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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

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(4) A notice by a trustee under a trust deed for creditors to be recorded in the Register of Inhibitions and Adjudications under paragraph 2(1) of Schedule 5 to the Act of 1985 (registration of notice of inhibition) shall be in Form 72.6–D.

(5) A notice under paragraph 2(2) of Schedule 5 to the Act of 1985 recalling a notice registered under paragraph 2(1) of that Schedule shall be in Form 72.6–E.

CHAPTER 73 — RECTIFICATION OF DOCUMENTS

Application of this Chapter

73.1

This Chapter applies to an application under section 8 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985[^f00241] (rectification of defectively expressed documents).

Form of applications

73.2

(1) Subject to paragraph (2), an application to which this Chapter applies shall be made by petition.

(2) An application to which this Chapter applies may be made—

(a) in an action to which Chapter 47 (commercial actions) applies, by summons or by a conclusion ancillary to other conclusions in the summons or in a counterclaim; or

(b) in any other action, by a conclusion ancillary to other conclusions in a summons or in a counterclaim.

CHAPTER 74 — COMPANIES

Application and interpretation of this Chapter

74.1

(1) This Chapter applies to causes under–

(a) the Insolvency Act 1986; and

(b) the Company Directors Disqualification Act 1986[^f00243]; and

(d) Parts 2 or 3 of the Banking Act 2009.

(e) Chapter 5 of Part 2 of the Energy Act 2011 ; and

(f) Part 4 of the Postal Services Act 2011.

(2) In this Chapter–

“the Act of 1986” means the Insolvency Act 1986;

“the Act of 2004” means the Energy Act 2004;

“the Act of 2009” means the Banking Act 2009;

“the Act of 2011” means the Energy Act 2011

“the Act of 2020” means the Corporate Insolvency and Governance Act 2020;

“the Bank Administration Rules” means the Bank Administration (Scotland) Rules 2009;

“the Bank Insolvency Rules” means the Bank Insolvency (Scotland) Rules 2009;

“the Insolvency Rules” means the Insolvency (Scotland) Rules 1986[^f00244];

“the Insolvency (CVAA) Rules” means the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018;

“the Insolvency (RWU) Rules” means the Insolvency (Scotland) (Receivership and Winding up) Rules 2018;

“the Investment Bank Regulations” means the Investment Bank Special Administration Regulations 2011;

“the Investment Bank Rules” means the Investment Bank Special Administration (Scotland) Rules 2011;

“the Energy Administration Rules” means the Energy Administration (Scotland) Rules 2006;

“the 2013 Rules” means the Energy Supply Company Administration (Scotland) Rules 2013

“Council Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20th May 2015 on insolvency proceedings, as amended from time to time.

“centre of main interests” has the same meaning as in the Council Regulation;

“establishment” has the same meaning as in Article 2(10) of the Council Regulation;

“Member State” means a Member State of the European Union that has adopted the Council Regulation;

“non GB company” shall have the meaning assigned in section 171 of the Act of 2004;

the Postal Act” means the Postal Services Act 2011;

“the Postal Administration Rules” means the Postal Administration (Scotland) Rules 2016;

“registered office” means–the place specified in the statement of the company delivered to the register of companies under section 9 of the Companies Act 2006 as the intended place of its registered office on incorporation, orwhere notice has been given by the company to the registrar of companies under section 87 of the Companies Act 2006 of a change of registered office, the place specified in the last such notice.

(3) Unless the context otherwise requires, words and expressions used in this Chapter which are also used in the Act of 1986, Chapter 3 of Part 3 of the Act of 2004, Parts 2 or 3 of the Act of 2009 Chapter 5 of Part 2 of the Act of 2011 , Part 4 of the Postal Act, the Insolvency Rules , the Insolvency (CVAA) Rules, the Insolvency (RWU) Rules, the Bank Insolvency Rules, the Bank Administration Rules ... the Energy Administration Rules , the 2013 Rules or the Postal Administration Rules have the same meaning as in those Acts or Rules, as the case may be.

Proceedings before insolvency judge

74.2

All proceedings in the Outer House in a cause under or by virtue of the Act of 1986, the Company Directors Disqualification Act 1986 , Chapter 3 of Part 3 of the Act of 2004 or Parts 2 , 3 of the Act of 2009, or Part4 of the Postal Act shall be brought before a judge of the court nominated by the Lord President as the insolvency judge or, where the insolvency judge is not available, any other judge of the court (including the vacation judge): and “insolvency judge” shall be construed accordingly.

Notices and reports, etc., sent to the court

74.3

Where, under the Act of 1986, the Act of 2004, the Act of 2009, the Act of 2011 the Postal Act, the Insolvency Rules , the Insolvency (CVAA) Rules, the Insolvency (RWU) Rules, the Bank Insolvency Rules, the Bank Administration Rules ... the Energy Administration Rules , the 2013 Rules or the Postal Administration Rules –

(a) notice of a fact is to be given to the court,

(b) a report is to be made, or sent, to the court, or

it shall be sent to the Deputy Principal Clerk who shall cause it to be lodged in the process to which it relates.

Lodging of nominee’s report (company not in liquidation etc.)

74.4

(1) This rule applies where the company is not being wound up by the court and is not in administration.

(2) A report of a nominee submitted to the court under section 2(2) of the Act of 1986 (procedure where nominee is not the liquidator or administrator) shall be–

(a) lodged, with a covering letter, in the Petition Department;

(b) marked by the clerk of session receiving it with the date on which it is received; and

(c) placed before the insolvency judge for consideration of any direction which he may make under section 3(1) of that Act (which relates to the summoning of meetings).

(3) An application by a nominee to extend the time within which he may submit his report under section 2(2) of the Act of 1986 shall be made by letter addressed to the Deputy Principal Clerk who shall–

(a) place the letter before the insolvency judge for determination;

(b) intimate that determination by a written reply; and

Lodging of nominee’s report (company in liquidation etc.)

74.5

(1) This rule applies where the company is being wound up by the court or is in administration.

(2) In this rule, “process” means the process of the petition under section 9[^f00247] (petition for administration order), or section 124[^f00248] (petition to wind up a company), of the Act of 1986, as the case may be.

(3) A report of a nominee submitted to the court under section 2(2) of the Act of 1986 (procedure where nominee is not the liquidator or administrator) shall be–

(a) lodged in process; and

(b) placed before the insolvency judge for consideration of any direction which he may make under section 3(1) of that Act.

(4) An application by a nominee to extend the time within which he may submit his report under section 2(2) of the Act of 1986 shall be made by letter addressed to the Deputy Principal Clerk who shall–

(a) place the letter before the insolvency judge for determination;

(b) intimate that determination by a written reply; and

Inspection of nominee’s report

74.6

A person who states in a letter addressed to the Deputy Principal Clerk that he is a creditor, member or director of the company or his agent, may, on payment of the appropriate fee, inspect the nominee’s report lodged under rule 74.4(2) (company not in liquidation etc.) 74.5(3) (company in liquidation etc.), as the case may be.

Report of meetings to approve arrangement

74.7

The report of the result of a meeting to be sent to the court under section 4(6) and a decision of the company’s creditors to be reported to the court under section 4(6A)(a) of the Act of 1986 shall be sent to the Deputy Principal Clerk who shall lodge it–

(a) in a case to which rule 74.4 (lodging of nominee’s report (company not in liquidation etc.)) applies, with the nominee’s report lodged under that rule; or

(b) in a case to which rule 74.5 (lodging of nominee’s report (company in liquidation etc.)) applies, in process as defined by paragraph (2) of that rule.

Abstracts of supervisor’s receipts and payments and notices of completion of arrangement

74.8

A notice and copy of the supervisor’s report to be lodged with the court under rule 2.43(3) of the Insolvency (CVAA) Rules (termination or full implementation of CVA) must be sent to the Deputy Principal Clerk who must lodge it—

(a) in a case to which rule 74.4 (lodging of nominee’s report (company not in liquidation etc.)) applies, with the nominee’s report lodged under that rule; or

(b) in a case to which rule 74.5 (lodging of nominee’s report (company in liquidation etc.)) applies, in process as defined by paragraph (2) of that rule.

Form of other applications

74.9

(1) An application to which this rule applies shall be made–

(a) where the company is not being wound up by the court and is not in administration, by petition; or

(b) where the company is being wound up by the court or is in administration, by note in the process to which it relates.

(1A) In the case of a bank, an application to which this rule applies shall be made–

(a) where the bank is not subject to a bank insolvency order and is not in bank administration, by petition; or

(b) where the bank is subject to a bank insolvency order by the court or is in bank administration, by note in the process to which it relates.

(2) This rule applies to an application under–

(a) section 2(4) of the Act of 1986 (for the replacement of a nominee);

(b) section 6 of that Act (to challenge a decision made in relation to an arrangement);

(d) section 7(4)(a) of that Act (by a supervisor for directions);

(e) section 7(5) of that Act (for the appointment of a supervisor);

(f) rule 2.40(10) of the Insolvency (CVAA) Rules (to dispense with delivery of reports or summaries);

(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h) any other provision in the Act of 1986 or the Insolvency (CVAA) Rules relating to company voluntary arrangements not mentioned in this Part ; or

(i) any provision in the Act of 1986, as applied by the Act of 2009, relating to voluntary arrangements.

Form of petition for administration order

74.10

(1) In this Part, “the petition” means a petition under section 9 of, or section 8 of and Schedule B1 to, the Act of 1986 (petition for administration order) , or section 70 of the Postal Act (applications for postal administration orders), or section 156 of the Act of 2004 (petition for energy administration order).

(2) The petition shall include averments in relation to–

(a) the petitioner and the capacity in which he presents the petition, if other than the company;

(b) whether it is believed that the company is, or is likely to become, unable to pay its debts and the grounds of that belief;

(i) any of the purposes specified in section 8(3) of the Act of 1986; or

(ii) an objective specified in paragraph 3 of Schedule B1 to the Act of 1986;

(d) the company’s financial position specifying, so far as known, assets and liabilities, including contingent and prospective liabilities;

(e) any security known or believed to be held by creditors of the company, whether in any case the security confers power on the holder to appoint a receiver or an administrator, and whether a receiver or an administrator, as the case may be, has been appointed;

(f) so far as known to the petitioner, whether any steps have been taken for the winding up of the company;

(g) other matters which, in the opinion of the petitioner, will assist the court in deciding whether to grant an order in respect of an administration or an energy administration or a postal administration, as the case may be;

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) the name and address of the person proposed to be appointed, and his qualification to act, as administrator or energy administrator or postal administrator, as the case may be ; and

(j) in the case of a petition under the Act of 1986, averments stating, in so far as it is within the petitioner’s knowledge—

(i) whether or not the centre of main interests of the company is situated within the United Kingdom or in a Member State;

(ii) where the centre of main interests of the company is situated in a Member State, whether or not the company possesses an establishment in the United Kingdom;

(iii) whether there are insolvency proceedings elsewhere in respect of the company;

(k) whether the Secretary of State has certified the case as one in which he considers it would be appropriate for him to petition under section 124A of the Act of 1986 (petition for winding up on grounds of public interest);

(l) so far as known to the petitioner in a petition for an energy administration order or a postal administration order, as the case may be, whether any steps have been taken for an administration order under Schedule B1 to the Act of 1986;

(m) whether a protected energy company in a petition for an energy administration order is a non GB company.

(n) whether a universal service provider (within the meaning of section 65(1) of the Postal Act) in a petition for a postal administration order is a foreign company.

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notice of petition

74.11

Where–

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) the petition and a notice are to be served on a person mentioned in section 156(2)(a) to (c) of the Act of 2004 (notice of application for energy administration order) ... rule 5(1) of the Energy Administration Rules or rule6(1) of the 2013 Rules ; or

(d) the petition and a notice are to be served on a person mentioned in section 70(2)(a) to (c) of the Postal Act (applications for postal administration orders) or Rule 7 of the Postal Administration (Scotland) Rules.

it shall be sufficient for the petitioner, where such notice and service is to be executed by post, to enclose the statutory notice and a copy of the petition in one envelope and to certify the giving of such notice and the execution of such service by one certificate.

Report of proposals of administrator

74.12

(1) A report of the meeting to approve the proposals of the administrator to be sent to the court under section 24(4) of the Act of 1986 shall be sent to the Deputy Principal Clerk of Session, who shall–

(a) cause it to be lodged in the process of the petition to which it relates; and

(b) give written intimation to the parties of the receipt and lodging of the report.

(2) Where a report under section 24(4) of the Act of 1986 discloses that the meeting has declined to approve the proposals of the administrator, the Keeper of the Rolls shall put the cause out on the By Order Roll for determination by the insolvency judge for any order he may make under section 24(5) of that Act.

Abstracts of administrator’s receipts and payments

74.13

(1) Paragraph (2) shall apply where a report under paragraphs 53(2) or 54(6) of Schedule B1 to the Act of 1986 discloses a failure to approve, or to approve a revision of, an administrator’s proposals.

(2) The Deputy Principal Clerk shall fix a hearing for determination by the insolvency judge of any order that may be made under paragraph 55(2) of Schedule B1 to the Act of 1986.

Extension of time for accounts of receipts and payments

74.14

(1) The time and date of lodging of a notice or document relating to an administration under the Act of 1986 or the Insolvency (CVAA) Rules, or an energy administration under the Act of 2004 or the Energy Administration Rules or a postal administration under the Postal Act or the Postal Administration Rules, shall be noted by the Deputy Principal Clerk upon the notice or document.

(2) Subject to any provision in the Insolvency (CVAA) Rules or the Energy Administration Rules or the Postal Administration Rules, as the case may be–

(a) where the time of lodging of a notice or document cannot be ascertained by the Deputy Principal Clerk, the notice or document shall be deemed to be lodged at 10 a.m. on the date of lodging; and

(b) where a notice or document under paragraph (1) is delivered on any day other than a business day, the date of lodging shall be the first business day after such delivery.

Form of certain applications and appeals

74.15

An application or appeal under any provision of the Act of 1986, the Insolvency (CVAA) Rules, the Act of 2004 , the Postal Act or the Energy Administration Rules or the Postal Administration Rules during an administration, energy administration or postal administration, as the case may be, shall be–

(a) where no previous application or appeal has been made, by petition; or

(b) where a petition for an order in respect of an administration, or energy administration or postal administration, as the case may be, has been lodged, by note in the process of that petition.

Interpretation of this Part

74.16

In this Part, “the petition” means a petition under section 54(1) of the Act of 1986 (petition to appoint a receiver).

Petition to appoint a receiver

74.17

The petition shall include averments in relation to–

(a) any floating charge and the property over which it is secured;

(b) so far as known to the petitioner, whether any application for an order in respect of an administration has been made , or an administrator has been appointed. in respect of the company;

(c) other matters which, in the opinion of the petitioner, will assist the court in deciding whether to appoint a receiver; and

(d) the name and address of the person proposed to be appointed, and his qulification to act, as receiver.

Intimation, service and advertisement under this Part

74.18

(1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement–

(a) to serve the petition–

(i) on the company; and

(ii) where an application for an administration order has been presented, on that applicant and any respondent to that application; and

(b) to advertise the petition forthwith–

(i) once in the Edinburgh Gazette; and

(ii) once in one or more of such newspapers as the court shall direct.

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be 8 days.

(3) An advertisement under paragraph (1) shall include–

(a) the name and address of the petitioner;

(b) the name and address of the agent for the petitioner;

(d) the nature of the order sought;

(e) the period of notice for lodging answers; and

(f) a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Form of other applications and appeals

74.19

(1) An application under–

(a) section 61(1) of the Act of 1986 (by a receiver for authority to dispose of property or an interest in property),

(b) section 62 of that Act[^f00250] (for removal of a receiver),

(d) section 69(1) of that Act (to enforce the receiver’s duty to make returns etc.), or

(e) any other provision of the Act of 1986 or the Insolvency (RWU) Rules relating to receivers not mentioned in this Part,

shall, where the court has appointed the receiver, be made by note or, in any other case, by petition.

(2) An appeal against a decision of a receiver as to expenses of making a statement of affairs and statutory declaration or a statement of concurrence under rule 2.10(2) of the Insolvency (RWU) Rules (statement of affairs: expenses) shall, where the receiver was appointed by the court, be made by note or, in any other case, by petition.

(3) An application by a receiver–

(a) under section 67(1) or (2) of the Act of 1986 (to extend the time for sending a report),

(b) under rule 2.16(3) of the Insolvency (RWU) Rules (to extend the time for sending a summary of receipts and payments),

shall, where the court has appointed the receiver, be made by motion or, in any other case, by petition.

Interpretation of this Part

74.20

In this Part, “the petition” means a petition under section 124 of the Act of 1986 (petition to wind up a company).

Petition to wind up a company

74.21

(1) The petition shall include averments in relation to–

(a) the petitioner, if other than the company, and his title to present the petition;

(b) in respect of the company–

(i) its current and any previous registered name;

(ii) the address of its registered office, and any previous such address within 6 months immediately before the presentation of the petition so far as known to the petitioner;

(iii) a statement of the nature of its business and objects, the amount of its capital (nominal and issued) indicating what part is called up, paid up or credited as paid up, and the amount of the assets of the company so far as known to the petitioner;

(iiia) confirmation that it is not the subject of a moratorium;

(iv) whether or not the centre of main interests of the company is situated within the United Kingdom or in a Member State;

(v) where the centre of main interests of the company is situated in a Member State, whether or not the company possesses an establishment in the United Kingdom;

(c) whether, to the knowledge of the petitioner, a receiver has been appointed in respect of any part of the property of the company or a liquidator has been appointed for the voluntary winding up of the company;

(d) the grounds on which the petition proceeds; and

(e) the name and address of the person proposed to be appointed, and his qualification to act, as interim liquidator.

(f) whether there are insolvency proceedings elsewhere in respect of the company ....

Intimation, service and advertisement under this Part

74.22

(A1) An application for an order under paragraph 20(3) of schedule 10 of the Act of 2020 (application to disapply suspension of court rules that require or permit inspection of petition or proceedings) must be made by note in the process of the petition.

(1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement–

(a) to serve the petition–

(i) where the petitioner is not the company, on the company;

(ii) where the company is being wound up voluntarily and a liquidator has been appointed, on the liquidator; and

(iii) where a receiver or administrator has been appointed, on the receiver or administrator, as the case may be;

(b) where the company is an authorised institution or former authorised institution within the meaning assigned in section 106(1) of the Banking Act 1987[^f00251] and the petitioner is not the Bank of England, to serve the petition on the Bank of England; and

(i) once in the Edinburgh Gazette; and

(ii) once in one or more of such newspapers as the court shall direct.

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be 8 days.

(3) An advertisement under paragraph (1) shall include–

(a) the name and address of the petitioner and, where the petitioner is the company, its registered office;

(b) the name and address of the agent for the petitioner;

(d) the nature of the order sought;

(e) where a provisional liquidator has been appointed by the court, his name, address and the date of his appointment;

(f) the period of notice for lodging answers; and

(g) a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Remits from one court to another

74.23

(1) An application under section 120(3)(a)(i) of the Act of 1986[^f00252] (application for remit of petition to a sheriff court) shall be made by motion.

(2) An application under–

(a) section 120(3)(a)(ii) of the Act of 1986 (application for remit of petition from a sheriff court to the court), or

(b) section 120(3)(b) of that Act (application for remit of petition from one sheriff court to another),

shall be made by petition.

Substitution of creditor or contributory for petitioner

74.24

(1) Where a petitioner in the petition–

(a) is subsequently found not entitled to present the petition,

(b) fails to make intimation, service and advertisement as directed by the court,

(d) fails to appear when the petition is called for hearing, or

(e) appears, but does not move for an order in terms of the prayer of the petition,

the court may, on such terms as it thinks fit, sist as petitioner in place of the original petitioner any creditor or contributory who, in the opinion of the court, is entitled to present the petition.

(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) An application by a creditor or a contributory to be sisted under paragraph (1)–

(a) may be made at any time before the petition is dismissed or refused, and

(b) shall be made by note;

and, if necessary, the court may continue the petition for a specified period to allow a note to be presented.

Provisional liquidator

74.25

(1) An appplication to appoint a provisional liquidator under section 135 of the Act of 1986 may be made–

(a) by the petitioner, in the prayer of the petition or, if made after the petition has been presented, by note; or

(b) by a creditor or contributory of the company, the company or its directors, the Secretary of State ... or a person entitled under any enactement to present a petition, by note.

(2) The application mentioned in paragraph (1) shall include averments in relation to–

(a) the grounds for the appointment of the provisional liquidator;

(b) the name and address of the person proposed to be appointed, and his qualification to act, as provisional liquidator; and

(c) whether, to the knowledge of the applicant, an administrator has been appointed to the company or a receiver has been appointed in respect of any part of its property or a liquidator has been appointed voluntarily to wind it up.

(3) Where the court decides to appoint a provisional liquidator–

(a) it shall pronounce an interlocutor making the appointment and specifying the functions to be carried out by him in relation to the affairs of the company; and

(b) it must direct the Deputy Principal Clerk to send forthwith a certified copy of such interlocutor to the person appointed.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) An application for the discharge of a provisional liquidator shall be made by note.

Appointment of a liquidator

74.26

(1) Where the court pronounces an interlocutor appointing a liquidator–

(a) the Deputy Principal Clerk shall send a certified copy of that interlocutor to the liquidator;

(b) the court may, for the purposes of rules 4.22(4)(b), 5.21(4)(b)(ii) and 5.26(4)(b)(ii) of the Insolvency (RWU) Rules (liquidator to give notice of appointment), give such direction as it thinks fit as to advertisement of such appointment.

(2) An application to appoint a liquidator under section 139(4) of the Act of 1986 shall be made by note.

Applications and appeals in relation to a statement of affairs or accounts

74.27

(1) An application under section 131(5) of the Act of 1986 for–

(a) release from an obligation imposed under section 131(1) or (2) of that Act, or

(b) an extension of time for the submission of a statement of affairs,

shall be made by note.

(2) A note under paragraph (1) shall be served on the liquidator or provisi onal liquidator, as the case may be, who may lodge–

(a) answers to the note; or

(b) a report on any matters which he considers should be drawn to the attention of the court.

(3) Where the liquidator or provisional liquidator lodges a report under paragraph (2), he shall forthwith send a copy of it to the noter.

(4) Where the liquidator or the provisional liquidator does not appear at any hearing on the note, a certified copy of the interlocutor disposing of the note shall be sent to him forthwith by the noter.

(5) An appeal under—

(a) rule 5.15(6) of the Insolvency (RWU) Rules (appeal against refusal by liquidator of allowances towards expenses of preparing statement of affairs);

(b) rule 5.15(6) as applied by rule 5.17(4) of the Insolvency (RWU) Rules (appeal against refusal by liquidator of allowances towards expenses of preparing accounts),

must be made by note.

(6) A note under paragraph (5) must be served on the liquidator or provisional liquidator, as the case may be.

Appeals against adjudication of claims

74.28

(1) An appeal under rule 7.19(5) of the Insolvency (RWU) Rules (adjudication of claims) by a creditor or any member or contributory of the company against a decision of the liquidator shall be made by note in process or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(2) A note under paragarph (1) shall be served on the liquidator.

(3) On such a note or petition being served on him, the liquidator shall send the claim in question, and a copy of his adjudication, forthwith to the Deputy Principal Clerk who shall cause them to be lodged in process.

(4) After the note or petition has been disposed of, the Deputy Principal Clerk shall return the claim and the adjudication to the liquidator with a copy of the interlocutor disposing of the note.

Removal of liquidator

74.29

(1) An application by a creditor of the company for an order—

(a) under section 171(3)(b) of the Act of 1986 (order directing the summoning of a meeting to replace the liquidator);

(b) under section 171(3A)(b) of that Act (order directing the instigation of qualifying decision procedure); or

must be made by note.

(2) Where the court orders the removal of a liquidator, the Deputy Principal Clerk must send two copies of the interlocutor to the former liquidator.

Application in relation to remuneration of liquidator

74.30

(1) An appeal by a liquidator, any creditor or any contributory under rule 7.12(1) of the Insolvency (RWU) Rules (appeal against fixing of outlays and remuneration: creditors’ voluntary winding up and winding up by the court) must be made by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(2) An application—

(a) by a liquidator under rule 7.14 of the Insolvency (RWU) Rules (recourse to the court: creditors’ voluntary winding up and winding up by the court); or

(b) by a creditor of the company under rule 7.15 of the Insolvency (RWU) Rules (creditors’ claim that remuneration is excessive: creditors’ voluntary winding up and winding up by the court),

must be made by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(3) A note under—

(a) paragraph (1) where the appeal is by a creditor or contributory;

(b) paragraph (2)(b),

must be served on the liquidator.

Application to appoint a special manager

74.31

(1) An application under section 177 of the Act of 1986 (application for the appointment of a special manager) shall be made by note.

(2) A bond of caution together with a certificate as to the adequacy of the caution by the noter under rule 3.19(4), 4.38(4) or 5.42(4) of the Insolvency (RWU) Rules (caution) must be sent to the Petition Department by the noter.

(3) After the Deputy Principal Clerk has satisfied himself as to the sufficiency of caution under rule 33.7(1) of these Rules, the clerk of session shall issue to the person appointed to be special manager a certified copy of the interlocutor appointing him.

(4) A special manager may, before the expiry of the period for finding caution, apply to the insolvency judge for an extension of that period.

Other applications

74.32

(1) An application under the Act of 1986 or any subordinate legislation made under that Act, or Part VII of the Companies Act 1989, in relation to a winding up by the court not mentioned in this Part shall–

(a) if made by a party to the petition, be made by motion; or

(b) in any other case, be made by note.

(2) At the hearing of a motion under paragraph (1)(a), the court may order that the application be made by note; and, in such a case, shall make an order for the lodging of answers to the note in process within such period as it thinks fit.

Applications in relation to disqalification orders or undertakings

74.33

An application–

(a) under section 3(2) of the Company Directors Disqualification Act 1986 (for disqualification for persistent breaches of companies legislation);

(aa) under section 5A of that Act (for disqualification for certain convictions abroad);

(b) under section 6(1) of that Act (to disqualify unfit directors of insolvent companies);

(ca) under section 8A of that Act (variation or cessation of disqualification undertaking),

(cb) under section 8ZB of that Act (for disqualification of person instructing unfit director of insolvent company);

(cc) under section 8ZD of that Act (for order disqualifying person instructing unfit director: other cases);

(d) under section 11(1) of that Act (for leave by an undischarged bankrupt to be concerned in a company),

(da) under section 15A of that Act (for compensation orders);

(db) under section 15C of that Act (for variation and revocation of compensation undertakings);

(e) for leave under that Act; or

(f) by the Secretary of State under “rule 3(2) of the Insolvent Companies (Reports on Conduct of Directors) (Scotland) Rules 2016 (application for order directing compliance with requirements to furnish information etc.),

shall be made by petition.

Intimation, service and advertisement under this Part

74.34

(1) Rule 74.22, except paragraphs (1)(c) and (2) of that rule, shall apply to the intimation, service and advertisement of a petition referred to in rule 74.33 (applications in relation to disqualification orders) as it applies to a petition under that rule.

(2) A petition presented under rule 74.33 shall be intimated—

(a) to the Secretary of State for Business, Enterprise and Regulatory Reform; or

(b) where a petition is presented under rule 74.33(ca) and the disqualification undertaking was given under section 9B of the Company Directors Disqualification Act 1986 (competition undertaking), to the Office of Fair Trading or any specified regulator which has accepted the undertaking, as the case may be;

unless the petition is presented by that person or body.

CHAPTER 75 — APPLICATIONS RELATING TO FINANCIAL SERVICES

Application and interpretation of this Chapter

75.1

(1) This Part applies to an application, under the Financial Services Act 1986[^f00256], mentioned in rule 75.2.

(2) In this Part–

“the Act of 1986” means the Financial Services Act 1986;

“designated agency” has the meaning assigned in section 114(3) of the Act of 1986.

Form of applications under the Act of 1986

75.2

(1) An application under any of the following provisions of the Act of 1986 shall be made by petition:–

(a) sections 6, 61, 71(1), 91(4), 104(4), 131(8) and 184(8) (applications by Secretary of State or designated agency for interdict or restitution);

(b) sections 12, 20, 37(8) and 39(8) (applications by Secretary of State or designated agency for compliance orders);

(c) section 93 (applications by Secretary of State or designated agency to remove or replace a manager or trustee or to wind up a unit trust scheme); and

(d) Schedule 11[^f00257]–

(i) paragraph 6(1) (applications by the Friendly Societies Commission for compliance orders);

(ii) paragraph 7(4) (applications by recognised self regulating organisations to set aside a direction);

(iii) paragraph 22 (applications by the Friendly Societies Commission for interdict or to remedy a contravention); and

(iv) paragraph 23(1) so far as it modifies section 61 as applied by section 71(1) (applications by the Friendly Societies Commission for interdict or restitution).

(2) Certification by inspectors or the court by virtue of section 94(3)[^f00258], or under section 178(1)[^f00259], of the Act of 1986 shall be made by petition.

Intimation and service

75.3

An order under any of the following provisions of the Act of 1986 shall only be made following intimation and service of the petition to the person against whom the order is to be made:–

(a) section 6 (interdict and restitution orders);

(b) section 61 (interdict and restitution orders);

(d) section 91(4) (orders in respect of contravention of a direction);

(e) section 104(4) (orders in respect of contravention of a requirement);

(f) section 131(8) (orders in respect of contravention of restrictions on promotion of contracts of insurance);

(g) section 184(8) (orders in respect of contravention of notice of restriction of investment or insurance business); and

(h) paragraph 22 of Schedule 11 (interdict of regulated friendly society).

Questions relating to interpretation of rules or regulations

75.4

Where a question of the interpretation of any of the rules or regulations referred to in section 61(1)(a) of the Act of 1986 arises in a petition under this rule, the Secretary of State, a designated agency, or any person referred to in section 61(1)(a)(iv) of that Act, and not already a party in the cause, shall be given the opportunity to make representations to the court by lodging answers to the petition.

CHAPTER 76 — CAUSES IN RELATION TO CONFISCATION OF PROCEEDS OF CRIME

Interpretation of this Part

76.1

In this Part–

“the Act of 1995” means the Proceeds of Crime (Scotland) Act 1995;

“administrator” means the person appointed under paragraph 1(1) of Schedule 1 to the Act of 1995;

“restraint order” has the meaning assigned in section 49(1) of the Act of 1995.

Disapplication of certain rules to this Part

76.2

The following rules shall not apply to a petition or note mentioned in this Part:–

rule 14.5 (first order in petitions),

rule 14.6(1) (period of notice for lodging answers),

rule 14.7 (intimation and service of petitions),

rule 14.9 (unopposed petitions).

Applications for restraint orders

76.3

(1) An application under section 28(1) of the Act of 1995 (application for restraint order) shall be made by petition.

(2) Where the court pronounces an interlocutor making a restraint order, the Lord Advocate shall serve a certified copy of that interlocutor on every person named in the interlocutor as restrained by the order.

(3) Where the application is made under the said section as applied by article 4 of the Confiscation of the Proceeds of Crime (Designated Countries and Territories) (Scotland) Order 1999 (application in relation to certain external confiscation orders etc.) or by article 4 of the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) (Scotland) Order 1999 (application in relation to certain external forfeiture orders etc.), there shall be appended to the petition a certificate in conformity with paragraph (b) of subsection (3) of the section as so applied by the article in question; but that certificate, as so appended, shall not include a statement of information or belief with the sources and grounds thereof if the prayer includes an application for a direction under that paragraph.

(4) Where the court grants the prayer of the petition in an application such as is mentioned in paragraph (3) but declines to make such direction as is so mentioned, the petitioner shall forthwith lodge in process, as an addendum to the certificate which was appended to the petition, a statement of information or belief with the sources and grounds thereof.

(5) An application by the prosecutor for a certificate under paragraph2 of schedule1 to the 2014 Regulations (domestic restraint orders: certification) must—

(a) contain the specified information; and

(b) set out why the prosecutor considers that the property to which the application relates has been used or is likely to be used for the purposes of an offence or is the proceeds of an offence.

(6) Where the court makes a certificate it must—

(a) do so in the form annexed to Council Framework Decision 2003/577/JHA of 22July 2003 on the execution in the European Union of orders freezing property or evidence; and

(b) provide in the domestic restraint order for notice to be given in accordance with paragraph 2(4) of schedule1 to the 2014 Regulations.

Applications in relation to protective measures

76.4

(1) An application under any of the following provisions of the Act of 1995 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates:–

(a) section 29(4) or (5) (recall of restraint order in relation to realisable property);

(b) section 30(3) or (4) (recall of restraint order in relation to forfeitable property);

(d) section 32(5) (recall or restriction of inhibition);

(e) section 33(4) (recall or restriction of arrestment).

(2) In respect of an application by note under paragraph (1) by a person having an interest for an order under section 31(1)(b) of the Act of 1995 –

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the note shall be 14 days.

(3) An application ... under section 31(1)(a) of the Act of 1995 to extend a restraint order shall not be intimated, served or advertised before the application is granted.

(4) An application by the Lord Advocate under section 32(1) or 33(1) (warrant for inhibition) of the Act of 1995, or by the prosecutor under section 33(1) (warrant for arrestment) of that Act, may be made–

(a) in the prayer of the petition under section 28(1) of that Act; or

(b) if made after the petition has been presented, by motion which shall not be intimated.

(5) An application under section 32(1)(a) (recall, loosing or restriction of inhibition), or section 33(2) (recall, loosing or restriction of arrestment), of the Act of 1995 shall be made by motion.

(6) An application under section 28(8) of the Act of 1995 (interdict) may be be made–

(a) in the prayer of the petition under section 28(1) of that Act; or

(b) if made after the petition has been presented, by note in the process of that petition.

(7) An application by note under paragraph (6)(b) shall not be intimated, served or advertised before the application is granted.

(7A) Where the court, having pronounced an interlocutor making a restraint order, interdicts a person not subject to that order from dealing with property affected by it while it is in force, the Lord Advocate shall so intimate to that person.

(8) Where the court pronounces an interlocutor granting an application mentioned in paragraph (3) or (4), the Lord Advocate shall serve a certified copy of that interlocutor on the persons affected by it.

(9) At the time at which he complies with section 31(6) of the Act of 1995 (informing of persons interdicted in relation to a restraint order that the order is recalled), the clerk of court (or as the case may be the Deputy Principal Clerk) shall record in the process when and how the person in question was so informed.

Applications for variation of confiscation order or compensation

76.5

An application under section 17 (compensation) of the Act of 1995 shall be made by petition.

Applications for disclosure of information by government departments

76.6

An application under section 20 of the Act of 1995 (disclosure of information held by government departments) may by made–

(a) by petition;

(b) where there is a restraint order in force, by note in the process of the petition for that restraint order; or

Applications for appointment of administrators

76.7

(1) An application under section paragraph 1(1) of Schedule 1 to the Act of 1995 (appointment of administrators) shall be made–

(a) where a restraint order has been made, by note in the process of the petition for that restraint order; or

(b) in any other case, by petition.

(2) The notification to be made by the clerk of court under paragraph 1(3)(a) of Schedule 1 to the Act of 1995 shall be made by intimation of a certified copy of the interlocutor to the person required to give possession of property to an administrator.

Incidental applications in an administration

76.8

(1) An application under any of the following provisions of Schedule 1 to the Act of 1995 shall be made by note in the process of the petition for appointment of the administrator:–

(a) paragraph 1(1) with respect to an application after appointment of an administrator to require a person to give property to him;

(b) paragraph 1(4) (making or altering a requirement or removal of administrator);

(d) paragraph 2(1)(n) (directions as to functions of administrator); and

(e) paragraph 4 (directions for application of proceeds).

(2) An application under any of the following provisions of Schedule 1 to the Act of 1995 shall be made in the prayer of the petition for appointment of an administrator under paragraph 1(1) of that Schedule or, if made after the petition has been presented, by note in that process:–

(a) section paragraph 2(1)(o) (special powers of administrator);

(b) paragraph 2(3) (vesting of property in administrator); and

Requirements where order to facilitate realisation of property considered

76.9

Where the court considers making an order under paragraph 12(1) of Schedule 1 to the Act of 1995 (order to facilitate the realisation of property)–

(a) the court shall fix a date for a hearing on the Motion Roll in the first instance; and

(b) the petitioner or noter, as the case may be, shall serve a notice in Form 76.9 on any person who has an interest in the property.

Documents for Accountant of Court

76.10

(1) A person who has lodged any document in the process of an application for the appointment of an administrator shall forthwith send a copy of that document to the Accountant of Court.

(2) The clerk of session in the Petition department shall transmit to the Accountant of Court any part of the process as the Accountant of Court may request in relation to an administration which is in dependence before the court unless such part of the process is, at the time of request, required by the court.

Procedure for finding caution

76.11

(1) Rule 61.9 (finding caution in judicial factories), except paragraph (4), shall, with the necessary modifications, apply to the finding of caution by an administrator under this Part as it applies to the finding of caution by a judicial factor.

(2) A certified copy of the interlocutor appointing an administrator shall not be issued by a clerk of session until the Accountant of Court has given written intimation to the Petition Department that caution has been found or other security given.

Administrator’s title to act

76.12

An administrator shall not be entitled to act until he has obtained a certified copy of the interlocutor appointing him.

Duties of administrator

76.13

(1) The administrator shall, as soon as possible, but within 3 months after the date of his appointment, lodge with the Accountant of Court–

(a) an inventory of the property in respect of which he has been appointed;

(b) all vouchers, securities, and other documents which are in his possession; and

(2) An administrator shall maintain accounts of his intromissions with the property in his charge and shall, subject to paragraph (3)–

(a) within 6 months after the date of his appointment, and

(b) at 6 monthly intervals after the first account during the subsistence of his appointment,

lodge with the Accountant of Court an account of his intromissions in such form, with such supporting vouchers and other documents, as the Accountant of Court may require.

(3) The Accountant of Court may waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period.

State of funds and scheme of division

76.14

(1) The administrator shall–

(a) where there are funds available for division, prepare a state of funds after application of sums in accordance with section paragraph 4(2) of Schedule 1 to the Act of 1995 and a scheme of division amongst those who held property which has been realised under that Act and lodge them and all relevant documents with the Accountant of Court; or

(b) where there are no funds available for division, prepare a state of funds only and lodge it with the Accountant of Court, and give to the Accountant of Court such explanations as he shall require.

(2) The Accountant of court shall–

(a) make a written report on the state of funds and any scheme of division including such observations as he considers appropriate for consideration by the Lord Ordinary; and

(b) return the state of funds and any scheme of division to the administrator with his report.

(3) The administrator shall, on receiving the report of the Accountant of Court–

(a) lodge in process the report, the state of funds and any scheme of division;

(b) intimate a copy of it to the Lord Advocate; and

(i) that the state of funds and scheme of division or the state of funds only, as the case may be, and the report of the Accountant of Court, have been lodged in process;

(ii) the amount for which that person has been ranked, and whether he is to be paid in full, or by a dividend, and the amount of it, or that no funds are available for payment.

Objections to scheme of division

76.15

(1) A person wishing to be heard by the court in relation to the distribution of property under paragraph 4(3) of Schedule 1 to the Act of 1995 shall lodge a note of objection in the process to which the scheme of division relates within 21 days of the date of the notice intimated under rule 76.14(3)(c).

(2) After the period for lodging a note of objection has expired and no note of objection has been lodged, the administrator may apply by motion for approval of the scheme of division and state of funds, or the state of funds only, as the case may be.

(3) After the period for lodging a note of objection has expired and a note of objection has been lodged, the Lord Ordinary shall dispose of such objection after hearing any objector and the administrator and making such inquiry as he thinks fit.

(4) If any objection is sustained to any extent, the necessary alterations shall be made to the state of funds and any scheme of division and shall be approved by the Lord Ordinary.

Application for discharge of administrator

76.16

(1) Where the scheme of division is approved by the court and the administrator has paid, delivered or conveyed to the persons entitled the sums or receipts allocated to them in the scheme, the administrator may apply for his discharge.

(2) An application for discharge of the administrator shall be made by note in the process of the application under paragraph 1(1) of Schedule 1 to the Act of 1995.

Appeals against determination of outlays and remuneration

76.17

(1) An appeal under paragraph 6(2) of Schedule 1 to the Act of 1995 (appeal against a determination by the Accountant of Court), shall be made by note in the process in which the administrator was appointed.

(2) Where a note is lodged under paragraph (1), the Keeper of the Rolls shall put the cause out on the By Order Roll on the first available day for a hearing before the Lord Ordinary.

Remits from High Court of Justiciary

76.18

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application and interpretation of this Part

76.19

In this Part–

“the Act of 1989” means the Prevention of Terrorism (Temporary Provisions) Act 1989[^f00261];

“administrator” shall be construed in accordance with paragrapfi h 11(1)(b) of Schedule 4 to the Act of 1989;

“the Order of 1995” means the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995;

“restraint order” means an order made under paragraph 13(1) of Schedule 4 to the Act of 1989.

Disapplication of certain rules to this Part

76.20

The following rules shall not apply to a petition or note mentioned in this Part:–

rule 14.5 (first order in petitions),

rule 14.6 (1) (period of notice for lodging answers),

rule 14.7 (intimation and service of petitions),

rule 14.9 (unopposed petitions).

Applications for restraint orders

76.21

(1) An application under paragraph 14(1) of Schedule 4 to the Act of 1989 (restraint order), shall be made by petition.

(2) Where the court pronounces an interlocutor making a restraint order, the Lord Advocate shall serve a certified copy of that interlocutor on every person named in the interlocutor as restrained by the order.

Applications in relation to protective measures

76.22

(1) An application under any of the following provisions of Schedule 4 to the Act of 1989 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates:–

(a) paragraph 13(4) (discharge of a restraint order);

(b) paragraph 14(2) (variation or recall of restraint order); and

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to a note under paragraph (1)(b) of this rule by any person affected by a restraint order shall be 14 days.

(3) An application under paragraph 16(1) (warrant for inhibition), or 16A(1) (warrant for arrestment), of Schedule 4 to the Act of 1989 ... may be made–

(a) in the prayer of the petition under paragraph 13(1) of Schedule 4 to the Act of 1989; or

(b) if made after the petition has been presented, by motion which shall not be intimated.

(4) Any of the following applications under Schedule 4 to the Act of 1989 shall be made by motion:–

(a) an application to recall, loose or restrict an inhibition under paragraph 16(2)(a);

(b) an application under paragraph 16(6)(a) (recall or restriction of inhibition);

(d) an application under paragraph 16A(4) (recall or restriction of arrestment).

Applications for compensation

76.23

An application under paragraph 17(1) of Schedule 4 to the Act of 1989 (compensation) shall be made by petition.

Powers and duties of adminsistrator

76.24

Subject to any condition or exception specified by the court, an administrator appointed under paragraph 11(1)(b) of Schedule 4 to the Act of 1989–

(a) may take possession of the property in respect of which he has been appointed and of any document which–

(i) is in the possession or control of the person in whom the property is vested; and

(ii) relates to the property;

(b) may have access to, and copy, any document relating to the property and not in such possession or control as is mentioned in sub-paragraph(a);

(d) may borrow money in so far as it is necessary to do so to safeguard the property and may for the purposes of such borrowing create a security over any part of the property;

(e) may, if the administrator considers that to do so would be beneficial for the management and the realisation of the property, enter into any contract, or execute any deed, with respect to the property;

(f) may effect or maintain insurance policies with respect to the property;

(g) may, where the person in whom the property is vested has not completed title to any of the property, complete title to it: provided that completion of title in the name of the person in whom the property is vested shall not validate by accretion any unperfected right in favour of any person other than the administrator;

(h) may sell (but not to himself or an accociate of his) the property and redeem any obligation secured on that property;

(i) may discharge any of his functions through agents or employees: provided that the administrator shall be personally liable to meet the fees and expenses of any such agents or employees out of such remuneration as is payable to the administrator by virtue of paragraph 12(2) and (3) of Schedule 4 to the Act of 1989;

(j) may take such professional advice as he considers necessary for the proper discharge of his functions;

(k) may at any time apply to the court for directions with respect to the exercise of his powers and duties;

(l) may exercise any power conferred on him by the court whether such power was conferred at the time of his appointment or on his subsequent application to the court; and

(m) may do anything incidental to the above powers and duties.

(2) Subject to the proviso to sub-paragraph (g) of paragraph (1)–

(a) a person dealing with an administrator in good faith and for value shall not require to determine whether the administrator is acting within the powers mentioned in that sub-paragraph; and

(b) the validity of any title shall not be challengeable by reason only of the administrator having acted outwith those powers.

(3) The exercise of a power mentioned in any of sub-paragraphs (c) to (h) of paragraph (1) shall be in the name of the person in whom the property is vested.

Duties of administrator in relation to accounts

76.25

(1) The administrator shall, as soon as possible, but within 3 months after the date of his appointment, lodge with the Accountant of Court–

(a) an inventory of the property in respect of which he has been appointed;

(b) all land certficates, title deeds, vouchers and other documents which relate to that property and are in his possession; and

(2) An administrator shall maintain accounts of his intromissions with the property in his charge and shall–

(a) lodge an account of his intromissions with the Accountant of Court in such form as the Accountant of Court may require–

(i) 6 months after the date of his appointment; and

(ii) at 6 monthly intervals after the first account during the subsistence of his appointment, unless the Accountant of Court agrees to waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period; and

(b) lodge, with the account of his intromissions, all such supporting vouchers and other documents as the Accountant of Court may require.

Money received by administrator

76.26

(1) Subject to paragraph (2), any money received by an administrator in the exercise of his powers and duties shall be deposited by him in an appropriate bank or institution, in the name of the person in whom the property is vested.

(2) The administrator may, at any time, retain in his hands a sum of money not exceeding £200.

(3) In paragraph (1), “appropriate bank or institution” means the Bank of England, an institution authorised under the Banking Act 1987[^f00262] or a person for the time being specified in Schedule 2 to that Act.

CHAPTER 77 — SUMMARY TRIALS

Application of this Chapter

77.1

This Chapter applies to a petition under section 26 of the Act of 1988[^f00263] (summary trials).

Disapplication of certain rules to this Chapter

77.2

The following rules shall not apply to a petition under this Chapter:–

14.5 (first order in petitions),

14.6 (period of notice for lodging answers),

14.7 (intimation and service of petitions),

14.8 (procedure where answers lodged),

14.9 (unopposed petitions).

Form of petition

77.3

A petition for a summary trial shall contain–

(a) a concise narrative in numbered paragraphs of the facts or circumstances in relation to which the dispute or question arises;

(b) where the parties are agreed on the facts–

(i) a statement to that effect; and

(ii) a note of the questions which have arisen between them;

(i) a statement to that effect;

(ii) specification of the facts which are in dispute; and

(iii) a note of any further questions which may arise when the dispute of fact has been determined, or a reservation of such questions; and

(d) a prayer that the dispute or question be referred to a particular Lord Ordinary for his determination.

Presentation to Lord Ordinary

77.4

(1) The petition shall be placed before the Lord Ordinary named in the petition on the earliest available day but, subject to paragraph (2), within 7 days after the date of presentation of the petition.

(2) Where the last day of the period specified in paragraph (1) falls in vacation without the petition having been brought before the Lord Ordinary, the petition shall be placed before the Lord Ordinary on the first sitting day after that vacation.

(3) On the petition being placed before the Lord Ordinary, he shall–

(a) where it appears that the parties are agreed on the facts, appoint the cause to be heard before him, in court or in chambers, on a date within 6 weeks (excluding days in vacation) after the date of the interlocutor appointing the hearing;

(b) where it appears that the parties are not agreed on the facts, appoint a proof to be taken before him in court or in chambers.

(4) The Lord Ordinary may take any hearing or proof, or any continuation of such hearing or proof, during session or vacation.

Procedure in summary trials

77.5

Subject to any other provision in this Chapter, the petition shall follow such procedure as the parties may, with the consent of the Lord Ordinary, agree, or, failing such agreement, as the Lord Ordinary shall direct.

Recording of evidence at proof

77.6

The evidence led at a proof allowed under rule 77.4(3)(b) shall not be recorded, unless the parties so agree.

Reports to Inner House

77.7

(1) If at any stage of the cause it appears to the Lord Ordinary that the determination of the petition may affect the status of any person, the Lord Ordinary shall report the matter to the Inner House in accordance with Chapter 34.

(2) On receiving a report under paragraph (1), the Lord President may appoint the parties to show cause before a Division of the Inner House why the petition should proceed under section 26 of the Act of 1988; and the Inner House shall, after hearing parties and subject to any conditions as it thinks fit, direct that the petition shall proceed or refuse the prayer of the petition.

Disposal of petitions

77.8

Any decision of the Lord Ordinary shall be given effect to in an interlocutor and he may–

(a) pronounce any interlocutor which he thinks fit to enable his decision to be carried into effect; and

(b) dispose of all questions of expenses.

Finality of interlocutors

77.9

An interlocutor of the Lord Ordinary shall be final, binding only on the parties to the petition, and shall not be subject to review.

Transfer to another Lord Ordinary

77.10

(1) In the event of the death, disability or absence of the Lord Ordinary before the petition has been determined, the petitioners may lodge a joint minute in Form 77.10 in process for the cause to be referred to another Lord Ordinary named in that minute.

(2) On such a joint minute being lodged in process, the cause shall be transferred to the Lord Ordinary named in that minute who shall take up the procedure at the point which had been reached by his predecessor.

(3) The Lord Ordinary to whom the cause is transferred under paragraph (2) may re-hear the evidence of any witness heard by his predecessor.

Agreement to adopt summary trial procedure in action in dependence

77.11

(1) Where the parties to an action propose to adopt summary trial procedure by virtue of section 26(2) of the Act of 1988 (agreement to adopt summary trial procedure in action in dependence), they shall lodge in the process of the action a joint minute in Form 77.11.

(2) On such a joint minute being lodged in process, the Lord Ordinary shall pronounce an interlocutor directing that the action shall proceed as a summary trial.

(3) On an interlocutor being pronounced under paragraph (2), rules 77.3 to 77.10 shall, with the necessary modifications and the following modifications, apply to the further procedure in the action:–

(a) subject to sub-paragraph (b) of this paragraph, in rule 77.4, for the word “petition” there shall be substituted the words “record or other pleading”; and

(b) in rule 77.4, for the words “date of presentation of the petition”, there shall be substituted the words “date of the interlocutor pronounced under rule 77.11(2)”.

CHAPTER 78 — SPECIAL CASES UNDER SECTION 27 OF THE COURT OF SESSION ACT 1988

Application of this Chapter

78.1

This Chapter applies to a special case under section 27 of the Act of 1988.

Lodging and hearing of special case

78.2

(1) A special case shall be lodged with a process in the General Department.

(2) A special case shall, without appearance, be put out for hearing in the Summar Roll before the Inner House.

Amendment of case

78.3

(1) A special case may be amended by consent of the parties.

(2) Where parties seek to amend a special case, any one of them may apply by motion for leave to amend of consent.

Appointment of curator ad litem to party incapax

78.4

(1) Where a party to a special case is incapax by reason of nonage, insanity or otherwise, it shall be the duty of the other parties (which duty may be performed by any of them), on the lodging of the special case under rule 78.2(1), to apply by motion for the appointment of a curator ad litem to such incapax.

(2) A curator ad litem appointed under paragraph (1) shall be given all necessary information and facilities by the other parties to enable him to perform his duties.

(3) Where a curator ad litem is satisfied that the special case is fully and accurately stated in relation to the interests of the incapax, he may sign it as curator ad litem.

(4) Where a curator ad litem is not given all necessary information and facilities by the other parties, or is not satisfied that the special case is fully and accurately stated in relation to the interest of the incapax, he shall report the position to the Inner House which may then recall his appointment and dispose of the special case as it thinks fit.

(5) An award of expenses–

(a) may not be made against a curator ad litem; and

(b) may be made in favour of a curator ad litem as the court thinks fit.

CHAPTER 79 — APPLICATIONS UNDER THE ACCESS TO HEALTH RECORDS ACT 1990

Application and interpretation of this Chapter

79.1

(1) This Chapter applies to an application under section 8(1) of the Access to Health Records Act 1990[^f00264] (application for order for holder of health record to comply with requirement of the Act).

(2) In this Chapter–

“the Act of 1990” means the Access to Health Records Act 1990;

“the Regulations” means the Access to Health Records (Steps to Secure Compliance and Complaints Procedures) (Scotland) Regulations 1991[^f00265];

“complaint” means a written notice of complaint under regulation 3 or 4 of the Regulations;

“report” means a report under regulation 6 of the Regulations.

Form of applications etc.

79.2

(1) An application under section 8(1) of the Act of 1990 shall be made by petition.

(2) A petition under paragraph (1) shall state those steps prescribed in the Regulations which have been taken to secure compliance with the Act of 1990.

(3) On presentation of the petition, there shall be lodged in process as productions–

(a) a copy of the application under section 3 (access to health record) or section 6 (correction of inaccurate health record), as the case may be, of the Act of 1990;

(b) a copy of the complaint; and

Time-limit for applications

79.3

An application under section 8(1) of the Act of 1990 may not be made unless the petition is presented–

(a) where the applicant has received a report, within one year of the date after the report; or

(b) where the applicant has not received a report, within 18 months after the date of the complaint.

CHAPTER 80 — APPLICATIONS IN RESPECT OF QUALIFIED CONVEYANCERS AND EXECUTRY PRACTITIONERS

Application and interpretation of this Chapter

80.1

(1) This Chapter applies to an application made under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990[^f00266] in respect of a qualified conveyancer or executry practitioner.

(2) In this Chapter, “the Act of 1990” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

(3) The expressions “the Board”, “executry practitioner” and “qualified conveyancer” have the meanings assigned respectively in section 23 of the Act of 1990.

Applications and appeals in respect of qualified conveyancers and executry practitioners

80.2

(1) Subject to paragraph (4), an application under any of the following provisions of the Act of 1990 shall be made by petition:–

(a) section 17(6) (application following refusal to register as qualified conveyancer);

(b) section 18(7) (application following refusal to register as executry practitioner);

(d) section 20(11)(b) (application following review of certain decisions of Board following misconduct etc.);

(e) section 21(5) (application following direction relating to assets);

(f) section 21(7) (application to secure compliance with direction);

(g) section 21(10) (application by the Board for interdict); and

(h) paragraph 20 of Schedule 1 (application for order to produce documents).

(2) An application under section 17(6), 18(7) or 20(11)(b) of the Act of 1990 shall state the date on which the outcome of the review was intimated to the petitioner.

(3) An application under section 21(5) of the Act of 1990 shall state the date on which the direction was received by the petitioner.

(4) An application for leave under section 21(10) of the Act of 1990 shall be made by motion.

Intimation and service in petitions under this Chapter

80.3

(1) A petition to which this Chapter applies shall be brought before a Division of the Inner House in chambers, and the Division may, without hearing parties and subject to the following paragraphs, make such order for intimation and service as it thinks fit.

(2) In an application under any of the following provisions of the Act of 1990, the court shall order service of the petition on the Board:–

(a) section 17(6) (application in respect of review of refusal to register as qualified conveyancer);

(b) section 18(7) (application following review of refusal to register as executry practitioner);

(d) section 21(5) (application following direction relating to assets).

(3) In an application under any of the following provisions of the Act of 1990, the court shall order service of the petition on the executry practitioner or qualified conveyancer, as the case may be:–

(a) section 20(7) (application for order to require practitioner to comply with directions);

(b) section 21(7) (application to secure compliance with direction); and

(4) In an application under section 21(10) of the Act of 1990 (application by the Board for interdict), the court shall order service of the petition on the executry or qualified practitioner, as the case may be, and on the bank, building society or other deposit holder.

Procedure after order for intimation and service

80.4

The court shall, after an order for intimation and service under rule 80.3, proceed on the petition summarily in such manner as it thinks fit.

Remit for further inquiry in petitions under this Chapter

80.5

(1) In a petition to which this Chapter applies, the court may remit to any person to make further inquiry into the facts, or to take further evidence and to report to the court.

(2) On completion of a report made under paragraph (1), the person to whom the remit was made shall send his report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.

(3) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from process.

(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.

SCHEDULE 3 — AMENDMENT TO ENACTMENT

Presumption of Death (Scotland) Act 1977 (c. 27)

In section 4(3) of the Presumption of Death (Scotland) Act 1977 (person having an interest seeking determination or appointment in application for variation order), for the words “lodge a minute”, substitute the words “make an application to the court”.

SCHEDULE 4 — ENACTMENTS REPEALED

Year of Session and Chapter	Short title	Extent of repeal	Rules of the Court of Session 1994
c.10(S.)	Citation Act 1540	The whole Act	r. 16.1
c.21 (S.)	Citation Act 1693	The whole Act	Ch. 16
6 Geo. 4, c.120	Court of Session Act 1825	Section 53	r. 16.12(4)
1 & 2 Vict., c.114	Debtors (Scotland) Act 1838	Sections 16, 18 and 20	r. 13.6(c) r. 3.5(4) r. 13.11
31 & 32 Vict., c.100	Court of Session Act 1868	Section 39	r. 29.1(2)(b)
31 & 32 Vict., c.101	Titles to Land Consolidation Act 1868	Section 158 and Schedule QQ	r. 13.11 r. 59.1
45 & 46 Vict., c.77	Citation Amendment (Scotland) Act 1882	Sections 3, 4(1) to (4), 5 and 6 and Schedules 1 and 2 in their application to any cause or proceedings in the Court of Session	r. 16.4
57 & 58 Vict., c.40	Nautical Assessors (Scotland) Act 1894	Sections 2, 3, 4 and 5 in their application to the Court of Session	r. 12.1(3) r. 12.8 r. 12.5 r. 12.9
58 & 59 Vict., c.19	Court of Session Consignations (Scotland) Act 1895	In section 3, the words from “, and the Clerk of Court” to “such Clerk”	r. 35.11(2)

SCHEDULE 5 — ACTS OF SEDERUNT REVOKED

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