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

Hearing of commercial actions

10.7

A commercial judge nominated under rule 47.2 (proceedings before commercial judge) may hear and determine a commercial action as defined by rule 47.1(2) when the court is in session or in vacation.

Disapplication of certain rules

Procedure in commercial actions

Defences

Counterclaims and third party notices

47.7

• (1) A party seeking to lodge a counterclaim or to serve a third party notice shall apply by motion to do so.

• (2) The commercial judge shall, on a motion to lodge a counterclaim or to serve a third party notice, make such order and give such directions as he thinks fit with regard to—

• (a) the time within which a counterclaim may be lodged or a third party notice served and any answers lodged;

• (b) where the motion is made before the preliminary hearing, a date for the preliminary hearing if it is to be a date other than the date referred to in rule 47.8(2); and

• (c) any application for a warrant to use any form of diligence which would have been permitted under rule14A.2 (application for interim diligence) had the warrant been sought in a summons in a separate action.

• (3) Paragraphs (2) and (3) of rule 47.3 shall apply to the form of a counterclaim as they apply to the form of a summons.

Commercial Roll

Withdrawal of action from Commercial Roll

Transfer of action to Commercial Roll

Preliminary hearing

Procedural hearing

47.12

• (1) Not less than 3 days, or such other period as may be prescribed by the commercial judge at the preliminary hearing, before the date fixed under rule 47.11(3) for the procedural hearing, each party shall—

• (a) lodge a written statement of his proposals for further procedure which shall state—

• (i) whether he seeks to have the commercial action appointed to debate or to have the action sent to proof on the whole or any part of it;

• (ii) what the issues are which he considers should be sent to debate or proof; and

• (iii) the estimated duration of any debate or proof;

• (b) where it is sought to have the action appointed to proof, lodge a list of the witnesses he proposes to cite or call to give evidence, identifying the matters to which each witness will speak;

• (c) where it is sought to have the action appointed to proof, lodge the reports of any skilled persons;

• (d) where it is sought to have the action appointed to debate, lodge a note of argument consisting of concise numbered paragraphs stating the legal propositions on which it is proposed to submit that any preliminary plea should be sustained or repelled with reference to the principal authorities and statutory provisions to be founded on; and

• (e) send a copy of any such written statement, lists, reports or note of argument, as the case may be, to every other party.

• (2) At the procedural hearing, the commercial judge—

• (a) shall determine whether the commercial action should be appointed to debate or sent to proof on the whole or any part of the action;

• (b) where the action is appointed to debate or sent to proof, may order that written arguments on any question of law should be submitted;

• (c) where the action is sent to proof, may determine whether evidence at the proof should be by oral evidence, the production of documents or affidavits on any issue;

• (d) where the action is sent to proof, may direct that parties serve on one another and lodge in process signed witness statements or affidavits from each witness whose evidence they intend to adduce, setting out in full the evidence which it is intended to take from that witness, and fix a timetable for the service (whether by exchange or otherwise) and lodging of such statements or affidavits as may be thought necessary;

• (e) may direct that such witness statements or affidavits shall stand as evidence in chief of the witness concerned, subject to such further questioning in chief as the court may allow;

• (f) may determine, in the light of any witness statements, affidavits or reports produced, that proof is unnecessary on any issue;

• (g) where the action is sent to proof, may appoint parties to be heard By Order at a date prior to the proof diet;

• (h) may direct that skilled persons should meet with a view to reaching agreement and identifying areas of disagreement, and may order them thereafter to produce a joint note, to be lodged in process by one of the parties, identifying areas of agreement and disagreement, and the basis of any disagreement;

• (i) without prejudice to Chapter 12 (assessors), may appoint an expert to examine, on behalf of the court, any reports of skilled persons or other evidence submitted and to report to the court within such period as the commercial judge may specify;

• (j) where the action is sent to proof, may make an order fixing the time allowed for the examination and cross-examination of witnesses;

• (k) may, on the motion of a party, direct the cause to be determined on the basis of written submissions, or such other material, without any oral hearing;

• (l) may continue the procedural hearing to a date to be appointed by him;

• (m) may make an order for parties to produce a joint bundle of productions arranged in chronological order or such other order as will assist in the efficient conduct of the proof;

• (n) may order and fix a date for a further procedural hearing or fix a date for the hearing of any debate or proof; and

• (o) may make such other order as he thinks fit.

Debates

47.13

Chapter 28 (procedure roll) shall apply to a debate ordered in a commercial action under rule 47.12(2)(a) as it applies to a cause appointed to the Procedure Roll.

Lodging of productions for proof

47.14

• (1) Unless an earlier date is specified by the court, any document not previously lodged required for any proof in a commercial action shall be lodged as a production not less than 7 days before the date fixed for the proof.

• (2) No document may be lodged as a production after the date referred to in paragraph (1), even by agreement of all parties, unless the court is satisfied that any document sought to be lodged could not with reasonable diligence have been lodged in time.

Hearings for further procedure

47.15

At any time before final judgment, the commercial judge may, at his own instance or on the motion of any party, have a commercial action put out for hearing for further procedure; and the commercial judge may make such order as he thinks fit.

Failure to comply with rule or order of commercial judge

47.16

Any failure by a party to comply timeously with a provision in these Rules or any order made by the commercial judge in a commercial action shall entitle the judge, at his own instance—

• (a) to refuse to extend any period for compliance with a provision in these Rules or an order of the court,

• (b) to dismiss the action or counterclaim, as the case may be, in whole or in part,

• (c) to grant decree in respect of all or any of the conclusions of the summons or counterclaim, as the case may be, or

• (d) to make an award of expenses,

as he thinks fit.

CHAPTER 81 — APPLICATIONS FOR PARENTAL ORDERS UNDER THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 1990

Application and interpretation of this Chapter

81.1

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Disapplication of certain rules to this Chapter

81.2

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Confidentiality of documents in process

81.3

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Selection of reporting officer or curator ad litem

81.4

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Form of agreements to parental order

81.5

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Orders for evidence

81.6

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Expenses

81.7

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Protection of identity of petitioners

81.8

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Applications for a parental order

81.9

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Appointment of reporting officer and curatorad litem

81.10

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Duties of reporting officer and curatorad litem

81.11

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Hearing

81.12

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Supervision by or committal to care of local authority

81.13

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Applications for return, removal or prohibition of removal of child

81.14

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Applications to amend, or revoke a direction in, a parental order

81.15

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Registration of certified copy interlocutor

81.16

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Extract of order

81.17

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Procedure after intimation to Registrar General or issue of extract

81.18

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Execution of diligence

Appeals and references from Comptroller

Intimation and service of applications under the Copyright Act of 1988 or the Trade Marks Act 1994 for orders for disposal of infringing matter

Appeals and references under the Trade Marks Act 1994

55.19

• (1) Subject to the following paragraphs of this rule, an appeal or reference under section 76 of the Trade Marks Act 1994 (appeal from registrar or reference from appointed person) shall be heard in the Outer House by the intellectual property judge.

• (2) In the application of Part III of Chapter 41 (appeals in Form 41.25) by virtue of rule 41.51 (appeals to Lord Ordinary) to an appeal or reference under paragraph (1) of this rule–

• (a) for references to the Inner House there shall be substituted references to the intellectual property judge; and

• (b) the following paragraphs of this rule shall apply.

• (3) Subject to paragraph (4), an appeal or reference shall be lodged in the General Department–

• (a) in the case of a decision on a matter of procedure, within 14 days after the date of the decision appealed against; and

• (b) in any other case, within 6 weeks after the date of the decision appealed against or the decision referring the proceedings to the court, as the case may be.

• (4) Except with the leave of the court, no appeal or reference under this rule shall be entertained unless it has been lodged within the period specified in paragraph (3) or within such further period as the Comptroller may allow on an application made to him before the expiry of that period.

• (5) Any determination by the Comptroller that a decision is on a matter of procedure shall be treated as being itself a decision on a matter of procedure.

• (6) In the application of paragraph (1) of rule 41.27 (orders for service and answers), the order under that paragraph shall include a requirement to–

• (a) intimate the appeal to the Comptroller; and

• (b) serve the appeal on every other party to the proceedings before the Comptroller.

• (7) On receiving intimation of the appeal, the Comptroller shall forthwith transmit to the Deputy Principal Clerk all the papers relating to the matter which is the subject of the appeal.

• (8) A respondent who, not having appealed from the decision of the Comptroller, wishes to contend at the hearing of the appeal that the decision or the grounds of the decision shoul be varied shall–

• (a) specify the grounds of that contention in his answers; and

• (b) intimate those answers to the Comptroller and to every other party to the proceedings before the Comptroller.

• (9) Intimation of the date of the hearing of the appeal shall be made to the Comptroller by the appellant not less than 7 days before that date, unless the court otherwise directs.

• (10) An appeal under this rule shall be a re-hearing and the evidence led on appeal shall be the same as that led before the Comptroller; and, except with the leave of the court, no further evidence shall be led.

Referral to family mediation ...

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

Warrant for registration under the relevant enactment

Registration under the relevant enactment

Period of notice, service of causes and hearings under this Part

Period of notice, service of causes and hearings under this Part

Application and interpretation of this Part

Form of applications under the Act of 1986

Intimation and service

Questions relating to interpretation of rules or regulations

Interpretation of this Part

75.5

In this Part—

• “operator” has the meaning assigned in regulation 3(1) of the Regulations of 1995;

• “the Regulations of 1995” means the Uncertificated Securities Regulations 1995.

Form of applications under the Regulations of 1995

75.6

An application under regulation 8 (application by Secretary of State for compliance order), or regulation 9 (application by Secretary of State for interdict or restitution), of the Regulations of 1995 shall be made by petition.

Intimation and service

75.7

An order under regulation 9 of the Regulations of 1995 shall only be made following intimation and service of the petition—

• (a) on the person against whom the order is to be made; and

• (b) on the operator.

Questions relating to interpretation of rules of an operator

75.8

Where a question of the interpretation of any of the rules of an operator referred to in regulation 9(1)(a) of the Regulations of 1995 arises in a petition under this rule, the Secretary of State and the operator, if not already parties, shall be given the opportunity to make representations to the court by lodging answers to the petition.

CHAPTER 28A — NOTICES TO ADMIT AND NOTICES OF NON-ADMISSION

Notices to admit and notices of non-admission

28A.1

• (1) At any time after the record has closed, a party may intimate to any other party a notice or notices calling on him to admit for the purposes of that cause only—

• (a) such facts relating to an issue averred in the pleadings as may be specified in the notice;

• (b) that a particular document lodged in process and specified in the notice is—

• (i) an original and properly authenticated document; or

• (ii) a true copy of an original and properly authenticated document.

• (2) Where a party on whom a notice is intimated under paragraph (1)—

• (a) does not admit a fact specified in the notice, or

• (b) does not admit, or seeks to challenge, the authenticity of a document specified in the notice,

he shall, within 21 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him under paragraph (1) stating that he does not admit the fact or document specified.

• (3) The party intimating a notice under paragraph (1) or (2) shall lodge a copy of it in process.

• (4) The court may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as it thinks fit.

• (5) A party may, at any time, withdraw in whole or in part a notice of non-admission by intimating a notice of withdrawal.

Consequences of failure to intimate notice of non-admission

28A.2

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• (1) A party who fails to intimate a notice of non-admission under paragraph (2) of rule 28A.1 shall be deemed to have admitted the fact or document specified in the notice intimated to him under paragraph (1) of that rule; and such fact or document may be used in evidence at a proof if otherwise admissible in evidence, unless the court, on special cause shown, otherwise directs.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) A deemed admission under paragraph (1) of this rule shall not be used against the party by whom it was deemed to be made other than in the cause for the purpose for which it was deemed to be made or in favour of any person other than the party by whom the notice was given under rule 28A.1(1).

CHAPTER 34A — PURSUERS' OFFERS

Application and interpretation of this Chapter

34A.1

In this Chapter—

• “appropriate date” means the date by which a pursuer’s offer could reasonably have been accepted;

• “charges” means charges for work carried out by the pursuer’s solicitor, and includes any additional charge;

• “pursuer’s offer” means an offer by a pursuer to settle a claim against a defender made in accordance with this Chapter;

• “relevant period” means the period from the appropriate date to the date of acceptance of the pursuer’s offer or, as the case may be, to the date on which judgment was given, or on which the verdict was applied.

Offers to settle

34A.2

• (1) A pursuer’s offer may be made in any cause where the summons includes a conclusion for an order for payment of a sum or sums of money, other than an order—

• (a) which the court may not make without evidence; or

• (b) the making of which is dependent on the making of another order which the court may not make without evidence.

• (2) This Chapter has no effect as regards any other form of offer to settle.

Protection of offers from disclosure

34A.3

• (1) A pursuer’s offer is made by lodging in process an offer in the terms specified in rule 34A.4.

• (2) A pursuer’s offer may be made at any time before—

• (a) the court makes avizandum or, if it does not make avizandum, gives judgment; or

• (b) in a jury trial, the jury retires to consider the verdict.

• (3) A pursuer’s offer may be withdrawn at any time before it is accepted by lodging in process a minute of withdrawal.

Withdrawal or expiry of offers

34A.4

A pursuer’s offer must—

• (a) state that it is made under this Chapter;

• (b) offer to accept—

• (i) a sum or sums of money, inclusive of interest to the date of the offer; and

• (ii) the taxed expenses of process; and

• (c) specify the conclusion or conclusions of the summons in satisfaction of which the sum or sums and expenses referred to in paragraph (b) would be accepted.

Acceptance of offers

34A.5

• (1) No averment of the fact that a pursuer’s offer has been made may be included in any pleadings.

• (2) Where a pursuer’s offer has not been accepted—

• (a) the court must not be informed that an offer has been made until—

• (i) the court has pronounced judgment; or

• (ii) in the case of a jury trial, the jury has returned its verdict; and

• (b) a jury must not be informed that an offer has been made until it has returned its verdict.

Consequences of failure to accept an offer to settl

34A.6

• (1) A pursuer’s offer may be accepted any time before—

• (a) the offer is withdrawn;

• (b) the court makes avizandum or, if it does not make avizandum, gives judgment; or

• (c) in the case of a jury trial, the jury retires to consider its verdict.

• (2) It is accepted by lodging in process an acceptance of the offer in the form of a minute of acceptance.

• (3) A minute of acceptance must be unqualified other than as respects any question of contribution, indemnity or relief.

• (4) On acceptance of a pursuer’s offer either the pursuer or the defender may apply by motion for decree in terms of the offer and minute of acceptance.

• (5) Where a pursuer’s offer includes an offer to accept a sum of money in satisfaction of a conclusion for decree jointly and severally against two or more defenders, the offer is accepted only when accepted by all such defenders.

• (6) However, the court may, on the motion of the pursuer, and with the consent of any defender who has lodged a minute of acceptance, grant decree in terms of the offer and minute of acceptance.

Optional procedure where there is a party litigant

35.3A