under paragraph (1)(b) and is unsuccessful in contesting jurisdiction, the court shall allow the defender to amend his defences to defend on the substantive issues of the action within such period as the court thinks fit.

Answers

18.3.—(1) This rule applies to answers lodged to a petition, counterclaim, minute or note.

(2) Answers shall consist of–

(a)numbered answers corresponding to the paragraphs of the statement of facts in the writ to which they apply; and

(b)appropriate pleas-in-law.

(3) Answers may be lodged at any time within the period of notice specified in the interlocutor calling for answers.

CHAPTER 19DECREES IN ABSENCE

Decrees in absence

19.1.—(1) This rule applies to any action other than an action in which the court may not grant decree without evidence.

(2) Where a defender–

(a)fails to enter appearance in accordance with rule 17.1(1), or

(b)having entered appearance, fails to lodge defences in accordance with rule 18.1(2),

the pursuer may apply by motion for decree in absence against him.

(3) A motion enrolled under paragraph (2) shall specify–

(a)the decree sought; and

(b)where appropriate, whether expenses are sought–

(i)as taxed by the Auditor; or

(ii)as elected by the pursuer under Part I of Chapter III of the Table of Fees in rule 42.16.

(4) Where a motion has been enrolled under paragraph (2), the court shall grant decree in absence in terms of all or any of the conclusions of the summons–

(a)subject to such restrictions, if any, as may be set out in a minute appended to the summons and signed by the pursuer;

(b)if satisfied that it has jurisdiction;

(c)if satisfied that the rules of service have been complied with; and

(d)where the summons was served on the defender furth of Scotland, if satisfied about service on the defender–

(i)in a case to which the Civil Jurisdiction and Judgments Act 1982(14) applies, as required by Article 20(2) or (3) of the convention in Schedule 1, or 3C, or Article 20(2) of Schedule 4, to that Act(15), as the case may be;

(ii)in a case in which service has been executed on the defender under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dated 15th November 1965(16), as required by Article 15 of that convention; or

(iii)in a case in which service has been executed on the defender under a convention between the United Kingdom and the country in which service was executed, as required by the provisions of that convention.

(5) In an undefended action in which a defender is designed as resident or carrying on business furth of the United Kingdom and has no known solicitor in Scotland, the court shall, in the interlocutor granting decree in absence against him, supersede extract of that decree for such period beyond 7 days as it thinks fit to allow for the number of days required in the ordinary course of post for the transmission of a letter from Edinburgh to the residence, registered office, other official address or place of business, as the case may be, of that defender and the transmission of an answer from there to Edinburgh.

(6) Where a copy of the summons has been served on the defender furth of the United Kingdom under rule 16.2 and decree in absence is pronounced against him as a result of his failure to enter appearance, a certified copy of the interlocutor granting decree shall be served on him forthwith by the pursuer.

(7) Where a decree in absence on which a charge may be made has been granted after personal service of a summons on the defender or after the defender has entered appearance, and–

(a)the decree has not been recalled,

(b)the decree has been extracted,

(c)a charge on the decree has not been brought under review by suspension, and

(d)60 days have elapsed since the expiry of the charge,

that decree shall have effect as a decree in foro contentioso

Recall of decrees in absence

19.2.—(1) A decree in absence may not be reclaimed against.

(2) A defender may, not later than–

(a)7 days after the date of a decree in absence against him, or

(b)the last day of the period for which extract of the decree has been superseded,

apply by motion for recall of the decree and to allow defences to be received.

(3) Where a defender enrols a motion under paragraph (2), he shall–

(a)at the same time lodge defences in process;

(b)have paid the sum of £25 to the pursuer; and

(c)lodge the receipt for that sum in process.

(4) On compliance by the defender with paragraphs (2) and (3), the court shall recall the decree against him and allow the defences to be received; and the action shall proceed as if the defences had been lodged timeously.

(5) Where a summons has been served on a defender furth of the United Kingdom under rule 16.2 and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the motion of that defender, recall the decree and allow defences to be received if–

(a)without fault on his part, he did not have knowledge of the summons in sufficient time to defend;

(b)he has disclosed a prima facie defence to the action on the merits; and

(c)the motion is enrolled within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of the decree;

and, where that decree is recalled, the action shall proceed as if the defences had been lodged timeously.

(6) On enrolling a motion under paragraph (5), the defender shall lodge defences in process.

(7) The recall of a decree under this rule shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that decree.

CHAPTER 20DECREES BY DEFAULT

Decrees where party in default

20.1.—(1) Without prejudice to the power of the court to grant decree by default in other circumstances, where a party fails to attend before the Lord Ordinary on the calling of a cause–

(a)on the By Order Roll,

(b)on the Procedure Roll,

(c)for a proof, or

(d)for jury trial,

that party shall be in default.

(2) Where a pursuer is in default under paragraph (1)(a), (c) or (d), the court may grant decree by default against him with expenses.

(3) Where a pursuer is in default under paragraph (1)(b), the court may grant decree of dismissal with expenses.

(4) Where a defender is in default under paragraph (1), the court may grant decree by default against him with expenses.

(5) Where a third party is in default under paragraph (1), the court may grant decree by default against him with expenses or make such finding or order as it thinks fit.

CHAPTER 21SUMMARY DECREES

Application of this Chapter

21.1.  This Chapter applies to any action other than–

(a)a family action within the meaning of rule 49.1(1);

(b)an action of multiplepoinding;

(c)an action of proving the tenor; or

(d)an action under the Presumption of Death (Scotland) Act 1977(17).

Applications for summary decree

21.2.—(1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences while the action is depending before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences.

(2) In applying for summary decree, the pursuer may move the court–

(a)to grant decree in terms of all or any of the conclusions of the summons;

(b)to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(c)to dispose of the whole or a part of the subject-matter of the action.

(3) The pursuer shall–

(a)intimate a motion under paragraph (1) by registered post or the first class recorded delivery service to every other party not less than 14 days before the motion is enrolled; and

(b)on enrolling the motion, lodge in process–

(i)a copy of each letter of intimation; and

(ii)The Post Office receipt or certificate of posting in respect of each letter of intimation.

(4) On a motion under paragraph (1), the court may–

(a)if satisfied that there is no defence to the action disclosed or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or

(b)Ordain any party, or a partner, director, officer or office-bearer of, any party–

(i)to produce any relevent document or article; or

(ii)to lodge an affidavit in support of any assertion of fact made in the pleadings or at the Bar.

(5) Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change of circumstances.

Application of summary decree to counterclaims etc.

21.3.—(1) Where a defender has lodged a counterclaim–

(a)he may apply by motion for summary decree against the pursuer on that counterclaim on the ground that there is no defence to the counterclaim, or a part of it, disclosed in the answers to it; and

(b)paragraphs (2) to (5) of rule 21.2 shall, with the necessary modifications, apply to a motion by a defender under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

(2) Where a defender or third party has made a claim against another defender or third party who has lodged defences or answers, as the case may be–

(a)he may apply by motion for summary decree against that other defender or third party on the ground that there is no defence to his claim, or a part of it, disclosed in the defences or answers, as the case may be; and

(b)paragraphs (2) to (5) of rule 21.2 shall, with the necessary mofifications, apply to a motion by a defender or third party under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

CHAPTER 22MAKING UP AND CLOSING RECORDS

Making up open records

22.1.—(1) Subject to any other provision in these Rules, where defences have been lodged, the pursuer in an action shall, within 14 days after the date on which the time for lodging defences expired or on which the defences were lodged, whichever is the earlier–

(a)send not less than four copies of an open record to every other party; and

(b)lodge two copies of the open record in process.

(2) Where in a cause a party is ordered by the court to make up an open record, he shall comply with sub-paragraphs (a) and (b) of paragraph (1) within the period specified by the court.

(3) Where the pursuer, petitioner, noter or minuter, as the case may be, fails to comply with a requirement of paragraph (1) or (2), the defender or other party may apply by motion for decree of dismissal.

(4) An open record shall consist of the pleadings of the parties and the interlocutors pronounced in the cause.

Adjustment Roll

22.2.—(1) A cause shall be put out on the Adjustment Roll as soon as possible after the lodging of the open record.

(2) On a cause first appearing on the Adjustment Roll, the court shall pronounce an interlocutor continuing the cause on that roll for 8 weeks.

(3) While a cause is on the Adjustment Roll, parties may adjust their respective pleadings and shall intimate their adjustments to each other.

(4) At any time while a cause is on the Adjustment Roll, the court may, on the motion of any party, pronounce an interlocutor–

(a)closing the record; or

(b)continuing the cause on that roll for such period as the court thinks fit.

(5) On enrolling a motion under paragraph (4), a party shall lodge in process a copy of the open record showing the adjustments, if any, at that date.

Closing records

22.3.—(1) The court shall, on the day on which the period allowed for adjustment in a cause expires, pronounce an interlocutor closing the record.

(2) The pursuer shall, within 4 weeks after the date of the interlocutor closing the record–

(a)send not less than six copies of the closed record to every other party; and

(b)lodge three copies of the closed record in process.

(3) if the pursuer fails to comply with either of the requirements of paragraph (2), the court may, on the motion of any other party, grant decree of dismissal.

(4) A closed record shall consist of the pleadings of the parties and the interlocutors pronounced in the cause.

(5) The pursuer shall, on lodging the copies of the closed record as required by paragraph (2), enrol a motion craving the court–

(a)where parties have agreed on further procedure, of consent–

(i)to appoint the cause to the Procedure Roll for consideration of all the preliminary pleas of parties or such of the pleas as may be specified;

(ii)to allow to parties a preliminary proof on specified matters or in respect of specified pleas;

(iii)to allow to parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(iv)to allow a proof;

(v)to allow issues for jury trial; or

(vi)to make some other specified order; or

(b)where parties have been unable to agree on further procedure, to appoint the cause to the By Order (Adjustment) Roll.

(6) In a cause which is one of more than one cause arising out of the same cause of action, the court may, on or after pronouncing an interlocutor ordering further procedure under paragraph (5)–

(a)on the motion of a party to that cause, and

(b)after hearing parties to all those causes,

appoint that cause or any other of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(7) In this rule, “pursuer” includes petitioner, noter or minuter, as the case may be.

Orders for notes of argument

22.4.  Where a cause has been appointed to the Procedure Roll, the court may, at its own instance or on the motion of a party, ordain a party–

(a)to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that any preliminary plea should be sustained, and

(b)to send a copy of the note to every other party concerned,

within such period as the court thinks fit.

CHAPTER 23MOTIONS

Interpretation of this Chapter

23.1.  In this Chapter, unless the context otherwise requires, “party” includes any person entitled under these Rules to enrol a motion or to whom intimation of a motion is required to be made by these Rules or the court.

Enrolment of motions

23.2.—(1) A motion by a party may be–

(a)made orally at the Bar with leave of the court during any hearing of a cause; or

(b)enrolled in the process of the cause to which it relates in accordance with paragraph (2).

(2) A motion may be enrolled–

(a)by lodging it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, at the appropriate department of the Office of Court during its normal office hours;

(b)subject to paragraph (3), by posting it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court; or

(c)subject to paragraph (4), by sending it by facsimile transmission in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court.

(3) A motion may not be enrolled under paragraph (2)(b) where a fee is payable with that motion unless–

(a)the motion is enrolled by an agent who has a Court of Session account; or

(b)is accompanied by a cheque from the agent for the fee.

(4) A motion may not be enrolled under paragraph (2)(c) where–

(a)a document which requires to be lodged with, or which accompanies, the motion–

(i)is a step of process which requires to be or is signed;

(ii)is an open or closed record, reclaiming print, appeal print or appendix;

(iii)consists of more than four pages (including the backing sheet); or

(iv)does not fall within a class of documents prescribed by the Lord President by direction as a document which may be sent by facsimile transmission in support of a motion of a category, and on such conditions, prescribed by that direction;

(b)a fee is payable with that motion unless the motion is enrolled by an agent who has a Court of Session account; or

(c)it falls within a category of motions prescribed by the Lord President by direction as unsuitable for enrolment by facsimile transmission.

(5) On receipt of a motion lodged, sent by post or transmitted by facsimile under paragraph (2), a clerk of session shall attach the motion to the motion sheet.

(6) A motion sent by post or facsimile transmission under paragraph fi (2) shall be treated as enrolled when it is received in the appropriate department of the Office of Court.

(7) Where appearance for the party who enrolled the motion is required for a motion, the entry in the rolls in respect of that motion shall be starred.

Intimation of motions

23.3.—(1) Subject to paragraph (2) and any other provision in these Rules, the party enrolling a motion in a cause where–

(a)appearance has been entered by a defender under rule 17.1(1),

(b)defences, a minute or answers have been lodged by a party, or

(c)provision for intimation of a motion to a party is made in these Rules,

shall give written intimation of his intention to make such enrolment, and of the terms of the motion, to every such party.

(2) The requirement under paragraph (1) to give written intimation of a motion to a party shall not apply where that party–

(a)having entered appearance, fails to lodge defences within the period for lodging those defences;

(b)has not lodged answers within the period of notice for lodging those answers; or

(c)has withdrawn or is deemed to have withdrawn his defences, minute, note or answers, as the case may be.

(3) Such intimation shall be made so as to reach the other party not later than 12.30 p.m. on the day before enrolment, except where–

(a)the other party concerned in the motion consents to a shorter period of intimation;

(b)the period of intimation is otherwise provided in these Rules; or

(c)the court shortens or extends the period of intimation or dispenses with intimation.

(4) Where a motion is enrolled after the lapse of one year from the date of the last interlocutor in the cause, written intimation shall be given to every other party not less than 14 days before the date of enrolment.

(5) Where written intimation of a motion has been given, the party enrolling the motion shall state that this has been done on the motion in Form 23.2.

Opposition to motions

23.4.—(1) Where a party seeks to oppose a motion enrolled under rule 23.2, he shall–

(a)not later than the day and time as the Lord President shall prescribe by direction for the lodging of notices of opposition to motions, lodge a notice of his opposition in Form 23.4 at the appropriate department of the Office of Court during its normal office hours;

(b)post a notice of opposition in Form 23.4 to the appropriate department of the Office of Court; or

(c)send by facsimile transmission a notice of opposition in Form 23.4 to the appropriate department of the Office of Court.

(2) Opposition to a motion sent by post or facsimile transmission under paragraph (1)(b) or (c) shall be treated as lodged when the notice of opposition is received in the appropriate department of the Office of Court.

(3) On receipt of a notice of opposition lodged, sent by post or facsimile transmission under paragraph (1), a clerk of session shall attach the notice to the motion sheet.

(4) A party who opposes a motion shall give written intimation of his opposition to every other party so as to reach such other party not later than 12.30 p.m. on the day on which the opposition is lodged or treated as lodged.

(5) Where written intimation of opposition to a motion has been given, the party who has given such intimation shall state that this has been done on the notice of opposition in Form 23.4.

(6) Where a motion is opposed, the entry in the rolls in respect of that motion shall be starred.

Consent to motions

23.5.  Where a party seeks to consent to a motion, he may–

(a)endorse the motion with his consent;

(b)post a notice of consent in Form 23.5 to the appropriate department of the Office of Court; or

(c)send by facsimile transmission a notice of consent in Form 23.5 to the appropriate department of the Office of Court.

Hearing of motions

23.6.—(1) Subject to the rules mentioned in paragraph (2), the day of publication on the walls of the court and of the hearing of a motion enrolled on any day shall be determined in accordance with such provisions as the Lord President shall prescribe by direction.

(2) The rules referred to in paragraph (1) are:–

• rule 23.7 (motions in session outwith a term or in vacation),

• rule 23.8 (motions by pursuer before calling or petitioner before first order),

• rule 23.9 (motions where caveat lodged),

• rule 23.10 (motions by defender or other person before calling).

(3) A motion enrolled in a cause in the Outer House shall be heard by the Lord Ordinary.

(4) A motion enrolled in a cause in the Inner House shall be heard in the Single Bills by a Division of the Inner House.

Motions in session outwith a term or in vacation

23.7.—(1) A motion which is to be heard by the Lord Ordinary in session outwith a term, or in vacation by the vacation judge, shall not appear in the rolls.

(2) A party enrolling such a motion shall be informed at the time of enrolment whether or not any appearance is required.

(3) Any such motion which is opposed in accordance with rule 23.4 shall require appearance for the party whose motion it is.

(4) On the afternoon of the day preceding each sitting of the lord Ordinary in session outwith a term or of the vacation judge there shall be published on the walls of the court a list of unopposed motions for which appearance is required followed by a list of opposed motions, each in alphabetic order.

(5) Motions before the Lord Ordinary in session outwith a term or the vacation judge shall be called for hearing in the order in which they appear in the list published under paragraph (4).

Motions by pursuer before calling or petitioner before first order

23.8.—(1) A motion enrolled by a pursuer in an action before the calling of the summons or by a petitioner before an order under rule 14.5(1)(a) (order for intimation, service and advertisement in petitions) has been made–

(a)shall, subject to any other provision in these Rules, be brought as soon as reasonably practicable by the Keeper of the Rolls, or a clerk of session instructed by him, before the Lord Ordinary sitting in court or in chambers; and

(b)shall not require to be published in the rolls.

(2) On enrolling such a motion, the pursuer or petitioner, as the case may be, shall be informed whether or not appearance is required.

Motions where caveat lodged

23.9.  Where a motion in respect of which a caveat has been lodged is enrolled, the Keeper of the Rolls shall–

(a)fix a hearing of the motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b)inform the parties concerned of the date and time of the hearing.

Motions by defender or other person before calling

23.10.—(1) A motion enrolled in an action before the calling of the summons by a person other than the pursuer shall be intimated forthwith by the Deputy Principal Clark to the pursuer.

(2) The Keeper of the Rolls shall–

(a)fix a hearing of such a motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b)inform the parties concerned of the date and time of the hearing.

Statutory applications by motion

23.11.  Unless otherwise provided in these Rules or any other enactment, an application to the court under any other enactment in fi a cause depending before the court shall be made by motion.

Expenses of motions

23.12.  Where a motion is called for hearing in the Motion Roll or Single Bills and is dropped, the Auditor shall, in taxing any expenses found due to the party on whose behalf the motion was enrolled, disallow the expenses occasioned by the motion unless he is satisfied that the motion was properly enrolled and properly dropped.

Conditions attached to granting of motions

23.13.  Where the court grants a motion in whole or in part, it may do so subject to such conditions, if any, as to expenses or otherwise as it thinks fit.

Appearance by solicitor for certain motions

23.14.—(1) A solicitor shall have a right of audience before the court in respect of a motion which is heard in chambers under any of the following rules:–

• rule 23.8 (motions by pursuer before calling or petitioner before first order),

• rule 23.9 (motions where caveat lodged),

• rule 23.10 (motions by defender or other person before calling).

(2) A solicitor shall have a right of audience before the Lord Ordinary sitting during session outwith a term in respect of any motion.

CHAPTER 24AMENDMENT OF PLEADINGS

Powers of court

24.1.—(1) In any cause the court may, at any time before final judgment, allow an amendment mentioned in paragraph (2).

(2) Paragraph (1) applies to the following amendments:–

(a)an amendment of a principal writ which may be necessary for the purpose of determining the real question in controversy between the parties, notwithstanding that in consequence of such amendment–

(i)the sum sued for in a summons is increased or restricted; or

(ii)a different remedy from that originally concluded for or craved is sought;

(b)an amendment which may be necessary–

(i)to correct or supplement the designation of a party to the cause;

(ii)to enable a party who has sued or has been sued in his own right to sue or be sued in a representative capacity;

(iii)to enable a party who has sued or has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity;

(iv)to add the name of an additional pursuer, a petitioner or person whose concurrence is necessary;

(v)where the cause has been commenced or presented in the name of the wrong person, or it is doubtful whether it has been commenced or presented in the name of the right person, to allow any other person to be sisted in substitution for, or in addition to, the original person; or

(vi)to direct conclusions against a third party brought into an action under Chapter 26 (third party procedure);

(c)an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties; and

(d)where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting in the instance of the principal writ an additional or substitute party and directing existing or additional conclusions or craves, averments and pleas-in-law against that party.

Applications to amend

24.2.—(1) Subject to paragraph (2), a party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, enrol a motion–

(a)to allow the minute of amendment to be received; and

(b)to allow–

(i)amendment in terms of the minute of amendment and, where appropriate, to grant an order under rule 24.3(1) or (2) (service of amended pleadings); or

(ii)in any other case, where the minute of amendment may require to be answered, any other party to lodge answers within a specified period or such period as the court thinks fit.

(2) Where the amendment proposed is of a minor and formal nature, the party seeking to amend may enrol a motion to allow amendment in the terms set out in the motion.

(3) Where the court has pronounced an interlocutor allowing a minute of amendment to be received and answered, then–

(a)where answers have been lodged, parties may adjust the minute of amendment and answers within 4 weeks after the date on which answers were lodged or, where more than one set of answers have been lodged, the latest date on which answers were lodged;

(b)the party who has lodged the minute of amendment shall–

(i)where answers have been lodged, within 14 days after the expiry of the period for adjustment of the minute of amendment and answers or any continuation of it, or

(ii)where no answers have been lodged, within 14 days after the expiry of the period for lodging answers or any prorogation of it,

enrol a motion to amend the writ or other pleadings in terms of the minute of amendment and answers (if any) or for other further procedure, as the case may be.

(4) Where a party fails to enrol a motion under paragraph (3)(b), the court shall appoint the cause to be put out on the By Order Roll and, having heard parties on that roll, may–

(a)if moved to do so, allow the amendment;

(b)make such order as to further procedure as it thinks fit; and

(c)in any event, make such order in respect of expenses as it thinks fit.

(5) Where a party to a cause before the Inner House enrols a motion to amend a record in terms of a minute of amendment and answers (if any), he shall at the same time enrol for an order for further procedure.

Service of amended pleadings

24.3.—(1) In an undefended action where no appearance has been entered or in an unopposed petition or note, unless the amendment is formal in character, the court shall–

(a)order that a copy of the principal writ as amended be served on a specified person; and

(b)allow that person to lodge defences or answers, as the case may be, within such period as the court thinks fit.

(2) Where an amendment under rule 24.1(2)(d) (all parties not, or wrong person, called) has been made–

(a)the court shall order that a copy of the pleadings as so amended be served by the party who made the amendment on that additional or substitute party with a notice in Form 24.3 specifying the date by which defences or answers, as the case may be, must be lodged; and

(b)the party who made the amendment shall lodge in process–

(i)a copy of the pleadings as amended;

(ii)a copy of the notice mentioned in sub-paragraph (a);

(iii)a copy of the interlocutor ordering service; and

(iv)a certificate of service.

(3) When paragraph (2) has been complied with, the cause as so amended shall proceed in every respect as if that party had originally been made a party to the cause.

Expenses and conditions of amendment

24.4.  The court shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as it thinks fit.

Effect of amendment on diligence

24.5.  Where an amendment has been allowed, the amendment shall–

(a)not validate diligence used on the dependence of a cause so as to prejudice the rights of creditors, of the party against whom the diligence has been executed, who are interested in defeating such diligence; and

(b)preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

CHAPTER 25COUNTERCLAIMS

Counterclaims

25.1.—(1) In any action other than a family action within the meaning of rule 49.1(1) or an action of multiplepoinding, a defender may lodge a counterclaim against a pursuer–

(a)where the counterclaim might have been made in a separate action in which it would not have been necessary to call as a defender any person other than the pursuer; and

(b)in respect of any matter–

(i)forming part, or arising out of the grounds, of the action by the pursuer;

(ii)the decision of which is necessary for the determination of the question in controversy between the parties; or

(iii)which, if the pursuer had been a person not otherwise subject to the jurisdiction of the court, might have been the subject-matter of an action against that pursuer in which jurisdiction would have arisen by reconvention.

(2) A counterclaim may be lodged in process–

(a)at any time before the record is closed; or

(b)at any later stage, with leave of the court and subject to such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) A counterclaim shall be headed “Counterclaim for the defender” and shall contain–

(a)conclusions, stated in accordance with the appropriate short style, if any, in Form 13.2–B which, if the counterclaim had been made in a separate action, would have been appropriate in the summons in that separate action;

(b)a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences; and

(c)appropriate pleas-in-law.

Warrants for diligence on counterclaims

25.2.—(1) A defender who lodges a counterclaim may apply for a warrant to use any form of diligence which would have been permitted under rule 13.6(c) (warrants for diligence in summonses) had the warrant been sought in a summons in a separate action.

(2) An application for a warrant under paragraph (1) shall be made–

(a)at the time of lodging the counterclaim, by inserting before the conclusions of the counterclaim the words “Warrant for arrestment [and inhibition] on the dependence [or inhibition on the dependence or arrestment in rem of (details of ship or cargo) or to dismantle (details of ship), as the case may be] applied for.”; or

(b)after the counterclaim has been lodged, by motion.

(3) An application for a warrant under paragraph (2)(a) may be granted by the clerk of session who receives the counterclaim by writing the words “Warrant granted as craved.” after the warrant sought, and adding his signature and the date below those words.

(4) A warrant granted under paragraph (3) shall have the same effect as if the warrant had been in a signeted summons.

(5) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) (b) shall be sufficient authority for execution of the diligence.

(6) A counterclaim, or a certified copy of the interlocutor, containing a warrant for inhibition granted under this rule and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(7) A notice of a warrant in a counterclaim, or a notice of the certified copy of the interlocutor containing a warrant, for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868(18); and such registration shall have the same effect as registration of a notice under that section.

Answers to counterclaims

25.3.—(1) Answers to a counterclaim may be lodged by a pursuer–

(a)where the counterclaim is lodged before the record is closed, within 14 days after the date on which the counterclaim is lodged; or

(b)in any other case, within the period appointed by the interlocutor allowing the counterclaim to be received.

(2) Where answers to a counterclaim have been lodged, the court may, on the motion of the pursuer or defender, allow such period for adjustment as it thinks fit.

Effect of abandonment of action

25.4.—(1) The right of a pursuer to abandon his action under rule 29.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition, or in consequence, of such abandonment shall not include the expenses of the counterclaim.

(2) Notwithstanding abandonment by the pursuer, a defender may insist in his counterclaim; and the proceedings in the counterclaim shall continue in dependence as if the counterclaim were a separate action.

Proof or jury trial of counterclaims

25.5.—(1) Where a proof or jury trial is allowed between parties to an action, the court may allow any counterclaim to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action as it thinks fit.

(2) Where evidence is led in a counterclaim separately from the evidence in the action, the evidence in one cause shall, so far as competent and relevant, be evidence in the other cause.

Interlocutors in respect of counterclaims

25.6.  A decree or other interlocutor which could have been pronounced in a separate action brought to enforce the conclusions stated in a counterclaim may be pronounced in respect of the counterclaim.

CHAPTER 26THIRD PARTY PROCEDURE

Applications for third party notice

26.1.—(1) Where, in an action, a defender claims that–

(a)he has in respect of the subject-matter of the action a right of contribution, relief or indemnity against any person who is not a party to the action, or

(b)a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such person is–

(i)solely liable, or jointly or jointly and severally liable with the defender, to the pursuer in respect of the subject-matter of the action, or

(ii)liable to the defender in respect of a claim arising from or in connection with the liability, if any, of the defender to the pursuer,

he may apply by motion for an order for service of a third party notice on that other person in Form 26.1–A for the purpose of convening that other person as a third party to the action.

(2) Where–

(a)a pursuer against whom a counterclaim has been made, or

(b)a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form 26.1–B (notice by pursuer) or Form 26.1–C (notice by third party), as the case may be, in the same manner as a defender under that paragraph; and rules 26.2 to 26.7 shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

Averments where order for service of third party notice sought

26.2.—(1) Where a defender intends to apply by motion for an order for service of a third party notice before the closing of the record, he shall, before enrolling the motion, set out in his defences, by adjustment to those defences, or in a separate statement of facts annexed to those defences–

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action; and

(b)appropriate pleas-in-law.

(2) Where a defender applies by motion for an order for service of a third party notice after the closing of the record, he shall, on enrolling the motion, lodge a minute of amendment containing–

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action, and

(b)appropriate pleas-in-law,

unless those grounds and pleas-in-law have been set out in the defences in the closed record.

Warrants for diligence on third party notice

26.3.—(1) A defender who applies for an order for service of a third party notice may apply for a warrant to use any form of diligence which would have been permitted under rule 13.6 (b) or (c) (warrants for diligence in summonses) had the warrant been sought in a summons in a separate action.

(2) An application for a warrant under paragraph (1) shall be made by motion–

(a)at the time of applying for the third party notice; or

(b)if not applied for at that time, at any stage of the cause thereafter.

(3) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) shall be sufficient authority for execution of the diligence.

(4) A certified copy of the interlocutor containing a warrant for inhibition granted under this rule and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(5) A notice of the certified copy of the interlocutor containing a warrant for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868; and such registration shall have the same effect as registration of a notice under that section.

Service on third party

26.4.—(1) A third party notice shall be served on the third party within such period as the court shall specify in the interlocutor allowing service of that notice.

(2) Where service of a third party notice has not been made within the period specified by virtue of paragraph (1), the order for service of it shall cease to have effect; and no service of the notice may be made unless a further order for service of it has been applied for and granted.

(3) There shall be served with a third party notice–

(a)a copy of the pleadings (including any adjustments and amendments); and

(b)a copy of the interlocutor allowing service of the notice.

(4) The defender who served the third party notice shall lodge in process–

(a)a copy of the third party notice;

(b)a copy of the interlocutor allowing service of it; and

(c)a certificate of service.

Answers to third party notice

26.5.—(1) An order for service of a third party notice shall specify 28 days, or such other period as the court on cause shown may specify, as the period within which the third party may lodge answers.

(2) Answers for a third party shall include–

(a)answers to the averments of the defender against him in the form of numbered paragraphs corresponding to the numbered articles of the condescendence annexed to the summons and incorporating, if the third party so wishes, answers to the averments of the pursuer; or

(b)where a separate statement of facts has been lodged by the defender under rule 26.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

(c)appropriate pleas-in-law.

Consequences of failure to lodge answers

26.6.—(1) Where a third party fails to lodge answers, the defender may apply by motion for such finding, order or decree against the third party as may be appropriate to give effect to the claim in the third party notice.

(2) Where such a finding, order or decree is pronounced by the court, rule 19.2 (recall of decrees in absence) shall, with the necessary modifications, apply to that finding, order or decree as it applies to recall of a decree in absence by a defender.

Procedure following answers

26.7.—(1) Within 14 days after the date on which answers are lodged by the third party, the defender who has served the third party notice shall–

(a)make up an open record incorporating the pleadings of all parties;

(b)deliver four copies of that record to every other party; and

(c)lodge two copies of that record in process.

(2) When an open record is lodged in process under paragraph (1), the action shall be put out on the Adjustment Roll and the court shall pronounce an interlocutor continuing the action on that roll for 6 weeks.

(3) Where a proof or jury trial is necessary between parties to the action, the court may allow the action so far as directed against the third party to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action between the pursuer and the defender as the court thinks fit.

(4) Where a third party challenges the case pled by the pursuer, he may appear at the proof or jury trial of the pursuer’s case and lead evidence as if he were a defender; and such evidence, so far as competent and relevant, shall be evidence for or against the pursuer or for or against the defender, as the case may be, and shall be available to all the parties in the action.

(5) Subject to the preceding provisions of this Chapter and unless the context otherwise requires, the other provisions of these Rules in relation to actions shall, with the necessary modifications, apply as between the defender and a third party or the pursuer and a third party, as the case may be, as they apply to the action between the pursuer and defender.

CHAPTER 27DOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS

Lodging of documents founded on or adopted

27.1.—(1) Any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him–

(a)when founded on or adopted in a summons, at the time of lodging the summons for calling;

(b)when founded on or adopted in a petition, note, application, minute, defences, counterclaim or answers, at the time of lodging that writ; and

(c)when founded on or adopted in an adjustment to any pleadings, at the time when such adjustment is intimated to any other party.

(2) Paragraph (1) shall be without prejudice to any power of the court to order the production of any document or to grant a commission and diligence for recovery of it.

Consequences of failure to lodge documents founded on or adopted

27.2.  Where a party fails to lodge a document in accordance with rule 27.1(1), he may be found liable in the expenses of any order for the production or recovery of it obtained by any other party.

CHAPTER 28PROCEDURE ROLL

Hearings on procedure roll

28.1.—(1) When a cause calls on the Procedure Roll and no counsel, other person having a right of audience or party attends, the Lord Ordinary may pronounce an interlocutor dismissing or refusing the cause, as the case may be, and finding no expenses due to or by any party.

(2) An interlocutor pronounced under paragraph (1) may, if reclaimed, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) The court, after hearing parties on the Procedure Roll, may dispose of all or any of the preliminary pleas and may–

(a)allow parties a preliminary proof on specified matters or in respect of specified pleas;

(b)allow parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(c)allow a proof;

(d)allow issues for jury trial; or

(e)make such other order as it thinks fit.

(4) Where a cause has been appointed to the Procedure Roll, parties may, of consent, apply by motion to withdraw the cause from that roll and for any order which might have been pronounced at the hearing of the cause on that roll.

CHAPTER 29ABANDONMENT

Abandonment of actions

29.1.—(1) A pursuer may abandon an action by lodging a minute of abandonment in process and–

(a)consenting to decree of absolvitor; or

(b)seeking decree of dismissal.

(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless–

(a)full judicial expenses have been paid to the defender, and to any third party against whom he has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

(b)where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

(3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.

Application of abandonment of actions to counterclaims

29.2.  Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.

Abandonment of petitions, minutes and notes

29.3.—(1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be–

(a)enrolling a motion for abandonment of the cause; and

(b)intimating the motion to every person who lodged answers.

(2) The court may grant a motion under paragraph (1) subject to such conditions as to expenses or otherwise, if any, as it thinks fit.

CHAPTER 30WITHDRAWAL OF AGENTS

Intimation of withdrawal of agent to court

30.1.—(1) Where an agent withdraws from acting on behalf of a party, he shall intimate his withdrawal by letter to the Deputy Principal Clerk and to every other party.

(2) The Deputy Principal Clerk shall cause such letter to be lodged in process.

Intimation to party whose agent has withdrawn

30.2.—(1) The court shall, on the motion of any other party, pronounce an interlocutor ordaining the party whose agent has withdrawn from acting to intimate to the Deputy Principal Clerk within 14 days (or such other period as the court, on cause shown, thinks fit) after service of the interlocutor as required by paragraph (2) whether or not he intends to proceed, under certification that if he fails to intimate whether or not he intends to proceed, the court may grant such decree or make such order or finding as it thinks fit.

(2) The party who enrolled a motion under paragraph (1) shall forthwith serve a notice in Form 30.2 with a copy of the interlocutor pronounced under paragraph (1) to the party whose agent has withdrawn from acting.

Consequences of failure to intimate intention to proceed

30.3.  Where a party on whom a notice and interlocutor has been served under rule 30.2(2) fails to intimate to the Deputy Principal Clerk within the period specified in the interlocutor that he intends to proceed, the court shall, on the motion of any other party where a certificate of service of the interlocutor has been lodged in process, grant such decree, order or finding as it thinks fit.

CHAPTER 31MINUTES OF SIST AND TRANSFERENCE

Minutes of sist

31.1.—(1) Where a party dies or comes under legal incapacity while a cause is in dependence, any person claiming to represent that party or his estate may apply to the court by minute to be sisted as a party to the cause.

(2) Intimation of such an application shall be made to each party.

Minutes of transference

31.2.—(1) Where a party dies or comes under legal incapacity while a cause is depending before the court and the provisions of rule 31.1 (minutes of sist) are not invoked, any other party may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

(2) Where a minute of transference has been lodged in process, the court shall pronounce an interlocutor–

(a)granting warrant for service of a copy of the minute of transference, a copy of the pleadings (including any adjustments and amendments) and a copy of that interlocutor on such person; and

(b)allowing such person to lodge a minute of objection to the minute of transference within such period as the court thinks fit.

CHAPTER 32TRANSMISSION AND REMIT OF CAUSES

Remits to sheriff court

32.1.—(1) An application by a party under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985(19) (remit from court to sheriff) shall be made by motion.

(2) Where an action is remitted to a sheriff under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, the Deputy Principal Clerk shall, within 4 days after the interlocutor remitting the cause has been pronounced, transmit the process to the sheriff clerk of the sheriff court specified in the interlocutor.

(3) When transmitting a process under paragraph (2), the Deputy Principal Clerk shall–

(a)give written intimation of the transmission to the parties; and

(b)certify on the interlocutor sheet that such written intimation has been given.

(4) Failure by the Deputy Principal Clerk to comply with paragraph (3) shall not affect the validity of a remit made under paragraph (1).

Transmissions on contingency

32.2.—(1) An application under section 33 of the Act of 1988(20) (transmission from sheriff on ground of contingency) shall be made–

(a)by motion at the instance of a party to the cause depending before the court; or

(b)by minute at the instance of any other person having an interest (including a party to the cause depending before the sheriff).

(2) A copy of the pleadings and the interlocutors in the cause depending before the sheriff, certified by the sheriff clerk, shall be lodged with any motion enrolled or any minute lodged under paragraph (1).

(3) A decision made on an application under paragraph (1) may not be reclaimed; but where an application has been refused, a subsequent application may be made where there has been a change of circumstances.

Intimation of receipt of process transmitted from sheriff court

32.3.  On receipt of a process transmitted by a sheriff clerk by virtue of an order made under any enactment to remit a cause to the court, the Deputy Principal Clerk shall–

(a)write the date of receipt on the interlocutor sheet of the sheriff court process; and

(b)give written intimation of that date to each party.

Lodging of process and motion for further procedure

32.4.—(1) Within 14 days after the date of receipt of a process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court)–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

shall make up and lodge in the General Department a process incorporating the sheriff court process.

(2) On lodging a process under paragraph (1), the party lodging it shall apply by motion for an order for such further procedure as he desires; and the cause shall proceed as if it had been an action in the court initiated by a summons.

(3) A motion under paragraph (2) shall be disposed of by the Lord Ordinary.

Reponing against failure to comply with rule 32.4(1) or (2)

32.5.—(1) Where–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

fails to comply with the requirements of rule 32.4(1) or (2) (lodging of process and motion for further procedure), he may, within 7 days after the expiry of the period specified in rule 32.4(1), apply by motion to be reponed.

(2) The party enrolling a motion under paragraph (1), where the failure is a failure to lodge a process under rule 32.4(1), shall on enrolling the motion, lodge such a process and shall apply by motion for an order for such further procedure as he desires.

(3) A motion under paragraph (1) shall be granted only on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Insistence in remit by another party

32.6.  Where–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

has failed to comply with the requirements of paragraphs (1) or (2) of rule 32.4 (lodging of process and motion for further procedure), any other party to the cause may, within 7 days after the expiry of the period specified in rule 32.4(1) comply with the requirements of those paragraphs himself and insist in the remit.

Re-transmission to sheriff clerk

32.7.  Where, on the expiry of 21 days after the date of receipt of the process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court), no motion has been enrolled under rule 32.5(1) (reponing against failure to comply with rule 32.4(1) or (2)) and no motion has been enrolled under rule 32.6 (insistence in remit by another party), the remit shall be deemed to be abandoned and the Deputy Principal Clerk shall–

(a)write on the interlocutor sheet the words “Re-ransmitted in respect that the remit has been abandoned.”;

(b)add his signature and the date; and

(c)transmit the process to the sheriff clerk.

CHAPTER 33CAUTION AND SECURITY

Application of this Chapter

33.1.  Subject to any other provisions in these Rules, this Chapter applies to–

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

(b)security for expenses ordered to be given under section 136 of the Representation of the People Act 1983(21) in an election petition.

Form of applications

33.2.—(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.

Orders to find caution or other security

33.3.  Subject to section 726(2) of the Companies Act 1985(22) (order on company to find caution), 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.

Methods of finding caution or giving security

33.4.—(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 Court of Session Consignations (Scotland) Act 1895(23) in the name of the Accountant of Court.

(2) The court 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 court 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) A bond of caution or consignation receipt lodged in process shall be accompanied by a copy of it.

Cautioners and guarantors

33.5.  A bond of caution or other security obtained from an insurance company shall be given only by a company authorised under section 3 or 4 of the Insurance Companies Act 1982(24) to carry on insurance business of class 15 in Schedule 2 to that Act.

Form of bonds of caution and other securities

33.6.—(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 validly 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 by an insurance company shall state whether the company is authorised under section 3 or 4 of the Insurance Companies Act 1982 to carry on insurance business of class 15 in Schedule 2 to that Act.

Sufficiency of caution or security and objections

33.7.—(1) The Deputy Principal Clerk shall satisfy himself that any bond of caution or other document, lodged in process under rule 33.4(3), is in proper form.

(2) A party who is dissatisfied 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 33.10 (failure to find caution or give security).

Juratory caution

33.8.—(1) Where a pursuer in an action with a conclusion for suspension is ordered to find caution or give other security, he may offer to do so by juratory caution.

(2) Such an offer shall be made–

(a)at the time the order for caution or other security is made; or

(b)by enrolling a motion within the period allowed for finding caution or giving other security, as the case may be, or any prorogation of it, for the appointment of a commissioner.

(3) Where such an offer is made, the court shall–

(a)appoint a commissioner to take the deposition of the pursuer at a time and place to be fixed by the commissioner;

(b)ordain the pursuer to give notice of at least 7 days of the time and place so fixed by the commissioner to every other party to the action; and

(c)where the offer has been made by motion under paragraph (2)(b), prorogate the time for finding caution or giving other security, as the case may be, by such period as it thinks fit.

(4) At the time and place fixed by the commissioner in accordance with paragraph (3)(a), the pursuer shall be examined as to the nature and extent of his whole estate wheresoever situated and the other parties to the action shall be entitled to cross-examine him.

(5) After his examination, the pursuer shall send to the Deputy Principal Clerk–

(a)a bond of caution;

(b)a full inventory of his whole estate;

(c)a declaration attached to the inventory, stating that he will not dilapidate or dispose of any of his property or uplift any of the debts due to him, without the authority of the court (under pain of imprisonment or being otherwise punished as being guilty of fraud) or the consent of the party entitled to the benefit of the caution until the interlocutor disposing of the subject-matter of the action has become final and, where he has been found liable to pay any sum, including expenses, 12 weeks (and any further period that the court, on the motion of any party, may grant) have passed since the interlocutor became final;

(d)the vouchers of any debts due to the pursuer;

(e)the title deeds of any heritable property belonging to the pursuer, so far as in his possession or under his control; and

(f)where required by the party entitled to the benefit of the caution–

(i)a standard security in favour of such party over any heritable property belonging to the pursuer, and

(ii)as assignation of all debts or other rights due to the pursuer,

prepared at the expense of the pursuer.

(6) Subject to rule 33.12(1) (bond of caution or consignation receipt transmitted to Accountant of Court), the Deputy Principal Clerk shall retain any documents lodged under paragraph (5) of this rule until further order of the court.

Insolvency or death of cautioner or guarantor

33.9.  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 Bankruptcy (Scotland) Act 1985(25) (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 administration or winding up 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 Insolvency Act 1986(26)) 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.

Failure to find caution or give security

33.10.  Where a party fails to find caution or give other security (such a party being 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 court thinks fit.

Interlocutors authorising uplifting of consignation receipts

33.11.  An interlocutor authorising a party to uplift a consignation receipt from the Accountant of Court shall state the name of the person entitled to any interest which has accrued on the sum consigned.

Accountant of Court

33.12.—(1) A bond of caution or a consignation receipt lodged in any process shall be transmitted by the party lodging it, after the Deputy Principal Clerk has complied with rule 33.7(1), to the Accountant of Court.

(2) A bond of caution may be uplifted from the Accountant of Court on exhibition to him of the interlocutor granting discharge.

(3) A consignation receipt may be uplifted from the Accountant of Court on exhibition to him of a certified copy of the interlocutor authorising it.

(4) The form of book to be kept by the Accountant of Court under section 4 of the Court of Session Consignations (Scotland) Act 1895 (consignations to be entered in books kept by Accountant of Court) shall be in Form 33.12.

CHAPTER 34REPORTS TO INNER HOUSE

Report by Lord Ordinary to Inner House

34.1.—(1) The Lord Ordinary may, at any stage of a cause on intimation to the parties, report the cause or any incidental matter which arises in the course of it, to the Inner House for a ruling.

(2) The Lord Ordinary shall give effect to the ruling of a Division of the Inner House on a report to the Inner House unless the Division decides the cause or incidental matter itself or remits to the Lord Ordinary with directions to proceed in a particular way.

Fixing hearings for reports

34.2.—(1) Where the Lord Ordinary reports a cause, or any incidental matter in a cause, under rule 34.1(1) to the Inner House, each party shall, within 7 days after the date on which the report of the Lord Ordinary is issued, inform the Keeper of the Rolls of the estimate of counsel or other person having a right of audience of the duration of the hearing before the Inner House.

(2) If a party fails to comply with paragraph (1), the Keeper of the Rolls may put the cause out on the By Order Roll before a Division of the Inner House.

(3) Where, at any time after an estimate has been given to the Keeper of the Rolls under paragraph (1), a party’s estimate of the likely length of the hearing alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(4) On the basis of the information provided to him under this rule, the Keeper of the Rolls shall–

(a)put the cause out for hearing before a Division of the Inner House in the Single Bills or on the Summar Roll as he thinks fit; and

(b)give written intimation of the date of the hearing to each party.

Disposal of reports

34.3.—(1) On considering the report of the Lord Ordinary and hearing parties, the Inner House may–

(a)dispose of the cause or matter reported to it; or

(b)remit to the Lord Ordinary with such directions as it thinks fit.

(2) The decision of the Inner House on a report to it under rule 34.1(1) shall be final.

(3) The Inner House may determine any question of expenses in respect of the matter reported to it or may reserve any such question.

(4) An interlocutor pronounced by the Lord Ordinary in obedience to directions given under paragraph (1) shall be deemed to be an interlocutor of the Inner House.

CHAPTER 35RECOVERY OF EVIDENCE

Application and interpretation of this Chapter

35.1.—(1) This Chapter applies to the recovery of any evidence in a cause depending before the court.

(2) In this Chapter, “the Act of 1972” means the Administration of Justice (Scotland) Act 1972(27).

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972

35.2.—(1) An application by a party for–

(a)a commission and diligence for the recovery of a document, or

(b)an order under section 1 of the Act of 1972(28),

shall be made by motion.

(2) At the time of enrolling a motion under paragraph (1), a specification of–

(a)the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b)the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

(3) A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a)every other party;

(b)in respect of an application for an order under section 1(1) of the Act of 1972, any third party haver; and

(c)where necessary, the Lord Advocate.

(4) Where the Lord Ordinary grants a motion made under paragraph (1), in whole or in part, in an action before calling of the summons, he may order the applicant to find such caution or give such other security as he thinks fit.

(5) The decision of the Lord Ordinary on a motion under paragraph (1) in an action before calling of the summons shall be final and not subject to review.

(6) The Lord Advocate may appear at the hearing of any motion under paragraph (1).

Optional procedure before executing commission and diligence

35.3.—(1) The party who has obtained a commission and diligence for the recovery of a document on an application made under rule 35.2(1)(a) may, at any time before executing it against a haver, serve on the haver an order in Form 35.3 (in this rule referred to as “the order”).

(2) The order and a copy of the specification referred to in rule 35.2(2), as approved by the court, shall be served on the haver or his known agent and shall be complied with by the haver in the manner and within the period specified in the order.

(3) Not later than the day after the date on which the order, and any document recovered is received from a haver by the Deputy Principal Clerk, he shall give written intimation of that fact to each party.

(4) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (3).

(5) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (3), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(6) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (5), the Deputy Principal Clerk shall return it to the haver who delivered it to him.

(7) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a)give written intimation of the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days after the date of intimation, return it to the haver.

(8) If the party who served the order is not satisfied–

(a)that full compliance has been made with the order, or

(b)that adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 35.4.

(9) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the court may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(10) Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (9), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(11) The court may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

Execution of commission and diligence for recovery of documents

35.4.—(1) The party who seeks to execute a commission and diligence for recovery of a document obtained on an application under rule 35.2(1)(a) shall–

(a)provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b)fix a diet for the execution of the commission in consultation with every other party;

(c)instruct the clerk and any shorthand writer; and

(d)be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(3) A haver shall be cited to appear at a commission for the recovery of documents by service on him of a citation in Form 35.4–A–

(a)by registered post or the first class recorded delivery service; or

(b)personally, by messenger-at-arms.

(4) A certificate of citation of a haver–

(a)under paragraph (3)(a) shall be in Form 35.4-B; and

(b)under paragraph (3)(b) shall be in Form 35.4–C.

(5) There shall be served on the haver with the citation a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

(6) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a haver cited to appear at a commission for that party.

(7) The parties and the haver shall be entitled to be represented by counsel or other person having a right of audience, or an agent, at the execution of the commission.

(8) At the commission, the commissioner shall–

(a)administer the oath de fideli administratione to the clerk and shorthand writer appointed for the commission; and

(b)administer to the haver the oath in Form 35.4-D, or, where the haver elects to affirm, the affirmation in Form 35.4-E.

(9) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(10) Not later than the day after the date on which such a report, any document recovered and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to the parties that he has received them.

(11) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (10).

(12) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (11), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(13) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (12), the Deputy Principal Clerk shall return it to the haver.

(14) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a)give written intimation of the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972

35.5.—(1) An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or r⅔ ecovery of that document or other property.

(2) Rule 35.3 (optional procedure before executing commission and diligence) and rule 35.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972

35.6.—(1) An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment with or on, any such document or other property, as the case may be, subject to such conditions, if any, as the court thinks fit.

(2) A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3) When such an order is executed, the party who obtained the order shall serve on the haver a certified copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972

35.7.—(1) An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property shall grant a commission and diligence for the detention and custody of that document or other property.

(2) The party who has obtained an order under paragraph (1) shall–

(a)provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b)be responsible for the fees of the commissioner and his clerk; and

(c)serve a copy of the order on the haver.

(3) The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the Deputy Principal Clerk for the further order of the court.

Confidentiality

35.8.—(1) Where confidentiality is claimed for any document or other property sought to be recovered under any of the following rules, such document or other property shall, where practicable, be enclosed in a sealed packet:–

• rule 35.3 (optional procedure before executing commission and diligence),

• rule 35.4 (execution of commission and diligence for recovery of documents),

• rule 35.5 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

• rule 35.7 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972)

(2) A motion to have such a sealed packet opened up or such recovery allowed may be made by–

(a)the party who obtained the commission and diligence; or

(b)any other party after the date of intimation by the Deputy Principal Clerk under rule 35.3(5) or 35.4(12) (intimation of failure to uplift documents).

(3) In addition to complying with rule 23.3 (intimation of motions), the party enrolling such a motion shall intimate the terms of the motion to the person claiming confidentiality by registered post or the first class recorded delivery service.

(4) The person claiming confidentiality may oppose a motion made under paragraph (2).

Warrants for production of original documents from public records

35.9.—(1) Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the court by motion.

(2) Written intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 2 days before the motion is enrolled.

(3) Where it appears to the court that it is necessary for the ends of justice that a motion under this rule should be granted, authority shall be given to such keeper, on production of a certified copy of the interlocutor granting the motion, to produce or exhibit, as the case may be, the original register or deed to the court.

(4) The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

Warrants for transmission of processes

35.10.—(1) A party who seeks to lodge in process any process in the custody of the Keeper of the Records, or any process depending or which depended in any inferior court in Scotland, may apply by motion to the court for a warrant to authorise and direct the Keeper of the Records or the clerk of the inferior court, as the case may be, on production of a certified copy of the interlocutor granting the motion, to transmit that process to the Deputy Principal Clerk.

(2) A party who enrols a motion under paragraph (1) shall give written intimation of the motion to the Keeper of the Records or the clerk of the inferior court, as the case may be, at least 2 days before the motion is enrolled.

(3) The Deputy Principal Clerk shall grant a receipt for any process transmitted to him under an order made under paragraph (1) and lodge it in the process of the cause.

(4) No process transmitted under paragraph (1) may be borrowed.

(5) After a process transmitted under paragraph (1) ceases to be required, the Deputy Principal Clerk shall return it to the Keeper of the Records or the clerk of the inferior court, as the case may be.

Commissions for examination of witnesses

35.11.—(1) This rule applies to a commission–

(a)to take the evidence of a witness on a ground mentioned in section 10(b) of the Act of 1988(29);

(b)in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis; or

(c)on special cause shown, to take the evidence of a witness on a ground other than one referred to in sub-paragraph (a) or (b).

(2) An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the court.

(3) Where a motion under paragraph (2) is made in an action before calling of the summons–

(a)the applicant shall give written intimation of the motion to every other person named in the instance; and

(b)the decision of the Lord Ordinary shall be final and not subject to review.

(4) The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

(5) A witness shall be cited to give evidence at a commission by service on him of a citation in Form 35.11–A–

(a)by registered post or the first class recorded delivery service; or

(b)personally, by a messenger-at-arms.

(6) The certificate of citation of a witness–

(a)under paragraph (5)(a) shall be in Form 35.11–B; and

(b)under paragraph (5)(b) shall be in Form 35.11–C.

(7) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited to appear at a commission for that party.

(8) At the commission, the commissioner shall–

(a)administer the oath de fideli administratione to the clerk and any shorthand writer appointed for the commission; and

(b)administer to the witness the oath in Form 35.4-D, or, where the witness elects to affirm, the affirmation in Form 35.4–E.

(9) In a cause involving the collision of ships, such an application shall be granted on condition, where necessary, that the applicant shall, at least 24 hours before the evidence is taken, lodge in process a preliminary act which the commissioner shall be entitled to open before the witness is examined.

(10) Where a commission is granted for the examination of a witness, the court may, on the motion of any party and on cause shown, dispense with interrogatories.

Commissions on interrogatories

35.12.—(1) Where interrogatories have not been dispensed with, the party who obtained the commission to examine a witness under rule 35.11 shall lodge draft interrogatories to be adjusted at the sight of the clerk of court.

(2) Any other party may lodge cross-interrogatories to be adjusted at the sight of the clerk of court.

(3) The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the clerk of court for approval.

(4) The party who has obtained the commission shall–

(a)provide the commissioner with a copy of the pleadings (including any adjustments and amendments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

(b)instruct the clerk; and

(c)be responsible, in the first instance, for the fee of the commissioner and his clerk.

(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

(6) The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(7) Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(8) The party who obtained the commission to examine the witness shall lodge in process–

(a)the report of the commission; and

(b)the executed interrogatories and any cross-interrogatories.

Commissions without interrogatories

35.13.—(1) Where interrogatories have been dispensed with, the party who has obtained a -commission to examine a witness under rule 35.11 shall–

(a)provide the commissioner with a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b)fix a diet for the execution of the commission in consultation with the commissioner and every other party;

(c)instruct the clerk and any shorthand writer; and

(d)be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) All parties shall be entitled to be present and represented by counsel or other person having a right of audience, or agent, at the execution of the commission.

(3) The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(4) Not later than the day after the date on which such report, any document and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(5) The party who obtained the commission to examine the witness shall lodge the report in process.

Evidence taken on commission

35.14.—(1) Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 35.12 or 35.13 may be used as evidence at any proof or jury trial of the cause.

(2) Any party may object to the use of such evidence at a proof or jury trial; and the objection shall be determined by the court.

(3) Such evidence shall not be used at a proof or jury trial if the witness becomes available to attend the diet of proof or jury trial, as the case may be.

(4) A party may use such evidence in accordance with the preceding paragraphs of this rule notwithstanding that it was obtained at the instance of another party.

Letters of request

35.15.—(1) This rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the Court of Session.

(2) An application to which paragraph (1) applies may be made in relation to a request–

(a)for the examination of a witness,

(b)for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be,

(c)for the medical examination of any person,

(d)for the taking and testing of samples of blood from any person, or

(e)for any other order for obtaining evidence,

for which an order could be obtained in the Court of Session.

(3) Such an application shall be made by minute in Form 35.15—A with a proposed letter of request in Form 35.15—B.

(4) It shall be a condition of granting a letter or request that the agent for the applicant, or the party litigant, as the case may be, shall be personally liable, in the first instance, for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness or haver who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the court thinks fit.

(5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory–

(a)where English is an official language, or

(b)in relation to which the Deputy Principle Clerk certifies that no translation is required,

then the applicant shall, before the issue of the letter of request, lodge in process a translation of that letter and any interrogatories and cross-interrogatories into the official language of that court or tribunal.

(6) The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 35.12 and the translations (if any), shall be forwarded by the Deputy Principal Clerk to such person and in such manner as the Lord president may direct.

CHAPTER 36PROOFS

Hearing parts of proof separately

36.1.—(1) In any cause, the court may–

(a)at its own instance, or

(b)on the motion of any party,

order that proof on liability or any other specified issue be heard separately from proof on any other issue and determine the order in which the proofs shall be heard.

(2) The court shall pronounce such interlocutor as it thinks fit at the conclusion of the first proof of any cause ordered to be heard in separate parts under paragraph (1).

Citation of witnesses

36.2.—(1) A witness shall be cited for a proof by service on him of a citation in Form 36.2–A–

(a)by registered post or the first class recorded delivery service, by the agent for the party on whose behalf he is cited; or

(b)personally, by a messenger-at-arms.

(2) A certified copy of the interlocutor allowing a proof shall be sufficient warrant to a messenger-at-arms to cite a witness on behalf of a party.

(3) A certificate of citation of a witness–

(a)under paragraph (1)(a) shall be in Form 36.2–B; and

(b)under paragraph (1)(b) shall be in Form 36.2–C.

(4) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited by him to appear at a proof.

(5) Where a party to a cause is a party litigant, he shall–

(a)not later than 12 weeks before the diet of proof, apply to the court by motion to fix caution for the expenses of witnesses in answering a citation in such sum as the court considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

(b)before instructing a messenger-at-arms to cite a witness, find the caution which has been fixed.

(6) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (5)(a) may apply by motion for variation of the amount of caution.

Lodging productions

36.3.—(1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless–

(a)by consent of parties; or

(b)with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Copy productions

36.4.—(1) A copy of every production, marked with the appropriate number of process of the principal production, shall be lodged for the use of the court at a proof not later than 48 hours before the diet of proof.

(2) Each copy production consisting of more than one sheet shall be securely fastened together by the party lodging it.

Returning borrowed documents before proof

36.5.  All steps of process and productions which have been borrowed shall be returned to process before 12.30 p.m. on the day preceding the diet of proof.

Notices to admit and notices of non-admission

36.6.—(1) At any time after a proof has been allowed, a party may intimate to any other party a notice or notices calling on him to admit for the purposes of that cause only–

(a)such facts relating to an issue averred in the pleadings as may be specified in the notice;

(b)that a particular document lodged in process and specified in the notice is–

(i)an original and properly authenticated document; or

(ii)a true copy of an original and properly authenticated document.

(2) Where a party on whom a notice is intimated under paragraph (1)–

(a)does not admit a fact specified in the notice, or

(b)does not admit, or seeks to challenge, the authenticity of a document specified in the notice,

he shall, within 21 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him under paragraph (1) stating that he does not admit the fact or document specified.

(3) A party who fails to intimate a notice of non-admission under paragraph (2) shall be deemed to have admitted the fact or document specified in the notice intimated to him under paragraph (1); and such fact or document may be used in evidence at a proof if otherwise admissible in evidence, unless the court, on special cause shown, otherwise directs.

(4) A party who fails to intimate a notice of non-admission under paragraph (2) within 14 days after the notice to admit intimated to him under paragraph (1) shall be liable to the party intimating the notice to admit for the expenses of proving the fact or document specified in that notice unless the court, on special cause shown, otherwise directs.

(5) The party intimating a notice under paragraph (1) or (2) shall lodge a copy of it in process.

(6) A deemed admission under paragraph (3) shall not be used against the party by whom it was deemed to be made other than in the cause for the purpose for which it was deemed to be made or in favour of any person other than the party by whom the notice was given under paragraph (1).

(7) The court may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as it thinks fit.

Admissions by parties

36.7.—(1) Where a party admits–

(a)any matter of fact whether averred in the pleadings or not,

(b)the authenticity of any document, or

(c)the sufficiency of a copy or extract of such a document as equivalent to the original,

which has not been admitted in the pleadings or in respect of which a notice under rule 36.6(1) has not been intimated, a minute of admission signed by counsel or other person having a right of audience for the party making such admission, shall be lodged in process.

(2) An admission made in a minute of admission may be used in evidence at a proof if otherwise admissible in evidence.

(3) In taxing any account of expenses, the Auditor shall disallow the expenses of any evidence led on matters covered by a minute of admission, unless special cause is shown to him.

Conditions for receiving certain written statements in evidence

36.8.—(1) Any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988(30), may be received in evidence at a proof in any category of cause without being spoken to by a witness subject to the provisions of this rule.

(2) The following provisions of this rule do not apply to any such written statement or report in respect of which express provision is made in these Rules for its admissibility in evidence in relation to a particular category of cause.

(3) An application to the court to receive any such written statement or report in evidence without being spoken to by a witness shall be made by motion.

(4) Subject to paragraph (5), on enrolling any such motion, the applicant shall lodge in process–

(a)the written statement or report as a production;

(b)in any case where the other party or parties have not agreed to the written statement or report in question being received in evidence without being spoken to by a witness, an affidavit or affidavits in support of the motion stating–

(i)the name, designation, qualifications (if any) and address of the author of the statement or report in question;

(ii)the circumstances in which it was written; and

(iii)the reasons for the application.

(5) Paragraph (4) does not apply to an application made in respect of a written statement or report in the form of an affidavit which includes the information specified in sub-paragraph (b) of paragraph (4).

(6) Any such motion which is unopposed may be granted by the court without a hearing.

(7) At a hearing of any such motion, the court may continue the motion to enable such further information to be obtained as it may require for the purpose of determining the application.

(8) Expressions used in this rule which are used in the Civil Evidence (Scotland) Act 1988 shall have the same meaning as in that Act.

Attendance, and lists, of witnesses

36.9.—(1) It shall be the duty of each party to ensure that his witnesses, if any, are–

(a)in attendance in the vicinity of the courtroom; and

(b)available when called to give evidence.

(2) Each party shall, before his case begins, give to the macer of the court a numbered list of any witnesses of his in the order in which it is proposed to call them.

(3) No witness at a proof shall, except with leave of the court–

(a)be present in the courtroom during the proceedings prior to the giving of his evidence; or

(b)leave the courtroom after giving evidence.

(4) No party, other than the party citing a witness, shall have access to that witness while he is in attendance at court.

Administration of oath or affirmation to witnesses

36.10.  The Lord Ordinary shall administer the oath to a witness in Form 36.10–A or, where the witness elects to affirm, the affirmation in Form 36.10–B.

Recording of evidence

36.11.—(1) Subject to any other provision in these Rules, evidence at a proof shall be recorded by–

(a)a shorthand writer to whom the oath de fideli adminisratione officii has been administered on his appointment as a shorthand writer in the Court of Session; or

(b)tape recording or other mechanical means approved by the Lord President.

(2) The record of the evidence at a proof shall include–

(a)any objection taken to a question or to the line of evidence;

(b)any submission made in relation to such an objection; and

(c)the ruling of the court in relation to the objection and submission.

(3) A transcript of the record of the evidence shall be made only on the direction of the court; and the cost shall, in the first instance, be borne–

(a)in an undefended cause, by the agent for the pursuer; and

(b)in a defended cause, by the agents for the parties in equal proportions.

(4) The transcript of the record of the evidence provided for the use of the court shall be certified as a faithful record of the evidence by–

(a)the shorthand writer or shorthand writers, if more than one, who recorded the evidence; or

(b)where the evidence was recorded by tape recording or other mechanical means, the person who transcribed the record.

(5) The court may make such alterations to the transcript of the record of the evidence as appear to it to be necessary after hearing the parties; and, where such alterations are made, the Lord Ordinary shall authenticate the alterations.

(6) Where a transcript of the record of the evidence has been made for the use of the court, copies of it may be obtained by any party from the shorthand writer on payment of his fee.

(7) Except with leave of the court, the transcript of the record of the evidence may be borrowed from process only for the purpose of enabling a party to consider whether to reclaim against the interlocutor of the court on the proof.

(8) Where a transcript of the record of the evidence is required for the purpose of a reclaiming motion but has not been directed to be transcribed under paragraph (3), the reclaimer–

(a)may request such a transcript from the shorthand writer, or as the case may be, the cost of the transcript being borne by the agent for the reclaimer in the first instance; and

(b)shall lodge the transcript in process;

and copies of it may be obtained by any party from the shorthand writer, or as the case may be, on payment of his fee.

Finality of decision on sufficiency of stamp

36.12.  The decision of the Lord Ordinary that a document adduced in evidence is sufficiently stamped, or does not require to be stamped, shall be final and not subject to review.

Death, disability, retiral, etc., of Lord Ordinary

36.13.—(1) Where the Lord Ordinary, before whom proof has been taken, in whole or in part, dies, retires or otherwise becomes unable to give judgment or to hear further proof, as the case may be, any party to the cause may apply by motion to the Inner House for directions–

(a)that the cause shall be continued before, and shall be disposed of by, another Lord Ordinary;

(b)that the notes of evidence already taken, as certified by the shorthand writer, shall be evidence in the cause; and

(c)that the notes of the Lord Ordinary taken at the proof shall be made available to the Lord Ordinary before whom the cause is to be continued.

(2) On making directions under paragraph (1), the Inner House may make such other order as it thinks fit.

(3) On enrolling a motion under paragraph (1), the party enrolling it shall–

(a)lodge in process four copies of the closed record (incorporating all interlocutors pronounced in the cause and amendments to the record allowed since the closing of the record); and

(b)send one copy of that record to every other party.

(4) It shall not be necessary for any documents to be lodged in support of such a motion unless the court otherwise directs.

(5) The vacation judge may not hear or determine a motion under paragraph (1).

CHAPTER 37JURY TRIALS

Applications for jury trial

37.1.—(1) Within 14 days after the date of an interlocutor allowing issues in an action, the pursuer shall lodge in process the proposed issue for jury trial and a copy of it for the use of the court.

(2) Where a pursuer fails to lodge a proposed issue for jury trial under paragraph (1), he shall, unless–

(a)the court, on cause shown, otherwise orders, or

(b)a proposed issue is lodged by another party under paragraph (3),

be held to have departed from his right to jury trial; and any other party may apply by motion for a proof.

(3) Where a pursuer fails to lodge a proposed issue under paragraph (1), any other party may, within 7 days after the expiry of the period specified in that paragraph, lodge in process a proposed issue for jury trial and a copy of it.

(4) Where a proposed issue has been lodged under paragraph (1) or (3), any other party may, within 7 days after the date on which the proposed issue has been lodged, lodge in process a proposed counter-issue and a copy of it.

(5) A proposed counter-issue lodged by a party under paragraph (4) may include any question of fact which is made the subject of a specific averment on record or is relevant to his pleas-in-law notwithstanding that it does not in terms meet the proposed issue.

(6) The party lodging a proposed issue under paragraph (1) or (3) shall, on the day after the date on which the period for lodging a proposed counter-issue under paragraph (4) expires, apply by motion for approval of the proposed issue.

(7) Any party who has lodged a proposed counter-issue under paragraph (4) shall, within 7 days after the enrolment of a motion for approval of a proposed issue under paragraph (6), apply by motion for approval of his proposed counter-issue.

(8) Where a proposed counter-issue has been lodged, the motion for approval of a proposed issue shall be heard at the same time as the motion for approval of the proposed counter-issue.

(9) The Lord Ordinary, on granting a motion for approval of a proposed issue or proposed counter-issue, shall authenticate with his signature the proposed issue or proposed counter-issue as lodged or as adjusted.

(10) Where an issue or counter-issue has been approved by the court, the party whose issue or counter-issue it is shall lodge 18 copies of the approved issue or counter-issue for the use of the court; and such copies need not contain the authentication of the Lord Ordinary.

Citation of jurors

37.2.—(1) Not less than 14 days before the diet for jury trial, the pursuer shall attend at the General Department and request the issue of a jury precept.

(2) Where the pursuer has failed to request the issue of a jury precept under paragraph (1), any other party may request a jury precept not less than 10 days before the diet for jury trial.

(3) A jury precept shall be in Form 37.2–A.

(4) Where a jury precept is issued, it shall be transmitted by a clerk of session to the sheriff principal of the sheriffdom of Lothian and Borders who shall cause a list of jurors to be prepared of an equal number of men and women in accordance with the precept.

(5) A citation of a person to attend as a juror shall be in Form 37.2–B and shall be executed by the sheriff clerk at Edinburgh (or a depute authorised by him) by post by the first class recorded delivery service.

(6) Where no party requests the issue of a jury precept under paragraph (1) or (2), each party shall be held to have departed from the application for a jury trial and inquiry into the facts of the cause shall be taken by proof.

Ineligibility for, and excusal from, jury service

37.3.—(1) A person summoned to serve on a jury may, as soon as possible after receipt of his citation, apply in writing to the Deputy Principal Clerk to be released from his citation; and the Deputy Principal Clerk may, if he is satisfied that there are good and sufficient grounds for excusal, grant the application.

(2) The Lord Ordinary to preside at the jury trial may, at any time before the jury is empanelled, excuse any person summoned to attend as a juror from attendance if he is satisfied that there are good and sufficient grounds for doing so.

Application of certain rules relating to proofs

37.4.  The following provisions of these Rules shall apply in relation to an action in which issues have been approved for jury trial as they apply to a cause in which a proof has been allowed:–

• rule 36.2 (citation of witnesses),

• rule 36.3 (lodging productions),

• rule 36.4 (copy productions),

• rule 36.5 (returning borrowed documents before proof),

• rule 36.6 (notices to admit and notices of non-admission),

• rule 36.7 (admissions by parties),

• rule 36.8 (conditions for receiving certain written statements in evidence),

• rule 36.9 (attendance, and lists, of witnesses),

• rule 36.10 (administration of oath or affirmation to witnesses),

• rule 36.11 (recording of evidence).

Failure of party to appear at jury trial

37.5.  Where a party does not appear at the diet for jury trial, then–

(a)if the party appearing is the pursuer or the party on whom the burden of proof lies, he shall be entitled to lead evidence, and go to the jury for a verdict;

(b)if the party appearing is the defender or the party on whom the burden of proof does not lie, he shall be entitled to obtain a verdict in his favour without leading evidence.

Administration of oath or affirmation to jurors

37.6.—(1) Subject to paragraph (2), the clerk of court shall administer the oath collectively to the jury in Form 37.6–A.

(2) Where a juror elects to affirm, the clerk shall administer the affirmation to that juror in Form 37.6–B.

Exceptions to judge’s charge

37.7.—(1) Where a party seeks to take exception to a direction on a point of law given by the Lord Ordinary in his charge to the jury or to request the Lord Ordinary to give a direction differing from or supplementary to the directions in the charge, he shall, immediately on the conclusion of the charge, so intimate to the Lord Ordinary, who shall hear counsel for the parties in the absence of the jury.

(2) The party dissatisfied with the charge to the jury shall formulate in writing the exception taken by him or the direction sought by him; and the exception or direction, as the case may be, and the judge’s decision on it, shall be recorded in a note of exception under the direction of the Lord Ordinary and shall be certified by him.

(3) After the note of exception has been certified by the Lord Ordinary, he may give such further or other directions to the jury in open court as he thinks fit before the jury considers its verdict.

Further questions for jury

37.8.  The Lord Ordinary may, after the evidence has been led, submit to the jury in writing along with the issue and any counter-issue such further questions as he thinks fit.

Verdicts

37.9.  After a verdict has been returned by a jury, the verdict shall be written on the issue and dated and signed by the clerk of court.

Application of verdicts

37.10.  Any party may, after the expiry of 7 days after the date on which the verdict was written on the issue and signed, apply by motion to apply the verdict, grant decree in accordance with it and make any award in relation to expenses.

CHAPTER 38RECLAIMING

Interpretation of this Chapter

38.1.  In this Chapter, “reclaiming days” means the days within which an interlocutor may be reclaimed against.

Reclaiming

38.2.  Subject to any other provision in these rules or any other enactment, any party to a cause who is dissatisfied with an interlocutor pronounced by–

(a)the Lord Ordinary,

(b)the Lord Ordinary in Exchequer Causes, or

(c)the vacation judge,

and who seeks to submit that interlocutor to review by the Inner House shall do so by reclaiming in accordance with the provisions of this Chapter.

Reclaiming days

38.3.—(1) This rule applies subject to any other provision in these Rules or any other enactment.

(2) An interlocutor disposing, either by itself or taken along with a previous interlocutor, of–

(a)the whole subject matter of the cause, or

(b)the whole merits of the cause whether or not the question of expense is reserved or not disposed of,

may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(3) An interlocutor disposing of the merits of an action and making an award of provisional damages under section 12(2)(a) of the Administration of justice Act 1982(31) may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(4) An interlocutor–

(a)disposing of part of the merits of a cause,

(b)allowing or refusing proof, proof before answer or jury trial (but, in the case of refusal, without disposing of the whole merits of the cause),

(c)limiting the mode of proof,

(d)adjusting issues for jury trial,

(e)granting, refusing, recalling, or refusing to recall, interim interdict or interim liberation,

(f)in relation to an exclusion order under section 4 of the Matrimonial Homes (Fami ly Protection) (Scotland) Act 1981(32),

(g)granting, refusing or recalling a sist of execution or procedure,

(h)loosing, restricting or recalling an arrestment or recalling in whole or in part an inhibition used on the dependence of an action or refusing to loose, restrict or recall such arrestment or inhibition,

(i)granting authority to move an arrested vessel or cargo,

(j)deciding (other than in a summary trial) that a reference to the European Court should be made,

may be reclaimed against, without leave, within 14 days after the date on which the interlocutor was pronounced.

(5) An interlocutor (other than a decree in absence or an interlocutor mentioned in paragraph (2), (3) or (4) of this rule) may be reclaimed against, with leave, within 14 days after the date on which the interlocutor was pronounced.

Leave to reclaim etc. in certain cases

38.4.—(1) An interlocutor granting or refusing a motion for summary decree may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(2) In the application of section 103(3) of the Debtors (Scotland) Act 1987(33) (appeals on questions of law arising from making, variation or recall of time to pay directions)–

(a)leave to appeal shall be sought within 14 days after the date of the decision of the Lord Ordinary appealed against; and

(b)an appeal shall be made by motion to the Inner House within 14 days after the date on which leave was granted.

(3) An interlocutor pronounced under rule 43.24 (diet roll in optional procedure cases) which does not, either by itself or taken along with a previous interlocutor, dispose of the whole merits of the action whether or not the question of expenses is reserved or not disposed of, may be reclaimed against, only with the leave of the Lord Ordinary, within 14 days after the date on which the interlocutor was pronounced.

(4) An interlocutor, other than an interlocutor determining the application, pronounced under Chapter 58 (applications for judicial review) may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(5) The decision of the Lord Ordinary on a note of objection to the report of the Auditor under rule 42.4 may be reclaimed against only with the leave of the Lord Ordinary within 7 days after the date on which the decision was made.

Applications for leave to reclaim

38.5.—(1) An application for leave to reclaim against an interlocutor shall be made by motion.

(2) A motion under paragraph (1) shall be brought–

(a)before the Lord Ordinary who pronounced the interlocutor;

(b)where that Lord Ordinary is, for whatever reason, unavailable, before another Lord Ordinary; or

(c)before the vacation judge.

(3) Where a motion under paragraph (1) is brought before a judge under paragraph (2)(b) or (c), that judge shall–

(a)continue the motion until the Lord Ordinary who pronounced the interlocutor is available; or

(b)where the matter is of such urgency that a continuation would not be appropriate, grant or refuse leave, as the case may be.

(4) Any period during which a motion under paragraph (1) is continued by virtue of an order under paragraph (3)(a) shall not be taken into account in calculating the reclaiming days under rule 38.3(5) (reclaiming days with leave) or rule 38.4 (leave to reclaim etc. in certain cases).

(5) In granting leave to reclaim, the Lord Ordinary may impose such conditions, if any, as he thinks fit.

(6) The decision of the Lord Ordinary or the vacation judge to grant or refuse leave to reclaim shall be final and not subject to review.

(7) Leave to reclaim against an interlocutor shall not excuse obedience to or implement of the interlocutor unless by order of the Lord Ordinary, the Inner House or the vacation judge.

Method of reclaiming

38.6.—(1) A party who seeks to reclaim against an interlocutor shall mark a reclaiming motion by enrolling a motion for review in Form 38.6 before the expiry of the reclaiming days.

(2) On enrolling a motion for review under paragraph (1), the reclaimer shall lodge a reclaiming print which complies with rule 38.18.

Leave to reclaim out of time

38.7.—(1) In a case of mistake or inadvertance, the Inner House may, on an application to it, allow a motion for review to be received outwith the reclaiming days and to proceed out of time on such conditions as to expenses or otherwise as the court thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion for review made under rule 38.6(1).

Effect of reclaiming

38.8.—(1) Subject to paragraph (2), a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary, not only at the instance of the party reclaiming, but also at the instance of any other party who appeared in the cause, and without the necessity of any counter-reclaiming motion.

(2) Where an interlocutor, either by itself or taken along with a previous interlocutor, has disposed of the whole merits of the cause, a reclaiming motion against a subsequent interlocutor dealing with expenses shall have the effect of submitting to review only that interlocutor and any other interlocutor in so far as it deals with expenses.

(3) After a reclaiming motion has been enrolled, the reclaimer shall not be at liberty to withdraw it without the consent of the other parties who have appeared in the cause; and if he does not insist on the reclaiming motion, any other party may do so in the same way as if the motion had been enrolled at his instance.

(4) An unopposed motion by a party to refuse a reclaiming motion shall be treated as if all parties consented to it.

(5) Where an interlocutor contains an award of custody, access or aliment, the marking of a reclaiming motion shall not excuse obedience to or implement of the award of custody, access or aliment, as the case may be, unless by order of the court.

Effect of extracted interlocutor

38.9.  Review by the Inner House of an interlocutor shall not be prevented by reason only that extract has been issued before the expiry of the reclaiming days.

Appeals treated as reclaiming motions

38.10.  In respect of the following appeals, the rules in this Chapter shall apply to those appeals as they apply to reclaiming:–

(a)an appeal from a decision of the Lord Ordinary under section 6 of, and Article 37 or 41 of the convention in Schedule 1 or 3C to, the Civil Jurisdiction and Judgments Act 1982(34) (appeals in relation to decisions on enforcement); and

(b)an appeal from a decision of the Lord Ordinary under section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law).

Reclaiming against decree by default

38.11.—(1) Where decree by default has been granted against a party in respect of his failure to lodge a step of process or other document, a motion for review by that party of the interlocutor granting such decree shall be refused unless the document is lodged on or before the date on which the motion is enrolled.

(2) A decree by default may, if reclaimed against, be recalled on such conditions, if any, to expenses or otherwise as the court thinks fit.

Reclaiming against interlocutor adjusting issues

38.12.—(1) A party who reclaims against an interlocutor adjusting issues for jury trial shall, on enrolling the motion for review–

(a)lodge in process the issue or counter-issue proposed by him showing the amendment to the issues, as adjusted, sought to be made; and

(b)send a copy of the issue or counter-issue, as the case may be, to every other party.

Early disposal of reclaiming motion

38.13.—(1) A party who seeks early disposal of a reclaiming motion shall–

(a)where he is the reclaimer, include in his motion under rule 38.6(1) (method of reclaiming) the words “and for early disposal”; or

(b)where he is the respondent–

(i)within the period allowed for opposing the motion, endorse on the motion of the reclaimer made under rule 38.6(1), or send by post or facsimile transmission a notice of opposition in Form 23.4 including the words “The respondent (name) seeks early disposal.”; or

(ii)add, to his opposition under rule 38.14(1) (objections to competency of reclaiming motion), the words “and for early disposal”.

(2) Where early disposal is sought under paragraph (1), the Keeper of the Rolls shall put the cause out for hearing in the Single Bills before a Division of the Inner House on the earliest available day, having given written intimation of the diet to each party.

(3) Grounds of appeal which comply with rule 38.16(2) shall be lodged with three copies of them by–

(a)the reclaimer, and

(b)any respondent seeking to bring any interlocutor under review or to challenge the grounds on which the Lord Ordinary has pronounced the interlocutor under review,

on the sederunt day before the day of the hearing in the Single Bills arranged under paragraph (2).

(4) At the hearing in the Single Bills, the court may determine the reclaiming motion or, after consultation with the Keeper of the Rolls, make such order as it thinks fit.

Objections to competency of reclaiming motion

38.14.—(1) After a reclaiming motion has been marked by a reclaimer, any other party may oppose the motion on the ground that the reclaiming motion is incompetent.

(2) Where a reclaiming motion has been opposed under paragraph (1), the cause shall be put out for hearing in the Single Bills before a Division of the Inner House.

(3) At the hearing in the Single Bills arranged under paragraph (2), the Inner House may–

(a)dispose of the objection to competency and, where it repels the objection, order grounds of appeal to be lodged;

(b)appoint the cause to the Summar Roll for a hearing on the objection;

(c)reserve the objection until grounds of appeal have been lodged and order such grounds to be lodged;

(d)reserve the objection for hearing with the merits and order grounds of appeal to be lodged.

(4) Where the Deputy Principal Clerk considers that a reclaiming motion may be incompetent, whether or not any other party has opposed the reclaiming motion under paragraph (1), he may, before the cause is brought before the Inner House, refer it to a single judge in accordance with paragraph (5).

(5) Any referral by the Deputy Principal Clerk under paragraph (4) shall be made to a judge nominated for that purpose by the Lord President.

(6) Where a referral is made under paragraph (4), the judge may–

(a)order any party to make representations to him in respect of the competency of the reclaiming motion;

(b)refuse the reclaiming motion on the ground that it is incompetent;

(c)direct that the reclaiming motion is to proceed as if the referral had not been made;

(d)make such order as to expenses or otherwise as he thinks fit.

(7) Any decision of a judge in respect of a reclaiming motion referred to him under paragraph (4) shall be final and not subject to review.

Procedure where no objection to competency

38.15.—(1) Subject to paragraph (2), where a reclaiming motion is not opposed on the ground of competency, the Inner House shall, without hearing parties, order grounds of appeal to be lodged.

(2) This rule shall not apply where an application is made under rule 38.13(1) (early disposal of reclaiming motion).

Grounds of appeal in reclaiming motions

38.16.—(1) An order for grounds of appeal shall require–

(a)the reclaimer, and

(b)any respondent seeking to bring an interlocutor under review or to challenge the grounds on which the Lord Ordinary has pronounced the interlocutor under review,

to lodge grounds of appeal in process within 28 days after the date of the interlocutor making the order.

(2) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the reclaiming motion should be allowed or as the case may be.

(3) On lodging grounds of appeal, the party lodging them shall–

(a)lodge three copies of them in process; and

(b)send a copy of them to every other party.

(4) A party who has lodged grounds of appeal may at any time apply for leave to amend his grounds of appeal on cause shown.

(5) Where a reclaimer fails to lodge grounds of appeal in accordance with paragraph (2) within the period prescribed under paragraph (1), the Inner House may, at its own instance or on the motion of a respondent, refuse the reclaiming motion.

Orders for hearing

38.17.—(1) Subject to rule 38.13 (early disposal of reclaiming motion), on lodging grounds of appeal–

(a)the reclaimer who has lodged grounds of appeal, or

(b)where the reclaimer no longer insists in his reclaiming motion, a respondent who has lodged grounds of appeal,

shall apply by motion to the Inner House for an order for hearing.

(2) On a motion under paragraph (1), the Inner House may–

(a)appoint the cause to the Summar Roll for hearing; or

(b)direct that the cause be heard in the Single Bills.

(3) In a cause in which an objection to competency has been reserved under rule 38.14(3)(c), the motion under paragraph (1) of this rule shall require the attendance of counsel or other person having a right of audience, and, at the hearing of that motion in the Single Bills, the Inner House may–

(a)dispose of the objection, and, where it repels the objection, either dispose of the merits in the Single Bills or appoint the cause to the Summar Roll for hearing;

(b)appoint the cause to the Summar Roll for hearing on the objection; or

(c)reserve the objection for hearing with the merits and appoint the cause to the Summar Roll for hearing.

Reclaiming prints

38.18.  A reclaiming print shall be in the form of a record and shall contain–

(a)the whole pleadings and interlocutors in the cause;

(b)where the reclaiming motion is directed at the refusal of the Lord Ordinary to allow the pleadings to be amended in terms of a minute of amendment and answers, the text of such minute and answers; and

(c)where available, the opinion of the Lord Ordinary.

Lodging of appendices in reclaiming motions

38.19.—(1) Where, in a reclaiming motion–

(a)the opinion of the Lord Ordinary has not been included in the reclaiming print, or

(b)it is sought to submit notes of evidence or documents for consideration by the court,

the reclaimer shall lodge an appendix incorporating such documents within three months after the cause has been appointed to the Summar Roll.

(2) Where the reclaimer considers that an appendix is not necessary, the reclaimer shall, by the date specified in paragraph (1)–

(a)give written intimation of that fact to the Deputy Principal Clerk; and

(b)send a copy of that intimation to the respondent.

(3) Where a respondent in a reclaiming motion seeks to submit notes of evidence or documents for consideration by the court which the reclaimer has given written intimation to the respondent he does not intend to include in his appendix, the respondent shall incorporate such notes or documents in an appendix which he shall lodge within one month after the date on which intimation under paragraph (2) or this paragraph, as the case may be, was given.

(4) Where a reclaimer fails to lodge an appendix in accordance with paragraph (1), a respondent may apply by motion to the Inner House to have the reclaiming motion refused.

Notes of evidence not extended when agreed

38.20.  Where, in a reclaiming motion, the parties are agreed that on any particular issue the interlocutor reclaimed against is not to be submitted to review, it shall not be necessary to reproduce the notes of evidence or documents relating to that issue.

Amendment of pleadings in reclaiming motions

38.21.—(1) Where, after a reclaiming motion has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears to the Inner House that the proposed amendment makes a material change to the pleadings, it may recall the interlocutor of the Lord Ordinary reclaimed against and remit the cause back to the Lord Ordinary for a further hearing.

CHAPTER 39APPLICATIONS FOR NEW TRIAL OR TO ENTER JURY VERDICTS

Applications for new trial

39.1.—(1) An application under section 29(1) of the Act of 1988(35) (application for new trial) shall be made by motion within 7 days after the date on which the verdict of the jury was written on the issue and signed.

(2) A motion under paragraph (1) shall specify the grounds on which the application is made.

(3) An application under section 29(1)(a) or (b) of the Act of 1988 may not be made unless–

(a)in the case of an application under section 29(1)(a) (misdirection of judge), the procedure in rule 37.7 (exceptions to judge’s charge) has been complied with; or

(b)in the case of an application under section 29(1)(b) (undue admission or rejection of evidence), objection was taken to the admission or rejection of the evidence at the trial and recorded in the notes of evidence under direction of the judge presiding at the trial.

(4) On enrolling a motion for a new trial under paragraph (1), the party enrolling it shall lodge–

(a)a print of the whole pleadings and interlocutors in the cause incorporating the issues and counter issues;

(b)the verdict of the jury; and

(c)any exception and the determination on it of the judge presiding at the trial.

(5) Rule 38.8 (effect of reclaiming) shall, with the necessary modifications, apply to an application for a new trial under section 29 of the Act of 1988 as it applies to a reclaiming motion.

Applications out of time

39.2.—(1) Where an application for a new trial under section 29(1) of the Act of 1988 is made outwith the period specified in rule 39.1(1) the motion made in accordance with that rule shall include an application to allow the motion to be received and for leave to proceed out of time.

(2) Where the court grants an application under paragraph (1), it shall–

(a)where the motion has been opposed as incompetent, make such order as may be made under rule 39.3(2); or

(b)where no such opposition has been marked, appoint the cause to the Summar Roll for hearing or dispose of the motion in the Single Bills.

Objections to competency of application

39.3.—(1) Where an application for a new trial under section 29(1) of the Act of 1988 is made by a party, any other party may oppose the motion on the ground that it is incompetent.

(2) At the hearing in the Single Bills of the motion referred to in paragraph (1), the court may–

(a)dispose of the objection to competency; and, where it repels the objection, appoint the cause to the Summar Roll for hearing or determine the motion in the Single Bills;

(b)appoint the cause to the Summar Roll for a hearing on the objection; or

(c)reserve the objection for hearing with the merits and appoint the cause to the Summar Roll for hearing.

Procedure where no objections to competency

39.4.  Where an application for a new trial under section 29(1) of the Act of 1988 is–

(a)made timeously, and

(b)not opposed on the ground of competency,

the court shall, without hearing parties, appoint the cause to the Summar Roll or direct that it be put out in the Single Bills for hearing.

Lodging of appendix

39.5.  Rule 38.19 (lodging of appendices in reclaiming motions) shall, with the necessary modifications, apply to an application for a new trial under section 29(1) of the Act of 1988 as it applies to a reclaiming motion.

Applications to enter jury verdict

39.6.—(1) An application under section 31(1) of the Act of 1988 (verdict returned subject to opinion of Inner House on point reserved) shall be made by motion.

(2) On enrolling a motion under paragraph (1), the party enrolling it shall lodge in process four copies of the closed record incorporating–

(a)all interlocutors pronounced in the cause and any amendments to the record allowed;

(b)the issues and counter issues;

(c)any exception taken during the trial and the determination on it of the judge presiding at the trial; and

(d)the verdict of the jury;

and send one copy of it to every other party.

(3) Unless the court otherwise directs, it shall not be necessary for the purposes of such a motion to print the notes of evidence, but the notes of the judge presiding at the trial may be produced at any time if required.

(4) In a case of complexity or difficulty, the Inner House may appoint an application referred to in paragraph (1) to the Summar Roll for hearing.

CHAPTER 40APPEALS FROM INFERIOR COURTS

Application and interpretation of this Chapter

40.1.—(1) This Chapter applies to an appeal to the court from any decision pronounced by an inferior court which may be appealed to the court.

(2) In this Chapter–

(a)“appeal process” means–

(i)the process of the inferior court; or

(ii)where the cause is recorded in an official book of an inferior court, a copy of the record in that book certified by the clerk of the inferior court;

(b)“decision” includes interlocutor, judgment or other determination;

(c)“inferior court” means–

(i)the Lyon Court;

(ii)the sheriff; or

(iii)the Employment Appeal Tribunal.

Applications for leave to appeal from inferior court

40.2.—(1) Where leave to appeal is required, an application for such leave shall be made in the first instance, to the inferior court unless the enactment allowing the appeal requires the application to be made to the court.

(2) Where–

(a)the inferior court has refused leave to appeal and such refusal is not final, or

(b)leave to appeal is required from the court and not the inferior court,

any application to the court for leave to appeal shall be made in Form 40.2 to the Inner House.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department–

(a)within the period prescribed by the enactment by virtue of which it is made; or

(b)where no such period is prescribed, within 14 days after the date specified in paragraph (4).

(4) The date referred to in paragraph (3)(b) is–

(a)the date on which the decision of the inferior court refusing leave to appeal was intimated to the appellant; or

(b)where the application for leave to appeal is required to be made to the court and not the inferior court–

(i)the date on which the decision of the inferior court complained of was issued; or

(ii)where the inferior court issued reasons for its decision later than the decision, the date of issue of the reasons.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)–

(a)a process in accordance with rule 4.4 (steps of process);

(b)where applicable–

(i)evidence that leave to appeal has been refused by the inferior court;

(ii)a copy of the grounds of appeal intimated to the inferior court; and

(iii)any note by the inferior court setting out the reasons for its refusal;

(c)a copy of the decision of the inferior court complained of and any reasons for that decision; and

(d)where the inferior court itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Determination of applications for leave to appeal from inferior court

40.3.—(1) On lodging an application for leave to appeal under rule 40.2, the applicant shall apply by motion to the Inner House for an order for intimation and service.

(2) On expiry of the period within which answers may be lodged, the applicant may apply by motion to the Inner House for the application to be granted.

Time and method of appeal

40.4.—(1) An appeal from an inferior court shall be made–

(a)within the period prescribed by the enactment by virtue of which the appeal is made; or

(b)where no such period is prescribed, within 21 days after–

(i)the date on which the decision appealed against was given;

(ii)where the inferior court issued written reasons for its decision later than the decision, the date on which the written reasons were issued; or

(iii)where leave to appeal was granted by the inferior court or application for leave to appeal was made to the court under rule 40.2(2), the date on which leave was granted by the inferior court or the court, as the case may be.

(2) A party seeking to appeal from an inferior court shall mark an appeal by writing a note of appeal–

(a)in Form 40.4 on the interlocutor sheet, minute of court or other written record containing the decision appealed against; or

(b)where such a decision is not available or the proceedings of the inferior court are recorded in an official book, on a separate sheet lodged with the clerk of the inferior court.

(3) A note of appeal shall–

(a)be signed by the appellant or his agent;

(b)bear the date on which it is signed; and

(c)where the appellant is represented, specify the name and address of the agent who will be acting for him in the appeal.

Leave to appeal out of time

40.5.—(1) An application to allow an appeal to be received outwith the time prescribed for marking an appeal and to proceed out of time shall be included in the note of appeal.

(2) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process from the clerk of the inferior court under rule 40.6(1), the appellant shall apply by motion to allow the appeal to be received outwith the time prescribed for marking an appeal and for leave to proceed out of time.

(3) The decision of the Inner House on a motion under paragraph (2) shall be final and not subject to review.

(4) Where a motion under paragraph (2) is refused, the Deputy Principal Clerk shall–

(a)give written intimation to the clerk of the inferior court that leave to appeal out of time has been refused; and

(b)transmit the appeal process and note of appeal to him.

Transmission of appeal process

40.6.—(1) Within 4 days after an appeal has been marked, the clerk of the inferior court shall–

(a)give written intimation of the appeal to every other party and certify on the interlocutor sheet, other record or separate note of appeal, as the case may be, that he has done so; and

(b)transmit–

(i)the appeal process, and

(ii)any separate note of appeal,

to the Deputy Principal Clerk.

(2) On receipt of an appeal process sent to him under paragraph (1), the Deputy Principal Clerk shall–

(a)mark the date of receipt on the interlocutor sheet, other record or separate note of appeal, as the case may be; and

(b)given written intimation of that date to the appellant.

(3) Where the clerk of the inferior court or the Deputy Principal Clerk fails to comply with a provision of this rule, the appeal shall not be invalidated; but the court may give such remedy for any disadvantage or inconvenience occasioned thereby as it thinks fit.

Procedure following transmission of appeal process

40.7.—(1) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process, each party seeking to appear in the appeal shall–

(a)give written intimation to the Deputy Principal Clerk of, or,

(b)state by note written on the interlocutor sheet, minute of court, or other record containing the decision appealed against or on the separate note of appeal, as the case may be,

his name and address and that of his agent (if any).

(2) Subject to rule 40.9(2) (appeals deemed abandoned), within 28 days after the date of receipt by the Deputy Principal Clerk of the appeal process, or the date of the interlocutor granting a motion made under rule 40.5(2) (leave to appeal out of time), whichever is the later, the appellant shall–

(a)lodge–

(i)a process, including each part of the appeal process, in accordance with rule 4.4 (steps of process); and

(ii)an appeal print; and

(b)send a copy of the appeal print in accordance with rule 4.6(1) (intimation of steps of process).

(3) Subject to rule 40.11 (early disposal of appeal), on lodging in process the documents required under paragraph (2), the appellant shall apply by motion to the Inner House for an order for grounds of appeal to be lodged.

Sist of process of appeal

40.8.—(1) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process, the appellant may apply by motion to the Inner House for a sist of process.

(2) On enrolling a motion under rule 40.5(2) (leave to appeal out of time) or under paragraph (1) of this rule, the appellant shall lodge a motion sheet and afi n interlocutor sheet, if not already lodged.

(3) Where the court grants a motion under paragraph (1), the period of 28 days mentioned in rule 40.7(2) shall not run during any period in which the appeal is sisted.

Appeals deemed abandoned

40.9.—(1) If an appellant fails–

(a)to apply by motion in accordance with rule 40.5(2) (leave to appeal out of time), or

(b)to comply with the requirements of rule 40.7(2) (lodging process etc.),

he shall be deemed to have abandoned his appeal on the expiry of the period for marking an appeal or for complying with the requirements of rule 40.7(2), as the case may be.

(2) Where an appeal has been deemed to be abandoned by reason of paragraph (1)(b), a respondent may, within 7 days after the date on which the appeal is deemed to be abandoned, comply with the requirements of rule 40.7(2) (lodging process etc.) and thereafter insist in the appeal as if it had been marked by him; and the following provisions of this Chapter applying to an appellant shall, with the necessary modifications, apply to an appeal by a respondent under this paragraph.

(3) Where a respondent insists in an appeal under paragraph (2), the appellant shall be entitled to insist in the appeal notwithstanding that his appeal has been deemed to be abandoned.

(4) If, on the expiry of 7 days after the date on which an appeal is deemed to be abandoned by virtue of paragraph (1)–

(a)the appellant has not been reponed under rule 40.10, and

(b)the respondent does not insist in the appeal under paragraph (2) of this rule,

the decision appealed against shall be treated in all respects as if no appeal had been marked, and the Deputy Principal Clerk shall transmit the appeal process to the clerk of the inferior court in accordance with paragraph (5) of this rule.

(5) Where an appeal process falls to be transmitted to the inferior court under paragraph (4), the Deputy Principal Clerk shall–

(a)write on the interlocutor sheet, minute of court or other record containing the decision appealed against or on the separate note of appeal, as the case may be, a certificate in Form 40.9;

(b)send the appeal process to the clerk of the inferior court; and

(c)give written intimation to each party to the appeal of the date on which the appeal process was transmitted.

(6) Where an appeal–

(a)is deemed to be abandoned under paragraph (1) and has been transmitted to an inferior court under paragraph (5), the respondent in the appeal may apply by motion to that court for an award of the expenses of the abandoned appeal; and

(b)the inferior court shall on such motion grant decree for payment to that respondent of those expenses as taxed by the Auditor of the Court of Session.

Reponing against deemed abandonment

40.10.—(1) An appellant may, within 7 days after the date on which the appeal has been deemed to be abandoned under rule 40.9(1), apply by motion to be reponed.

(2) The court may grant a motion under paragraph (1) on such conditions as to expenses or otherwise as it thinks fit.

(3) On enrolling a motion under paragraph (1), the appellant shall lodge a process (or such necessary steps of process as have not already been lodged) and an appeal print.

Early disposal of appeal

40.11.—(1) A party who seeks early disposal of an appeal shall–

(a)where he is the appellant, instead of enrolling for an order for grounds of appeal under rule 40.7(3), apply by motion to the Inner House for early disposal of the appeal; or

(b)where he is the respondent–

(i)within the period allowed for opposing the motion, endorse, on the motion of the appellant made under rule 40.7(3), the words “The respondent ( name) seeks early disposal.”;

(ii)who is insisting in an appeal deemed abandoned by virtue of rule 40.9(1), instead of enrolling for an order for grounds of appeal under rule 40.7(3) (by virtue of rule 40.9(2)), apply by motion to the Inner House for early disposal of the appeal; or

(iii)add, to his opposition under rule 40.12(1) (objections to competency of appeals), the words “and for early disposal”.

(2) Where early disposal is sought under paragraph (1), the Keeper of the Rolls shall put the cause out in the Single Bills before a Division of the Inner House on the earliest available day, having given written intimation of the diet to each party.

(3) Grounds of appeal which comply with rule 40.14(2) shall be lodged with three copies of them by the appellant before the hearing on the Single Bills arranged under paragraph (2).

(4) At the hearing on the Single Bills, the court may determine the appeal or, after consultation with the Keeper of the Rolls, may make such order as it thinks fit.

Objections to competency of appeals

40.12.—(1) Where a motion for grounds of appeal under rule 40.7(3) has been enrolled by an appellant, any other party may oppose the motion on the ground that the appeal is incompetent.

(2) Where a motion has been opposed under paragraph (1), the cause shall be put out for hearing in the Single Bills before a Division of the Inner House.

(3) At the hearing in the Single Bills arranged under paragraph (2), the court may–

(a)dispose of the objection to competency and, where it repels the objection, order grounds of appeal to be lodged;

(b)appoint the cause to the Summar Roll for a hearing on the objection;

(c)reserve the objection until grounds of appeal have been lodged and order such grounds to be lodged;

(d)reserve the objection for hearing with the merits and order grounds of appeal to be lodged.

(4) Where the Deputy Principal Clerk considers that an appeal may be incompetent, whether or not any other party has opposed the motion for grounds of appeal under paragraph (1), he may, before the cause is brought before the Inner House, refer it to a single judge in accordance with paragraph (5).

(5) Any referral by the Deputy Principal Clerk under paragraph (4) shall be made to a judge nominated for that purpose by the Lord President.

(6) Where a referral is made under paragraph (4), the judge may–

(a)order any party to make representations to him in respect of the competency of the appeal;

(b)refuse the appeal on the ground that it is incompetent;

(c)direct that the appeal is to proceed as if the referral had not been made;

(d)make such order as to expenses or otherwise as he thinks fit.

(7) Any decision of a judge in respect of an appeal referred to him under paragraph (4) shall be final and not subject to review.

Procedure where no objection to competency of appeal

40.13.—(1) Subject to paragraph (2), where an appeal is not opposed on the ground of competency, the Inner House shall, without hearing parties, order grounds of appeal to be lodged.

(2) This rule shall not apply where an application is made under rule 40.11(1) (early disposal of appeal).

Grounds of appeal

40.14.—(1) An order for grounds of appeal shall require–

(a)the appellant, and

(b)any respondent seeking to appeal against any interlocutor or challenge the grounds on which the inferior court has made its decision,

to lodge grounds of appeal within 28 days after the date of the interlocutor making the order.

(2) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed or as the case mfi ay be.

(3) On lodging grounds of appeal, the party lodging them shall send a copy of them to every other party to the appeal.

(4) A party who has lodged grounds of appeal may at any time apply for leave to amend his grounds of appeal on cause shown.

(5) Where an appellant fails to lodge grounds of appeal in accordance with paragraph (2) within the period prescribed under paragraph (1), the Inner House may, at its own instance or on the motion of a respondent, refuse the appeal.

Orders for hearing of appeal

40.15.—(1) Within 7 days after the expiry of the period prescribed for lodging grounds of appeal–

(a)the appellant who has lodged grounds of appeal, or

(b)where the appellant no longer insists in his appeal, a respondent who has lodged grounds of appeal,

shall apply by motion to the Inner House for an order for hearing.

(2) On a motion under paragraph (1), the court may–

(a)appoint the cause to the Summar Roll for hearing; or

(b)direct that the cause be heard in the Single Bills.

(3) In a cause in which an objection to competency has been reserved under rule 40.12(3)(c), the motion under paragraph (1), of this rule shall require the attendance of counsel or other person having a right of audience, and, at the hearing of that motion in the Single Bills, the court may–

(a)dispose of the objection and, where it repels the objection, either dispose of the merits on the Single Bills or appoint the cause to the Summar Roll for hearing;

(b)appoint the cause to the Summar Roll for hearing on the objection; or

(c)reserve the objection for hearing with the merits and appoint the cause to the Summar Roll for hearing.

Appeal prints

40.16.  An appeal print shall be in the form of a record and shall contain–

(a)the whole pleadings and interlocutors in the cause;

(b)where the appeal is directed at the refusal of the inferior court to allow the pleadings to be amended, the text of the proposed amendment; and

(c)where available, the judgment of the inferior court (including in an appeal in a summary cause under the Summary Cause Rules of the Sheriff Court(36), the stated case of the sheriff).

Lodging of appendices in appeals

40.17.—(1) Where, in an appeal–

(a)the judgment of the inferior court has not been included in the appeal, or

(b)it is sought to submit notes of evidence or other documents for consideration by the court,

the appellant shall lodge an appendix incorporating such documents within three months after the cause had been appointed to the Summar Roll.

(2) Where the appellant considers that an appendix is not necessary, the appellant shall, by the date specified in paragraph (1)–

(a)give written intimation of that fact to the Deputy Principal Clerk; and

(b)send a copy of that intimation to the respondent.

(3) Where a respondent in an appeal seeks to submit notes of evidence or other documents for consideration by the court which the appellant has given written intimation to the respondent he does not intend to include in his appendix, the respondent shall incorporate such notes or documents in an appendix which he shall lodge within one month after the date on which intimation under paragraph (2) or this paragraph, as the case may be, was given.

(4) Where an appellant fails to lodge an appendix in accordance with paragraph (1), a respondent may apply by motion to the Inner House to have the appeal refused.

Notes of evidence not extended when agreed in appeals

40.18.  Where, in an appeal, the parties are agreed that on any particular issue the decision appealed against is not to be submitted to review, it shall not be necessary to reproduce the notes of evidence or documents relating to that issue.

Amendment of pleadings in appeals

40.19.—(1) Where, after an appeal has been marked, a party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears to the Inner House that the proposed amendment makes a material change to the pleadings, it may set aside the decision, or recall the interlocutor, as the case may be, of the inferior court appealed against and remit the cause back to the inferior court for a further hearing.

CHAPTER 41APPEALS UNDER STATUTE

PART IGENERAL PROVISIONS

Application and interpretation of this Chapter

41.1.—(1) This Chapter applies to an appeal to the court from a decision of a tribunal other than a decision in the Outer House or a court to which Chapter 40 (appeals from inferior courts) applies.

(2) In this Chapter, unless the context otherwise requires–

• “appeal” includes stated case, case, special case (other than a special case under section 27 of the Act of 1988(37)), reference or submission;

• “case” means stated case, special case (other than a special case under section 27 of the Court of Session Act 1988), reference or submission;

• “decision” includes determination or assessment;

• “party” means the person appearing before the tribunal against the decision of which appeal is taken;

• “tribunal” means court, Secretary of State, Minister, Department, statutory tribunal, referee, authority or arbiter, as the case may be, against whose decision the appeal is taken.

Applications for leave to appeal

41.2.—(1) Where leave to appeal is required, an application for such leave shall be made, in the first instance, to the tribunal which made the decision sought to be appealed against unless the enactment allowing the appeal requires the application to be made to the court.

(2) Where–

(a)the tribunal has refused leave to appeal and such refusal is not final, or

(b)leave to appeal is required from the court and not the tribunal,

any application to the court for leave to appeal shall be made in Form 40.2 to the Inner House.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department–

(a)within the period prescribed by the enactment by virtue of which it is made; or

(b)where no such period is prescribed, within 14 days after the date specified in paragraph (4).

(4) The date referred to in paragraph (3)(b) is–

(a)the date on which the decision of the tribunal refusing leave to appeal was intimated to the appellant; or

(b)where the application for leave to appeal is required to be made to the court and not the tribunal–

(i)the date on which the decision of the tribunal complained of was intimated to the appellant; or

(ii)where the tribunal issued a statement of its reasons for its decision later than the decision, the date of intimation of the statement of reasons to the appellant.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)–

(a)a process in accordance with rule 4.4 (steps of process);

(b)where applicable–

(i)evidence that leave to appeal has been refused by the tribunal;

(ii)a copy of the grounds of appeal submitted to the tribunal; and

(iii)any note by the tribunal setting out the reasons for its refusal;

(c)a copy of the document issued by the tribunal setting out the decision complained of and any reasons for that decision; and

(d)where the tribunal itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Determination of applications for leave to appeal

41.3.—(1) On lodging an application for leave to appeal under rule 41.2, the applicant shall apply by motion to the Inner House for an order for intimation and service.

(2) On expiry of the period within which answers may be lodged, the applicant may apply by motion to the Inner House for the application to be granted.

(3)In an appeal by stated case, where an application for leave to appeal has been granted–

(a)the Deputy Principal Clerk shall send a certified copy of the interlocutor granting the application to the tribunal; and

(b)within 14 days after the date on which the certified copy of the interlocutor was sent to it, the tribunal shall state a case in accordance with rule 41.9 (preparation and issue of case).

PART IIAPPEALS BY STATED CASE ETC.

Application and interpretation of this Part

41.4.  Subject to the provisions of the enactment providing for appeal and to Parts III to X, this Part shall regulate the procedure in–

(a)an appeal by stated case, special case, case, reference or submission against the decision of a tribunal;

(b)a case stated by an arbiter;

(c)all statutory proceedings for obtaining the opinion of the court on a question before the issue of a decision by a tribunal or by appeal against such a decision; and

(d)a case required to be stated by a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(38).

Applications for case

41.5.—(1) An application for a case for the opinion of the court on any questions shall be made by minute setting out the question on which the case is applied for.

(2) A minute under paragraph (1) shall be sent to the clerk of the tribunal–

(a)where the application must be made before the issue of the decision of the tribunal, at any time before the issue of the decision; or

(b)where the application may be made–

(i)after the issue of the decision of the tribunal, or

(ii)in a cause in which a statement of the reasons for the decision was given later than the issue of the decision, after the issue of that statement,

within 14 days after the issue of the decision or statement of reasons, as the case may be.

Additional questions by other parties

41.6.—(1) On receipt of an application under rule 41.5 (applications for case), the clerk of the tribunal shall send a copy of the minute to every other party.

(2) Within 14 days after the date on which the clerk of the tribunal complied with paragraph (1), any other party may lodge with the clerk a minute setting out any additional question he proposes for the case; and on so doing he shall send a copy of it to every other party.

Consideration of application by tribunal

41.7.—(1) Within 21 days after the expiry of the period allowed for lodging a minute under rule 41.6(2) (additional questions by other parties), the tribunal shall–

(a)decide to state a case on the basis of the questions set out in the application for a case under rule 41.5(1) and any minute under rule 41.6(2);

(b)where it is of the opinion that the proposed question–

(i)does not arise,

(ii)does not require to be decided for the purposes of the appeal, or

(iii)is frivolous,

refuse to state a case on that question; or

(c)where the application under rule 41.5(1) is made before the facts have been ascertained and the tribunal is of the opinion that it is necessary or expedient that the facts should be ascertained before the application is disposed of, defer further consideration of the application until the facts have been ascertained by it.

(2) Where the tribunal has deferred a decision under paragraph (1)(c), it shall, within 14 days after it has ascertained the facts, decide whether to state or refuse to state a case.

(3) Where the tribunal makes a decision under paragraph (1) or (2). the clerk of the tribunal shall intimate that decision to each party.

(4) Where the tribunal has refused to state a case on any question, there shall be sent to the applicant with the intimation under paragraph (3)–

(a)a certificate specifying–

(i)the date of the decision of the tribunal; and

(ii)the reasons for refusal; and

(b)where the refusal has been made after the facts have been ascertained, a note of the proposed findings-in-fact on which the tribunal proposes to base its decision; or

(c)where the refusal has been made before the facts have been ascertained, a note of, or sufficient reference to, the averments of the parties in the appeal on which the refusal is based.

Procedure for ordaining tribunal to state a case

41.8.—(1) Where the tribunal has refused to state a case on any question, the party whose application has been refused may, within 14 days after the date on which intimation of such refusal was made under rule 41.7(3), lodge in the General Department–

(a)an application by note to the Inner House for an order to require the other party to show cause why a case should not be stated;

(b)the certificate and any note issued under rule 41.7(4); and

(c)a process in accordance with rule 4.4 (steps of process).

(2) A note under paragraph (1)(a) shall–

(a)state briefly the grounds on which the application is made; and

(b)specify the order and any incidental order sought.

(3) An application under paragraph (1) shall be put out in the Single Bills before the Inner House on the first available day after the date on which the note under paragraph (1)(a) was lodged for an order for service of the note on–

(a)the tribunal; and

(b)every other party.

(4) After the period for lodging answers has expired, the Inner House shall, on a motion by the noter, without hearing parties–

(a)appoint the note to the Summar Roll for hearing; or

(b)direct that the note be heard in the Single Bills.

(5) The noter shall intimate the decision of the Inner House on the note to the tribunal.

Preparation and issue of the case

41.9.—(1) Where the tribunal has decided, or is ordered under rule 41.8, to state a case, the tribunal shall, within 14 days after the date of intimation of its decision to the parties, cause the case to be prepared in Form 41.9 and copies of it to be submitted in draft to each party.

(2) The case shall–

(a)specify the relevant provision of the enactment under which it is prepared;

(b)state in numbered paragraphs the facts and circumstances out of which the case arises, as agreed or found, or as the case may be, the decision of the tribunal and the reasons for the decision; and

(c)set out the question for answer by the court.

(3) Within 21 days after the date on which the draft case is submitted under paragraph (1), each party shall–

(a)return a copy of it to the clerk of the tribunal with a note of any amendments which he seeks to have made; and

(b)intimate such amendments to every other party.

(4) Within 28 days after the expiry of the period for return of the case under paragraph (3), the tribunal–

(a)shall adjust and settle the case; and

(b)may, when so doing, add such further or additional findings-in-fact and such additional questions as it thinks necessary for the disposal of the subject-matter of the case.

(5) Where the tribunal does not accept any amendment sought by a party, it shall append to the case a note of–

(a)the terms of the amendment proposed by the party and any statement by that party in support of the proposal; and

(b)its reasons for rejecting the proposed amendment.

(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall send it to the party, or first party, who applied for it.

Intimation of intention to proceed

41.10.—(1) The party to whom the case has been sent under rule 41.9(6) or paragraph (3) of this rule shall, within 14 days after the date of receipt of it–

(a)intimate to every other party a notice stating whether or not he intends to proceed with the case; and

(b)send a copy of the case to every other party.

(2) Where the party to whom the case has been sent under rule 41.9(6) does not intend to proceed with it, he shall, on intimating that fact to every other party under paragraph (1), send the case back to the clerk of the tribunal.

(3) On receipt of the case sent back under paragraph (1), the clerk of the tribunal shall send it to any other party who had applied for a case.

Lodging of case in court

41.11.—(1) The party who applied for the case shall, within the period mentioned in paragraph (2)–

(a)lodge in the General Department–

(i)the case; and

(ii)a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b)on giving written intimation to every other party of the lodging of the case, send four copies of the case to every other party; and

(c)endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.

(2) The period referred to in paragraph (1) shall be–

(a)the period prescribed by the enactment under or by virtue of which the appeal is brought; or

(b)where no such period is prescribed, within 28 days after the date on which the case was received by him from the clerk of the tribunal by virtue of rule 41.9(6) or 41.10(3), as the case may be.

Abandonment of appeal

41.12.—(1) If a party–

(a)fails to comply with a requirement of rule 41.11(1) (lodging of case in court), and

(b)does not apply to be reponed under rule 41.13 (reponing against deemed abandonment),

he shall be deemed to have abandoned his appeal.

(2) Where a party is deemed to have abandoned his appeal under paragraph (1) and another party has also applied for a case and has had no opportunity of proceeding with his appeal, the party deemed to have abandoned his appeal shall–

(a)intimate to that other party that his appeal is abandoned, and

(b)send the case to that other party;

and that other party shall be entitled to proceed in accordance with rule 41.11.

(3) In the application of rule 41.11 to a party entitled to proceed by virtue of paragraph (2) of this rule, for the words “on which the case” to “rule 41.9(6) or 41.10(3), as the case may be” in paragraph (2)(b) of that rule, there shall be substituted the words “of intimation of abandonment under rule 41.12 (2)”.

Reponing against deemed abandonment

41.13.  A party may apply by motion to the Inner House within 7 days after the expiry of the period specified in rule 41.11(2) (period for lodging of case in court), to be reponed against a failure to comply with a requirement of rule 41.11(1).

Procedure on abandonment

41.14.—(1) On the abandonment of the appeal by all parties entitled to proceed, the case shall be sent to the Deputy Principal Clerk.

(2) On receiving a case sent to him under paragraph (1), the Deputy Principal Clerk shall–

(a)endorse the case with a certificate in Form 41.14; and

(b)transmit the case to the clerk of the tribunal.

(3) Where a case has been transmitted under paragraph (2), the tribunal shall, on a motion being made to it to that effect–

(a)dispose of the cause; and

(b)where one party only has applied for a stated case, find him liable for payment to the other party in the appeal of the expenses of the abandoned appeal as taxed by the Auditor of the Court of Session.

Motions for hearing of appeals

41.15.—(1) On lodging a case under rule 41.11 (lodging of case in court), the party lodging it shall apply by motion to the Inner House for an order for a hearing.

(2) The Inner House shall, on a motion under paragraph (1), without hearing parties–

(a)appoint the cause to the Summar Roll for hearing; or

(b)direct that the cause be heard in the Single Bills.

Amendment or re-statement of case

41.16.  The Inner House may, at any time before the final determination of the case–

(a)allow the case to be amended with the consent of the parties; or

(b)remit the case for restatement, or further statement, in whole or in part by the tribunal.

Remit to reporter

41.17.—(1) Where, in order to determine the case, any inquiry into matters of fact may be made, the Inner House may remit to a reporter, the Lord Ordinary or one of its own number to take evidence and to report to the court.

(2) On completion of a report made under paragraph (1), the reporter shall send his report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.

(3) On receipt of such a report, the Deputy Principal Clerk shall–

(a)cause the report to be lodged in process; and

(b)given written intimation to each party that this has been done and that he may uplift a copy of the report from the process.

(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.

PART IIIAPPEALS IN FORM 41.19

Application of this Part

41.18.  Subject to the provisions of the enactment providing for appeal, this Part applies to an appeal against a decision of a tribunal other than an appeal to which Part II (appeals by stated case etc.) applies.

Form of appeal

41.19.—(1) An appeal to which this Part applies shall be made in Form 41.19 presented to the Inner House.

(2) An appeal referred to in paragraph (1) shall–

(a)specify the relevant provision of the enactment under the authority of which the appeal is brought;

(b)specify the decision complained of, the date on which the decision was made and on which it was intimated to the appellant, and any other necessary particulars;

(c)where the appeal is against only a part of such a decision, specify or distinguish that part;

(d)set out the decision appealed against or refer to the decision (a copy of which shall be appended to the appeal);

(e)fi state, in brief numbered propositions, the grounds of appeal; and

(f)set out in a schedule the names and addresses of the respondents in the appeal and the name and address, so far as known to the appellant, of any other person who may have an interest in the appeal.

Lodging of appeal in court

41.20.—(1) Subject to paragraph (2), the appeal shall be lodged in the General Department–

(a)within the period prescribed by the enactment under which it is brought; or

(b)where no such period is prescribed, within 42 days after–

(i)the date on which the decision appealed against was intimated to the appellant;

(ii)where the tribunal issued a statement of reasons for its decision later than the decision, the date of intimation of that statement of reasons to the appellant; or

(iii)where leave to appeal was granted by the tribunal or application for leave to appeal was made to the court under rule 41.2(2), the date on which leave was granted by the tribunal or the court, as the case may be.

(2) There shall be lodged with the appeal under paragraph (1)–

(a)a process in accordance with rule 4.4 (steps of process), unless an application has already been made to the court for leave to appeal;

(b)where appropriate, evidence that leave to appeal has been granted by the tribunal;

(c)the documents mentioned in rule 41.2(6)(c) and (d) (copies of decisions of tribunal) unless already lodged; and

(d)such other documents founded on by the appellant so far as in his possession or within his control.

Orders for service and answers

41.21.—(1) The appeal shall, without a motion being enrolled–

(a)during session, appear in the Single Bills on the first available day after being lodged for an order for–

(i)service of the appeal on the respondent and such other person as the court thinks fit; and

(ii)any person on whom the appeal has been served, to lodge answers, if so advised, within the period of notice; and

(b)during vacation, be brought before the vacation judge for such an order.

(2) In the application of paragraph (1) to an appeal under section 9(5) of the Transport Act 1985(39) (appeal from decision of the Secretary of State), the order for service under that paragraph shall include a requirement to serve the appeal on–

(a)the Secretary of State; and

(b)to every person who had, or if aggrieved would have had, a right to appeal to the Secretary of State, whether or not he has exercised that right.

(3) In the application of paragraph (1) to an appeal under section 24(1) of the Social Security Administration Act 1992(40) (appeal from Social Security Commissioner), the order for service under that paragraph shall include a requirement to serve the appeal on–

(a)the Secretary of State for Social Services; and

(b)if it appears to the court that a person has been appointed by the Secretary of State to pursue a claim for benefit to which the appeal relates, that person.

(4) In the application of paragraph (1) to an appeal from a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(41), the order for service pronounced under that paragraph shall include a requirement to serve the appeal on every other party to the proceedings before the tribunal and on the clerk of the tribunal.

(5) In the application of paragraph (1) to an appeal to which subsection (6), as modified by subsection (7), of section 11 of the Tribunal and Inquiries Act 1992 (which relates to an appeal from a decision under section 41 of the Consumer Credit Act 1974(42)) applies–

(a)the order for service under that paragraph shall include a requirement to serve the appeal on–

(i)the Secretary of State; and

(ii)where the appeal is by a licencee under a group licence against compulsory variation, suspension or revocation of that licence, the original applicant, if any; and

(b)the court may remit to the Secretary of State for him to provide the court with such further information as the court may require.

Motion for further procedure

41.22—(1) Within 14 days after the expiry of the period allowed for lodging answers to an appeal, whether or not answers have been lodged, the appellant shall apply by motion to the Inner House for–

(a)such order for further procedure as is sought; or

(b)an order for a hearing.

(2) The Inner House shall, on a motion under paragraph (1)–

(a)in relation to a motion under paragraph (1)(a), make such order as it thinks fit; or

(b)in relation to a motion under paragraph (1)(b), without hearing parties–

(i)appoint the cause to the Summar roll for hearing; or

(ii)direct that the cause be heard in the Single Bills.

PART IVEXCHEQUER APPEALS

Revenue appeals by stated case

41.23.—(1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under any of the following provisions:–

(a)section 13(1) of the Stamp Act 1891(43) (appeal from Commissioners of Inland Revenue);

(b)section 56 of the Taxes Management Act 1970(44) (case for opinion of court from General or Special Commissioners);

(c)section 225 Inheritance Tax Act 1984(45) (case for opinion of court from Special Commissioners); and

(d)regulation 10 of the Stamp Duty Reserve Tax Regulations 1986(46) (case for opinion of court from Special Commissioners).

(2) Subject to paragraph (4), Part II (appeals by stated case etc.) shall apply to any appeal to which paragraph (1) applies.

(3) On the case being stated, signed and sent to the party requesting it, that party shall, within the period prescribed by the enactment under which the appeal is made–

(a)give written intimation to every other party that a case has been stated on his application and that he intends or does not intend, as the case may be, to proceed with the appeal; and

(b)where he intends to proceed with the appeal–

(i)endorse and sign a certificate on the case of compliance with sub-paragraph (a) above; and

(ii)lodge the case with the Deputy Principal Clerk.

(4) The following provisions of Part II shall not apply to an appeal to which this rule applies:–

• rule 41.5 (applications for case),

• rule 41.6 (additional questions by other parties),

• rule 41.7 (consideration of application by tribunal),

• rule 41.8 (procedure for ordaining tribunal to state a case),

• rule 41.9 (preparation and issue of the case),

• rule 41.10 (intimation of intention to proceed),

• rule 41.11 (lodging of case in court).

Revenue appeals from Special Commissioners

41.24.—(1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under or by virtue of regulations made under section 56B of the Taxes Management Act 1970(47).

(2) Part III (appeals in Form 41.19) shall apply to an appeal to which paragraph (1) applies.

Appeals relating to penalties

41.25.—(1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under any of the following provisions:–

(a)section 53(2) of the Taxes Management Act 1970(48) (appeals from General or Special Commissioners in relation to penalties);

(b)section 100B(3) or 100C(4) of that Act(49) (appeals from General or Special Commissioners in relation to penalties); and

(c)section 249(3) or 251(2) of the Inheritance Tax Act 1984 (appeals from Special Commissioners in relation to penalties).

(2) Part III (appeals in Form 41.19) shall apply to an appeal to which paragraph (1) applies.

Appeals relating to certain determinations of the Commissioners of Inland Revenue

41.26.—(1) This rule applies to an appeal against a determination of the Commissioners of Inland Revenue specified in a notice to the appellant under section 221 of the Inheritance Tax Act 1984(50) or regulation 6 of the Stamp Duty Reserve Tax Regulations 1986(51).

(2) Where the Inner House grants leave to appeal under rule 41.3(2) in an application to it under section 222(3) of the said Act or regulation 8(3) of the said Regulations, as the case may be, or it is agreed between the appellant and the Commissioners of Inland Revenue that the appeal is to be to the court, the appellant shall, within 30 days after the date on which leave to appeal is granted, or, as the case may be, after the date on which the Board intimates its agreement to the appellant–

(a)lodge a statement of facts and grounds of appeal in Form 41.19, and a process unless a process has already been lodged under rule 41.2(6) (lodging process in applications for leave to appeal), in which case the statement of facts and grounds of appeal shall be lodged in that process; and

(b)on so doing, apply by motion for an order for service in accordance with rule 41.21 (orders for service and answers).

(3) The appellant shall–

(a)following the lodging of answers or on the expiry of any period of adjustment allowed, or

(b)where no answers have been lodged, on the expiry of the period allowed for lodging answers,

apply by motion to the Inner House for an order for a hearing.

(4) A motion under paragraph (3) shall be intimated to the solicitor to the Commissioners of Inland Revenue whether or not answers have been lodged by the Commissioners.

(5) Rule 41.22(2)(b) shall apply to a motion under paragraph (3) of this rule as it applies to a motion under paragraph (1)(b) of that rule.

(6) If an appellant fails to comply with any time-limit imposed by this rule, he shall be deemed to have abandoned his appeal.

(7) Where it appears to the Inner House in an appeal under this rule that any question as to the value of land in the United Kingdom requires to be determined, the court shall remit the cause–

(a)where the land is in Scotland, to the Lands Tribunal for Scotland,

(b)where the land is in England and Wales, to the Lands Tribunal,

(c)where the land is in Northern Ireland, to the Lands Tribunal for Northern Ireland,

to determine that question and remit back to the Inner House for further procedure.

PART VAPPEALS UNDER THE PENSIONS APPEAL TRIBUNAL ACT 1943

Form of appeal under the Act of 1943

41.27  An appeal from a Pensions Appeal Tribunal under section 6(2) of the Pensions Appeal Tribunal Act 1943(52) shall be by a case, stated by the chairman of the tribunal, to which Part II (appeals by stated case etc.) shall apply.

PART VIAPPEALS UNDER SECTION 50 OF THE SOCIAL WORK (SCOTLAND) ACT1968

Application of Part II to this Part

41.28  Part II (appeals by stated case etc.) shall apply to an appeal to the court by stated case under section 50(1) of the Act of 1968 (appeal against decision of sheriff) subject to the following provisions of this Part.

Interpretation of this Part

41.29.  In this Part–

“the Act of 1968” means the Social Work (Scotland) Act 1968(53);

“reporter” means the reporter to the children’s panel.

Lodging of reports and statements with sheriff

41.30.—(1) Where, on an application being made to the sheriff to state a case for the opinion of the court–

(a)it appears to the sheriff that any report or statement lodged under section 49(2) or (3) of the Act of 1968 in the appeal to him is relevant to any issue which is likely to arise in the stated case, and

(b)the report or statement has been returned to the reporter,

the sheriff may require the reporter to lodge the report or statement with the sheriff clerk.

(2) On the stated case being sent to the party who applied for it, the sheriff clerk shall return any report or statement required by the sheriff under paragraph (1) to the reporter.

Lodging etc. of reports and statements in court

41.31.—(1) Within 7 days after the date on which the case is lodged under rule 41.11(1) (lodging of case in court), the reporter shall send to the Deputy Principal Clerk the principal and three copies of every report or statement which he was required by the sheriff to lodge under rule 41.30(1).

(2) Neither the principal nor any copy of any such report or statement lodged by the reporter shall be made available to any of the other parties unless the court otherwise orders.

(3) Subject to any order made by the court, any report or statement, and any copies, sent to the -Deputy Principal Clerk under paragraph (1) shall remain in his custody until the appeal has been -determined or abandoned.

(4) On the determination or abandonment of the appeal, the Deputy Principal Clerk shall return all such documents to the reporter.

Hearing in private

41.32.  The court may direct that all or any part of the appeal shall be heard in private.

Expenses

41.33.—(1) No expenses shall be awarded to or against any party in respect of the appeal.

(2) Rule 41.14(3)(b) (award of expenses in abandoned appeal) shall not apply to an appeal to which this Part applies.

PART VIIAPPEALS UNDER THE REPRESENTATION OF THE PEOPLE ACT 1983

Application of this Part

41.34.  This part applies to an appeal under section 56, as applied by section 57, of the Representation of the People Act 1983(54) (registration appeals).

Form of appeal under this Part

41.35.  An appeal to which this Part applies shall be made by stated case to which Part II (appeals by stated case etc.) shall apply subject to the following provisions of this Part.

Consolidated appeals

41.36.—(1) Where several persons have applied for a stated case and it appears to the sheriff that such applications, or any two or more of them, raise the same question of law, he may consolidate the appeals into one stated case and, where he does so, he shall–

(a)state in the case the reasons why he has consolidated the appeals; and

(b)name one of the appellants as the appellant.

(2) Where appeals have been consolidated under paragraph (1), the appellant named under paragraph (1)(b), on receiving the stated case from the sheriff clerk, shall send a copy of it to every other appellant on request.

Hearing before Registration Appeal Court

41.37.—(1) On the stated case being lodged in accordance with rule 41.11, the appeal shall be put out for hearing before the Registration Appeal Court on the earliest available day.

(2) Rule 41.15 (motions for hearing of appeals) shall not apply to an appeal to which this Part applies.

Decision of Registration Appeal Court

41.38.—(1) The Registration Appeal Court shall, in its decision, specify any alteration or correction to be made on the register in pursuance of such decision.

(2) The Deputy Principal Clerk shall send a copy of the decision of the Registration Appeal Court to the registration officer within 4 days after the date of the decision.

PART VIIISTATED CASES UNDER SECTION 11(3) OF THE TRIBUNALS AND INQUIRIES ACT 1992

Case stated by tribunal at its own instance

41.39.—(1) A tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(55) may, at its own instance, state a case for the opinion of the court on any question arising in the course of proceedings before it.

(2) Part II (appeals by stated case etc.) shall apply to a case stated under paragraph (1) subject to the following provisions of this Part.

Modifications of Part II to appeals under this Part

41.40.—(1) The following rules shall apply to a case to which this Part applies subject to the following provisions of this rule:–

• rule 41.9 (preparation and issue of the case),

• rule 41.11 (lodging of case in court),

• rule 41.15 (motions for hearing of appeals).

(2) For paragraph (1) of rule 41.9 there shall be substituted the following paragraph:–

“(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.”.

(3) For paragraph (6) of rule 41.9 there shall be substituted the following paragraphs:–

“(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall–

(a)send a copy of the case to each party; and

(b)transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him certifying that sub-paragraph (a) has been complied with.

(7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.”.

(4) For rule 41.11 there shall be substituted the following rule:–

“41.11.  Not earlier than 7 days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall–

(a)lodge in the General Department–

(i)the case, and

(ii)a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b)on giving written intimation to every other party of the lodging of the case, send five copies of the ca se to every such party; and

(c)endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.”.

(5) Rule 41.15 shall apply to the clerk of the tribunal in a cause to which this Part applies as it applies to the party lodging a case under rule 41.11.

PART IXAPPEALS UNDER SOCIAL SECURITY ACTS

Form of appeal under certain Social Security Acts

41.41.  A reference or appeal under any of the following provisions shall be made by stated case to which Part II (appeals by stated case etc.) shall apply:–

(a)a reference by the Secretary of State under section 18(1), or under regulations made by virtue of section 58(8), of the Social Security Administration Act 1992(56);

(b)an appeal by an aggrieved person under section 18(3), or under regulations made by virtue of section 58(8), of the Social Security Administration Act 1992;

(c)a reference by the Pensions Ombudsman under section 150(7), or the Occupational Pensions Board under section 173(1), of the Pension Schemes Act 1993(57); and

(d)an appeal under section 151(4), or section 173(3), of the Pension Schemes Act 1993.

Modifications of Part II to appeals under this Part

41.42.—(1) The following rules shall apply to a cause to which this Part applies subject to the following provisions of this rule:–

• rule 41.9 (preparation and issue of the case),

• rule 41.11(lodging of case in court),

• rule 41.15(motions for hearing of appeals).

(2) For paragraph (1) of rule 41.9 there shall be substituted the following paragraph:–

“(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.”.

(3) For paragraph (6) of rule 41.9 there shall be substituted the following paragraphs:–

“(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall–

(a)send a copy of the case to each party; and

(b)transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him certifying that sub-paragraph (a) has been complied with.

(7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.”

(4) For rule 41.11 there shall be substituted the following rule:–

“41.11.  Not earlier than 7 days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall–

(a)lodge in the General Department–

(i)the case; and

(ii)a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b)on giving written intimation to every other party of the lodging of the case, send five copies of the case to every such party; and

(c)endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.”.

(5) Rule 41.15 shall apply to the clerk of the tribunal in a cause to which this Part applies as it applies to the party lodging a case under rule 41.11.

PART XAPPEALS TO LORD ORDINARY

Application of Parts II and III to this Part

41.43.  Unless otherwise provided in these Rules, in an appeal to the court which is directed by these Rules or any other enactment to be made to a single judge of the court, the Outer House or the Lord Ordinary, Part II (appeals by stated case etc.) or Part III (appeals in Form 41.19), as the case may be, shall apply to that appeal subject to the following modifications:–

(a)for references to the Inner House there shall be substituted references to the Lord Ordinary;

(b)for references to the Single Bills there shall be substituted references to the Motion Roll; and

(c)for references to the Summar Roll there shall be substituted references to a hearing.

CHAPTER 42TAXATION OF ACCOUNTS AND FEES OF SOLICITORS

PART ITAXATION OF ACCOUNTS

Remit to the Auditor

42.1.—(1) Where expenses are found due to a party in any cause, the court shall–

(a)pronounce an interlocutor finding that party entitled to expenses and, subject to rule 42.6(1) (modification of expenses awarded against assisted persons), remitting to the Auditor for taxation; and

(b)without prejudice to rule 42.4 (objections to report of the Auditor), unless satisfied that there is special cause shown for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the Auditor.

(2) The party found entitled to expenses shall–

(a)lodge an account of expenses in process within a period of 4 months after a final interlocutor in which a finding for expenses is made or within such further period as the court may allow on special cause shown; and

(b)give written intimation of the lodging of the account, and send a copy of it, to the party found liable to pay those expenses.

(3) Rule 4.6(1) (intimation of steps of process) shall not apply to the lodging of an account of expenses.

Diet of taxation

42.2.—(1) On receipt of the process of the cause, the Auditor shall–

(a)fix a diet for taxation; and

(b)intimate the diet to–

(i)the party found entitled to expenses; and

(ii)the party found liable in expenses.

(2) At the diet of taxation, the party found entitled to expenses shall make available to the Auditor all vouchers, documents, drafts or copies of documents sought by the Auditor and relevant to the taxation.

Report of taxation

42.3.—(1) The Auditor shall–

(a)prepare a report of the taxation of the account of expenses, stating the amount of expenses as taxed;

(b)transmit the process of the cause and the report to the appropriate department of the Office of Court; and

(c)on the day on which he transmits the process, intimate that fact and the date of his report to each party to whom he intimated the diet of taxation.

(2) The party found entitled to expenses shall, within 7 days after the date of the report prepared under paragraph (1), exhibit the taxed account, or send a copy of it, to the party found liable to pay the expenses.

Objections to report of the Auditor

42.4.—(1) Any party to a cause who has appeared or been represented at the diet of taxation may state any objection to the report of the Auditor by lodging in process a note of objection within 14 days after the date of the report.

(2) A party lodging a note of objection shall–

(a)intimate a copy of the note to the party liable in expenses and to the Auditor;

(b)apply by motion for an order–

(i)allowing the note to be received; and

(ii)ordaining the Auditor to state by minute, within 14 days after intimation under sub-paragraph (c), the reasons for his decision in relation to the items to which objection is taken in the note; and

(c)intimate forthwith to the Auditor a copy of the interlocutor pronounced on a motion under sub-paragraph (b).

(3) After the minute of the Auditor has been lodged in process, the party who lodged the note of objection shall, in consultation with any other party wishing to be heard, arrange with the Keeper of the Rolls for a diet of hearing before the appropriate court.

(4) At the hearing on the note of objection, the court may–

(a)sustain or repel any objection in the note or remit the account of expenses to the Auditor for further consideration; and

(b)find any party liable in the expenses of the procedure on the note.

(5) In the event of an objection being sustained, the court shall ordain the Auditor to amend his report to give effect to the decision of the court.

Modification or disallowance of expenses

42.5.—(1) In any cause where the court finds a party entitled to expenses, the court may direct that expenses shall be subject to such modification as the court thinks fit.

(2) Where it appears to the Auditor that a party found entitled to expenses–

(a)was unsuccessful, or

(b)incurred expenses through his own fault,

in respect of a matter which would otherwise be included in those expenses, the Auditor may disallow the expenses in respect of that matter in whole or in part.

Modification of expenses awarded against assisted persons

42.6.—(1) In a cause in which the court finds an assisted person liable in expenses, the court may, on the motion of any party to the cause, instead of remitting the account of expenses of the party in whose favour the finding is made to the Auditor for taxation, determine to what extent the liability of the assisted person for such expenses shall be modified under–

(a)section 2(6)(e) of the Legal Aid (Scotland) Act 1967(58); or

(b)section 18(2) of the Legal Aid (Scotland) Act 1986(59).

(2) Where a remit is made to the Auditor for taxation in a cause in which an assisted person is found liable in expenses, an application for modification under a statutory provision mentioned in paragraph (1) may be made by motion within 14 days after the date of the report of the Auditor made under rule 42.3 (report of taxation).

Taxation of solicitors' own accounts

42.7.—(1) Subject to section 61A(1) of the Solicitors (Scotland) Act 1980(60), the court may remit to the Auditor the account of a solicitor to his client–

(a)where the account is for work done in relation to a cause in the Court of Session, on the motion of the solicitor or the client; or

(b)in an action in which the solicitor or his representative sues the client for payment of the account.

(2) A motion under paragraph (1)(a) may be enrolled notwithstanding that final decree in the cause has been extracted.

(3) The account referred to in paragraph (1) shall–

(a)be in such form as will enable the Auditor to establish the nature and extent of the work done to which the account relates;

(b)detail the outlays incurred by the solicitor; and

(c)be accompanied by such supporting material as is necessary to vouch the items in the account.

(4) The Auditor shall–

(a)fix a diet of taxation not earlier than 14 days after the date on which he receives the account; and

(b)intimate the diet to the solicitor.

(5) On receipt of intimation of the diet of taxation from the Auditor, the solicitor shall forthwith send to his client by registered post or the first class recorded delivery service–

(a)a copy of the account to be taxed;

(b)a copy of the interlocutor remitting the account; and

(c)a notice in Form 42.7 of the date, time and place of the diet of taxation.

(6) In taxing an account remitted to him under paragraph (1), the Auditor–

(a)shall allow a sum in respect of such work and outlays as have been reasonably incurred;

(b)shall allow, in respect of each item of work and outlay, such sum as may be fair and reasonable having regard to all the circumstances of the case;

(c)shall, in determining whether a sum charged in respect of an item of work is fair and reasonable, take into account any of the following factors:–

(i)the complexity of the cause and the number, difficulty or novelty of the questions raised;

(ii)the skill, labour, and specialised knowledge and responsibility required, of the solicitor;

(iii)the time spent on the item of work and on the cause as a whole;

(iv)the number and importance of any documents prepared or perused;

(v)the place and circumstances (including the degree of expedition required) in which the work of the solicitor or any part of it has been done;

(vi)the importance of the cause or the subject-matter of it to the client;

(vii)the amount or value of money or property involved in the cause; and

(viii)any informal agreement relating to fees;

(d)shall presume (unless the contrary is demonstrated to his satisfaction) that–

(i)an item of work or outlay was reasonably incurred if it was incurred with the express or implied approval of the client;

(ii)the fee charged in respect of an item of work or outlay was reasonable if the amount of the fee or the outlay was expressly or impliedly approved by the client; and

(iii)an item of work or outlay was not reasonably incurred, or that the fee charged in respect of an item of work or outlay was not reasonable if the item of work, outlay or fee charged, was unusual in the circumstances of the case, unless the solicitor informed the client before carrying out the item of work or incurring the outlay that it might not be allowed (or that the fee charged might not be allowed in full) in a taxation in a cause between party and party; and

(e)may disallow any item of work or outlay which is not vouched to his satisfaction.

(7) The Auditor shall–

(a)prepare a report of the taxation of the account remitted to him under paragraph (1);

(b)transmit his report to the appropriate department of the Office of Court; and

(c)send a copy of his report to the solicitor and the client.

(8) The solicitor or his client may, where he or a representative attended the diet of taxation, state any objection to the report of the Auditor; and rule 42.4 (objections to report of the Auditor) shall apply to such objection as it applies to an objection under that rule.

PART IIFEES OF SOLICITORS

Application and interpretation of this Part

42.8.—(1) This Part applies to fees of solicitors in a cause other than fees–

(a)provided for by regulations made by the Secretary of State under section 14A of the Legal Aid (Scotland) Act 1967(61); or

(b)for which the Secretary of State may make regulations under section 33 of the Legal Aid (Scotland) Act 1986(62).

(2) In this Part, “the Table of Fees” means the Table of Fees in rule 42.16.

Form of account of expenses

42.9.  An account of expenses presented to the Auditor in accordance with an order of the court shall set out in chronological order all items in respect of which fees are claimed and shall be taxed as if the whole work in the cause had been carried out by one solicitor.

Basis of charging

42.10.—(1) Only such expenses as are reasonable for conducting the cause in a proper manner shall be allowed.

(2) Where the work can properly be performed by a solicitor local to the party, the Auditor in taxing an account shall allow such expenses as would have been incurred if the work had been done by the nearest local solicitor, including reasonable fees for instructing and corresponding with him, unless the Auditor is satisfied that it was in the interests of the client that the solicitor in charge of the cause should attend personally.

(3) Subject to paragraph (4), a solicitor may charge an account either on the basis of Chapter I or on the basis of Chapter III of the Table of Fees, but he may not charge partly on one basis and partly on the other.

(4) Where the inclusive fees set out in Chapter III of the Table of Fees are not conveniently applicable or do not properly cover the work involved, an account may be charged on the basis of Chapter I of that Table.

(5) The Auditor may increase or reduce an inclusive fee in Chapter III of the Table of Fees in appropriate circumstances whether or not those circumstances fall under Part IX of that Chapter.

Posts and incidental expenses

42.11.—(1) Subject to paragraph (3), to all accounts of expenses there may be added a sum to cover posts and incidental expenses.

(2) Subject to the approval of the Auditor in each case, such sum shall be equivalent to 12 per cent of the total fees of the solicitor in the account whether in Chapter I or III of the Table of Fees.

(3) Where a solicitor elects to charge the inclusive fee in paragraph 1 of Chapter III of the Table of Fees, the minute of election shall include as outlays the posts and incidental expenses actually

Value added tax

42.12.—(1) Where work done by a solicitor constitutes a supply of services in respect of which value added tax is chargeable by him, there may be added to the amount of fees an amount equal to the amount of value added tax chargeable.

(2) An account of expenses or a minute of election to charge the inclusive fee in paragraph 1 of Chapter III of the Table of Fees shall contain a statement as to whether or not the party entitled to the expenses is registered for the purposes of value added tax.

Charges for witnesses

42.13.—(1) Charges for the attendance at a proof or jury trial of a witness–

(a)present but not called to give evidence, or

(b)who is held as concurring with another witness who has been called,

may be allowed if the name of that witness is noted in the minute of proceedings in the cause.

(2) Subject to paragraph (3), where it was necessary to employ a skilled person to make investigations before a proof or jury trial in order to qualify him to give evidence, charges for such investigations, and for any attendance at the proof or jury trial, shall be allowed in addition to the ordinary witness fees of such person at such rate which the Auditor shall determine is fair and reasonable.

(3) The Auditor may make no determination under paragraph (2) unless the court has granted a motion, not later than the time at which it awarded expenses–

(a)certifying that the witness was a skilled witness who made investigations, attended or gave evidence at the proof or jury trial, as the case may be; and

(b)recorded the name of that witness in the interlocutor pronounced by the court.

Additional fee

42.14.—(1) An application for the allowance of an additional fee shall be made by motion to the court.

(2) The court may, on such an application to it–

(a)determine the application itself; or

(b)remit the application to the Auditor for him to determine whether an additional fee should be allowed.

(3) In determining whether to allow an additional fee under paragraph (2), the court or the Auditor, as the case may be, shall take into account any of the following factors:–

(a)the complexity of the cause and the number, difficulty or novelty of the questions raised;

(b)the skill, time and labour, and specialised knowledge required, of the solicitor;

(c)the number or importance of any documents prepared or perused;

(d)the place and circumstances of the cause or in which the work of the solicitor in preparation for, and conduct of, the cause has been carried out;

(e)the importance of the cause or the subject-matter of it to the client;

(f)the amount or value of money or property involved in the cause;

(g)the steps taken with a view to settling the cause, limiting the matters in dispute or limiting the scope of any hearing.

(4) In fixing an additional fee, the Auditor shall take into account any of the factors mentioned in paragraph (3).

Fees of a reporter

42.15.  Subject to any other provision in these Rules, any order of the court or agreement between a party and his solicitor, where any matter in a cause is remitted by the court, at its own instance or on the motion of a party, to a reporter or other person to report to the court–

(a)the solicitors for the parties shall be personally liable, in the first instance, to the reporter or other person for his fee and outlays unless the court otherwise orders; and

(b)where–

(i)the court makes the remit at its own instance, the party ordained by the court, or

(ii)the court makes the remit on the motion of a party, that party,

shall be liable to the reporter or other person for his fee and outlays.

Table of fees

42.16.—(1) The Table of Fees shall regulate the fees of a solicitor charged in an account in any cause between party and party.

(2) In the Table of Fees, “sheet” means a page of 250 or more words or numbers.

(3) The Table of Fees is as follows.

TABLE OF FEES

CHAPTER ITABLE OF DETAILED CHARGES

CHAPTER IIWITNESSES' FEES

CHAPTER III

PART IUNDEFENDED CAUSES(other than consistorial actions)

PART IIUNDEFENDED CONSISTORIAL ACTIONS(other than by affidavit procedure in Part III of this Chapter)

PART IIIUNDEFENDED CONSISTORIAL ACTIONS(affidavit procedure)

1.—(1) This paragraph applies to any undefended action of divorce or separation where–

(a)the facts set out in section 1(2)(a) (adultery) or 1(2)(b) (unreasonable behaviour) of the Divorce (Scotland) Act 1976(63) (“the 1976 Act”) are relied on;

(b)there are no conclusions relating to any ancillary matters; and

(c)the pursuer seeks to prove those facts by means of affidavits.

(2) The solicitor for the pursuer may, in respect of the work specified in column 1 of Table A below, charge the inclusive fee specified in respect of that work in column 2 of that Table.

(3) Where the pursuer has been represented in respect of work specified in column 1 of Table A below by an Edinburgh solicitor and a solicitor outside Edinburgh, the Auditor may, where he is satisfied that it was appropriate for the pursuer to be so represented, allow the inclusive fee specified in column 3 instead of the inclusive fee specified in column 2 of that Table.

2.—(1) This paragraph applies to any undefended action of divorce or separation where–

(a)the facts set out in section 1(2)(c) (desertion), 1(2)(d) (two years' non-cohabitation and consent) or 1(2)(e) (five years' non-cohabitation) of the 1976 Act are relied on;

(b)there are no conclusions relating to any ancillary matters; and

(c)the pursuer seeks to prove those facts by affidavit.

(2) The solicitor for the pursuer may, in respect of the work specified in column 1 of Table B below, charge the inclusive fee specified in respect of that work in column 2 of that Table.

(3) Where the pursuer has been represented in respect of work specified in column 1 of Table B below by an Edinburgh solicitor and a solicitor outside Edinburgh, the auditor may, where he is satisfied that it was appropriate for the pursuer to be so represented, allow the inclusive fee specified in respect of that work in column 3 instead of the inclusive fee specified in column 2 of that Table.

3.  If–

(a)the solicitor for the pursuer charges an inclusive fee under either paragraph 1 or 2 of this Part, and

(b)the action to which the charge relates includes a conclusion relating to an ancillary matter,

in addition to that fee he may charge in respect of the work specified in column 1 of Table C below the inclusive fee specified in respect of that work in column 2 of that Table.

PART IVOUTER HOUSE PETITIONS

PART VDEFENDED ACTIONS

PART VIINNER HOUSE BUSINESS

PART VIIADMIRALTY AND COMMERCIAL CAUSES, MERCANTILE SEQUESTRATIONS AND APPLICATIONS FOR SUMMARY TRIAL UNDER SECTION 26 OF THE ACT OF 1988 AND CAUSES REMITTED FROM THE SHERIFF COURT

Charges under this Part shall be based on this Table according to the circumstances.

PART VIIISOLICITORS EXERCISING RIGHTS OF AUDIENCE UNDER SECTION 25 OF THE SOLICITORS (SCOTLAND) ACT 1980

1.  The Auditor shall allow to a solicitor who exercises a right of audience by virtue of section 25A of the Solicitors (Scotland) Act 1980(64) such fee for each item of work done by the solicitor in the exerise of such right as he would allow to counsel for an equivalent item of work.

2.  Where a solicitor exercises a right of audience by virtue of section 25A of the Solicitors (Scotland) Act 1980, and is assisted by another solicitor or a clerk, the Auditor may also allow attendance fees in accordance with Parts IV and V of this Chapter of this Table.

PART IXGENERAL

The Auditor shall have power to apportion the foregoing fees in this chapter between parties' solicitors in appropriate circumstances or to modify them in the case of a solicitor acting for more than one party in the same cause or in the case of the same solicitor acting in more than one cause arising out of the same circumstances or in the event of a cause being settled or disposed of at a stage when the work covered by an inclusive fee has not been completed.

CHAPTER IVSHORTHAND WRITERS

PART IIIFEES IN SPECULATIVE CAUSES

Fees of solicitors in speculative causes

42.17.—(1) Where–

(a)any work is undertaken by a solicitor in the conduct of a cause for a client,

(b)the solicitor and client agree that the solicitor shall be entitled to a fee for the work only if the client is successful in the cause, and

(c)the agreement is that the fee of the solicitor for all work in connection with the cause is to be based on an account prepared as between party and party,

the solicitor and client may agree that the fees element in that account shall be increased by a figure not exceeding 100 per cent.

(2) The client of the solicitor shall be deemed to be successful in the cause where–

(a)the cause has been concluded by a decree which, on the merits, is to any extent in his favour;

(b)the client has accepted a sum of money in settlement of the cause; or

(c)the client has entered into a settlement of any other kind by which his claim in the cause has been resolved to any extent in his favour.

(3) In paragraph (1), “the fees element” means all the fees in the account of expenses of the solicitor–

(a)for which any other party in the cause other than the client of the solicitor has been found liable as taxed or agreed between party and party;

(b)before the deduction of any award of expenses against the client; and

(c)excluding the sums payable to the solicitor in respect of–

(i)any fees payable for copying documents and the proportion of any session fee in the Table of Fees and posts and incidental expenses under rule 42.11;

(ii)any additional fee allowed under rule 42.14 to cover the responsibility undertaken by the solicitor in the conduct of the cause; and

(iii)any charges by the solicitor for his outlays.