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Act of Sederunt (Summary Cause Rules) 2002

Type Scottish-Statutory-Instrument

Publication 2002-03-01

State In force

Jurisdiction Scotland

Department Queen's Printer for Scotland

Source legislation.gov.uk

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Made: 1st March 2002

Coming into force: 10th June 2002

The Lords of Council and Session, under and by virtue of the powers conferred by section 32 of the Sheriff Courts (Scotland) Act 1971[^f00001] and of all other powers enabling them in that behalf, having approved draft rules submitted to them by the Sheriff Court Rules Council in accordance with section 34 of the said Act of 1971, do hereby enact and declare:

Citation and commencement

1

(1) This Act of Sederunt may be cited as the Act of Sederunt (Summary Cause Rules) 2002 and shall come into force on 10th June 2002.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Summary Cause Rules

2

The provisions of Schedule 1 to this Act of Sederunt shall have effect for the purpose of providing rules for a summary cause other than a small claim.

Transitional provision

3

Nothing in Schedule 1 to this Act of Sederunt shall apply to a summary cause commenced before 10th June 2002 and any such action shall proceed according to the law and practice in force immediately before that date.

Revocation

4

The Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule except–

(a) in relation to any summary cause commenced before 10th June 2002; and

(b) for the purposes of the Act of Sederunt (Small Claim Rules) 1988[^f00002].

SCHEDULE 1 — SUMMARY CAUSE RULES 2002

CHAPTER 1 — Citation, interpretation and application

Citation, interpretation and application

1.1

(1) These Rules may be cited as the Summary Cause Rules 2002.

(2) In these Rules–

“the 1907 Act” means the Sheriff Courts (Scotland) Act 1907[^f00003];

“the 1971 Act” means the Sheriff Courts (Scotland) Act 1971[^f00004];

“the 1975 Act” means the Litigants in Person (Costs and Expenses) Act 1975[^f00005];

“authorised lay representative” means a person to whom section 32(1) of the Solicitors (Scotland) Act 1980[^f00006] (offence to prepare writs) does not apply by virtue of section 32(2)(a) of that Act;

“small claim” has the meaning assigned to it by section 35(2) of the 1971 Act[^f00007];

“summary cause” has the meaning assigned to it by section 35(1) of the 1971 Act[^f00008].

(3) Any reference to a specified Chapter or rule shall be construed as a reference to the Chapter or rule bearing that number in these Rules, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.

(4) A form referred to by number means the form so numbered in Appendix 1 to these Rules or a form substantially of the same effect with such variation as circumstances may require.

(5) The glossary in Appendix 2 to these Rules is a guide to the meaning of certain legal expressions used in these Rules, but is not to be taken as giving those expressions any meaning which they do not have in law generally.

(6) These Rules shall apply to a summary cause other than a small claim.

CHAPTER 2 — Representation

Representation

2.1

(1) A party may be represented by an advocate, solicitor or, subject to the following provisions of this rule, an authorised lay representative.

(2) An authorised lay representative shall not appear in court on behalf of a party except at the hearing held in terms of rule 8.2(1) and, unless the sheriff otherwise directs, any subsequent or other calling where the action is not defended on the merits or on the amount of the sum due.

(3) Subject to the provisions of this rule, an authorised lay representative may, in representing a party, do everything for the preparation and conduct of an action as may be done by an individual conducting his own action.

(4) If the sheriff finds that the authorised lay representative is–

(a) not a suitable person to represent the party; or

(b) not in fact authorised to do so,

that person must cease to represent the party.

(5) A party may be represented by a person other than an advocate or solicitor at any stage of any proceedings under the Debtors (Scotland) Act 1987[^f00009], other than appeals to the sheriff principal, if the sheriff is satisfied that that person is a suitable person to represent the party at that stage and is authorised to do so.

CHAPTER 3 — Relief from failure to comply with rules

Dispensing power of sheriff

3.1

(1) The sheriff may relieve any party from the consequences of any failure to comply with the provisions of these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of the failure to comply with a provision in these Rules under paragraph (1), he may make such order as he thinks fit to enable the action to proceed as if the failure to comply with the provision had not occurred.

CHAPTER 4 — Commencement of action

Form of summons

4.1

(1) A summary cause action shall be commenced by summons, which shall be in Form 1.

(2) The form of claim in a summons may be in one of Forms 2, 3, 4, 5, 6, 7, 8 or 9.

Statement of claim

4.2

The pursuer must insert a statement of his claim in the summons to give the defender fair notice of the claim; and the statement must include–

(a) details of the basis of the claim including relevant dates; and

(b) if the claim arises from the supply of goods or services, a description of the goods or services and the date or dates on or between which they were supplied and, where relevant, ordered.

Defender’s copy summons

4.3

A copy summons shall be served on the defender–

(a) where the action is for, or includes a claim for, payment of money–

(i) in Form 1a where an application for a time to pay direction under the Debtors (Scotland) Act 1987 or time order under the Consumer Credit Act 1974[^f00010] may be applied for; or

(ii) in Form 1b in every other case;

(b) where the action is not for, and does not include a claim for, payment of money, in Form 1c; or

Authentication and effect of summons

4.4

(1) A summons shall be authenticated by the sheriff clerk in some appropriate manner except where–

(a) he refuses to do so for any reason;

(b) the defender’s address is unknown; or

(2) If any of paragraphs (1)(a), (b) or (c) applies, the summons shall be authenticated by the sheriff, if he thinks it appropriate.

(3) The authenticated summons shall be warrant for–

(a) service on the defender; and

(b) where the appropriate warrant has been sought in the summons–

(i) arrestment on the dependence; or

(ii) arrestment to found jurisdiction,

as the case may be.

Period of notice

4.5

(1) An action shall proceed after the appropriate period of notice of the summons has been given to the defender prior to the return day.

(2) The appropriate period of notice shall be–

(a) 21 days where the defender is resident or has a place of business within Europe; or

(b) 42 days where the defender is resident or has a place of business outwith Europe.

(3) The sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the form of service as he may direct, but in any case where the period of notice is reduced at least two days' notice must be given.

(4) If a period of notice expires on a Saturday, Sunday, public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk’s office is open for civil court business.

(5) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882[^f00011], where service is by post the period of notice shall run from the beginning of the day next following the date of posting.

(6) The sheriff clerk shall insert in the summons–

(a) the return day, which is the last day on which the defender may return a form of response to the sheriff clerk; and

(b) the calling date, which is the date set for the action to call in court.

(7) The calling date shall be seven days after the return day.

Intimation

4.6

Any provision in these Rules requiring papers to be sent to or any intimation to be made to any party, applicant or claimant shall be construed as if the reference to the party, applicant or claimant included a reference to the solicitor representing that party, applicant or claimant.

CHAPTER 5 — Register of Summary Causes, service and return of the summons

Register of Summary Causes

5.1

(1) The sheriff clerk shall keep a register of summary cause actions and incidental applications made in such actions, which shall be known as the Register of Summary Causes.

(2) There shall be entered in the Register of Summary Causes a note of all actions, together with a note of all minutes under rule 24.1(1) (recall of decree) and the entry for each action or minute must contain the following particulars where appropriate:–

(a) the names, designations and addresses of the parties;

(b) whether the parties were present or absent at any hearing, including an inspection, and the names of their representatives;

(d) the amount of any claim;

(e) the date of issue of the summons;

(f) the method of service;

(g) the return day;

(h) the calling date;

(i) whether a form of response was lodged and details of it;

(j) the period of notice if shortened or extended in accordance with rule 4.5(3);

(k) details of any minute by the pursuer regarding an application for a time to pay direction or time order, or minute by the pursuer requesting decree or other order;

(l) details of any interlocutors issued;

(m) details of the final decree and the date of it; and

(n) details of any variation or recall of a decree.

(3) There shall be entered in the Register of Summary Causes in the entry for the action to which they relate details of incidental applications including, where appropriate–

(a) whether parties are present or absent at the hearing of the application, and the names of their representatives;

(b) the nature of the application; and

(4) The Register of Summary Causes must be–

(a) authenticated in some appropriate manner by the sheriff in respect of each day any order is made or application determined in an action; and

(b) open for inspection during normal business hours to all concerned without fee.

(5) The Register of Summary Causes may be kept in electronic or documentary form.

Persons carrying on business under trading or descriptive name

5.2

(1) A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone.

(2) An extract of–

(a) a decree pronounced in an action; or

(b) a decree proceeding upon any deed, decree arbitral, bond, protest of a bill, promissory note or banker’s note or upon any other obligation or document on which execution may proceed, recorded in the sheriff court books,

against such person under such trading or descriptive name shall be a valid warrant for diligence against such person.

(3) A summons, decree, charge or other document following upon such summons or decree in an action in which a person carrying on business under a trading or descriptive name sues or is sued in that name may be served–

(a) at any place of business or office at which such business is carried on within the sheriffdom of the sheriff court in which the action is brought; or

(b) if there is no place of business within that sheriffdom, at any place where such business is carried on (including the place of business or office of the clerk or secretary of any company, corporation or association or firm).

Form of service and certificate thereof

5.3

(1) Subject to rule 5.5 (service where address of defender is unknown), a form of service in Form 11 must be enclosed with the defender’s copy summons.

(2) After service has been effected a certificate of execution of service in Form 12 must be prepared and signed by the person effecting service.

(3) When service is by a sheriff officer, the certificate of execution of service must–

(a) be signed by him; and

(b) specify whether the service was personal or, if otherwise, the mode of service and the name of any person to whom the defender’s copy summons was delivered.

(4) If service is effected in accordance with rule 5.4(2), the certificate must also contain a statement of–

(a) the mode of service previously attempted; and

(b) the circumstances which prevented such service from being effected.

Service within Scotland by sheriff officer

5.4

(1) A sheriff officer may validly serve any summons, decree, charge or other document following upon such summons or decree issued in an action by–

(a) personal service; or

(b) leaving it in the hands of–

(i) an inmate at the person’s dwelling place; or

(ii) an employee at the person’s place of business.

(2) If a sheriff officer has been unsuccessful in effecting service in accordance with paragraph (1), he may, after making diligent inquiries, serve the document–

(a) by depositing it in the person’s dwelling place or place of business by means of a letter box or by other lawful means; or

(b) by affixing it to the door of the person’s dwelling place or place of business.

(3) Subject to the requirements of rule 6.1 (service of schedule of arrestment), if service is effected in accordance with paragraph (2), the sheriff officer must thereafter send by ordinary post to the address at which he thinks it most likely that the person may be found a letter containing a copy of the document.

(4) In proceedings in or following on an action, it shall be necessary for any sheriff officer to be accompanied by a witness except where service, citation or intimation is to be made by post.

(5) Where the firm which employs the sheriff officer has in its possession–

(a) the document or a copy of it certified as correct by the pursuer’s solicitor, the sheriff officer may serve the document upon the defender without having the document or certified copy in his possession (in which case he shall if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the document or certified copy to the person); or

(b) a certified copy of the interlocutor pronounced allowing service of the document, the sheriff officer may serve the document without having in his possession the certified copy interlocutor if he has in his possession a facsimile copy of the certified copy interlocutor (which he shall show, if required, to the person on whom service is executed).

Service on persons whose address is unknown

5.5

(1) If the defender’s address is unknown to the pursuer and cannot reasonably be ascertained by him, the sheriff may grant warrant to serve the summons–

(a) by the publication of an advertisement in Form 13 in a newspaper circulating in the area of the defender’s last known address; or

(b) by displaying on the walls of court a notice in Form 14.

(2) Where a summons is served in accordance with paragraph (1), the period of notice, which must be fixed by the sheriff, shall run from the date of publication of the advertisement or display on the walls of court, as the case may be.

(3) If service is to be effected under paragraph (1), the pursuer must lodge a service copy of the summons with the sheriff clerk.

(4) The defender may uplift from the sheriff clerk the service copy of the summons lodged in accordance with paragraph (3).

(5) If display on the walls of court is required under paragraph (1)(b), the pursuer must supply to the sheriff clerk for that purpose a completed copy of Form 14.

(6) In every case where advertisement in a newspaper is required for the purpose of service, a copy of the newspaper containing said advertisement must be lodged with the sheriff clerk.

(7) If service has been made under this rule and thereafter the defender’s address becomes known, the sheriff may allow the summons to be amended and, if appropriate, grant warrant for re-service subject to such conditions as he thinks fit.

Service by post

5.6

(1) If it is competent to serve or intimate any document or to cite any person by recorded delivery, such service, intimation or citation, must be made by the first class recorded delivery service.

(2) On the face of the envelope used for postal service under this rule, there must be written or printed a notice in Form 15.

(3) The certificate of execution of postal service must have annexed to it any relevant postal receipt.

Service on persons outwith Scotland

5.7

(1) If any summons, decree, charge or other document following upon such summons or decree, or any charge or warrant, requires to be served outwith Scotland on any person, it must be served in accordance with this rule.

(2) If the person has a known home or place of business in–

(a) England and Wales, Northern Ireland, the Isle of Man or the Channel Islands; or

(b) any country with which the United Kingdom does not have a convention providing for service of writs in that country,

the document must be served either–

(i) by posting in Scotland a copy of the document in question in a registered letter addressed to the person at his residence or place of business; or

(ii) in accordance with the rules for personal service under the domestic law of the place in which the document is to be served.

(3) Subject to paragraph (4), if the document requires to be served in a country which is a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965[^f00012] or the European Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters as set out in Schedule 1 or 3C to the Civil Jurisdiction and Judgments Act 1982[^f00013], it must be served–

(a) by a method prescribed by the internal law of the country where service is to be effected for the service of documents in domestic actions upon persons who are within its territory;

(b) by or through a British consular authority at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(c) by or through a central authority in the country where service is to be effected at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(d) where the law of the country in which the person resides permits, by posting in Scotland a copy of the document in a registered letter addressed to the person at his residence; or

(e) where the law of the country in which service is to be effected permits, service by an huissier, other judicial officer or competent official of the country where service is to be made.

(4) If the document requires to be served in a country to which Council Regulation (EC) No. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters[^f00014] applies, service may be effected by a method prescribed in paragraph (3)(b) or (c) only in exceptional circumstances.

(5) If the document requires to be served in a country with which the United Kingdom has a convention on the service of writs in that country other than the conventions specified in paragraph (3) or the regulation specified in paragraph (4), it must be served by one of the methods approved in the relevant convention.

(6) Subject to paragraph (9), a document which requires to be posted in Scotland for the purposes of this rule must be posted by a solicitor or a sheriff officer, and the form of service and certificate of execution of service must be in Forms 11 and 12 respectively.

(7) On the face of the envelope used for postal service under this rule there must be written or printed a notice in Form 15.

(8) Where service is effected by a method specified in paragraph (3)(b) or (c), the pursuer must–

(a) send a copy of the summons and warrant for service with form of service attached, or other document, with a request for service to be effected by the method indicated in the request to the Secretary of State for Foreign and Commonwealth Affairs; and

(b) lodge in process a certificate of execution of service signed by the authority which has effected service.

(9) If service is effected by the method specified in paragraph (3)(e), the pursuer must–

(a) send to the official in the country in which service is to be effected a copy of the summons and warrant for service, with citation attached, or other document, with a request for service to be effected by delivery to the defender or his residence; and

(b) lodge in process a certificate of execution of service by the official who has effected service.

(10) Where service is executed in accordance with paragraph (2)(b)(ii) or (3)(a) other than on another party in–

(a) the United Kingdom;

(b) the Isle of Man; or

the party executing service must lodge a certificate stating that the form of service employed is in accordance with the law of the place where the service was executed.

(11) A certificate lodged in accordance with paragraph (10) shall be given by a person who is conversant with the law of the country concerned and who–

(a) practises or has practised law in that country; or

(b) is a duly accredited representative of the government of that country.

(12) Every summons or document and every citation and notice on the face of the envelope referred to in paragraph (7) must be accompanied by a translation in an official language of the country in which service is to be executed, unless English is an official language of that country.

(13) A translation referred to in paragraph (12) must be certified as a correct translation by the person making it and the certificate must contain the full name, address and qualifications of the translator and be lodged along with the execution of such service.

Endorsation by sheriff clerk of defender’s residence not necessary

5.8

Any summons, decree, charge or other document following upon a summons or decree may be served, enforced or otherwise lawfully executed in Scotland without endorsation by a sheriff clerk and, if executed by a sheriff officer, may be so executed by a sheriff officer of the court which granted the summons, or by a sheriff officer of the sheriff court district in which it is to be executed.

Contents of envelope containing defender’s copy summons

5.9

Nothing must be included in the envelope containing a defender’s copy summons except–

(a) the copy summons;

(b) a response or other notice in accordance with these Rules; and

Re-service

5.10

(1) If it appears to the sheriff that there has been any failure or irregularity in service upon a defender, the sheriff may order the pursuer to re-serve the summons on such conditions as he thinks fit.

(2) If re-service has been ordered in accordance with paragraph (1) or rule 5.5(7) the action shall proceed thereafter as if it were a new action.

Defender appearing barred from objecting to service

5.11

(1) A person who appears in an action shall not be entitled to state any objection to the regularity of the execution of service or intimation on him and his appearance shall remedy any defect in such service or intimation.

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

Return of summons

5.12

(1) If any appearance in court is required on the calling date in respect of any party–

(a) the summons; and

(b) the relevant certificate of execution of service,

shall be returned to the sheriff clerk not later than two days before the calling date.

(2) If no appearance by any party is required on the calling date, only the certificate of execution of service need be returned to the sheriff clerk, not later than two days before the calling date.

(3) If the pursuer fails to proceed in accordance with paragraph (1) or (2) as appropriate, the sheriff may dismiss the action.

CHAPTER 6 — Arrestment

Service of schedule of arrestment

6.1

If a schedule of arrestment has not been personally served on an arrestee, the arrestment shall have effect only if a copy of the schedule is also sent by registered post or the first class recorded delivery service to–

(a) the last known place of residence of the arrestee; or

(b) if such place of residence is not known, or if the arrestee is a firm or corporation, to the arrestee’s principal place of business if known, or, if not known, to any known place of business of the arrestee,

and the sheriff officer must, on the certificate of execution, certify that this has been done and specify the address to which the copy of the schedule was sent.

Arrestment before service

6.2

(1) An arrestment to found jurisdiction or an arrestment on the dependence of an action used prior to service shall cease to have effect, unless the summons is served within 21 days from the date of execution of the arrestment.

(2) When such an arrestment as is referred to in paragraph (1) has been executed, the party using it must forthwith report the execution to the sheriff clerk.

Recall and restriction of arrestment

6.3

(1) The sheriff may order that an arrestment on the dependence of an action or counterclaim shall cease to have effect if the party whose funds or property are arrested–

(a) pays into court; or

(b) finds caution to the satisfaction of the sheriff clerk in respect of,

the sum claimed together with the sum of £50 in respect of expenses.

(2) Without prejudice to paragraph (1), a party whose funds or property are arrested may at any time apply to the sheriff to exercise his powers to recall or restrict an arrestment on the dependence of an action or counterclaim, with or without consignation or caution.

(3) An application made under paragraph (2) must be intimated by the applicant to the party who instructed the arrestment.

(4) On payment into court in accordance with paragraph (1), or if the sheriff recalls or restricts an arrestment on the dependence of an action in accordance with paragraph (2) and any condition imposed by the sheriff has been complied with, the sheriff clerk must–

(a) issue to the party whose funds or property are arrested a certificate in Form 16 authorising the release of any sum or property arrested to the extent ordered by the sheriff; and

(b) send a copy of the certificate to–

(i) the party who instructed the arrestment; and

(ii) the party who has possession of the funds or property that are arrested.

CHAPTER 7 — Undefended action

Undefended action

7.1

(1) Subject to paragraphs (4), (5) and (6), where the defender has not lodged a form of response on or before the return day–

(a) the action shall not require to call in court on the calling date; and

(b) the pursuer must lodge a minute in Form 17 before the sheriff clerk’s office closes for business on the second day before the calling date.

(2) If the pursuer does not lodge a minute in terms of paragraph (1), the sheriff must dismiss the action.

(3) If the sheriff is not prepared to grant the order requested in Form 17, the sheriff clerk must–

(a) fix a date, time and place for the pursuer to be heard; and

(b) inform the pursuer of–

(i) that date, time and place; and

(ii) the reasons for the sheriff wishing to hear him.

(4) Where no form of response has been lodged in an action–

(a) for recovery of possession of heritable property; or

(b) of sequestration for rent,

the action shall call in court on the calling date and the sheriff shall determine the action as he thinks fit.

(5) Where no form of response has been lodged in an action of multiplepoinding the action shall proceed in accordance with rule 27.9(1)(a).

(6) Where no form of response has been lodged in an action of count, reckoning and payment the action shall proceed in accordance with rule 29.2.

(7) If the defender does not lodge a form of response in time or if the sheriff is satisfied that he does not intend to defend the action on the merits or on the amount of the sum due, the sheriff may grant decree with expenses against him.

Application for time to pay direction or time order

7.2

(1) If the defender admits the claim, he may, where competent–

(a) make an application for a time to pay direction (including, where appropriate, an application for recall or restriction of an arrestment) or a time order by completing the appropriate part of the form of response contained in the defender’s copy summons and lodging it with the sheriff clerk on or before the return day; or

(b) lodge a form of response indicating that he admits the claim and intends to apply orally for a time to pay direction (including, where appropriate, an application for recall or restriction of an arrestment) or time order.

(2) Where the defender has lodged an application in terms of paragraph (1)(a), the pursuer may intimate that he does not object to the application by lodging a minute in Form 18 before the time the sheriff clerk’s office closes for business on the day occurring two days before the calling date stating that he does not object to the defender’s application and seeking decree.

(3) If the pursuer intimates in accordance with paragraph (2) that he does not object to the application–

(a) the sheriff may grant decree on the calling date;

(b) the parties need not attend; and

(4) If the pursuer wishes to oppose the application for a time to pay direction or time order made in accordance with paragraph (1)(a), he must lodge a minute in Form 19 before the time the sheriff clerk’s office closes for business on the day occurring two days before the calling date.

(5) Where the pursuer objects to an application in terms of paragraph (1)(a) or the defender has lodged a form of response in accordance with paragraph (1)(b), the action shall call on the calling date when the parties may appear and the sheriff must decide the application and grant decree accordingly.

(6) The sheriff shall decide an application in accordance with paragraph (5) whether or not any of the parties appear.

(7) Where the defender has lodged an application in terms of paragraph (1)(a) and the pursuer fails to proceed in accordance with either of paragraphs (2) or (4) the sheriff may dismiss the claim.

Decree in actions to which the Hague Convention or Civil Jurisdiction and Judgments Act 1982 apply

7.3

(1) If the summons has been served in a country to which the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965[^f00015] applies, decree must not be granted until it is established to the satisfaction of the sheriff that the requirements of Article 15 of that Convention have been complied with.

(2) Where a defender is domiciled in another part of the United Kingdom or in another Contracting State, the sheriff shall not grant decree until it has been shown that the defender has been able to receive the summons in sufficient time to arrange his defence or that all necessary steps have been taken to that end.

(3) For the purposes of paragraph (2)–

(a) the question whether a person is domiciled in another part of the United Kingdom shall be determined in accordance with sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982[^f00016];

(b) the question whether a person is domiciled in another Contracting State shall be determined in accordance with Article 52 of the Convention in Schedule 1 or 3C to that Act; and

CHAPTER 8 — Defended action

Response to summons

8.1

(1) If the defender intends–

(a) to challenge the jurisdiction of the court or the competency of the action;

(b) to defend the action (whether as regards the amount claimed or otherwise); or

he must complete and lodge with the sheriff clerk on or before the return day the form of response contained in the defender’s copy summons including a statement of his response which gives fair notice to the pursuer.

(2) The sheriff clerk must upon receipt intimate to the pursuer a copy of any response lodged under paragraph (1).

Procedure in defended action

8.2

(1) Where the defender has lodged a form of response in accordance with rule 8.1(1) the action will call in court for a hearing.

(2) The hearing shall be held on the calling date.

(3) The sheriff may continue the hearing to such other date as he considers appropriate.

(4) The defender must either be present or be represented at the hearing.

(5) Where the defender–

(a) does not appear or is not represented; and

(b) the pursuer is present or is represented,

decree may be granted against the defender in terms of the summons.

(6) Where at the hearing–

(a) the pursuer does not appear or is not represented; and

(b) the defender is present or represented,

the sheriff shall dismiss the action and may grant decree in terms of any counterclaim.

(7) If all parties fail to appear at the hearing, the sheriff shall, unless sufficient reason appears to the contrary, dismiss the action and any counterclaim.

Purpose of hearing

8.3

(1) If, at the hearing, the sheriff is satisfied that the action is incompetent or that there is a patent defect of jurisdiction, he must grant decree of dismissal in favour of the defender or, if appropriate, transfer the action in terms of rule 16.1(2).

(2) At the hearing, the sheriff shall–

(a) ascertain the factual basis of the action and any defence, and the legal basis on which the action and defence are proceeding; and

(b) seek to negotiate and secure settlement of the action between the parties.

(3) If the sheriff cannot secure settlement of the action between the parties, he shall–

(a) identify and note on the summons the issues of fact and law which are in dispute;

(b) note on the summons any facts which are agreed;

(c) where it appears that the claim as stated or any defence stated in response to it is not soundly based in law in whole or in part, hear parties forthwith on that matter and may grant decree in favour of any party; and

(d) if satisfied that the claim and any defence have or may have a sound basis in law and that the dispute between the parties depends upon resolution of disputed issues of fact, fix a diet of proof or, alternatively, if satisfied that the claim and any defence have a sound basis in law and that the facts of the case are sufficiently agreed, hear parties forthwith on the merits of the action and may grant decree in whole or in part in favour of any party.

(4) Where the sheriff fixes a proof, the sheriff clerk shall make up a folder for the case papers.

Remit to person of skill

8.4

(1) The sheriff may, on an incidental application by any party or on a joint application, remit to any person of skill, or other person, to report on any matter of fact.

(2) If a remit under paragraph (1) is made by joint application or of consent of all parties, the report of such person shall be final and conclusive with respect to the matter of fact which is the subject of the remit.

(3) If a remit under paragraph (1) is made–

(a) on the application of one of the parties, the expenses of its execution must, in the first instance, be met by that party; or

(b) on a joint application or of consent of all parties, the expenses must, in the first instance, be met by the parties equally, unless the sheriff otherwise orders.

Inspection and recovery of documents

8.5

(1) Each party shall, within 28 days after the date of the fixing of a proof, intimate to every other party, and lodge with the sheriff clerk, a list of documents, which are or have been in his possession or control which he intends to use or put in evidence at the proof, including the whereabouts of those documents.

(2) A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list at a time and place fixed by that party which is reasonable to both parties.

(3) Nothing in this rule shall affect–

(a) the law relating, or the right of a party to object, to the inspection of a document on the ground of privilege or confidentiality; or

(b) the right of a party to apply under rule 18.1 for a commission and diligence for recovery of documents or under rule 18.3 for an order under section 1 of the Administration of Justice (Scotland) Act 1972[^f00018].

Exchange of lists of witnesses

8.6

(1) Within 28 days after the date of the fixing of a proof, each party shall intimate to every other party, and lodge with the sheriff clerk, a list of witnesses, including any skilled witnesses, whom he intends to call to give evidence.

(2) A party who seeks to call as a witness a person not on his list intimated and lodged under paragraph (1) shall, if any other party objects to such a witness being called, seek leave of the sheriff to call that person as a witness; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(3) The list of witnesses intimated under paragraph (1) shall include the name, occupation (where known) and address of each intended witness.

Exchange of reports of skilled witnesses

8.7

(1) Not less than 28 days before the diet of proof, a party shall–

(a) disclose to every other party in the form of a written report the substance of the evidence of any skilled person whom he intends to call as a witness; and

(b) lodge a copy of that report in process.

(2) Except on special cause shown, a party may only call as a skilled witness any person the substance of whose evidence has been disclosed in accordance with paragraph (1).

Evidence generally

8.8

Where possible, the parties shall agree photographs, sketch plans, and any statement or document not in dispute.

Hearing parts of action separately

8.9

(1) In any action which includes a claim for payment of money, the sheriff may–

(a) of his own accord; or

(b) on the incidental application of any party,

order that proof on liability or any specified issue be heard separately from proof on any other issue and determine the order in which the proofs shall be heard.

(2) The sheriff shall pronounce such interlocutor as he thinks fit at the conclusion of the first proof of any action ordered to be heard in separate parts under paragraph (1).

Returning borrowed parts of process before proof

8.10

All parts of process which have been borrowed must be returned to process not later than noon on the day preceding the proof.

Conduct of proof

8.11

The pursuer must lead in the proof unless the sheriff, on the incidental application of any of the parties which has been intimated to the other parties not less than seven days before the diet of proof, directs otherwise.

Administration of oath or affirmation to witness

8.12

The sheriff must administer the oath to a witness in Form 20 or, where the witness elects to affirm, the affirmation in Form 21.

Noting of evidence, etc.

8.13

(1) The sheriff who presides at the proof may make a note of any facts agreed by the parties since the hearing held in terms of rule 8.2(1).

(2) The parties may, and must if required by the sheriff, lodge a joint minute of admissions of the facts upon which they have reached agreement.

(3) The sheriff must–

(a) make for his own use notes of the evidence led at the proof, including any evidence the admissibility of which is objected to, and of the nature of any such objection; and

(b) retain these notes until after any appeal has been disposed of.

Parties to be heard at close of proof

8.14

(1) After all the evidence has been led relevant to the particular proof, the sheriff must hear parties on the evidence.

(2) At the conclusion of that hearing, the sheriff may–

(a) pronounce his decision; or

(b) reserve judgment.

Objections to admissibility of evidence

8.15

If in the course of a proof an objection is made to the admissibility of any evidence and that line of evidence is not abandoned by the party pursuing it, the sheriff must except where–

(a) he is of the opinion that the evidence is clearly irrelevant or scandalous; or

(b) it is an objection falling within rule 8.16(1),

note the terms of the objection and allow the evidence to be led reserving the question of its admissibility to be decided by him at the close of the proof.

Incidental appeal against rulings on confidentiality of evidence and production of documents

8.16

(1) Where a party or any other person objects to the admissibility of oral or documentary evidence on the ground of confidentiality or to the production of a document on any ground, he may, if dissatisfied with the ruling of the sheriff on the objection, express immediately his formal dissatisfaction with the ruling and, with leave of the sheriff, appeal to the sheriff principal.

(2) The sheriff principal shall dispose of an appeal under paragraph (1) with the least possible delay.

(3) Except as provided in paragraph (1), no appeal may be made during a proof against any decision of the sheriff as to the admissibility of evidence or the production of documents.

(4) The appeal referred to in paragraph (1) shall not remove the action from the sheriff who may proceed with the action in relation to any issue which is not dependent on the ruling appealed against.

Application for time to pay direction or a time order in defended action

8.17

A defender in an action which proceeds as defended may, where it is competent to do so, make a incidental application or apply orally at any hearing, at any time before decree is granted, for a time to pay direction (including where appropriate, an order recalling or restricting an arrestment on the dependence) or time order.

Pronouncement of decision

8.18

(1) If the sheriff pronounces his decision at the end of the hearing held in terms of rule 8.2(1) or any proof, he must state briefly the grounds of his decision, including the reasons for his decision on any question of law or of admissibility of evidence.

(2) If the sheriff pronounces his decision after reserving judgement, he must give to the sheriff clerk within 28 days–

(a) a statement of his decision; and

(b) a brief note of the matters mentioned in paragraph (1).

(3) The sheriff clerk must send copies of the documents mentioned in paragraphs (2)(a) and (b) to each of the parties.

CHAPTER 9 — Incidental applications and sists

General

9.1

(1) Except where otherwise provided, any incidental application in an action may be made–

(a) orally with the leave of the sheriff during any hearing of the action; or

(b) by lodging the application in written form with the sheriff clerk.

(2) An application lodged in accordance with paragraph (1)(b) may only be heard after not less than two days' notice has been given to the other party.

(3) Where the party receiving notice of an incidental application lodged in accordance with paragraph (1)(b) intimates to the sheriff clerk and the party making the application that the application is not opposed, the application shall not require to call in court unless the sheriff so directs.

(4) Any intimation made under paragraph (3) shall be made not later than noon on the day before the application is due to be heard.

Application to sist action

9.2

(1) Where an incidental application to sist an action is made, the reason for the sist–

(a) shall be stated by the party seeking the sist; and

(b) shall be recorded in the Register of Summary Causes and on the summons.

(2) Where an action has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.

CHAPTER 10 — Counterclaim

Counterclaim

10.1

(1) If a pursuer intends to oppose a counterclaim, he must lodge answers within seven days of the lodging of the form of response.

(2) The pursuer must at the same time as lodging answers intimate a copy of any answers to every other party.

(3) The defender may apply for warrant to arrest on the dependence of a counterclaim.

(4) An application under paragraph (3) must be made by appending to the counterclaim the words “warrant for arrestment on the dependence applied for” and shall be granted by the sheriff clerk who receives the counterclaim by adding the words “Grants warrant as craved” and by authenticating the warrant in an appropriate manner.

(5) Any such warrant shall have the like effect as it would have in any summons.

CHAPTER 11 — Third party procedure

Application for third party notice

11.1

(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 the claim arising from or in connection with the liability, if any, of the defender to the pursuer,

he may apply by incidental application for an order for service of a third party notice upon that other person.

(2) An application for service of a third party notice shall be made at the time when the defender lodges a form of response, unless the sheriff on cause shown shall permit a later application.

(3) Where–

(a) a pursuer against whom a counterclaim is 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 incidental application for an order for service of a third party notice; and rules 11.2 and 11.3 shall, with the necessary modifications, apply to such a claim as they apply in relation to a counterclaim by a defender.

Procedure

11.2

(1) If an application in terms of rule 11.1 is granted, the sheriff shall–

(a) fix a date on which he will regulate further procedure; and

(b) grant warrant to serve on the third party–

(i) a copy of the summons;

(ii) a copy of the grounds upon which it is claimed that the third party is liable; and

(iii) a notice in Form 22 and a copy of Form 23.

(2) A copy of the third party notice, and any certificate of execution of service, shall be lodged by the defender before the hearing fixed under paragraph (1)(a).

(3) A third party seeking to answer the claim against him shall complete and lodge the form of response no later than seven days before the hearing fixed under paragraph (1)(a).

(4) The sheriff clerk must upon receipt intimate to the other parties a copy of any response lodged under paragraph (3).

Warrants for diligence on third party notice

11.3

(1) A defender who applies for an order for service of a third party notice may apply for a warrant for arrestment to found jurisdiction or for arrestment on the dependence which would have been permitted had the warrant been sought in a separate action.

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

CHAPTER 12 — Summary decree

Application of chapter

12.1

This chapter applies to any action other than an action of multiplepoinding.

Application for summary decree

12.2

(1) A pursuer may at any time after a defender has lodged a form of response apply by incidental application for summary decree against any defender on the ground that there is no defence to the action or any part of it.

(2) In applying for summary decree the pursuer may ask the sheriff to dispose of the whole or part of the subject matter of the action.

(3) The pursuer shall intimate an application under paragraph (1) by registered or recorded delivery post to every other party not less than seven days before the date fixed for the hearing of the application.

(4) On an application under paragraph (1), the sheriff may ordain any party, or a partner, director, officer or office-bearer of any party–

(a) to produce any relevant document or article; or

(b) to lodge an affidavit in support of any assertion of fact made in the action or at the hearing of the incidental application.

(5) Notwithstanding the refusal of an application for summary decree, a subsequent application may be made on a change of circumstances.

Summary decree in a counterclaim etc.

12.3

Rule 12.2 shall apply with the necessary modifications to an application by any other party for summary decree.

CHAPTER 13 — Alteration of summons etc.

Alteration of summons etc.

13.1

(1) The sheriff may, on the incidental application of a party, allow amendment of the summons, form of response, counterclaim or answers to a counterclaim and adjust the note of disputed issues at any time before final judgment is pronounced on the merits.

(2) In an undefended action, the sheriff may order the amended summons to be re-served on the defender on such period of notice as he thinks fit.

(3) Paragraph (1) includes amendment for the following purposes:–

(a) increasing or reducing the sum claimed;

(b) seeking a different remedy from that originally sought;

(d) enabling a party to sue or be sued in a representative capacity; and

(e) sisting a party in substitution for, or in addition to, the original party.

(4) Where an amendment sists an additional or substitute defender to the action the sheriff shall order such service and regulate further procedure as he thinks fit.

CHAPTER 14 — Additional defender

Additional defender

14.1

(1) Any person who has not been called as a defender may apply by incidental application to the sheriff for leave to enter an action as a defender, and to state a defence.

(2) An application under this rule must specify–

(a) the applicant’s title and interest to enter the action; and

(b) the grounds of the defence which he proposes to state.

(3) On the lodging of an application under this rule–

(a) the sheriff must appoint a date for hearing the application; and

(b) the applicant must forthwith serve a copy of the application and of the order for a hearing on the parties to the action.

(4) After hearing the applicant and any party to the action the sheriff may, if he is satisfied that the applicant has shown title and interest to enter the action, grant the application.

(5) Where an application is granted under paragraph (4)–

(a) the applicant shall be treated as a defender; and

(b) the sheriff must forthwith consider whether any decision already taken in the action on the issues in dispute between the parties requires to be reconsidered in light of the terms of the application.

CHAPTER 15 — Application for sist of party and transference

Application for sist of party and transference

15.1

(1) If a party dies or becomes legally incapacitated while an action is depending, any person claiming to represent that party or his estate may apply by incidental application to be sisted as a party to the action.

(2) If a party dies or becomes legally incapacitated while an action is depending and the provisions of paragraph (1) are not invoked, any other party may apply by incidental application to have the action transferred in favour of or against, as the case may be, any person who represents that party or his estate.

CHAPTER 16 — Transfer and remit of actions

Transfer to another court

16.1

(1) The sheriff may transfer an action to any other sheriff court, whether in the same sheriffdom or not, if the sheriff considers it expedient to do so.

(2) If the sheriff is satisfied that the court has no jurisdiction, he may transfer the action to any sheriff court in which it appears to the sheriff that it ought to have been brought.

(3) An action so transferred shall proceed in all respects as if it had been brought originally in the court to which it is transferred.

Remit between procedures

16.2

(1) If the sheriff makes a direction that an action is to be treated as an ordinary cause, he must, at the time of making that direction–

(a) direct the pursuer to lodge an initial writ, and intimate it to every other party, within 14 days of the date of the direction;

(b) direct the defender to lodge defences within 28 days of the date of the direction; and

(c) fix a date and time for an Options Hearing and that date shall be the first suitable court day occurring not sooner than ten weeks, or such lesser period as he considers appropriate, after the last date for lodging the initial writ.

(2) If the sheriff directs that an ordinary cause or small claim is to be treated as an action under these rules–

(a) he must specify the next step of procedure to be followed in the action; and

(b) in the case of an ordinary cause, the initial writ shall be deemed to be a summary cause summons.

Remit from Court of Session

16.3

On receipt of the process in an action which has been remitted from the Court of Session under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985[^f00019], the sheriff clerk must–

(a) record the date of receipt in the Register of Summary Causes;

(b) fix a hearing to determine further procedure on the first court day occurring not earlier than 14 days after the date of receipt of the process; and

CHAPTER 17 — Productions and documents

Lodging of productions

17.1

(1) A party who intends to rely at a proof upon any documents or articles in his possession, which are reasonably capable of being lodged with the court, must–

(a) lodge them with the sheriff clerk together with a list detailing the items no later than 14 days before the proof; and

(b) at the same time send a copy of the list to the other party.

(2) The documents referred to in paragraph (1) include any affidavit or other written statement admissible under section 2(1) of the Civil Evidence (Scotland) Act 1988[^f00020].

(3) A party lodging a document under this rule must send a copy of it to every other party, unless it is not practicable to do so.

(4) Subject to paragraph (5), only documents or articles produced–

(a) in accordance with paragraph (1) (and, if it was a document to which rule 8.5(1) applies, was on the list lodged in accordance with that rule);

(b) at a hearing under rule 8.2; or

may be used or put in evidence.

(5) Documents other than those mentioned in paragraph (4) may be used or put in evidence only with the–

(a) consent of the parties; or

(b) permission of the sheriff on cause shown, and on such terms as to expenses or otherwise as to him seem proper.

Copy productions

17.2

(1) A copy of every production, marked with the appropriate number of process of the principal production, must be lodged for the use of the sheriff at a proof not later than 48 hours before the diet of proof.

(2) Each copy production consisting of more than one sheet must be securely fastened together by the party lodging it.

Borrowing of productions

17.3

(1) Any productions borrowed must be returned not later than noon on the day preceding the date of the proof.

(2) A receipt for any production borrowed must be entered in the list of productions and that list must be retained by the sheriff clerk.

(3) Subject to paragraph (4), productions may be borrowed only by–

(a) a solicitor; or

(b) his authorised clerk for whom he shall be responsible.

(4) A party litigant or an authorised lay representative may borrow a production only with permission of the sheriff and subject to such conditions as the sheriff may impose.

(5) Productions may be inspected within the office of the sheriff clerk during normal business hours, and copies may be obtained by a party litigant, where practicable, from the sheriff clerk.

Penalty for failure to return productions

17.4

(1) If a solicitor has borrowed a production and fails to return it for any diet at which it is required, the sheriff may impose upon such solicitor a fine not exceeding £50.

(2) A fine imposed under paragraph (1) shall–

(a) be payable to the sheriff clerk; and

(b) be recoverable by civil diligence.

(3) An order imposing a fine under this rule shall not be subject to review except that the sheriff who granted it may, on cause shown, recall it.

Documents lost or destroyed

17.5

(1) This rule applies to any–

(a) summons;

(b) form of response;

(d) third party notice or answers to a third party notice;

(d) Register of Summary Causes; or

(e) other document lodged with the sheriff clerk in connection with an action.

(2) Where any document mentioned in paragraph (1) is–

(a) lost; or

(b) destroyed,

a copy of it, authenticated in such manner as the sheriff may require, may be substituted and shall, for the purposes of the action including the use of diligence, be equivalent to the original.

Documents and productions to be retained in custody of sheriff clerk

17.6

(1) This rule applies to all documents or other productions which have at any time been lodged or referred to during a hearing or proof.

(2) The sheriff clerk must retain in his custody any document or other production mentioned in paragraph (1) until–

(a) after the expiry of the period during which an appeal is competent; and

(b) any appeal lodged has been disposed of.

(3) Each party who has lodged productions in an action shall–

(a) after the final determination of the claim, where no appeal has been lodged, within 14 days after the appeal period has expired; or

(b) within 14 days after the disposal of any appeal lodged on the final determination of the action,

uplift the productions from the sheriff clerk.

(4) Where any production has not been uplifted as required by paragraph (3), the sheriff clerk shall intimate to–

(a) the solicitor who lodged the production; or

(b) where no solicitor is acting, the party himself or such other party as seems appropriate,

that if he fails to uplift the production within 28 days after the date of such intimation, it will be disposed of in such manner as the sheriff directs.

CHAPTER 18 — Recovery of evidence and attendance of witnesses

Diligence for recovery of documents

18.1

(1) At any time after a summons has been served, a party may make an incidental application in writing to the sheriff to grant commission and diligence to recover documents.

(2) A party who makes an application in accordance with paragraph (1) must list in the application the documents which he wishes to recover.

(3) A copy of the incidental application made under paragraph (1) must be intimated by the applicant to–

(a) every other party; and

(b) where necessary, the Advocate General for Scotland or the Lord Advocate (and if there is any doubt, both).

(4) The Advocate General for Scotland and the Lord Advocate may appear at the hearing of any incidental application under paragraph (1).

(5) The sheriff may grant commission and diligence to recover those documents in the list mentioned in paragraph (2) which he considers relevant to the action.

Optional procedure before executing commission and diligence

18.2

(1) Any party who has obtained a commission and diligence for the recovery of documents may, at any time before executing it, serve by first class recorded delivery post on the person from whom the documents are sought to be recovered (or on his known solicitor or solicitors) an order with certificate attached in Form 24.

(2) Documents recovered in response to an order under paragraph (1) must be sent to, and retained by, the sheriff clerk who shall, on receiving them, advise the parties that the documents are in his possession and may be examined within his office during normal business hours.

(3) If the party who served the order is not satisfied that full production has been made under the specification, or that adequate reasons for non-production have been given, he may execute the commission and diligence in normal form, notwithstanding his adoption in the first instance of the foregoing procedure by order.

(4) At the commission, the commissioner shall–

(a) administer the appropriate oath or affirmation to any clerk and any shorthand writer appointed for the commission; and

(b) administer to the haver the oath in Form 20, or where the haver elects to affirm, the affirmation in Form 21.

(5) Documents recovered under this rule may be tendered as evidence at any hearing or proof without further formality, and rules 18.4(2), (3) and (4) shall apply to such documents.

Applications for orders under section 1 of the Administration of Justice (Scotland) Act 1972

18.3

(1) An application by a party for an order under section 1 of the Administration of Justice (Scotland) Act 1972[^f00021], must be made by incidental application in writing.

(2) At the time of lodging an incidental application 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 with or upon, 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,

must be lodged in process.

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

(a) every other party;

(b) any third party haver; and

(4) If the sheriff grants an incidental application under paragraph (1) in whole or in part, he may order the applicant to find such caution or give such other security as he thinks fit.

(5) The Advocate General for Scotland and the Lord Advocate may appear at the hearing of any incidental application under paragraph (1).

Confidentiality

18.4

(1) Confidentiality may be claimed for any evidence sought to be recovered under rule 18.2 or 18.3.

(2) Where confidentiality is claimed under paragraph (1), the documents or property in respect of which confidentiality is claimed shall be enclosed in a separate, sealed packet.

(3) A sealed packet referred to in paragraph (2) shall not be opened except by authority of the sheriff obtained on the incidental application of the party who sought the commission and diligence or order.

(4) The incidental application made under paragraph (3) must be intimated by the applicant to the party or parties from whose possession the documents specified in the commission and diligence or order were obtained.

(5) Any party received intimation under paragraph (4) may appear at the hearing of the application.

Preservation and obtaining of evidence

18.5

(1) Evidence in danger of being lost may be taken to be retained until required and, if satisfied that it is desirable so to do, the sheriff may, upon the application of any party at any time, either take it himself or grant authority to a commissioner to take it.

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

(3) The evidence of any witness who–

(a) is resident beyond the sheriffdom;

(b) although resident within the sheriffdom, resides at some place remote from the court in which the proof is to be held; or

may be taken in the same manner as is provided in paragraph (1).

(4) On special cause shown, evidence may be taken from any witness or haver on a ground other than one mentioned in paragraph (1) or (3).

(5) Evidence taken under paragraph (1), (3) or (4) may be taken down by–

(a) the sheriff;

(b) the commissioner; or

and such evidence may be recorded in narrative form or by question and answer as the sheriff or commissioner shall direct and the extended notes of such evidence certified by such clerk or shorthand writer shall be the notes of such oral evidence.

(6) At the commission, the commissioner shall or where the sheriff takes evidence himself, the sheriff shall–

(a) administer the appropriate oath or affirmation to any clerk and any shorthand writer appointed for the commission; and

(b) administer to the witness the oath in Form 20, or where the witness elects to affirm, the affirmation in Form 21.

Warrants for production of original documents from public records

18.6

(1) If 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 an action, he must apply to the sheriff by incidental application.

(2) Intimation of an incidental application under paragraph (1) must be given to the keeper of the public record concerned at least seven days before the incidental application is lodged.

(3) In relation to a public record kept by the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland–

(a) where it appears to the sheriff that it is necessary for the ends of justice that an incidental application under this rule should be granted, he must pronounce an interlocutor containing a certificate to that effect; and

(b) the party applying for production may apply by letter (enclosing a copy of the interlocutor duly certified by the sheriff clerk), addressed to the Deputy Principal Clerk of Session, for an order from the Court of Session authorising the Keeper of the Registers or the Keeper of the Records, as the case may be, to exhibit the original of any register or deed to the sheriff.

(4) The Deputy Principal Clerk of Session must submit the application sent to him under paragraph (3) to the Lord Ordinary in chambers who, if satisfied, shall grant a warrant for production or exhibition of the original register or deed sought.

(5) A certified copy of the warrant granted under paragraph (4) must be served on the keeper of the public record concerned.

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

Letter of request

18.7

(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 purpose of an action depending before the sheriff.

(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;

(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 from the sheriff.

(3) Such an application must be made by minute in Form 25 together with a proposed letter of request in Form 25a.

(4) It shall be a condition of granting a letter of request that any solicitor for the applicant, or a party litigant, as the case may be, is to 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 who may be examined for the purpose; and he must consign into court such sum in respect of such expenses as the sheriff 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 sheriff clerk certifies that no translation is required,

then the applicant must, 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 and the translations (if any) must be forwarded by the sheriff clerk to the Foreign and Commonwealth Office or to such person and in such manner as the sheriff may direct.

Citation of witnesses

18.8

(1) The citation of a witness or haver must be in Form 26 and the certificate of it must be in Form 26a.

(2) A party shall be responsible for securing the attendance of his witnesses or havers at a hearing and shall be personally liable for their expenses.

(3) The summons or the copy served on the defender shall be sufficient warrant for the citation of witnesses and havers.

(4) The period of notice given to witnesses or havers cited in terms of paragraph (3) must be not less than seven days.

(5) A witness or haver shall be cited–

(a) by registered post or the first class recorded delivery service by the solicitor for the party on whose behalf he is cited; or

(b) by a sheriff officer–

(i) personally;

(ii) by a citation being left with a resident at the person’s dwelling place or an employee at his place of business;

(iii) by depositing it in that person’s dwelling place or place of business;

(iv) by affixing it to the door of that person’s dwelling place or place of business; or

(v) by registered post or the first class recorded delivery service.

(6) Where service is effected under paragraph (5) (b) (iii) or (iv), the sheriff officer shall, as soon as possible after such service, send by ordinary post to the address at which he thinks it most likely that the person may be found, a letter containing a copy of the citation.

Citation of witnesses by party litigants

18.9

(1) Where a party to an action is a party litigant he shall–

(a) not later than 28 days before the diet of proof apply to the sheriff by incidental application to fix caution for expenses in such sum as the sheriff 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 solicitor or a sheriff officer to cite a witness, find caution in the sum fixed in accordance with paragraph (1).

(2) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph 1(a), may apply by incidental application for variation of the amount of caution.

Witnesses failing to attend

18.10

(1) A hearing must not be adjourned solely on account of the failure of a witness to appear unless the sheriff, on cause shown, so directs.

(2) A witness or haver who fails without reasonable excuse to answer a citation after having been properly cited and offered his travelling expenses if he has asked for them may be ordered by the sheriff to pay a penalty not exceeding £250.

(3) The sheriff may grant decree for payment of a penalty imposed under paragraph (2) above in favour of the party on whose behalf the witness or haver was cited.

(4) The sheriff may grant warrant for the apprehension of the witness or haver and for bringing him to court.

(5) A warrant mentioned in paragraph (4) shall be effective in any sheriffdom without endorsation and the expenses of it may be awarded against the witness or haver.

CHAPTER 19 — Challenge of documents

Challenge of documents

19.1

(1) If a party relies on a deed or other document to support his case, any other party may object to the deed or document without having to bring an action of reduction.

(2) If an objection is made, the sheriff may order the objector, if an action of reduction would otherwise have been competent, to find caution or to consign with the sheriff clerk a sum of money as security.

CHAPTER 20 — European Court

Interpretation of rules 20.2 to 20.5

20.1

(1) In rules 20.2 to 20.5–

“the European Court” means the Court of Justice of the European Communities;

“reference” means a reference to the European Court for– a preliminary ruling under Article 234 of the E.E.C. Treaty, Article 150 of the Euratom Treaty or Article 41 of the E.C.S.C. Treaty; or a ruling on the interpretation of the Conventions, as defined in section 1(1) of the Civil Jurisdiction and Judgments Act 1982, under Article 3 of Schedule 2 to that Act[^f00022].

(2) The expressions “E.E.C. Treaty”, “Euratom Treaty” and “E.C.S.C. Treaty” have the meanings assigned respectively in Schedule 1 to the European Communities Act 1972[^f00023].

Application for reference

20.2

(1) The sheriff may, on the application of a party or of his own accord make a reference.

(2) A reference must be made in the form of a request for a preliminary ruling of the European Court in Form 27.

Preparation of case for reference

20.3

(1) If the sheriff decides that a reference shall be made, he must within four weeks draft a reference.

(2) On the reference being drafted, the sheriff clerk must send a copy to each party.

(3) Within four weeks after the date on which copies of the draft have been sent to parties, each party may–

(a) lodge with the sheriff clerk; and

(b) send to every other party,

a note of any adjustments he seeks to have made in the draft reference.

(4) Within 14 days after the date on which any such note of adjustments may be lodged, the sheriff, after considering any such adjustments, must make and sign the reference.

(5) The sheriff clerk must forthwith intimate the making of the reference to each party.

Sist of action

20.4

(1) Subject to paragraph (2), on a reference being made, the action must, unless the sheriff when making the reference otherwise orders, be sisted until the European Court has given a preliminary ruling on the question referred to it.

(2) The sheriff may recall a sist made under paragraph (1) for the purpose of making an interim order which a due regard to the interests of the parties may require.

Transmission of reference

20.5

A copy of the reference, certified by the sheriff clerk, must be transmitted by the sheriff clerk to the Registrar of the European Court.

CHAPTER 21 — Abandonment

Abandonment of action

21.1

(1) A pursuer may before an order granting absolvitor or dismissing the action has been pronounced, offer to abandon the action.

(2) Where the pursuer offers to abandon the action in accordance with paragraph (1), the sheriff clerk shall, subject to the approval of the sheriff, fix the amount of the defender’s expenses to be paid by the pursuer in accordance with rule 23.3 and the action must be continued to the first appropriate court occurring not sooner than 14 days after the amount has been fixed.

(3) If before the continued diet the pursuer makes payment to the defender of the amount fixed under paragraph (2), the sheriff must dismiss the action unless the pursuer consents to absolvitor.

(4) If before the continued diet the pursuer fails to pay the amount fixed under paragraph (2), the defender shall be entitled to decree of absolvitor with expenses.

CHAPTER 22 — Decree by default

Decree by default

22.1

(1) If, after a proof has been fixed under rule 8.3(3)(d), a party fails to appear at a hearing where required to do so, the sheriff may grant decree by default.

(2) If all parties fail to appear at a hearing or proof where required to do so, the sheriff must, unless sufficient reason appears to the contrary, dismiss the action and any counterclaim.

(3) If, after a proof has been fixed under rule 8.3(3)(d), a party fails to implement an order of the court, the sheriff may, after giving him an opportunity to be heard, grant decree by default.

(4) The sheriff shall not grant decree by default solely on the ground that a party has failed to appear at the hearing of an incidental application.

CHAPTER 23 — Decrees, extracts, execution and variation

Decree

23.1

The sheriff must not grant decree against–

(a) a defender or a third party in respect of a claim; or

(b) a pursuer in respect of a counterclaim,

under any provision of these Rules unless satisfied that a ground of jurisdiction exists.

Final decree

23.2

The final decree of the sheriff principal or the sheriff shall be granted, where expenses are awarded, only after expenses have been dealt with in accordance with rule 23.3.

Expenses

23.3

(1) Subject to paragraphs (2) to (4), the sheriff clerk must, with the approval of the sheriff, assess the amount of expenses including the fees and outlays of witnesses awarded in any cause, in accordance with the statutory table of fees of solicitors appropriate to the action.

(2) A party litigant, who is not represented by a solicitor or advocate and who would have been entitled to expenses if he had been so represented, may be awarded any outlays or expenses to which he might be found entitled by virtue of the 1975 Act or any enactment under that Act.

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