Legalize / United Kingdom / Statutory-Instrument

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

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

Defenders in actions for a section 11 order

Application and interpretation of this Part

49.85

(1) This Part applies where the court, in a family action, refers a matter to the Principal Reporter under section 54 of the Act of 1995 (reference to the Principal Reporter by court).

(2) In this Part, “Principal Reporter” has the meaning assigned in section 93(1) of the Act of 1995.

Intimation to Principal Reporter

49.86

Where a matter is referred by the court to the Principal Reporter under section 54 of the Act of 1995, the clerk of court shall give written intimation of the interlocutor making the reference to the Principal Reporter; and that intimation shall specify which of the conditions in section 52(2)(a) to (h), (j), (k) or (l) of that Act it appears to the court have been satisfied.

Intimation of decision by Principal Reporter

49.87

(1) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having reached the view that compulsory measures of supervision are necessary, arranges a children’s hearing under section 69 of that Act (continuation or disposal of referral by children’s hearing), the Principal Reporter shall give written intimation to the court which referred the matter to him of–

(a) the decision to arrange such children’s hearing;

(b) where there is no appeal made against the decision of that children’s hearing once the period for appeal has expired, the outcome of the children’s hearing; and

(2) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having considered whether compulsory measures of supervision are necessary, decides not to arrange a children’s hearing under section 69 of that Act, the Principal Reporter shall give written intimation of that decision to the court which referred the matter to him.

49.88

Where the court has made an order under section 13 of the Act of 1995 (awards of damages to children), an application by a person for an order by virtue of section 11(1)(d) of that Act (administration of child’s property) may be made by minute in the process of the cause in which the order under section 13 of that Act was made.

Timetable for resolving question as to whether agreement to adoption order etc. should be dispensed with

67.4A

(1) A timetable shall be drawn up forthwith under section 25A of the Act of 1978 by the court when any of the following occurs–

(a) there is presented to it a petition with a crave for any agreement of the parent or guardian of a child to be dispensed with on a ground specified in section 16(2) of that Act;

(b) it appears to the court, from the report of an adoption agency, local authority or reporting officer that the question of dispensing with such agreement on a ground so specified arises; or

(c) such agreement (being agreement which, if not given, it would be competent to dispense with on a ground so specified) is given but is afterwards withdrawn.

(2) To ensure, so far as is reasonably practicable, that the timetable is adhered to, the court shall give such directions as it considers appropriate.

Form of agreements and consents

Consideration of views of child and of certain reports

67.5A

In a cause to which this Chapter applies, the court shall not grant an adoption order or grant or revoke an order freeing a child for adoption–

(a) where the child has indicated to the court, or to his curator ad litem if one has been appointed under this Chapter, a wish to express views on a matter affecting the child unless–

(i) an opportunity has been given for those views to be obtained or heard (the court ordering such steps to be taken in that regard as it considers appropriate); and

(ii) due weight has been given by the court to such views as the child does express (account being taken of his age and maturity); and

(b) where a report has been received in relation to the child by virtue of section 73(13) of the Act of 1995 (report of children’s hearing where child subject to supervision requirement), unless the court has first considered the report.

Orders for evidence

Children who may require compulsory measures of supervision

67.6A

Where, under subsection (1) of section 54 of the Act of 1995 (question arising as to whether compulsory measures of supervision are necessary) a matter is referred to the Principal Reporter, the clerk of court shall give him written intimation of the court’s decision, which shall include a certified copy of the interlocutor, and shall specify in the intimation which of the conditions referred to in that subsection it appears to the court has been satisfied.

Expenses

Intimation of making of order freeing a child for adoption where he is subject to a supervision requirement

67.13A

Where on making an order under section 18 of the Act of 1978 in relation to a child who is subject to a supervision requirement the court makes a determination under subsection (9) of that section( (that is to say, a determination that the child shall forthwith cease to be subject to that requirement), the clerk of court shall intimate the determination to the Principal Reporter.

Applications for revocation of freeing for adoption order

Hearing of application for revocation of freeing for adoption order

Parental responsibilities and parental rights when order freeing a child for adoption is revoked

67.15A

The court, on revoking an order freeing a child for adoption shall, by order under section 11(1) of the Act of 1995, specify on whom are to be imposed the parental responsibilities, and to whom are to be given the parental rights, in relation to the child; and the clerk of court shall give written intimation accordingly to any person so specified.

Applications to place child for adoption

Applications for transfer of parental responsibilities and parental rights from one adoption agency to another

Applications relating to return, removal or prohibition of removal of child

Intimation of making of adoption order where child subject to supervision requirement

67.25A

Where on making an adoption order in relation to a child who is subject to a supervision requirement the court makes a determination under section 12(9) of the Act of 1978( (that is to say, a determination that the child shall forthwith cease to be subject to that requirement), the clerk of court shall intimate the determination to the Principal Reporter.

Supervision by or committal to care of local authority

Applications under section 49(1) of the Act of 1978

Applications for return, removal or prohibition of removal of child

Applications to amend or revoke a direction in, or revoke, an adoption order

Registration of certified copy interlocutor

Extract of order

Procedure after intimation to Registrar General or issue of extract

Part I orders register

Applications for registration of Part I orders in another court

Registration of Part I orders from another court

Enforcement of registered Part I orders in Scotland

Application under section 11(1)(d) of the Act of 1995 following order under section 13 of that Act

CHAPTER 43A — ACTIONS OF HARASSMENT

Application and interpretation of this Chapter

43A.1

–

(1) This Chapter applies to an action of harassment within the meaning of section 8(2) of the 1997 Act.

(2) In this Chapter–

“the 1997 Act” means the Protection from Harassment Act 1997

“non-harassment order” means an order granted under section 8(5)(b)(ii) of the 1997 Act.

Procedure for variation or revocation of non-harassment order

43A.2

An application under section 8(7) of the 1997 Act after final decree in an action of harassment for the variation or revocation of a non-harassment order shall be made by minute in the process of the action to which the application relates.

49.89

In making an appointment under section 9(5)(a) or 11(2)(g) of the Act of 1995, or when it receives a report under the said section 11(2)(g), the court may give such directions as it thinks fit regarding the management of the property concerned, and it may from time to time, on the application of a judicial factor so appointed, of the Accountant of Court or of any other person having an interest, give further such directions.

Application for appointment of judicial factor

Required application for early disposal of certain reclaiming motions

38.7A

Where a party reclaims against an interlocutor mentioned in paragraph (4) or (5) of rule 38.3, he shall, under rule 38.13(1)(a), seek early disposal of the reclaiming motion.

Effect of reclaiming

Effect of extracted interlocutor

Appeals treated as reclaiming motions

Reclaiming against decree by default

Reclaiming against interlocutor adjusting issues

Early disposal of reclaiming motion

Objections to competency of reclaiming motion

Procedure where no objection to competency

Grounds of appeal in reclaiming motions

Orders for hearing

Reclaiming prints

Lodging of appendices in reclaiming motions

Notes of evidence not extended when agreed

Amendment of pleadings in reclaiming motions

Required application for early disposal of appeal against interlocutor other than final judgment

40.7A

On lodging an appeal print under rule 40.7(2)(a)(ii) in respect of an appeal marked against—

(a) an interlocutor of an inferior court in a case where the interlocutor is not a final judgment ; or

(b) an interlocutor of an inferior court containing an order made under the Adoption Act 1978 or under section 11(1) of the Children (Scotland) Act 1995.

the appellant shall make application under rule 40.11(1)(a) for early disposal of the appeal.

Sist of process of appeal

Appeals deemed abandoned

Reponing against deemed abandonment

Early disposal of appeal

Objections to competency of appeals

Procedure where no objection to competency of appeal

Grounds of appeal

Orders for hearing of appeal

Appeal prints

Lodging of appendices in appeals

Notes of evidence not extended when agreed in appeals

Amendment of pleadings in appeals

Referral to family mediation in appeals from sheriff court

Allocation of diets in Inner House

Making up open record

Adjustment

Closing record

Recording of proceedings at jury trial

37.5A

(1) Subject to any other provision in these Rules, proceedings at a jury trial shall be recorded by—

(a) a shorthand writer to whom the oath de fideli administratione officii has been administered on his appointment as a shorthand writer in the Court of Session; or

(b) tape recording or other mechanical means approved by the Lord President.

(2) In paragraph (1), “the proceedings” means the whole proceedings including, without prejudice to that generality—

(a) discussions—

(i) with respect to any challenge of a juror; and

(ii) on any question arising in the course of the trial;

(b) the decision of the Lord Ordinary on any matter referred to in sub-paragraph (a);

(d) the Lord Ordinary’s charge to the jury;

(e) the speeches of counsel or agents;

(f) the verdict of the jury; and

(g) any request for a direction to be given under rule 37.7, any hearing in relation to such a request and any direction so given.

(3) A transcript of the record of proceedings shall be made only on the direction of the court; and the cost shall, in the first instance, be borne by the agents for the parties in equal proportions.

(4) Any transcript so made shall be certified as a faithful record of proceedings—

(a) where the recording was under sub-paragraph (a) of paragraph (1), by whoever recorded the proceedings; and

(b) where it was under sub-paragraph (b) of that paragraph, by whoever transcribed the record.

(5) The Lord Ordinary may make such alterations to the transcript as appear to him to be necessary after hearing the parties; and, where such alterations are made, he shall authenticate the alterations.

(6) Where a transcript has been so made for the use of the court, copies of it may be obtained by any party from the transcriber on payment of his fee.

(7) Except with leave of the court, the transcript may be borrowed from process only for the purpose of enabling a party to consider whether to reclaim against the interlocutor of the court applying the verdict of the jury or whether to apply for a new trial.

(8) Where a transcript is required for a purpose mentioned in paragraph (7) but has not been directed to be transcribed under paragraph (3), a party—

(a) may request such a transcript from the shorthand writer, or as the case may be, from a person who might have transcribed the recording had there been such a direction, the cost of the requested transcript being borne by the agent for the requester in the first instance; and

(b) shall lodge the transcript in process;

and copies of it may be obtained by any party from the transcriber on payment of his fee.

Administration of oath or affirmation to jurors

Exceptions to judge’s charge

Further questions for jury

Verdicts

Application of verdicts

Registers kept by the Court

3.6A

Any register kept by the Court, whether or not under or by virtue of these Rules, may be kept either–

(a) in documentary form; or

(b) in electronic form (that is to say in a form accessible only by electronic means).

The Auditor

Death, peerage or resignation of respondent

Further provision as respects warrant for registration

62.51A

Where an interlocutor granting warrant for the registration of an external confiscation order is pronounced and the order falls to be remitted for enforcement to the Sheriff of Lothian and Borders at Edinburgh, the Deputy Principal Clerk shall send a certified copy of the interlocutor, within four days after it is pronounced, to the sheriff clerk at Edinburgh.

Suspension of enforcement under the Act of ... 1995

Modification and cancellation of registration under the Act of ... 1989 or 1995 or 2000

Incidental applications

CHAPTER 25A — DEVOLUTION ISSUES

Interpretation of this Chapter

25A.1

In this Chapter–

“Advocate General” means the Advocate General for Scotland;

“devolution issue” means a devolution issue within the meaning of–Schedule 6 to the Scotland Act 1998;Schedule 10 to the Northern Ireland Act 1998; or Schedule 9 to the Government of Wales Act 2006, and any reference to Schedule 6, Schedule 10 or Schedule 9 is a reference to that Schedule to, respectively, the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006;

“relevant authority” means the Advocate General and–in the case of a devolution issue within the meaning of Schedule 6, the Lord Advocate;in the case of a devolution issue within the meaning of 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 within the meaning of Schedule 9, the Counsel General to the Welsh Assembly Government.

Proceedings where devolution issue raised in principal writ

25A.2

Where any summons, petition or other principal writ contains an averment or conclusion which raises a devolution issue, the principal writ shall be served on the relevant authority, unless he has initiated the proceedings.

Time for raising devolution issue

25A.3

(1) It shall not be competent for a party to any proceedings to raise a devolution issue otherwise than in the pleadings before any evidence is led, unless the court, on cause shown, otherwise determines.

(2) Where the court determines that a devolution issue may be raised as mentioned in paragraph (1) it shall make such orders as to the procedure to be followed as appear to it to be appropriate and, in particular, it shall make such orders–

(a) as are necessary to ensure that intimation of the devolution issue is given in writing to the relevant authority for the purposes of paragraph 5 of Schedule 6, or as the case may be, paragraph 23 of Schedule 10 or paragraph 14(1) of Schedule 9; and

(b) as to the time in which any step is to be taken by any party in the proceedings.

Specification of devolution issue

25A.4

(1) Any party raising a devolution issue shall specify–

(a) where he initiates the action, in the principal writ;

(b) where a counterclaim is lodged, in the counterclaim;

the facts and circumstances and contentions of law on the basis of which it is alleged that the devolution issue arises in sufficient detail to enable the court to determine, for the purposes of paragraph 2 of Schedule 6 or, as the case may be, of Schedule 10 or Schedule 9, whether a devolution issue arises in the proceedings.

(2) Where a party wishes to raise a devolution issue after the lodging of any writ mentioned in paragraph (1), he shall do so either by adjustment or amendment so as to specify in his pleadings the matters mentioned in that paragraph.

Intimation of devolution issue

25A.5

(1) Intimation of a devolution issue in pursuance of paragraph 5 of Schedule 6 or, as the case may be, paragraph 23 of Schedule 10 or paragraph 14(1) of Schedule 9 shall be given to the relevant authority (unless he is a party to the proceedings or has been served with the principal writ in pursuance of Rule 25A.2) in accordance with this Rule.

(2) Where the devolution issue is raised in the principal writ, service of the principal writ on the relevant authority shall be treated as such intimation.

(3) In any other case, the party raising the devolution issue shall, as soon as practicable, enrol a motion craving a warrant to intimate the devolution issue to the relevant authority and on hearing the motion, where it appears to the court that a devolution issue arises, the court shall order such intimation in Form 25A.5.

(4) The intimation of a devolution issue shall specify 14 days, or such other period as the court on cause shown may specify, as the period within which a relevant authority may give notice to the Deputy Principal Clerk of his intention to take part as a party in the proceedings as mentioned in paragraph 6 of Schedule 6 or, as the case may be, paragraph 24 of Schedule 10 or paragraph 14(2) of Schedule 9.

Response to intimation

25A.6

(1) Where a relevant authority gives notice as mentioned in Rule 25A.5(4), he shall, not later than 7 days after the date of such notice, lodge a minute of his written submissions in respect of the devolution issue together with conclusions and pleas in law as appropriate.

(1A) Where a relevant authority does not take part as a party in the proceedings at first instance the court may allow him to take part as a party in any subsequent appeal, reclaiming motion or reference to a higher court.

(2) The minute lodged in accordance with paragraph (1) shall be intimated to all other parties in the proceedings.

Reference of devolution issue to Inner House

25A.7

(1) Where a devolution issue arises in any proceedings before the Lord Ordinary, any reference of the devolution issue to the Inner House as mentioned in paragraph 7 of Schedule 6 or, as the case may be, paragraph 25 of Schedule 10 or paragraph 15 of Schedule 9 shall be by means of a Report in accordance with Chapter 34 of these Rules.

(2) Where, in any proceedings before the Lord Ordinary, reference of a devolution issue is made to the Inner House, the Deputy Principal Clerk shall, unless the relevant authority is already party to the proceedings, not later than seven days after the reference has been made, give notice of the reference in Form 25A.7 to the relevant authority.

Reference of devolution issue to Judicial Committee

25A.8

(1) Where the court–

(a) decides in accordance with paragraph 10 of Schedule 6 or, as the case may be, paragraph 28 of Schedule 10 or paragraph 18 of Schedule 9; or

(b) is required as mentioned in paragraph 33 of Schedule 6 or, as the case may be, paragraph 33 of Schedule 10 or paragraph 29(1) of Schedule 9,

to refer a devolution issue to the Supreme Court, it shall pronounce an interlocutor giving directions to the parties about the manner and time in which the reference is to be drafted and adjusted.

(2) When the reference has been drafted at the sight of the court, the court shall make and sign the reference.

(3) The reference shall include such matter as may be required by Practice Direction 10 of the Supreme Court, and shall have annexed to it the interlocutor making the reference.

(4) Service of the reference in accordance with Practice Direction 10 of the Supreme Court may be effected by the Deputy Principal Clerk by first class recorded delivery post.

Sist of cause on reference to Judicial Committee

25A.9

(1) Subject to paragraph (2), on a reference being made to the Supreme Court as mentioned in Rule 25A.8, the cause shall, unless the court when making the reference otherwise orders, be sisted until the Supreme Court has determined the devolution issue.

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

Transmission of reference

25A.10

(1) The reference shall be transmitted by the Deputy Principal Clerk to the Registrar of the Supreme Court .

(2) Unless the court otherwise directs, the reference shall not be sent to the Registrar of the Supreme Court where a reclaiming motion or an appeal against the making of the reference is pending.

(3) For the purpose of paragraph (2), a reclaiming motion or an appeal shall be treated as pending–

(a) until the expiry of the time for marking the reclaiming motion or appeal; or

(b) where a reclaiming motion or an appeal has been made, until it has been determined.

Appeals to the Judicial Committee

25A.11

(1) Where an appeal to the Supreme Court is made–

(a) under paragraph 12 of Schedule 6 or, as the case may be, paragraph 30 of Schedule 10 or paragraph 20 of Schedule 9; or

(b) with leave or special leave, under paragraph 13(b) of Schedule 6 or, as the case may be, paragraph 31(b) of Schedule 10 or paragraph 21(b) of Schedule 9,

the court from whose determination the appeal is made may make such orders as it thinks fit, having regard to the interests of the parties to the cause, for the purpose of regulating the proceedings pending the determination of the appeal by the Supreme Court, including orders relating to interim possession, execution and expenses already incurred.

(2) Where the determination of an appeal by the Supreme Court does not dispose of the whole cause, the court against whose determination the appeal was made shall order such further procedure as is necessary to enable it to dispose of the whole cause.

Orders mitigating the effect of certain decisions

25A.12

(1) In any proceedings where the Court is considering making an order under–

(a) section 102 of the Scotland Act 1998;

(b) section 81 of the Northern Ireland Act 1998; or

(power of the court to vary or suspend the effect of certain decisions), the Court shall order intimation of the fact to be made by the Deputy Principal Clerk to every person to whom intimation is required to be given by that section.

(2) Intimation as mentioned in paragraph (1) shall–

(a) be made forthwith in Form 25A. 12 by first class recorded delivery post; and

(b) specify 7 days, or such other period as the court thinks fit, as the period within which a person may give notice of his intention to take part in the proceedings.

Direction relating to Advocate General

1.5

The Lord President may, by direction, specify such arrangements as he considers necessary for, or in connection with, the appearance in court of the Advocate General for Scotland.

Proceedings before intellectual property judge

Requirement for marking

55.2A

In a cause to which this Chapter applies, initiated—

(a) by summons, the pursuer shall, before presenting the summons to the General Department for signeting;

(b) by petition, the petitioner shall, before lodging the petition in the Petition Department,

mark it distinctly in red, both on the first page and on the backing, with the words “Intellectual Property Cause”; and thereafter every step of process in the cause shall be so marked by the person lodging it.

Procedural hearings

Notices to admit and notices of non-admission

Applications for leave to amend specifications

Applications for revocation of patents

Proceedings for infringement

Objections to validity of patent

Determination of question or application where Comptroller declines to deal with it

Applications by employees for compensation under section 40 of the Act of 1977

Proceedings for determination of certain disputes

Applications for rectification of Register of Designs or Patents

Counterclaim for rectification of Register of Designs

Appeals and references from Comptroller

Intimation to Comptroller of reclaiming motion

Communication of information to European Patent Office

Intimation and service of certain statutory applications ... for orders for disposal of infringing matter

Applications for leave to proceed

Appeals and references under the Trade Marks Act 1994

Expenses of curator ad litem appointed to a child

49.27A

Where in any family action a curator ad litem is appointed to a child, the pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until the occurrence of any of the following events—

(a) the lodging of a minute by the curator stating that he does not intend to lodge defences;

(b) the curator instructing the lodging of defences or a minute adopting defences which are already lodged; or

Applications for public interest intervention

58.8A

(1) A person to whom rule 58.8(2) does not apply may make an application to the court for leave to intervene–

(a) in a petition for judicial review;

(b) in an appeal in connection with such a petition.

(1A) This rule does not apply to the Scottish Commission for Human Rights (which may instead intervene in accordance with Chapter 95).

(2) An application for leave to intervene shall be by way of a minute of intervention in Form 58.8A, and the applicant shall–

(a) send a copy of it to all the parties; and

(b) lodge it in process, certifying that sub-paragraph (a) above has been complied with.

(3) A minute of intervention shall set out briefly–

(a) the name and description of the applicant;

(b) any issue in the cause which the applicant wishes to address and the applicant’s reasons for believing that any such issue raises a matter of public interest; and

(c) the propositions to be advanced by the applicant and the applicant’s reasons for believing that they are relevant to the cause and that they will assist the court.

(4) The court may–

(a) refuse leave without a hearing;

(b) grant leave without a hearing unless a hearing is requested under paragraph (5) below; or

(5) A hearing, at which the applicant and the parties may address the court on the matters referred to in paragraph (6)(c) below, may be held if, within 14 days of the minute of intervention being lodged, any of the parties lodges a request for a hearing.

(6) The court may grant leave only if it is satisfied that–

(a) the cause raise, and an issue in the cause which the applicant wishes to address raises, a matter of public interest;

(b) the propositions to be advanced by the applicant are relevant to the cause and are likely to assist the court; and

(c) the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability for expenses.

(7) In granting leave, the court may impose such terms and conditions as it considers desirable in the interests of justice, including making provision in respect of any additional expenses incurred by the parties as a result of the intervention.

(8) Where leave is granted–

(a) an intervention shall be by way of a written submission which (including any appendices) does not exceed 5000 words; and

(b) the applicant shall lodge the submission and send a copy of it to all the parties by such time as the court may direct.

(9) The court may in exceptional circumstances–

(a) allow a longer written submission to be made;

(b) direct that an oral submission is to be made.

(10) The Clerk of court shall give written intimation of a grant or refusal of leave to the applicant and all the parties.

(11) Any diet in pursuance of paragraph (5) or (9)(b) above shall be fixed by the Keeper of the Rolls who shall give written intimation of the diet to the applicant and all the parties.

(12) Nothing in this rule shall affect the power of the court to make such other direction as it considers appropriate in the interests of justice.

(13) Any decision of the court in cause under this rule shall be final and not subject to review.

First hearing

Second hearing

64.1

This Chapter applies to an application for an order under section 1 of the Administration of Justice (Scotland) Act 1972 made where a cause is not depending before the court in which the application may be made.

Form and content of application

64.2

(1) An application to which this Chapter applies shall be made by petition.

(2) The statement of facts shall set out–

(a) a list of documents and other property (in this Chapter and in Form 64.6 referred to as the “listed items”) which the petitioner wishes to be made the subject of the order;

(b) the address of the premises within which the petitioner believes the listed items are to be found;

(c) the facts which give rise to the petitioner’s belief that were the order not to be granted the listed items or any of them would cease to be available for the purposes of the said section 1.

Accompanying documents

64.3

The petitioner shall lodge with the application–

(a) an affidavit supporting the averments in the petition;

(b) an undertaking by the petitioner that he–

(i) will comply with any order of the court as to payment of compensation if it is subsequently discovered that the order, or the implementation of the order, has caused loss to the respondent or, where the haver is not the respondent, to the haver; and

(ii) will bring within a reasonable time of the execution of the order any proceedings which he decides to bring; and

(iii) will not, without leave of the court, use any information, documents or other property obtained as a result of the order, except for the purpose of any proceedings which he decides to bring and to which the order relates.

Modification of undertakings

64.4

The court may, on cause shown, modify, by addition, deletion or substitution, the undertaking mentioned in rule 64.3(b).

Intimation and service of application

64.5

(1) Before granting the application, the court may order such intimation and service of the petition to be given or executed, as the case may be, as it thinks fit.

(2) Any person receiving intimation or service of the petition by virtue of an order under paragraph (1) may appear and oppose the application.

Form of order

64.6

An order made under this Chapter shall be in Form 64.6.

Caution and other security

64.7

On granting, in whole or in part, the application the court may order the petitioner to find such caution or other security as it thinks fit.

Execution of order

64.8

The order of the court shall be served by the Commissioner in person and it shall be accompanied by the affidavit referred to in rule 64.3(a).

Duties of commissioner

64.9

The Commissioner appointed by the court shall, on executing the order–

(a) give to the haver a copy of the notice in Form 64.9;

(b) explain to the haver–

(i) the meaning and effect of the order;

(ii) that he may be entitled to claim that some or all of the listed items are confidential or privileged;

(d) enter the premises and take all reasonable steps to fulfil the terms of the order;

(e) where the order has authorised the recovery of any of the listed items, prepare an inventory of all the listed items to be recovered before recovering them;

(f) send any recovered listed items to the Deputy Principal Clerk of Session to await the further order of the court.

Confidentiality

64.10

(1) Where confidentiality is claimed for any listed item, that listed item shall, where practicable, be enclosed in a sealed envelope.

(2) A motion to have such a sealed envelope opened may be made by the party who obtained the order and he shall intimate the terms of the motion, by registered post or first class delivery, to the person claiming confidentiality.

(3) A person claiming confidentiality may oppose a motion made under paragraph (2).

Restrictions on service

64.11

(1) Except on cause shown, the order may be served on Monday to Friday only, between the hours of 9am and 5pm only.

(2) The order shall not be served at the same time as a search warrant granted in the course of a criminal investigation.

(3) The Commissioner may be accompanied only by–

(a) any person whom he considers necessary to assist him to execute the order;

(b) such representatives of the petitioner as are named in the order,

and if it is likely that the premises will be occupied by an unaccompanied female and the Commissioner is not herself female, one of the people accompanying the Commissioner shall be female.

(4) If it appears to the Commissioner when he comes to serve the order that the premises are occupied by an unaccompanied female and the Commissioner is neither female nor accompanied by a female, the Commissioner shall not enter the premises.

Right of haver to consult

64.12

(1) The haver may seek legal or other professional advice of his choice.

(2) Where the purpose of seeking this advice is to help the haver to decide whether to ask the court to vary or discharge the order, the haver may ask the Commissioner to delay starting the search for up to 2 hours or such other longer period as the Commissioner may permit.

(3) Where the haver is seeking advice under this rule, he or she must—

(a) inform the Commissioner and the petitioner’s agent of that fact;

(b) not disturb or remove any listed items;

Return of documents etc. to haver

64.13

The Deputy Principal Clerk of Session shall return the recovered listed items to the haver if the petitioner has taken no further action within 8 weeks of the date on which they are sent to him under rule 64.9(f).

CHAPTER 82 — THE HUMAN RIGHTS ACT 1998

Application and interpretation

82.1

(1) This Chapter deals with various matters relating to the Human Rights Act 1998.

(2) In this Chapter–

“the 1998 Act” means the Human Rights Act 1998;

“declaration of incompatibility” has the meaning given by section 4 of the 1998 Act.

Evidence of judgments etc

82.2

(1) Evidence of any judgment, decision, declaration or opinion of which account has to be taken by the court under section 2 of the 1998 Act shall be given by reference to any authoritative and complete report of the said judgment, decision, declaration or opinion and may be given in any manner.

(2) Evidence given in accordance with paragraph (1) shall be sufficient evidence of that judgment, decision, declaration or opinion.

Declaration of incompatibility

82.3

(1) Where in any proceedings a party seeks a declaration of incompatibility or the court is considering whether to make such a declaration at its own instance–

(a) notice in Form 82.3-A shall be given as soon as reasonably practicable to such persons as the Lord President may from time to time direct–

(i) by the party seeking the declaration; or

(ii) by the clerk of court,

as the case may be, provided that there shall be no requirement to give such notice to a party or to the representative of a party; and

(b) where notice is given by the party seeking the declaration, the party shall lodge a certificate of notification in process.

(2) Where any–

(a) Minister of the Crown (or person nominated by him);

(b) member of the Scottish Executive;

(d) Northern Ireland department,

wishes to be joined as a party to proceedings in relation to which the Crown is entitled to receive notice under section 5 of the 1998 Act he or, as the case may be, it shall serve notice in Form 82.3—B to that effect on the Deputy Principal Clerk of Session and shall serve a copy of the notice on all other parties to the proceedings.

82.4

Within 14 days after the date of service of the notice under rule 82.3(2), the person serving the notice shall lodge a minute in the proceedings in Form 82.4 and shall serve a copy of that minute on all other parties to the proceedings.

82.5

The court may fix a diet for a hearing on the question of incompatibility as a separate hearing from any other hearing in the proceedings and may sist the proceedings if it considers it necessary to do so while the question of incompatibility is being determined.

Further restriction as to caveats

5.1A

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

(2) A caveat shall not be lodged against an order for intimation, service and advertisement of a petition for—

(a) a bank insolvency order under rule 74.35;

(b) a bank administration order under rule 74.45;

(d) a building society insolvency order under rule 74.52.

Form, lodging and renewal of caveats

Form of application to court where proceedings have been taken

Form of application to court where proceedings have not been taken

Chapter 83 — Applications For Purposes Of Investigations Ordered Pursuant To Article 14 Of Regulation 17 Of The Council Of The European Communities

Application of this Chapter

82.1

This Chapter applies to investigations ordered pursuant to Article 14 of Regulation 17 of the Council of the European Communities (investigation necessary to bring to light any agreement, decision or concerted practice prohibited by Article 85(1) of the Treaty establishing the European Community or any abuse of a dominant position prohibited by Article 86 of that Treaty).

Warrant for messengers-at-arms to assist in investigation

82.2

(1) On the application, made by petition, of an official authorised by the European Commission for the purposes of an investigation to which this Chapter applies the court, if satisfied that such opposition as is mentioned in paragraph 6 of the said Article 14 has arisen or may arise, may pronounce an interlocutor granting warrant for messengers-at-arms to assist the official in the investigation.

(2) In relation to the undertaking or association of undertakings investigated, a warrant granted under paragraph (1) shall authorise a messenger-at-arms, on behalf of or accompanied by the applicant, on exhibiting the warrant, to do, at all reasonable times, anything mentioned in sub-paragraphs (a) to (d) of paragraph 1 of the said Article 14 and to take such steps as are requisite to enable them to do so, as for example, but without prejudice to the generality of this paragraph, to open any lockfast place.

Giving notice of grant of warrant

82.3

(1) Such Notice (if any) as the court thinks fit of the granting of a warrant under rule 82.2(1) shall be given by the applicant to such persons, in such manner and by such means as the court may direct.

(2) Without prejudice to the generality of paragraph (1), a direction under that paragraph may provide that a telecommunications system (as defined in section 4(1) of the Telecommunications Act 1984) may be used as a means of giving notice.

Lodging of certain written statements

Use of Gaelic

40.21

In an appeal from the Sheriff Appeal Court in which an order in relation to parental responsibilities or parental rights under section 11 of the Children (Scotland) Act 1995 is in issue, a procedural judge may, where he considers it appropriate to do so, refer that issue to a mediator accredited to a specified family mediation organisation.

83.1

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

83.2

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

83.3

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

Chapter 84 — Applications under the Terrorism Act 2000

Interpretation of this Chapter

84.1

In this Chapter—

“the Act of 2000” means the Terrorism Act 2000;

“administrator” shall be construed in accordance with paragraph 16(1)(b) of Schedule 4 to the Act of 2000; and

“restraint order” means an order under paragraph 18(1) of Schedule 4 to the Act of 2000.

Power and duties of administrator

84.2

(1) Subject to any condition or exception specified by the court, an administrator appointed under paragraph 16(1)(b) of Schedule 4 to the Act of 2000—

(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 associate 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 17(2) of Schedule 4 to the Act of 2000;

(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.

Applications for variation or recall of restraint order

84.3

(1) An application under paragraph 19(2) (recall or variation of restraint order) of Schedule 4 to the Act of 2000 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates.

(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) of this rule by any person affected by a restraint order shall be 14 days.

Chapter 85 — APPLICATIONS UNDER THE PROTECTION FROM ABUSE (SCOTLAND) ACT 2001

Interpretation of this Chapter

85.1

(1) In this Chapter–

“the Act of 2001” means the Protection from Abuse (Scotland) Act 2001;

“documents” includes documents in electronic form; and

“interdict” includes interim interdict.

“incoming protection measure” has the meaning given by rule 106.1 (mutual recognition of protection measures: interpretation);

(2) This Chapter does not apply to an application—

(a) under section 1(2) of the Act of 2001 to attach a power of arrest to an incoming protection measure; or

(b) under section 2(3) or 2(7) of the Act of 2001 relating to a power of arrest attached to an incoming protection measure.

Attachment of power of arrest to interdict

85.2

(1) An application under section 1(1) of the 2001 Act (application for attachment of power of arrest to interdict)–

(a) shall be made by a conclusion of the summons, the prayer of the petition, the defences, answers or counterclaim in which the interdict to which it relates is applied for, or, if made after the application for interdict, by motion in the process of the action in which the interdict was sought; and

(b) shall be intimated to the person against whom the interdict is sought or obtained.

(2) Where the court attaches a power of arrest under section 1(2) or (1A) of the Act of 2001 (order attaching power of arrest) the following documents shall be served along with the power of arrest in accordance with section 2(1) of the Act of 2001 (documents to be served along with power of arrest)–

(a) a copy of the application for interdict;

(b) a copy of the interlocutor granting interdict; and

(c) where the application to attach a power of arrest was made after the interdict was granted, a copy of the certificate of service of the interdict.

(3) After the power of arrest has been served, the following documents shall be delivered by the person who obtained the power to the chief constable in accordance with section 3(1) of the Act of 2001 (notification to the police)–

(a) a copy of the application for interdict;

(b) a copy of the interlocutor granting interdict;

(d) where the application to attach a power of arrest was made after the interdict was granted–

(i) a copy of the application for the power of arrest;

(ii) a copy of the interlocutor granting it; and

(iii) a copy of the certificate of service of the power of arrest and the documents that required to be served along with it in accordance with section 2(1) of the Act of 2001.

(e) where a determination has previously been made in respect of such interdict under section 3(1) of the Domestic Abuse (Scotland) Act 2011, a copy of the interlocutor making the determination.

Extension or recall of power of arrest

85.3

(1) An application under section 2(3) (extension of duration of power of arrest) or section 2(7) (recall of power of arrest) of the Act of 2001 shall be made by minute in the process of the action in which the power of arrest was attached.

(2) Where the court extends the duration of, or recalls, a power of arrest, the person who obtained the extension or recall must deliver a copy of the interlocutor granting the extension or recall in accordance with section 3(1) of the Act of 2001.

Documents to be delivered to chief constable in relation to recall or variation of interdict

85.4

Where an interdict to which a power of arrest has been attached under section 1(2) of the Act of 2001 is varied or recalled, the person who obtained the variation or recall must deliver a copy of the interlocutor varying or recalling the interdict in accordance with section 3(1) of that Act.

Certificate of delivery of documents to chief constable

85.5

Where a person is ... required to comply with section 3(1) of the Act of 2001, he shall, after such compliance, lodge in process a certificate of delivery in Form 85.5.

Form of appeal under section 299 of the Proceeds of Crime Act 2002

41.43A

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

Reclaiming against decision of the Lord Ordinary

41.43B

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

Interpretation of this part

76A.1

In this Chapter—

“the 2007 Act” means the Serious Crime Act 2007

“person who is the subject of a serious crime prevention order” is to be construed in accordance with section 1(6) of the 2007 Act;

“serious crime prevention order” has the meaning given by section 1(5) of the 2007 Act; and

“subject” means the person who is the subject of a serious crime prevention order.

Applications

76A.2

(1) An application under section 8(aa) of the 2007 Act (limited class of applicants for making of orders) is to be made by petition.

(2) The following rules shall not apply to the petition—

rule 14.5(2)(a) (dispensing with intimation, service or advertisement;

rule 14.6 (period of notice for lodging answers);

rule 14.7 (intimation and service of petitions);

rule 14.8 (procedure where answers lodged); and

rule 14.9 (unopposed petitions).

(3) When a petition is lodged, the court must—

(a) order service of the petition within 7 days on the person who is the proposed subject;

(b) specify a period not exceeding 21 days for lodging answers; and

(4) The petition is to identify any person (other than the person who is the proposed subject) in respect of whom the order sought may be likely to have a significant adverse effect or (as the case may be) state that there is no such person known to the petitioner.

(5) If the subject is not personally present or represented at the hearing at which a serious crime prevention order is made, the petitioner must serve a copy of the order on the subject.

Documents for Accountant of Court

76A.3

(1) Paragraphs (2) and (3) of this rule apply where a person is identified under rule 76A.2(4).

(2) The court must order the petitioner to intimate the application to any such person within 7 days.

(3) An application by a person identified by the petitioner under rule 76A.2(4) to make representations under section9 of the 2007 Act is made by motion within 14 days from the date of intimation under paragraph (2).

(4) The court may consider a motion by a person, whether identified by the petitioner under rule 76A.2(4) or otherwise, to make representations under section9 of the 2007 Act without a hearing unless the third party requests a hearing or it seems to the court appropriate to fix a hearing.

(5) If the court grants an application to make representations under section 9 of the 2007 Act the court must—

(a) specify the manner in which representations are to be made; and

(b) intimate to the third party the date of any hearing fixed under rule76A.2(3)(c).

Procedure for fixing and finding caution

76A.4

(1) An application to vary or discharge a serious crime prevention order is to be made by minute in the process containing the interlocutor making the serious crime prevention order to which the application relates.

(2) An application under paragraph (1) is to identify any person (other than the person who is the proposed subject of the order) in respect of whom the variation or discharge may be likely to have a significant adverse effect or (as the case may be) state that there is no such person known to the applicant.

(3) If the subject is not personally present or represented at the hearing at which the order is varied or discharged, the applicant must serve a copy of the varied order or, as the case may be, the interlocutor discharging the order, on the subject.

Time for finding caution

76A.5

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

Administrator’s title to act

76A.6

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

Accounts

76A.7

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

Application for discharge of administrator

76A.8

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

Appeals against determination of outlays and remuneration

76A.9

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

Applications

76A.10

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

Disclosure orders

76A.11

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

Co-operation

76A.12

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

Application and interpretation of this Part

41.46

(1) The Registration Appeal Court shall, in its decision, specify any alteration or correction to be made on the register in pursuance of such decision.

(2) The Deputy Principal Clerk shall send a copy of the decision of the Registration Appeal Court to the registration officer within four days after the date of the decision.

Application for review

41.47

(1) A tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992 may, at its own instance, state a case for the opinion of the court on any question arising in the course of proceedings before it.

(2) Part II (appeals by stated case etc.) shall apply to a case stated under paragraph (1) subject to the following provisions of this Part.

Time limit for application

41.48

(1) The following rules shall apply to a case to which this Part applies subject to the following provisions of this rule—

rule 41.12 (preparation and issue of the case),

rule 41.14 (lodging of case in court).

(2) For paragraph (1) of rule 41.12 substitute—

(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.

(3) For paragraph (6) of rule 41.12 substitute—

(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall— (a) send a copy of the case to each party; and (b) transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him or her certifying that subparagraph (a) has been complied with. (7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.

(4) For rule 41.14 substitute—

(41.14) Not earlier than seven days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall— (a) lodge in the General Department— (i) the case; and (ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.

Service of petition

41.49

A reference or appeal under any of the following provisions shall be by stated case to which Part II (appeals by stated case etc.) shall apply—

(a) a reference by the Pensions Ombudsman under section 150(7) of the Pension Schemes Act 1993;

(b) an appeal under section 151(4) of the Pension Schemes Act 1993;

(c) a reference by the Ombudsman for the Board of the Pension Protection Fund under section 215 of the Pensions Act 2004; and

(d) an appeal under section 217 of the Pensions Act 2004.

Determining the petition

41.50

(1) The following rules shall apply to a case to which this Part applies subject to the following provisions of this rule—

rule 41.12 (preparation and issue of the case),

rule 41.14 (lodging of case in court).

(2) For paragraph (1) of rule 41.12 substitute—

(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.

(3) For paragraph (6) of rule 41.12 substitute—

(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall— (a) send a copy of the case to each party; and (b) transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him or her certifying that subparagraph (a) has been complied with. (7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.

(4) For rule 41.14 substitute—

(41.14) Not earlier than seven days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall— (a) lodge in the General Department— (i) the case; and (ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal; (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.

Service of the order

41.51

Unless otherwise provided in these Rules, in an appeal to the court which is directed by these Rules or any other enactment to be made to a single judge of the court, the Outer House or the Lord Ordinary, Part II (appeals by stated case etc.) or Part III (appeals in Form 41.25), as the case may be, shall apply to that appeal subject to the following modifications—

(a) for references to the Inner House, a procedural judge or a bench of three or more judges substitute references to the Lord Ordinary;

(b) for references to the Single Bills substitute references to the Motion Roll; and

Expenses

41.52

(1) Subject to paragraph (4), an appeal to the court to which this Chapter applies may be remitted by the Inner House to the Outer House to be heard by the Lord Ordinary in the first instance.

(2) An appeal may be remitted by the Inner House under paragraph(1)—

(a) at its own instance after hearing parties, or

(b) on the motion of a party.

(3) An appeal may be remitted under paragraph(1) on a motion being enrolled at any time after answers have been lodged.

(4) Paragraphs (1) to (3) do not apply to the following appeals—

(a) an appeal under an enactment which specifies that the appeal is to the Inner House;

(b) an appeal to which Part IV of this Chapter applies (Exchequer appeals);

(d) an appeal to which Part VI of this Chapter applies (appeals under the Representation of the People Act 1983);

(e) an appeal from the Land Court;

(f) an appeal from the Lands Tribunal for Scotland;

(fa) an appeal from the Sheriff Appeal Court;

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

(h) an appeal under paragraph 14 of Schedule 4 to the Transport Act 1985 (appeal from the Transport Tribunal);

(i) an appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007 (appeal from Upper Tribunal);

(j) an appeal under section 15 of the Social Security Act 1998 (appeal from a Social Security Commissioner);

(k) an appeal under section 49 of the Competition Act 1998 (appeal from the Competition Commission).

Application and interpretation of this chapter

Form of summons

Service and calling of summons

Inspection and recovery of documents

Motions to dispense with timetable

Allocation of diets and timetables

Hearings on the By Order roll

Applications for sist or for variation of timetable order

Statements of valuation of claim

Pre-trial meetings

Applications for interim payments of damages

Adjustment on final decree

Applications for further damages

Actions by connected persons

Warrants for intimation in actions by connected persons

Applications to dispense with intimation in actions by connected persons

Subsequent disclosure of connected persons

Connected persons entering the process

Failure by connected person to enter process

Form of petition in administration procedure

Report of administrator’s proposals: Schedule B1 to the Act of 1986

Time and date of lodging in an administration

Applications during an administration

Applications under section 176A of the Act of 1986

74.30A

(1) An application by a liquidator, administrator or receiver under section 176A of the Act of 1986 shall be–

(a) where there is no existing process in relation to any liquidation, administration or receivership, by petition; or

(b) where a process exists in relation to any liquidation, administration or receivership, by note in that process.

(1A) The petition or note, as the case may be, must include averments in relation to—

(a) the type of insolvency proceedings in which the application arises;

(b) the financial position of the company;

(c) the basis for the applicant’s view that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits; and

(d) whether any other insolvency practitioner is acting in relation to the company and, if so, that insolvency practitioner’s name and address.

(2) The Deputy Principal Clerk shall–

(a) after the lodging of any petition or note fix a hearing for the insolvency judge to consider an application under paragraph (1); and

(b) give notice of the hearing fixed under paragraph (2)(a) to the petitioner or noter.

(3) The petitioner or noter shall not be required to give notice to any person of the hearing fixed under paragraph (2)(a), unless the insolvency judge directs otherwise.

Application to appoint a special manager

Other applications

Authority for service and intimation on signeting

Authority for diligence etc. before calling

13.6A

(1) Before the calling of a summons, the pursuer may apply by motion for authority for—

(a) arrestment to found jurisdiction; or

(b) diligence by—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) arrestment in rem; or

(iv) dismantling a ship,

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

(2) Where a Lord Ordinary pronounces an interlocutor granting a motion under paragraph (1)—

(a) he shall record his interlocutor by signing the warrant in the summons; and

(b) the signed warrant shall be sufficient authority for execution of the arrestment to found jurisdiction or, as the case may be, the diligence.

Service and intimation of summonses

Authority for intimation after signeting

Authority for diligence etc. after calling

13.8A

(1) After the calling of a summons, a pursuer may apply by motion for authority for—

(a) arrestment to found jurisdiction; or

(b) diligence by—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) arrestment in rem; or

(iv) dismantling a ship.

(2) A certified copy of an interlocutor granting a motion under paragraph (1) shall be sufficient authority for execution of the arrestment to found jurisdiction or, as the case may be, the diligence.

Effect of authority for inhibition on the dependence

Recall etc. of arrestment or inhibition

Movement of arrested property

Intimation of actions relating to heritable property

Calling

Protestation for not calling summons

Authority for diligence etc. on counterclaims

Authority for diligence etc. on third party notices

Service under the Council Regulation

16.2A

(1) In this rule—

“competent receiving agency” and “Member State” have the same meaning as in the EC Service Regulation; and

“EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time.

(2) This rule applies to service of a document under the EC Service Regulation on a person on whom service is to be executed in a Member State other than the United Kingdom.

(3) Where a document is being served by a competent receiving authority under Article 7 of the EC Service Regulation, rule 16.6(1) (translations of documents) shall not apply.

(4) Where a document has been served by a competent receiving authority under Article 7 of the EC Service Regulation, the party executing service shall lodge the certificate of service mentioned in Article 10 of the EC Service Regulation.

Service by messenger-at-arms

Service by post

Service where address of person is not known

Translations of documents served or advertised abroad

Intimation of documents

Intimation on a warrant to intimate

Written intimation

Acceptance of service or intimation and dispensing with period of notice

No objection to regularity of service or intimation

CHAPTER 32A — TRANSFER OF CAUSES TO AND FROM THE COMPETITION APPEAL TRIBUNAL

Transfers to the Competition Appeal Tribunal

32A.1

(1) An application to transfer a cause to the Competition Appeal Tribunal shall be made by motion.

(2) Where a cause is transferred to the Competition Appeal Tribunal, the Deputy Principal Clerk of Session shall, within four days after the interlocutor transferring the cause has been pronounced, transmit the process to the party on whose motion the transfer was made together with a certified copy of the interlocutor granting the motion under paragraph (1).

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

(a) give written intimation of the transmission to—

(i) the other parties;

(ii) the Registrar of the Competition Appeal Tribunal; and

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

(4) A failure by the Deputy Principal Clerk to comply with paragraph (3) shall not affect the validity of any transfer of a cause.

Receipt of transfers from the Competition Appeal Tribunal

32A.2

On receipt of documentation in respect of a claim which has been directed to be transferred to the court by the Competition Appeal Tribunal, the Deputy Principal Clerk of Session shall—

(a) mark the first page of the documentation or, as the case may be, the interlocutor sheet, with the date of receipt; and

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

Motion for further procedure and lodging of process in transfers from the Competition Appeal Tribunal

32A.3

(1) Within 14 days after the date of receipt of documentation referred to in rule 32A.2 (receipt of transfers from the Competition Appeal Tribunal)—

(a) the party at whose request the transfer was directed, or

(b) in proceedings in which the transfer was directed by the Tribunal at its own initiative, the party who initiated the proceedings,

shall apply by motion for an order for such further procedure as he desires; and the cause shall proceed as if it had been an action in the court initiated by summons.

(2) On applying by motion under paragraph (1) the party shall make up and lodge a process incorporating the documentation referred to in rule 32A.2 (receipt of transfers from the Competition Appeal Tribunal) unless the documentation includes a process previously transferred to the Competition Appeal Tribunal under rule 32A.1 (transfers to the Competition Appeal Tribunal).

(3) A motion under paragraph (1) shall be disposed of by the Lord Ordinary.

Reponing against a failure to comply with rule 32A.3(1) or (2)

32A.4

(1) Where—

(a) the party at whose request the transfer was directed; or

(b) in proceedings in which the transfer was directed by the Tribunal at its own initiative, the party who initiated the proceedings, fails to comply with the requirements of rule 32A.3(1) or (2) (motion for further procedure and lodging of process), he may, within seven days after the expiry of the period specified in rule 32A.3(1), apply by motion to be reponed.

(2) The party enrolling a motion under paragraph (1), where the failure is a failure to lodge a process under rule 32A.3, shall on enrolling the motion, lodge such a process and shall apply by motion for an order for such further procedure as he desires.

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

Insistence in transfer by another party

32A.5

Where—

(a) the party at whose request the transfer was directed; or

(b) in proceedings in which the transfer was directed by the Tribunal at its own initiative, the party who initiated the proceedings, has failed to comply with the requirements of paragraph (1) or (2) of rule 32A.3 (motion for further procedure and lodging of process), any other party to the proceedings may, within seven days after the expiry of the period specified in rule 32A.3(1), comply with the requirements of those paragraphs himself and insist in the transfer.

Re-transmission to Registrar of the Competition Appeal Tribunal

32A.6

Where, on the expiry of 21 days after the receipt of the documentation referred to in rule 32A.2 (intimation of the date of receipt of documentation), no motion has been enrolled under rule 32A.4 (reponing against failure to comply with rule 32A.3(1) or (2)) and no motion has been enrolled under rule 32A.5 (insistence on transfer by another party), the transfer shall be deemed to be abandoned and the Deputy Principal Clerk shall—

(a) write on the first page of the documentation or, as the case may be, the interlocutor sheet the words “Re-transmitted in respect that transfer has been abandoned.”;

(b) add his signature and the date; and

Directions

Enforcement of judgments, authentic instruments or court settlements from another Contracting State, Member State or State bound by the Lugano Convention

Registration under the Act of 1982 or the Lugano Convention

Appeals under the Act of 1982 or the Council Regulation

Reclaiming under the Act of 1982 or the Lugano Convention

Annulment etc. of overseas adoptions

Directions as to the status conferred by adoption

Notes of argument

Competency of appeals

41.3A

(1) Where the Deputy Principal Clerk considers that an appeal may be incompetent, he may, at any time before the cause is brought before the Inner House, refer it to a single judge in accordance with paragraph (2).

(2) Any referral by the Deputy Principal Clerk under paragraph (1) shall be made to a judge nominated for that purpose by the Lord President.

(3) Where a referral is made under paragraph (1), the judge may–

(a) order any party to make representations to him in respect of the competency of the appeal;

(b) refuse the appeal on the ground it is incompetent;

(d) make such order as to expenses or otherwise as he thinks fit.

(4) Any decision of a judge in respect of an appeal referred to him under paragraph (1) shall be final and not subject to review.

Disapplication of certain rules to this Part

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.