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Act of Sederunt (Sheriff Appeal Court Rules) 2015

Type Scottish-Statutory-Instrument

Publication 2015-10-21

Last updated 2016-01-01

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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Made: 21st October 2015

Laid before the Scottish Parliament: 23rd October 2015

Coming into force: 1st January 2016

The Court of Session therefore makes this Act of Sederunt under the powers conferred by section 14(7) of the Scottish Commission for Human Rights Act 2006[^f00002], section 104(1) of the Courts Reform (Scotland) Act 2014[^f00003] and all other powers enabling it to do so.

PART 1 — PRELIMINARY MATTERS

CHAPTER 1 — CITATION, COMMENCEMENT AND INTERPRETATION ETC.

Citation and commencement, etc.

1.1

(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Appeal Court Rules) 2015.

(2) It comes into force on 1st January 2016.

(3) A certified copy is to be inserted in the Books of Sederunt.

Interpretation

1.2

(1) In this Act of Sederunt—

“the 2014 Act” means the Courts Reform (Scotland) Act 2014;

“the Clerk” means the Clerk of the Sheriff Appeal Court;

“advocate” means a practising member of the Faculty of Advocates;

“the Court” means the Sheriff Appeal Court;

“grounds of appeal” has the meaning given by rule 6.2(2)(b);

“party litigant” has the meaning given by rule 4.1(2);

“procedural Appeal Sheriff” has the meaning given by paragraph 2(1) of Schedule 1;

“procedural hearing” means a hearing under rule 7.14 or rule 28.13;

“provisional procedural order” means an order under rule 6.6(1);

“sheriff court process” means—the sheriff court process for the cause that is appealed to the Court; orwhere the cause is recorded in an official book of the sheriff court, a copy of the record in that book certified by the sheriff clerk;

“sheriff’s note” means a note setting out the reasons for the decision appealed against;

“solicitor” means a person qualified to practise as a solicitor under section 4 of the Solicitors (Scotland) Act 1980[^f00004];

“timetable” means a timetable in—Form 7.2 issued under—rule 7.2(1) (timetable in appeal);rule 7.6(5)(a) (recall of sist: issuing revised timetable); orrule 7.6(6)(b) (variation of timetable: issuing revised timetable); orForm 28.5 issued under—rule 28.5(1) (timetable in application for new trial);rule 28.6(6)(a) (recall of sist: issuing revised timetable); orrule 28.6(7)(b) (variation of timetable: issuing revised timetable).

(2) In relation to an application under section 69(1) or 71(2) of the 2014 Act—

“appeal” includes that application;

“appellant” includes the applicant;

“note of appeal” includes an application in Form 28.2 or Form 28.14.

Computation of periods of time

1.3

If any period of time specified in these Rules expires on a Saturday, Sunday or public or court holiday, it is extended to expire on the next day that the office of the Clerk is open for civil business.

Administrative provisions

1.4

Schedule 1 makes provision about administrative arrangements for the Court, including its quorum.

Forms

1.5

(1) Where there is a reference in these Rules to a form, it is a reference to that form in Schedule 2.

(2) Where these Rules require a form to be used, that form may be varied where the circumstances require it.

PART 2 — GENERAL PROVISIONS

CHAPTER 2 — RELIEF FOR FAILURE TO COMPLY

Relief for failure to comply with rules

2.1

(1) The Court may relieve a party from the consequences of a failure to comply with a provision in these Rules.

(2) The Court may do so only where the party shows that the failure is due to—

(a) mistake;

(b) oversight; or

(3) Where relief is granted, the Court may—

(a) impose conditions that must be satisfied before relief is granted;

(b) make an order to enable the appeal to proceed as if the failure had not occurred.

CHAPTER 3 — SANCTIONS FOR FAILURE TO COMPLY

Circumstances where a party is in default

3.1

A party is in default if that party fails—

(a) to comply with the timetable;

(b) to implement an order of the Court within the period specified in the order;

(d) otherwise to comply with any requirement imposed on that party by these Rules.

Sanctions where a party is in default

3.2

(1) This rule—

(a) applies where a party is in default; but

(b) does not apply where a party is in default because the party has failed to comply with rule 17.4(1) (peremptory hearing).

(2) The procedural Appeal Sheriff may make any order to secure the expeditious disposal of the appeal.

(3) In particular, the procedural Appeal Sheriff may—

(a) refuse the appeal, where the party in default is the appellant;

(b) allow the appeal, if the condition in paragraph (4) is satisfied, where—

(i) the party in default is the sole respondent; or

(ii) every respondent is in default.

(4) The condition is that the appellant must show cause why the appeal should be allowed.

CHAPTER 4 — REPRESENTATION AND SUPPORT

Representation and support

4.1

(1) A natural person who is a party to proceedings may appear and act on that party’s behalf.

(2) That person is to be known as a party litigant.

(3) A party may be represented in any proceedings by—

(a) a legal representative (see rule 4.2); or

(b) a lay representative (see rule 4.3).

(4) A lay supporter (see rule 4.5) may assist a party litigant with the conduct of any proceedings.

Legal representation

4.2

A party is represented by a legal representative if that party is represented by an advocate or a solicitor.

Lay representation: applications

4.3

(1) This rule does not apply where any other enactment makes provision for a party to a particular type of case to be represented by a lay representative.

(2) A party is represented by a lay representative if that party is represented by a person who is not a legal representative.

(3) A party litigant may apply to the Court for permission to be represented by a lay representative.

(4) An application is to be—

(a) made by motion;

(b) accompanied by a document in Form 4.3 signed by the prospective lay representative.

(5) The Court may grant an application only if it considers that it would assist its consideration of the appeal to do so.

(6) Where the Court grants permission, it may—

(a) do so in respect of one or more specified hearings;

(b) withdraw permission of its own accord or on the motion of any party.

Lay representation: functions, conditions and duties

4.4

(1) A lay representative may represent a party at a specified hearing for the purpose of making oral submissions on behalf of the party.

(2) The party must appear along with the lay representative at any hearing where the lay representative is to make oral submissions.

(3) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay representative without contravening any prohibition or restriction on disclosure of the document or information.

(4) Where a document or information is disclosed under paragraph (3), the lay representative is subject to any prohibition or restriction on disclosure in the same way that the party is.

(5) A lay representative must not receive directly or indirectly from the party any remuneration or other reward for assisting the party.

(6) Any expenses incurred by a party in connection with a lay representative are not recoverable expenses in the proceedings.

Lay support: applications

4.5

(1) A party litigant may apply to the Court for permission for a named person to assist the party litigant in the conduct of proceedings, and such a person is to be known as a lay supporter.

(2) An application is to be made by motion.

(3) The Court may refuse an application only if it is of the opinion that—

(a) the named person is an unsuitable person to act as a lay supporter (whether generally or in the proceedings concerned); or

(b) it would be contrary to the efficient administration of justice to grant it.

(4) The Court, if satisfied that it would be contrary to the efficient administration of justice for permission to continue, may withdraw permission—

(a) of its own accord;

(b) on the motion of any party.

Lay support: functions, conditions and duties

4.6

(1) A lay supporter may assist a party by accompanying the party at hearings in court or in chambers.

(2) A lay supporter may, if authorised by the party, assist the party by—

(a) providing moral support;

(b) helping to manage court documents and other papers;

(d) quietly advising on—

(i) points of law and procedure;

(ii) issues which the party litigant might wish to raise with the Court.

(3) A party may show any document (including a court document) or communicate any information about the proceedings to that party’s lay supporter without contravening any prohibition or restriction on disclosure of the document or information.

(4) Where a document or information is disclosed under paragraph (3), the lay supporter is subject to any prohibition or restriction on disclosure in the same way that the party is.

(5) A lay supporter must not receive directly or indirectly from the party any remuneration or other reward for assisting the party.

(6) Any expenses incurred by a party in connection with a lay supporter are not recoverable expenses in the proceedings.

CHAPTER 5 — INTIMATION AND LODGING ETC.

Interpretation of this Chapter

5.1

(1) In this Chapter—

“first class post” means a postal service which seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases;

“intimating party” means any party who has to give intimation in accordance with rule 5.2(1);

“receiving party” means any party to whom intimation is to be given in accordance with rule 5.2;

“recorded delivery” means a postal service which provides for the delivery of documents or other things by post to be recorded.

(2) Where this Chapter authorises intimation to be given by electronic means—

(a) intimation may only be given by this method if the intimating party and the solicitor for the receiving party have notified the Court that they will accept intimation by electronic means at a specified email address;

(b) the intimation is to be sent to the specified email address of the solicitor for the receiving party.

(3) Where this Chapter authorises a document to be lodged by electronic means, it is to be sent to the email address of the Court.

Intimation

5.2

(1) Unless the Court orders otherwise, where—

(a) any provision in these Rules requires a party to—

(i) lodge any document;

(ii) intimate any other matter; or

(b) the Court orders a party to intimate something,

intimation is to be given to every other party.

(2) Where the Court makes an order, the Clerk is to intimate the order to every party.

Methods of intimation

5.3

(1) Intimation may be given to a receiving party who is a party litigant by—

(a) the method specified in rule 5.4;

(b) any of the methods specified in rule 5.5.

(2) Intimation may be given to a receiving party who is represented by a solicitor by—

(a) the method specified in rule 5.4;

(b) any of the methods specified in rule 5.5;

Methods of intimation: recorded delivery

5.4

An intimating party may give intimation by recorded delivery to the receiving party.

Methods of intimation: by sheriff officer

5.5

(1) A sheriff officer may give intimation on behalf of an intimating party by—

(a) delivering it personally to the receiving party; or

(b) leaving it in the hands of—

(i) a resident at the receiving party’s dwelling place; or

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

(2) Where a sheriff officer has been unsuccessful in giving intimation in accordance with paragraph (1), the sheriff officer may give intimation by—

(a) depositing it in the receiving party’s dwelling place or place of business; or

(b) leaving it at the receiving party’s dwelling place or place of business in such a way that it is likely to come to the attention of that party.

Additional methods of intimation where receiving party represented by solicitor

5.6

(1) An intimating party may give intimation to the solicitor for the receiving party by—

(a) delivering it personally to the solicitor;

(b) delivering it to a document exchange of which the solicitor is a member;

(d) fax;

(e) electronic means.

(2) Where intimation is given by the method in paragraph (1)(a), (d) or (e) not later than 1700 hours on any day, the date of intimation is that day.

(3) Where intimation is given by the method in—

(a) paragraph (1)(b) or (c); or

(b) paragraph 1(a), (d) or (e) ... after 1700 hours on any day,

the date of intimation is the next day.

Lodging

5.7

(1) Where any provision in these Rules requires a party to lodge a document, it is to be lodged with the Clerk.

(2) A document may be lodged by—

(a) delivering it personally to the office of the Clerk;

(b) delivering it to a document exchange of which the Clerk is a member;

(d) fax;

(e) electronic means.

PART 3 — INITIATION AND PROGRESS OF AN APPEAL

CHAPTER 6 — INITIATION OF AN APPEAL

Application of this Chapter

6.1

This Chapter applies to an appeal against a decision of a sheriff in civil proceedings except—

(a) an application for a new trial under section 69(1) of the 2014 Act (see Chapter 28);

(b) an application to enter a jury verdict under section 71(2) of the 2014 Act (see Chapter 28);

(d) an appeal by stated case under section 163(1), 164(1), 165(1) or 167(1) of the Children’s Hearings (Scotland) Act 2011[^f00006] (see Chapter 30);

(e) an appeal against an interlocutor granting decree of divorce in a simplified divorce application (see rule 33.81 of the Ordinary Cause Rules 1993);

(f) an appeal against an interlocutor granting decree of dissolution of civil partnership in a simplified dissolution of civil partnership application (see rule 33A.74 of the Ordinary Cause Rules 1993.

Form of appeal

6.2

(1) An appeal is made by lodging a note of appeal in Form 6.2.

(2) The note of appeal must—

(a) specify—

(i) the decision complained of;

(ii) the date on which the decision was made;

(iii) the date on which it was intimated to the appellant;

(iv) any other relevant information;

(b) state the grounds of appeal in brief specific numbered paragraphs setting out concisely the grounds on which it is proposed that the appeal should be allowed;

(d) where the sheriff’s note is not available, indicate whether the appellant—

(i) has requested that the sheriff writes a note and is awaiting its production;

(ii) requests that the sheriff write a note; or

(iii) considers that the appeal is sufficiently urgent that the Court should hear and determine the appeal without the sheriff’s note;

(e) state whether, taking into account the matters in rule 6.6(3), the appellant considers that the appeal should be appointed to the standard appeal procedure or to the accelerated appeal procedure;

(f) be signed and dated;

(g) where the appellant is represented by a solicitor, specify the name and business address of the solicitor.

(3) When a note of appeal is lodged, the appellant must lodge a process made up in accordance with paragraph 4 of Schedule 1 (form of process).

Time for appeal

6.3

(1) An appeal must be made within 28 days after the date on which the decision appealed against was given.

(2) This rule does not apply where the enactment under which the appeal is made specifies a period within which the appeal must be made.

Applications to appeal out of time

6.4

(1) This rule applies where the enactment under which the appeal is made—

(a) specifies a period within which the appeal must be made; and

(b) provides that a party may apply to the Court to allow an appeal to be made outwith that period.

(2) An application to allow an appeal to be received out of time is to be made by motion.

(3) That motion is to be made when the note of appeal is lodged.

(4) Where a motion to allow an appeal to be received out of time is refused—

(a) the Clerk is to—

(i) notify the sheriff clerk that leave to appeal out of time has been refused;

(ii) transmit the note of appeal to the sheriff clerk;

(b) the sheriff clerk is to place the note of appeal in the process.

Order for intimation and answers

6.5

(1) On the first available court day after being lodged, an appeal is to be brought before the procedural Appeal Sheriff for an order for—

(a) intimation of the appeal, within 7 days after the date of the order, to be given to—

(i) the respondent;

(ii) any other person who appears to have an interest in the appeal;

(b) any person on whom the appeal is intimated to lodge answers, if so advised, within 14 days after the date of intimation.

(2) The procedural Appeal Sheriff may vary the periods of 7 days and 14 days mentioned in paragraph (1)—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of the appellant.

(3) That application must—

(a) be included in the note of appeal;

(b) give reasons for varying the period.

(4) Where an appeal is intimated under this rule, the appellant must lodge a certificate of intimation in Form 6.5 within 14 days after the date of intimation.

Initial case management of appeals

6.6

(1) When the procedural Appeal Sheriff makes an order for intimation and answers in accordance with rule 6.5(1), the procedural Appeal Sheriff must also make a provisional procedural order.

(2) The provisional procedural order must provisionally appoint the appeal to—

(a) the standard appeal procedure (see Chapter 7); or

(b) the accelerated appeal procedure (see Chapter 27).

(3) When considering which procedure is appropriate for the appeal, the procedural Appeal Sheriff must take into account—

(a) the importance of the appeal;

(b) the complexity of the appeal;

(d) the presumption in paragraph (4).

(4) The following categories of appeal are presumed to be appropriate for the accelerated appeal procedure—

(a) appeals against a decision of the sheriff to grant decree by default;

(b) appeals against a decision of the sheriff to refuse a reponing note.

(5) A provisional procedural order under this rule is to be intimated at the same time and in the same manner as the order for intimation and answers made in accordance with rule 6.5.

Provisional orders: representations

6.7

(1) Any person to whom a provisional procedural order under rule 6.6 has been intimated may make representations to the Court before that order becomes final.

(2) Representations are to be—

(a) made in Form 6.7;

(b) lodged within 14 days after the date of intimation of the provisional order.

(3) Representations must specify why, taking into account the matters in rule 6.6(3), it is not appropriate for the appeal to proceed in accordance with the provisional procedural order.

(4) If representations are made, the Clerk is to fix a hearing and intimate the time and date of that hearing to every person to whom the provisional order was intimated.

(5) At that hearing, the Court may—

(a) confirm the provisional procedural order; or

(b) recall the provisional procedural order and make an order appointing the appeal to the standard appeal procedure or the accelerated appeal procedure.

(6) If no representations are made in accordance with paragraph (2), the provisional procedural order becomes final.

CHAPTER 7 — STANDARD APPEAL PROCEDURE

Application of this Chapter

7.1

This Chapter applies to an appeal which has been appointed to proceed under the standard appeal procedure.

Timetable in appeal

7.2

(1) The Clerk must issue a timetable in Form 7.2 when—

(a) a provisional procedural order appointing the appeal to the standard appeal procedure becomes final or is confirmed; or

(b) the Court makes an order appointing the appeal to the standard appeal procedure under rule 6.7(5)(b).

(2) When the Clerk issues a timetable, the Clerk must also fix a procedural hearing to take place after completion of the procedural steps specified in paragraph (4).

(3) The timetable specifies—

(a) the dates by which parties must comply with those procedural steps;

(b) the date and time of the procedural hearing.

(4) The procedural steps are the steps mentioned in the first column of the following table, provision in respect of which is found in the rule mentioned in the second column—

Procedural step	Rule
Cross appeals: lodging of grounds of appeal	7.3(1)
Cross appeals: lodging of answers	7.3(2)
Referral of question about competency of appeal	7.7(3)
Lodging of appeal print	7.9(1) and (2)
Lodging of appendices to appeal print	7.10(1)
Giving notice that the appellant considers appendix unnecessary	7.11(1)
Lodging of notes of argument	7.12(1)
Lodging of estimates of duration of appeal hearing	7.13

Cross-appeals

7.3

(1) A respondent who seeks to—

(a) appeal against any decision of the sheriff; or

(b) challenge the grounds on which the sheriff made the decision appealed against,

may lodge grounds of appeal in Form 7.3 within 28 days after the timetable is issued under rule 7.2(1).

(2) The appellant may lodge answers to the respondent’s grounds of appeal within 28 days after the grounds are intimated to the appellant.

Urgent disposal

7.4

(1) The procedural Appeal Sheriff may order urgent disposal of an appeal—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on the application of the appellant or a respondent.

(2) Where the appellant or a respondent seeks urgent disposal, an application for urgent disposal is to be made by motion.

(3) An application may be made—

(a) by the appellant, when the note of appeal is lodged;

(b) by the respondent, not later than the expiry of the period for lodging answers specified in rule 6.5(1)(b) (order for intimation and answers).

(4) Where the decision appealed against concerns an order made by the sheriff under section 11(1) of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.)[^f00007], the appellant must seek urgent disposal.

(5) Where the procedural Appeal Sheriff proposes to order urgent disposal of the procedural Appeal Sheriff’s own accord—

(a) the Clerk must notify every party to the appeal;

(b) any party who objects to urgent disposal may make representations within such time and in such manner as the procedural Appeal Sheriff orders.

Urgent disposal: determination

7.5

(1) Where an application for urgent disposal is opposed, it may only be disposed of after the procedural Appeal Sheriff has heard parties on it.

(2) Where a party makes representations objecting to urgent disposal in accordance with rule 7.4(5), the procedural Appeal Sheriff must hear parties before ordering urgent disposal.

(3) At a hearing under paragraph (1) or (2), the parties must provide the procedural Appeal Sheriff with an assessment of the likely duration of the hearing to determine the appeal.

(4) When ordering urgent disposal of an appeal, the procedural Appeal Sheriff must make an order specifying—

(a) the procedure to be followed in the appeal;

(b) the periods for complying with each procedural step.

(5) Accordingly, the following rules apply only to the extent that the procedural Appeal Sheriff specifies in the order made under paragraph (3)—

(a) rule 7.2 (timetable in appeal);

(b) rule 7.7 (questions about competency of appeal);

(d) rule 7.9 (appeal print);

(e) rule 7.10 (appendices to the appeal print: contents);

(f) rule 7.11 (appendices to the appeal print considered unnecessary);

(g) rule 7.12 (notes of argument);

(h) rule 7.13 (estimates of duration of appeal hearing);

(i) rule 7.14 (procedural hearing).

Sist of appeal and variation of timetable

7.6

(1) Any party may apply by motion to—

(a) sist the appeal for a specified period;

(b) recall a sist;

(2) An application to sist the appeal or vary the timetable may only be granted on special cause shown.

(3) The procedural Appeal Sheriff may—

(a) grant the application;

(b) refuse the application; or

(c) make an order not sought in the application, where the procedural Appeal Sheriff considers that doing so would secure the expeditious disposal of the appeal.

(4) Where the procedural Appeal Sheriff makes an order sisting the appeal, the Clerk is to discharge the procedural hearing fixed under rule 7.2(2) (timetable: fixing procedural hearing).

(5) When a sist is recalled or expires, the Clerk is to—

(a) issue a revised timetable in Form 7.2;

(b) fix a procedural hearing.

(6) Where the procedural Appeal Sheriff makes an order varying the timetable, the Clerk is to—

(a) discharge the procedural hearing fixed under rule 7.2(2) (timetable: fixing procedural hearing);

(b) issue a revised timetable in Form 7.2;

Questions about competency

7.7

(1) A question about the competency of an appeal may be referred to the procedural Appeal Sheriff by any respondent.

(2) A question is referred by lodging a reference in Form 7.7.

(3) A question may be referred within 14 days after the timetable is issued under rule 7.2(1).

(4) When a reference is lodged, the Clerk is to fix a hearing and intimate the date and time of that hearing to the parties.

(5) Within 14 days after the date on which the reference is lodged, each party must lodge a note of argument.

(6) That note of argument must—

(a) give fair notice of the submissions the party intends to make on the question of competency;

(b) comply with the requirements in rule 7.12(3).

(7) Paragraphs (4) and (5) of rule 7.12 apply to that note of argument.

Questions about competency: determination

7.8

(1) At a hearing on the competency of an appeal, the procedural Appeal Sheriff may—

(a) refuse the appeal as incompetent;

(b) find the appeal to be competent;

(d) refer the question of competency to the Court.

(2) The procedural Appeal Sheriff may make an order as to the expenses of the reference.

(3) Where the question of competency is referred to the Court, it may—

(a) refuse the appeal as incompetent;

(b) find the appeal to be competent;

(4) The Court may make an order as to the expenses of the reference.

Appeal print

7.9

(1) The appellant must lodge an appeal print within 21 days after the timetable is issued under rule 7.2(1).

(2) An appeal print is to contain—

(a) the pleadings in the sheriff court process;

(b) the interlocutors in the sheriff court process;

(3) Where the appeal is directed at the refusal of the sheriff to allow the pleadings to be amended, the appeal print is also to contain the text of the proposed amendment.

Appendix to appeal print: contents

7.10

(1) The appellant must lodge an appendix to the appeal print no later than 7 days before the procedural hearing, unless rule 7.11(1) (giving notice that appellant considers appendix unnecessary) is complied with.

(2) The appendix is to contain—

(a) any document lodged in the sheriff court process that is founded upon in the grounds of appeal;

(b) the notes of evidence from any proof, if it is sought to submit them for consideration by the Court.

(3) Where the sheriff’s note has not been included in the appeal print and it subsequently becomes available, the appellant must—

(a) include it in the appendix where the appendix has not yet been lodged; or

(b) lodge a supplementary appendix containing the sheriff’s note.

(4) The parties must—

(a) discuss the contents of the appendix;

(b) so far as possible, co-operate in making up the appendix.

Appendix to appeal print considered unnecessary

7.11

(1) Where the appellant considers that it is not necessary to lodge an appendix, the appellant must, no later than 7 days before the procedural hearing—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every respondent.

(2) Where the appellant complies with paragraph (1), the respondent may apply by motion for an order requiring the appellant to lodge an appendix.

(3) An application must specify the documents or notes of evidence that the respondent considers should be included in the appendix.

(4) In disposing of an application, the procedural Appeal Sheriff may—

(a) grant the application and make an order requiring the appellant to lodge an appendix;

(b) refuse the application and make an order requiring the respondent to lodge an appendix; or

(5) Where the procedural Appeal Sheriff makes an order requiring the appellant or the respondent to lodge an appendix, that order must specify—

(a) the documents or notes or evidence to be included in the appendix;

(b) the time within which the appendix must be lodged.

Notes of argument

7.12

(1) The parties must lodge notes of argument no later than 7 days before the procedural hearing.

(2) A note of argument must summarise briefly the submissions the party intends to develop at the appeal hearing.

(3) A note of argument must—

(a) state, in brief numbered paragraphs, the points that the party intends to make;

(b) after each point, identify by means of a page or paragraph reference the relevant passage in any notes of evidence or other document on which the party relies in support of the point;

(i) state the proposition of law that the authority demonstrates;

(ii) identify the page or paragraph references for the parts of the authority that support the proposition;

(d) cite only one authority for each proposition of law, unless additional citation is necessary for a proper presentation of the argument.

(4) Where a note of argument has been lodged and the party lodging it subsequently becomes aware that an argument in the note is not to be insisted upon, that party must—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every other party.

(5) Where a party wishes to advance an argument at a hearing that is not contained in that party’s note of argument, the party must apply by motion for leave to advance the argument.

Estimates of duration of appeal hearing

7.13

The parties must lodge estimates of the duration of any appeal hearing required to dispose of the appeal in Form 7.13 not later than 7 days before the procedural hearing.

Procedural hearing

7.14

(1) At a procedural hearing, the procedural Appeal Sheriff is to ascertain the state of preparation of the parties, so far as reasonably practicable.

(2) The procedural Appeal Sheriff may—

(a) determine that parties are ready to proceed to an appeal hearing; or

(b) determine that further procedure is required.

(3) Where the procedural Appeal Sheriff determines that parties are ready to proceed—

(a) the procedural Appeal Sheriff is to fix an appeal hearing;

(b) the Clerk is to intimate the date and time of that hearing to the parties;

(c) the procedural Appeal Sheriff may make an order specifying further steps to be taken by the parties before the hearing.

(4) Where the procedural Appeal Sheriff determines that further procedure is required, the procedural Appeal Sheriff—

(a) is to make an order to secure the expeditious disposal of the appeal;

(b) may direct the Clerk to fix a further procedural hearing and intimate the date and time of that hearing to parties.

Transmission of sheriff court process

7.15

(1) The Court may order that the sheriff court process, or any part of it, is to be transmitted to the Clerk—

(a) of its own accord;

(b) on cause shown, where any party to the appeal applies for such an order by motion.

(2) Where the Court makes such an order, the Clerk must send a copy of the order to the sheriff clerk.

(3) Within 4 days after receipt of the order, the sheriff clerk must—

(a) send written notice to each party to the cause;

(b) certify on the interlocutor sheet that subparagraph (a) has been complied with;

(4) On receipt of the sheriff court process, the Clerk must—

(a) mark the date of receipt on—

(i) the interlocutor sheet or the copy record from the sheriff court books, where the entire process is transmitted;

(ii) the part of process that has been transmitted, where the Court has specified that only part of the process is to be transmitted;

(b) send written notice of that date to the appellant.

(5) Where the Clerk or a sheriff clerk fails to comply with this rule—

(a) that does not affect the validity of the appeal;

(b) the Court may, as it thinks fit, make an order to enable the appeal to proceed as if the failure had not occurred.

Extension of notes of evidence

7.16

(1) The parties may agree that, in relation to any particular issue, the decision appealed against is not to be submitted to review.

(2) It is not necessary to reproduce the notes of evidence or documents relating to that issue.

Referral to family mediation

7.17

(1) Where the decision appealed against concerns an order made by the sheriff under section 11(1) of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.)[^f00008], the procedural Appeal Sheriff may refer that matter to a family mediator.

(2) In this rule, “family mediator” means a person accredited as a mediator in family mediation to an organisation which is concerned with such mediation and which is approved for the purposes of the Civil Evidence (Family Mediation) (Scotland) Act 1995[^f00009] by the Lord President of the Court of Session.

PART 4 — DISPOSAL OF AN APPEAL

CHAPTER 8 — REFUSAL OF APPEAL DUE TO DELAY

Application to refuse appeal due to delay

8.1

(1) Any party may apply to the procedural Appeal Sheriff to refuse the appeal if the conditions in paragraph (2) are met.

(2) The conditions are that—

(a) there has been an inordinate and inexcusable delay by another party or another party’s solicitor; and

(b) unfairness has resulted from that delay.

(3) An application is to be made by motion.

(4) That motion must specify the grounds on which refusal of the appeal is sought.

Determination of application to refuse appeal due to delay

8.2

(1) The procedural Appeal Sheriff may refuse the appeal if the procedural Appeal Sheriff considers that—

(a) there has been an inordinate and inexcusable delay on the part of any party or any party’s solicitor; and

(b) such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of the appeal.

(2) The procedural Appeal Sheriff must take into account the procedural consequences of allowing the appeal to proceed for—

(a) the parties to the appeal;

(b) the efficient disposal of business in the Court.

CHAPTER 9 — ABANDONMENT OF APPEAL

Application to abandon appeal

9.1

(1) An appellant may apply to the Court to abandon an appeal by lodging a minute of abandonment.

(2) Where all of the parties consent to the abandonment of the appeal, the Court must refuse the appeal.

(3) Where the other parties do not consent to the abandonment of the appeal, the Court may—

(a) refuse the application;

(b) grant the application and refuse the appeal.

(4) If the Court refuses an appeal under this rule, it may make an order as to the expenses of the appeal.

(5) If the Court refuses an application, it may make an order as to the expenses of the application.

CHAPTER 10 — REMIT TO THE COURT OF SESSION

Application to remit appeal to the Court of Session

10.1

(1) An application under section 112 of the 2014 Act (remit of appeal from the Sheriff Appeal Court to the Court of Session) is to be made by motion.

(2) Within 4 days after the Court has made an order remitting an appeal to the Court of Session, the Clerk must—

(a) give notice of the remit to each party;

(b) certify on the interlocutor sheet that subparagraph (a) has been complied with;

(3) Failure by the Clerk to comply with paragraph (2)(a) or (b) does not affect the validity of a remit.

CHAPTER 11 — APPLICATIONS FOR PERMISSION TO APPEAL TO THE COURT OF SESSION

Application of this Chapter

11.1

This Chapter applies where a party seeks the permission of the Court to appeal to the Court of Session against a decision of the Court constituting final judgment in civil proceedings under section 113 of the 2014 Act.

Applications for permission to appeal

11.2

(1) An application to the Court for permission to appeal to the Court of Session is to be made in Form 11.2.

(2) Such an application must be lodged within 14 days after the date on which the Court gave its decision on the appeal.

(3) When an application is made, the Clerk is to fix a hearing and intimate the time and date of that hearing to the parties to the appeal.

(4) The hearing is, so far as reasonably practicable, to be before the Appeal Sheriff or Appeal Sheriffs who made the decision in respect of which permission to appeal is sought.

PART 5 — INCIDENTAL PROCEDURE: STANDARD PROCEDURES

CHAPTER 12 — MOTIONS: GENERAL

Interpretation

12.1

(1) In this Chapter, Chapter 13 and Chapter 14—

“court day” means a day on which the office of the Clerk is open;

“court day 1” means the court day on which a motion is treated as being intimated under rule 13.1;

“court day 3” means the second court day after court day 1;

“court day 4” means the third court day after court day 1;

“lodging party” means the party lodging the motion;

“receiving party” means a party receiving the intimation of the motion from the lodging party;

“transacting motion business” means—intimating and lodging motions;receiving intimation of motions;intimating consent or opposition to motions;receiving intimation of opposition to motions.

(2) In this Chapter and Chapter 13, a reference to—

(a) the address of a party is a reference to the email address included in the list maintained under rule 12.5(4) of—

(i) that party’s solicitor; or

(ii) that party;

(b) the address of the court is a reference to the email address of the court included in that list under rule 12.5(5).

Making of motions

12.2

A motion may be made—

(a) orally, in accordance with rule 12.3; or

(b) in writing, in accordance with rule 12.4.

Oral motions

12.3

(1) A motion may be made orally during any hearing.

(2) Such a motion may only be made with leave of the Court.

Written motions

12.4

(1) A motion in writing is made by lodging it with the Clerk in accordance with Chapter 13 or Chapter 14.

(2) Chapter 13 (motions lodged by email) applies where each party to an appeal has provided to the Clerk an email address for the purpose of transacting motion business.

(3) Chapter 14 (motions lodged by other means) applies where a party to an appeal has not provided to the Clerk an email address for the purpose of transacting motion business.

Provision of email addresses to the Clerk

12.5

(1) A solicitor representing a party in an appeal must provide to the Clerk an email address for the purpose of transacting motion business.

(2) A solicitor who does not have suitable facilities for transacting motion business by email may make a declaration in writing to that effect, which must be—

(a) sent to the Clerk; and

(b) intimated to each of the other parties to the appeal.

(3) A party who is not represented by a solicitor may provide to the Clerk an email address for the purpose of transacting motion business.

(4) The Clerk must maintain a list of the email addresses provided for the purpose of transacting motion business, which must be published in up to date form on the website of the Scottish Courts and Tribunals Service.

(5) The Clerk must also include on that list an email address of the Court for the purpose of lodging motions.

Grounds for written motion

12.6

A motion in writing must specify the grounds on which it is made.

Determination of unopposed motions in writing

12.7

(1) The Clerk may determine any unopposed motion in writing other than a motion which seeks a final interlocutor.

(2) Where the Clerk considers that such a motion should not be granted, the Clerk must refer the motion to the procedural Appeal Sheriff.

(3) The procedural Appeal Sheriff is to determine—

(a) a motion referred under paragraph (2);

(b) an unopposed motion which seeks a final interlocutor,

in chambers without the appearance of parties, unless the procedural Appeal Sheriff otherwise determines.

Issuing of orders by email

12.8

Where the Court makes an order determining a motion which was lodged in accordance with Chapter 13, the Clerk must email a copy of the order to the addresses of the lodging party and every receiving party.

CHAPTER 13 — MOTIONS LODGED BY EMAIL

Intimation of motions by email

13.1

(1) The lodging party must give intimation of that party’s intention to lodge the motion, and of the terms of the motion, to every other party by sending an email in Form 13.1 (form of motion by email) to the addresses of every party.

(2) The requirement under paragraph (1) to give intimation of a motion to a party by email does not apply where that party—

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

(b) has withdrawn or is deemed to have withdrawn those answers; or

(3) A motion intimated under this rule must be intimated not later than 1700 hours on a court day.

Opposition to motions

13.2

(1) A receiving party must intimate any opposition to a motion by sending an email in Form 13.2 (form of opposition to motion by email) to the address of the lodging party.

(2) Any opposition to a motion must be intimated to the lodging party not later than 1700 hours on court day 3.

(3) Late opposition to a motion must be sent to the address of the Court and may only be allowed with the leave of the procedural Appeal Sheriff, on cause shown.

13.3

Where a receiving party seeks to consent to a motion, that party may do so by sending an email confirming the consent to the address of the lodging party.

Lodging unopposed motions

13.4

(1) This rule applies where no opposition to a motion has been intimated.

(2) The motion must be lodged by the lodging party not later than 1230 hours on court day 4 by sending an email in Form 13.1 headed “Unopposed motion” to the address of the court.

(3) That motion is to be determined by 1700 hours on court day 4.

(4) Where for any reason it is not possible for that motion to be determined in accordance with paragraph (3), the Clerk must advise the parties of that fact and give reasons.

Lodging opposed motions by email

13.5

(1) This rule applies where opposition to a motion has been intimated.

(2) The motion must be lodged by the lodging party not later than 1230 hours on court day 4 by—

(a) sending an email in Form 13.1 headed “Opposed motion”, to the address of the court;

(b) attaching to that email the opposition in Form 13.2 intimated by the receiving party to the lodging party.

(3) That motion is to be heard by the procedural Appeal Sheriff on the first suitable court day after court day 4.

(4) The Clerk must intimate the date and time of the hearing to the parties.

Variation of periods of intimation

13.6

Where—

(a) every receiving party in an appeal consents to a shorter period of intimation; or

(b) the Court shortens the period of intimation,

the motion may be lodged by the lodging party, or heard or otherwise determined by the Court at an earlier time and date than that which is specified in this Chapter.

CHAPTER 14 — MOTIONS LODGED BY OTHER MEANS

Intimation of motions by other means

14.1

(1) The lodging party must give intimation of that party’s intention to lodge the motion, and of the terms of the motion, to every other party in Form 14.1 (form of motion).

(2) That intimation must be accompanied by a copy of any document referred to in the motion.

Opposition to motions

14.2

(1) A receiving party may oppose a motion by lodging a notice of opposition in Form 14.2 (form of opposition to motion).

(2) Any notice of opposition must be lodged within 7 days after the date of intimation of the motion.

(3) The procedural Appeal Sheriff may, on the application of the lodging party—

(a) vary the period of 7 days mentioned in paragraph (2); or

(b) dispense with intimation on any party.

(4) An application mentioned in paragraph (3) must—

(a) be included in the motion;

(b) give reasons for varying the period or dispensing with intimation, as the case may be.

(5) The procedural Appeal Sheriff may allow a notice of opposition to be lodged late, on cause shown.

14.3

Where a receiving party seeks to consent to a motion, that party may do so by lodging a notice to that effect.

Lodging of motions

14.4

(1) The motion must be lodged by the lodging party within 5 days after the date of intimation of the motion, unless paragraph (3) applies.

(2) The lodging party must also lodge—

(a) a certificate of intimation in Form 6.5 (certificate of intimation);

(b) so far as practicable, any document referred to in the motion that has not already been lodged.

(3) Where the procedural Appeal Sheriff varies the period for lodging a notice of opposition to a period of 5 days or less, the motion must be lodged no later than the day on which that period expires.

Joint motions

14.5

(1) A joint motion by all parties need not be intimated.

(2) Such a motion is to be lodged by any of the parties.

Hearing of opposed motions

14.6

(1) Where a notice of opposition in Form 14.2 (form of opposition to motion) is lodged, the motion is to be heard by the procedural Appeal Sheriff on the first suitable court day after the lodging of the notice of opposition.

(2) The Clerk must intimate the date and time of the hearing to the parties.

Modification of Chapter 5

14.7

For the purposes of this Chapter, the following provisions in Chapter 5 (intimation and lodging etc.) do not apply—

(a) rule 5.6(1)(e) (additional methods of intimation: electronic means);

(b) rule 5.7(2)(e) (lodging: electronic means).

CHAPTER 15 — MINUTES

Application of this Chapter

15.1

This Chapter applies to any application to the Court that is made by minute, other than a joint minute.

Form and lodging of minute

15.2

(1) A minute must—

(a) specify the order sought from the Court;

(b) contain a statement of facts supporting the granting of that order;

(2) A minute is to be lodged in the process of the appeal to which it relates.

Orders for intimation and answers

15.3

(1) On the first available court day after being lodged, a minute is to be brought before the procedural Appeal Sheriff for an order—

(a) for intimation, within 7 days after the date of the order, to—

(i) every other party to the appeal;

(ii) any other person who appears to have an interest in the minute;

(b) for any person on whom the minute is intimated to lodge answers, if so advised, within 14 days after the date of intimation;

(2) The procedural Appeal Sheriff may vary the periods of 7 days, 14 days and 28 days mentioned in paragraph (1)—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of the applicant.

(3) An application mentioned in paragraph (2)(b) must—

(a) be included in the minute;

(b) give reasons for varying the period.

(4) Where a minute is intimated in accordance with an order under this rule, the applicant must lodge a certificate of intimation in Form 6.5 within 14 days after the date of intimation.

15.4

(1) Where a person to whom a minute is intimated seeks to consent to the minute, that person may do so by lodging a notice to that effect.

(2) Where every person to whom a minute is intimated consents to the minute, the procedural Appeal Sheriff is to determine the minute in chambers without the appearance of those persons, unless the procedural Appeal Sheriff otherwise determines.

Minutes of sist and transference

15.5

(1) This rule applies where a party to an appeal (“P”) dies or comes under legal incapacity while the appeal is depending before the Court.

(2) Any person who claims to represent P or P’s estate may apply to the Court by minute to be sisted as a party to the appeal.

(3) If no person makes an application under paragraph (2), any other party may apply to the Court by minute to transfer the appeal in favour of or against (as the case may be) the person who represents P or P’s estate.

(4) An application under paragraph (3) must be intimated to the person specified in the minute as representing P or P’s estate.

Applications to enter process as respondent

15.6

(1) A person on whom the appeal has not been intimated may apply by minute for leave to enter the process as a party minuter and lodge answers.

(2) A minute under paragraph (1) must specify—

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

(b) the basis for the answers that the applicant proposes to lodge.

(3) At the hearing fixed under rule 15.3(1)(c), the procedural Appeal Sheriff is to determine whether the applicant has shown title and interest to enter the process.

(4) If the procedural Appeal Sheriff is satisfied, the procedural Appeal Sheriff may grant the applicant leave to enter the process and lodge answers.

(5) Where leave is granted, the procedural Appeal Sheriff is to make such further order as the procedural Appeal Sheriff thinks fit.

(6) In particular, such an order may include an order—

(a) varying any timetable;

(b) as to the expenses of the application.

CHAPTER 16 — AMENDMENT OF PLEADINGS

Amendment of sheriff court pleadings

16.1

(1) Any party to an appeal may apply by motion to amend the pleadings in the sheriff court process.

(2) Where the procedural Appeal Sheriff—

(a) allows an amendment to the pleadings in the sheriff court process; and

(b) considers that the amendment makes a material change to the pleadings,

the procedural Appeal Sheriff may set aside the decision appealed against and remit the matter to the sheriff for a further hearing.

Amendment of note of appeal and answers etc.

16.2

(1) A party who has lodged a document specified in paragraph (2) may apply by motion to amend that document.

(2) The documents are—

(a) a note of appeal;

(b) answers to a note of appeal;

(d) answers to grounds of appeal in a cross-appeal.

(3) Such a motion must include the text of the proposed amendment.

(4) An application under paragraph (1) is to be accompanied by an application to vary the timetable under rule 7.6(1)(c) or rule 28.6(1)(c) (sist of proceedings and variation of timetable) if such an application is necessary.

CHAPTER 17 — WITHDRAWAL OF SOLICITORS

Interpretation of this Chapter

17.1

In this Chapter, “peremptory hearing” means a hearing at which a party whose solicitor has withdrawn from acting must appear or be represented in order to state whether or not the party intends to proceed.

Giving notice of withdrawal to the Court

17.2

(1) Where a solicitor withdraws from acting on behalf of a party, the solicitor must give notice in writing to the Clerk and to every other party.

(2) Paragraph (1) does not apply if the solicitor withdraws from acting at a hearing in the presence of the other parties or their representatives.

(3) Paragraph (4) applies if a solicitor who withdraws from acting is aware that the address of the party for whom the solicitor acted has changed from that specified in the instance of the note of appeal or answers to the note of appeal.

(4) The solicitor must disclose to the Clerk and every other party the last known address of the party for whom the solicitor acted.

Arrangements for peremptory hearing

17.3

(1) On the first available court day after notice is given under rule 17.2(1), the procedural Appeal Sheriff is to make an order—

(a) ordaining the party whose solicitor has withdrawn from acting to appear or be represented at a peremptory hearing;

(b) fixing a date and time for the peremptory hearing;

(c) appointing any other party to the appeal to intimate the order and a notice in Form 17.3 to that party within 7 days after the date of the order.

(2) A peremptory diet is to be fixed no sooner than 14 days after the date on which an order is made under paragraph (1).

(3) The procedural Appeal Sheriff may vary the period of 7 days mentioned in paragraph (1) or the period of 14 days mentioned in paragraph (2)—

(a) of the procedural Appeal Sheriff’s own accord; or

(b) on cause shown, on the application of any other party to the appeal.

(4) Where any previously fixed hearing is to occur within 14 days after the date on which the procedural Appeal Sheriff is to make an order under paragraph (1), the procedural Appeal Sheriff may continue consideration of the matter to the previously fixed hearing instead of making an order under paragraph (1).

(5) Where an order and a notice in Form 17.3 are intimated under this rule, the party appointed to intimate them must lodge a certificate of intimation in Form 6.5—

(a) within 14 days after the date of intimation; or

(b) before the peremptory hearing,

whichever is sooner.

Peremptory hearing

17.4

(1) At a peremptory hearing, the party whose solicitor has withdrawn from acting must appear or be represented in order to state whether the party intends to proceed.

(2) Where the party fails to comply with paragraph (1), the Court may make an order mentioned in paragraph (3) only if it is satisfied that the order and notice in Form 17.3 have been intimated to that party.

(3) The orders are—

(a) if the party is the appellant, an order refusing the appeal; or

(b) if the party is the respondent and the condition in paragraph (4) is satisfied, an order allowing the appeal.

(4) The condition is that the appellant must show cause why the appeal should be allowed.

(5) If the Court is not satisfied that the order and notice in Form 17.3 have been intimated to that party, it may make—

(a) an order fixing a further peremptory hearing;

(b) any other order that the Court considers appropriate to secure the expeditious disposal of the appeal.

CHAPTER 18 — CAUTION AND SECURITY

Application of this Chapter

18.1

This Chapter applies to any appeal in which the Court has power to order a person to find caution or give other security.

Form of application to find caution or give security

18.2

An application—

(a) for an order for caution or other security;

(b) to vary or recall such an order,

is to be made by motion.

Orders for caution or other security: time for compliance

18.3

Where the Court makes an order for caution or to give other security, the order must specify the period within which caution is to be found or security given.

Methods of finding caution or giving security

18.4

(1) A person who is ordered to find caution must do so by obtaining a bond of caution.

(2) A person who is ordered to consign a sum of money into court must do so by consignation under the Sheriff Courts Consignations (Scotland) Act 1893[^f00010] in the name of the Clerk.

(3) The Court may order a person to give security by—

(a) a method other than those mentioned in paragraphs (1) and (2);

(b) a combination of two or more methods of security.

(4) Any document by which an order to find caution or give security is satisfied must be lodged in process.

(5) A document lodged under paragraph (4) may not be borrowed from process.

Cautioners and other guarantors

18.5

A bond of caution or other security may only be given by a person who is an authorised person within the meaning of section 31 of the Financial Services and Markets Act 2000[^f00011].

Form of bond of caution

18.6

(1) A bond of caution must oblige the cautioner to make payment of the sums as validly and in the same manner as the party is obliged.

(2) In this rule—

“cautioner” includes the cautioner’s heirs and executors;

“party” means the person to whom the cautioner is bound, and that person’s heirs and successors;

“the sums” are the sums for which the cautioner is bound to the party.

Caution or other security: sufficiency and objections

18.7

(1) The Clerk must be satisfied that any document lodged in process under rule 18.4(4) is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of any document lodged in process under rule 18.4(4) may apply to the Court by motion for an order under rule 18.9 (failure to find caution or give security).

Insolvency or death of cautioner or guarantor

18.8

(1) This rule applies where caution has been found by bond of caution or security has been given by guarantee.

(2) Where one of the events specified in paragraph (3) occurs, the party entitled to benefit from the caution or guarantee may apply to the Court by motion for further caution to be found or further security to be given.

(3) The events are that the cautioner or guarantor—

(a) becomes apparently insolvent within the meaning of section 7 of the Bankruptcy (Scotland) Act 1985[^f00012];

(b) calls a meeting of the cautioner or guarantor’s creditors to consider the state of that person’s affairs;

(d) is a company and—

(i) an administration, bank administration or building society special administration order has been made in respect of it;

(ii) a winding up, bank insolvency or building society insolvency order has been made in respect of it;

(iii) a resolution for its voluntary winding up has been passed;

(iv) a receiver of all or any part of its undertaking has been appointed;

(v) a voluntary arrangement within the meaning of section 1(1) of the Insolvency Act 1986[^f00013] has been approved under Part I of that Act.

Failure to find caution or give security

18.9

(1) Where a person who has been ordered to find caution or give security fails to do so, any other party may apply to the Court by motion for a finding that the person is in default.

(2) Despite rule 3.1 (circumstances where a party is in default), a person who fails to find caution or give security is only in default if the Court grants a motion under paragraph (1) and makes a finding that the person is in default.

CHAPTER 19 — EXPENSES

Taxation of expenses

19.1

(1) Where the Court makes an order allowing expenses in any appeal, those expenses must be taxed before decree is granted for them.

(2) This rule does not apply where the Court modifies those expenses to a fixed sum.

Additional fee

19.2

(1) Where the Court makes an order allowing expenses, it may also make an order allowing a percentage increase in the fees authorised in the Act of Sederunt (Fees of Solicitors in the Sheriff Appeal Court) 2015[^f00014] to reflect the responsibility undertaken by the solicitor in the conduct of the appeal.

(2) An application for an additional fee is to be made by motion.

(3) The Court must take the following matters into account in determining what percentage increase, if any, to allow—

(a) the complexity of the appeal and the number, difficulty or novelty of the questions raised;

(b) the skill, time and labour and specialised knowledge required of the solicitor;

(d) the place and circumstances of the appeal or in which the work of the solicitor in preparation for, and conduct of, the appeal has been carried out;

(e) the importance of the appeal or the subject matter of it to the client;

(f) the amount or value of money or property involved in the appeal;

(g) the steps taken with a view to settling the appeal, limiting the matters in dispute or limiting the scope of any hearing

Order to lodge account of expenses

19.3

(1) This rule applies where a party entitled to expenses has not lodged an account of expenses in process within 4 months after the date of the order about expenses.

(2) The party found liable in expenses may apply to the Court for an order ordaining the party entitled to expenses to lodge an account of expenses in process.

(3) An application under paragraph (2) is to be made by motion.

Procedure for taxation of expenses

19.4

(1) Where an account of expenses is lodged for taxation, the Clerk must transmit the account and the process to the auditor of court.

(2) The auditor of court must—

(a) fix a taxation hearing no sooner than 7 days after the auditor receives the account;

(b) intimate the date, time and place of the taxation hearing to every party.

(3) If the auditor reserves consideration of the account at the taxation hearing, the auditor must intimate the auditor’s decision to the parties who attended the hearing.

(4) After the account has been taxed, the auditor must transmit the account and the process, together with the auditor’s report, to the Clerk.

(5) Where no objections are lodged under rule 19.5, the Court may grant decree for the expenses as taxed.

Objections to taxed account

19.5

(1) A party may lodge a note of objections to an account as taxed only where the party attended the taxation hearing.

(2) A note of objections must be lodged within 7 days after—

(a) the taxation hearing; or

(b) where the auditor reserved consideration of the account, the date on which the auditor intimates the auditor’s decision to the parties.

(3) The Court is to dispose of the note of objections in a summary manner, with or without answers.

Decree for expenses in name of solicitor

19.6

The Court may allow a decree for expenses to be extracted in the name of the solicitor who conducted the appeal.

Expenses of curator ad litem appointed to a respondent

19.7

(1) This rule applies where a curator ad litem is appointed to any respondent to an appeal.

(2) The appellant is responsible in the first instance for the payment of the expenses of a curator ad litem mentioned in paragraph (3).

(3) Those expenses are any fees of the curator ad litem and any outlays incurred by the curator from the date of appointment until any of the following steps occur—

(a) the lodging of a minute stating that the curator does not intend to lodge answers to the note of appeal;

(b) the lodging of answers by the curator, or the adoption of answers that have already been lodged;

PART 6 — INCIDENTAL PROCEDURE: SPECIAL PROCEDURES

CHAPTER 20 — DEVOLUTION ISSUES

Interpretation

20.1

In this Chapter—

“devolution issue” means a devolution issue under—Schedule 6 to the Scotland Act 1998[^f00015];Schedule 10 to the Northern Ireland Act 1998[^f00016];Schedule 9 to the Government of Wales Act 2006[^f00017];

and any reference to Schedule 6, Schedule 10 or Schedule 9 is a reference to that Schedule in that Act;

“relevant authority” means—the Advocate General;in the case of a devolution issue under Schedule 6, the Lord Advocate;in the case of a devolution issue under Schedule 10, the Attorney General for Northern Ireland, and the First Minister and deputy First Minister acting jointly;in the case of a devolution issue under Schedule 9, the Counsel General to the Welsh Government.

Raising a devolution issue

20.2

(1) A devolution issue is raised by specifying a devolution issue in Form 20.2.

(2) A devolution issue in Form 20.2 is to be lodged—

(a) by an appellant, when the note of appeal is lodged;

(b) by a respondent, when answers to the note of appeal are lodged,

unless the Court allows an appellant or a respondent to raise a devolution issue at a later stage in proceedings.

(3) An application to allow a devolution issue to be raised after the note of appeal has been lodged or answers to the note of appeal have been lodged, as the case may be, is to be made by motion.

(4) The party raising a devolution issue must specify, in sufficient detail to enable the Court to determine whether a devolution issue arises—

(a) the facts and circumstances; and

(b) the contentions of law,

on the basis of which it is alleged that the devolution issue arises in the appeal.

(5) The Court may not determine a devolution issue unless permission has been given for the devolution issue to proceed.

Raising a devolution issue: intimation and service

20.3

(1) This rule applies to the intimation of a devolution issue on a relevant authority under—

(a) paragraph 5 of Schedule 6;

(b) paragraph 23 of Schedule 10;

(2) When a devolution issue is raised, the party raising it must intimate the devolution issue to the relevant authority unless the relevant authority is a party to the appeal.

(3) Within 14 days after intimation, the relevant authority may give notice to the Clerk that it intends to take part in the appeal as a party under—

(a) paragraph 6 of Schedule 6;

(b) paragraph 24 of Schedule 10;

Raising a devolution issue: permission to proceed

20.4

(1) When a devolution issue is raised, the Clerk is to fix a hearing and intimate the date and time of that hearing to the parties.

(2) Within 14 days after the Clerk intimates the date and time of the hearing, each party must lodge a note of argument.

(3) That note of argument must summarise the submissions the party intends to make on the question of whether a devolution issue arises in the appeal.

(4) At the hearing, the procedural Appeal Sheriff is to determine whether a devolution issue arises in the appeal.

(5) Where the procedural Appeal Sheriff determines that a devolution issue arises, the procedural Appeal Sheriff is to grant permission for the devolution issue to proceed.

(6) Where the procedural Appeal Sheriff determines that no devolution issue arises, the procedural Appeal Sheriff is to refuse permission for the devolution issue to proceed.

(7) At the hearing the procedural Appeal Sheriff may make any order, including an order concerning expenses.

(8) In this rule, “party” includes a relevant authority that has given notice to the Clerk that it intends to take part in the appeal as a party.

Participation by the relevant authority

20.5

(1) Paragraph (2) applies where a relevant authority has given notice to the Clerk that it intends to take part in the appeal as a party.

(2) Within 7 days after permission to proceed is given, the relevant authority must lodge a minute containing the relevant authority’s written submissions in respect of the devolution issue.

Reference to the Inner House or Supreme Court

20.6

(1) This rule applies to the reference of a devolution issue to the Inner House of the Court of Session for determination under—

(a) paragraph 7 of Schedule 6;

(b) paragraph 25 of Schedule 10;

(2) This rule also applies where the Court has been required by a relevant authority to refer a devolution issue to the Supreme Court under—

(a) paragraph 33 of Schedule 6;

(b) paragraph 33 of Schedule 10;

(3) The Court is to make an order concerning the drafting and adjustment of the reference.

(4) The reference must specify—

(a) the questions for the Inner House or the Supreme Court;

(b) the addresses of the parties;

(i) the facts of the case, including any relevant findings of fact; and

(ii) the main issues in the case and contentions of the parties with regard to them;

(d) the relevant law including the relevant provisions of the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998;

(e) the reasons why an answer to the questions is considered necessary for the purpose of disposing of the proceedings.

(5) The reference must have annexed to it—

(a) a copy of all orders made in the appeal; and

(b) a copy of any judgments in the proceedings.

(6) When the reference has been drafted and adjusted, the Court is to make and sign the reference.

(7) The Clerk must—

(a) send a copy of the reference to the parties to the proceedings;

(b) certify on the back of the principal reference that subparagraph (a) has been complied with.

Reference to the Inner House or Supreme Court: further procedure

20.7

(1) On a reference being made, the appeal must, unless the Court otherwise orders, be sisted until the devolution issue has been determined.

(2) Despite a reference being made, the Court continues to have the power to make any interim order required in the interests of the parties.

(3) The Court may recall a sist for the purpose of making such interim orders.

(4) On a reference being made the Clerk must send the principal copy of the reference to (as the case may be)—

(a) the Deputy Principal Clerk of the Court of Session; or

(b) the Registrar of the Supreme Court (together with 7 copies).

(5) Unless the Court orders otherwise, the Clerk must not send the principal copy of the reference where an appeal against the making of the reference is pending.

(6) An appeal is to be treated as pending—

(a) until the expiry of the time for making that appeal; or

(b) where an appeal has been made, until that appeal has been determined.

Reference to the Inner House or Supreme Court: procedure following determination

20.8

(1) This rule applies where either the Inner House of the Court of Session or the Supreme Court has determined a devolution issue.

(2) Upon receipt of the determination, the Clerk must place a copy of the determination before the Court.

(3) The Court may, on the motion of any party or otherwise, order such further procedure as may be required.

(4) Where the Court makes an order other than on the motion of a party, the Clerk must intimate a copy of the order on all parties to the appeal.

CHAPTER 21 — PRELIMINARY REFERENCES TO THE CJEU

Interpretation of this Chapter

21.1

In this Chapter—

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

“reference” means a reference to the European Court for—a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union[^f00018];a ruling on the interpretation of the Conventions mentioned in Article 1 of Schedule 2 to the Civil Jurisdiction and Judgments Act 1982[^f00019] under Article 3 of that Schedule;a preliminary ruling on the interpretation of the instruments mentioned in Article 1 of Schedule 3 to the Contracts (Applicable Law) Act 1990[^f00020] under Article 2 of that Schedule.

Applications for a reference

21.2

(1) An application for a reference by a party is to be made by motion.

(2) The Court may make a reference of its own accord.

Preparation of reference

21.3

(1) Where the Court decides that a reference is to be made, it is to make an order specifying—

(a) by whom the reference is to be drafted and adjusted;

(b) the periods within which the reference is to be drafted and adjusted.

(2) A reference is to be drafted in Form 21.3 unless the Court directs otherwise when it makes an order under paragraph (1).

(3) In drafting and adjusting the reference, parties are to have regard to the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings issued by the European Court[^f00021].

(4) When the reference has been drafted and any adjustments required by the Court have been made, the Court is to make and sign the reference.

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