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

(6) In determining whether or not to dismiss a claim under paragraph (5), the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the claim to proceed.

CHAPTER 96 — Financial Restrictions Proceedings and Sanctions Proceedings

Interpretation and application of this Chapter

96.1

(1) In this Chapter–

“the 2008 Act” means the Counter-Terrorism Act 2008;

“the 2018 Act” means the Sanctions and Anti-Money Laundering Act 2018;

“appropriate Minister” means—in relation to sanctions proceedings in respect of a decision of the Secretary of State, the Secretary of State; orin relation to financial restrictions proceedings, or to sanctions proceedings in respect of a decision of the Treasury, the Treasury;

“financial restrictions decision” means a decision mentioned in section 63(1) of the 2008 Act;

“financial restrictions proceedings” means proceedings in the Court of Session on an application under section 63(2) of the 2008 Act or on a claim arising from any matter to which such an application relates;

“sanctions decision” means a decision mentioned in section 38(1) of the 2018 Act;

“sanctions decision proceedings” means proceedings in the Court of Session on an application under section 38(2) of the 2018 Act;

“special advocate” means, in relation to financial restrictions proceedings or sanctions decision proceedings, a person who is appointed under section 68 of the 2008 Act to represent the interests of a party to those proceedings.

(2) In this Chapter–

(a) references to a party to the proceedings do not include the appropriate Minister;

(b) references to a party’s legal representative do not include a person appointed as a special advocate.

(3) This Chapter applies to a reclaiming motion in financial restrictions proceedings or sanctions decision proceedings as well as to financial restrictions proceedings or sanctions decision proceedings at first instance.

Application to set aside a financial restrictions decision or sanctions decision

96.2

(1) An application under section 63(2) of the 2008 Act to set aside a financial restrictions decision or under section 38(2) of the 2018 Act to set aside a sanctions decision shall be made by lodging a petition with the Deputy Principal Clerk.

(2) The petition shall include, in numbered paragraphs, statements of reasons setting out–

(a) the details of the financial restrictions decision or sanctions decision; and

(b) the grounds on which the petitioner seeks to set aside that decision.

(3) There shall be lodged with the petition–

(a) a copy of the financial restrictions decision or sanctions decision;

(b) all relevant documents in the petitioner’s possession and within the petitioner’s control.

Lodging of process

96.3

A process lodged under rule 4.3 in financial restrictions proceedings or sanctions decision proceedings shall be lodged with the Deputy Principal Clerk.

Disclosure

96.4

(1) Subject to rule 96.5, the appropriate Minister shall disclose to every other party in financial restrictions proceedings or sanctions decision proceedings –

(a) material on which they rely;

(b) material which adversely affects their case; and

(2) The appropriate Minister shall disclose the material on being served with a petition or summons in financial restrictions proceedings or, when the material comes to the appropriate Minister’s notice after such service, as soon as practicable after that.

Applications for permission not to disclose material

96.5

(1) This rule applies to an application by the appropriate Minister in financial restrictions proceedings or sanctions decision proceedings for permission not to disclose material otherwise than to the court and any special advocate.

(2) The following shall not apply to the application:–

rule 4.5(1)(b) (copy inventory of productions to be sent to other parties),

rule 4.6 (intimation of steps of process),

rule 4.11 (documents not to be borrowed),

Chapter 23 (motions).

(3) The application shall be made by motion to the Deputy Principal Clerk.

(4) The motion shall be intimated to any special advocate.

(5) The appropriate Minister shall not rely upon any material which the court has granted permission not to be disclosed on an application unless a special advocate has been appointed under section 68 of the 2008 Act.

(6) At the same time as making the application the appropriate Minister shall–

(a) lodge with the Deputy Principal Clerk; and

(b) serve on any special advocate,

the documents mentioned in paragraph (7) but such documents shall not be intimated to the petitioner or pursuer or any other party to the proceedings.

(7) Those documents are–

(a) the material;

(b) a statement of the reasons for the application for permission not to disclose the material; and

(8) The draft summary mentioned in paragraph (7)(c) shall be prepared with rule 96.7 in mind.

(9) Where the special advocate intends to oppose an application he shall lodge notice of opposition within 14 days of the date of service by the appropriate Minister under paragraph (6).

(10) Where the special advocate does not intend to oppose an application he shall give notice to the court within 14 days of the date of service by the appropriate Minister under paragraph (6).

(11) Documents lodged in relation to an application shall be kept separately from the process by the Deputy Principal Clerk.

(12) Documents lodged in relation to an application shall not be borrowed or inspected by any party other than by a legal representative of the appropriate Minister or by any special advocate.

Hearing on applications for permission not to disclose material

96.6

(1) On the making of an application under rule 96.5, the Deputy Principal Clerk shall, unless paragraph (2) applies–

(a) allocate a diet for a hearing of such an application; and

(b) intimate that date and time in writing to–

(i) the appropriate Minister; and

(ii) any special advocate.

(2) This paragraph applies where–

(a) the special advocate has given notice that he does not oppose the application;

(b) the court has previously considered an application by the appropriate Minister for prohibition of disclosure of the same or substantially the same matters, and is satisfied that it would be just to prohibit disclosure without a hearing; or

(3) Where paragraph (2) applies, the Deputy Principal Clerk shall place the application before the court in chambers, and it shall determine whether to–

(a) decide the application without a hearing; or

(b) hear the appropriate Minister and any special advocate.

(4) A hearing on the application shall take place in the absence of every party to the proceedings and every party’s legal representative, in private.

(5) The court shall grant the application where it considers that the disclosure of the material would be contrary to the public interest.

Summary of material

96.7

(1) On granting an application made under rule 96.5, the court must consider ordering the appropriate Minister to serve upon every party a summary of the material.

(2) The court is required to ensure that any such summary does not contain material the disclosure of which would be contrary to the public interest.

(3) Where the court is of the view that such a summary should be provided it shall consider the draft summary mentioned in rule 96.5(7)(c).

(4) Having done so, the court may–

(a) order the appropriate Minister to serve a copy of the summary on every party and every party’s representative; or

(b) order the appropriate Minister to lodge with the Deputy Principal Clerk within a specified time period a revised summary with such changes as the court directs.

(5) Where paragraph (4)(b) applies, the court shall–

(a) consider that revised summary and make any further revisals that it considers necessary; and

(b) order the appropriate Minister to serve a copy of the summary as revised by the court on every party to the proceedings and every party’s legal representative.

Election by Treasury not to disclose material or to provide summary

96.8

(1) Paragraphs (2) and (3) apply where, in relation to an application made under rule 96.5–

(a) the appropriate Minister does not receive the court’s permission to withhold material, but elects not to disclose it; or

(b) the appropriate Minister is required to provide a party to the proceedings with a summary of material that is withheld, but elects not to provide the summary.

(2) The appropriate Minister shall, within 7 days, notify the Deputy Principal Clerk of that matter in writing.

(3) The court shall–

(a) if it considers that the material or anything that is required to be summarised might adversely affect the appropriate Minister’s case or support the case of a party to the proceedings, in relation to a matter under consideration by the court, order that the appropriate Minister shall not rely on such points in their case, or shall make such concessions or take such other steps as the court may specify;

(b) in any other case, ensure that the appropriate Minister does not rely in the proceedings on the material or (as the case may be) on what is required to be summarised.

Appointment of special advocates

96.9

(1) Subject to paragraphs (2) and (3), the appropriate Minister shall, upon–

(a) being served with any application;

(b) making any motion;

(d) being served with or serving any other application,

in financial restrictions proceedings or sanctions decision proceedings give notice of that matter to the Advocate General for Scotland, so that he may consider whether to appoint a special advocate to represent the interests of any party to the proceedings.

(2) Paragraph (1) applies only where there is at least one party to the proceedings in respect of whom a special advocate has not been appointed under section 68 of the 2008 Act to represent their interests in the proceedings.

(3) Paragraph (1) does not apply where the appropriate Minister does not intend to–

(a) oppose the application concerned; or

(b) make an application under rule 96.5.

(4) Any party may at any time request the Advocate General to appoint a special advocate to represent the interests of a party in financial restrictions proceedings or sanctions decision proceedings .

(5) On the appointment of any special advocate, the Advocate General shall intimate the name of the special advocate to the Deputy Principal Clerk in writing.

(6) The special advocate may address the court in any financial restrictions proceedings or sanctions decision proceedings from which the petitioner or pursuer is excluded.

Special advocates: communication about proceedings

96.10

(1) A special advocate shall not communicate about the proceedings or any matter connected with the proceedings except in accordance with this rule.

(2) The special advocate may, without the authority of the court, communicate with–

(a) the court;

(b) the appropriate Minister or its legal representative;

(d) any other person, except the petitioner or pursuer or his legal representative or any other party to the proceedings, with whom it is necessary for administrative purposes for him to communicate about matters not connected with the substance of the proceedings.

(3) The special advocate may apply by motion for authority to communicate with the petitioner or pursuer or his legal representative or with any other person.

(4) The motion shall be intimated to the appropriate Minister only.

(5) A notice of opposition to the motion shall be intimated by the appropriate Minister–

(a) to the special advocate only; and

(b) within 7 days of intimation of the motion.

(6) Where the appropriate Minister opposes the motion, the court shall fix a hearing.

(7) The hearing shall take place in the absence of every party to the proceedings and every party’s legal representative, in private.

(8) The petitioner or pursuer or any other party to the proceedings shall not communicate with the special advocate upon whom material has been served under rule 96.5(6) other than through a legal representative in writing.

(9) The special advocate may, without the authority of the court, send a written acknowledgement of receipt of a communication under paragraph (8).

Exclusion from hearings

96.11

(1) If the court considers it necessary for the petitioner or pursuer and his legal representative, or any other party to the proceedings, to be excluded from any hearing in relation to financial restrictions proceedings or sanctions decision proceedings or any part of such a hearing to secure that information is not disclosed contrary to the public interest, it shall–

(a) make an order in that respect; and

(b) conduct that hearing, or that part of it from which the petitioner or pursuer and his legal representative, or any other party to the proceedings, are excluded, in private.

(2) The court may otherwise order any hearing in relation to financial restrictions proceedings or sanctions decision proceedings to be conducted in private if it thinks fit.

(3) Where the court considers it necessary under this rule to exclude any party to the proceedings from any hearing or part of a hearing it shall make such order as it considers appropriate in relation to access to the process or inspection of documents, or in relation to any other matter, to secure that information is not disclosed contrary to the public interest.

Opinions of the court

96.12

(1) When the court issues an opinion in financial restrictions proceedings or sanctions decision proceedings, the court may withhold any or part of its reasons if and to the extent that it is not possible to give reasons without disclosing information contrary to the public interest.

(2) Where an opinion of the court does not include the full reasons for its decision–

(a) the court shall prepare a separate opinion including those reasons; and

(b) the Deputy Principal Clerk shall serve that separate opinion on the appropriate Minister and the special advocate.

Recording of financial restrictions proceedings or sanctions decision proceedings

96.13

(1) Financial restrictions proceedings or sanctions decision proceedings 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) The record of the proceedings shall include–

(a) any objection to a question or line of evidence;

(b) any submission made in relation to such an objection; and

(3) A transcript of the record of the proceedings shall only be made on the direction of the court and shall be subject to such order as to the cost of the transcript as the court thinks fit.

(4) The transcript of the record of the proceedings shall be certified as a faithful record of the proceedings by–

(a) the shorthand writer or shorthand writers, if more than one, who recorded the evidence; or

(b) where the evidence was recorded by tape recording or other mechanical means, the person who transcribed the record.

(5) The court may make such alterations to the transcript of the record of the proceedings as appear to it to be necessary after hearing the parties; and where such alterations are made, the court shall authenticate the alterations.

Application for administration by a bank liquidator

74.15A

An application by a bank liquidator for an administration order under section 114 of the Act of 2009 shall be made by note in the existing process of the bank insolvency petition.

Approval of the voluntary winding up of a bank or building society

74.32B

(1) An application for the prior approval of a resolution for voluntary winding up of a bank under section 84 of the Act of 1986 or voluntary winding up of a building society under section 88 of the Building Societies Act 1986 shall be made to the Deputy Principal Clerk by letter.

(2) An application under paragraph (1) shall be marked as having been made on the date on which the letter is received by the court.

(3) The letter shall be placed before the insolvency judge forthwith for consideration.

(4) The court shall approve such a resolution by pronouncing an interlocutor to that effect.

Petition for bank insolvency

74.35

(1) An application for a bank insolvency order under section 95 of the Act of 2009 shall be made by petition.

(2) A petition under paragraph (1) shall include averments in relation to–

(a) the name and address of the person to be appointed as the bank liquidator, and his qualification to act;

(b) the current name and any other trading names of the bank;

(c) the address of the bank’s registered office, and any previous such address within six months immediately before the presentation of the petition so far as known to the petitioner;

(d) a home address for each director of the bank;

(e) a statement of the amount of the bank’s 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 bank so far as known to the petitioner;

(f) whether, to the knowledge of the petitioner, a bank administrator has been appointed in respect of the bank or a supervisor has been appointed in respect of the bank under a voluntary arrangement under Part 1 of the Act of 1986; and

(g) the grounds on which the petition proceeds.

Intimation, service and advertisement under this Part

74.36

(1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of a petition referred to in rule 74.35 shall include–

(a) a requirement to serve two copies of the petition–

(i) on the bank and each director of the bank;

(ii) on the Bank of England, if it is not the petitioner;

(iii) on the Financial Conduct Authority, if it is not the petitioner;

(iiia) the Prudential Regulation Authority, if it is not the petitioner;

(iv) on the Secretary of State, if he is not the petitioner;

(v) on the proposed bank liquidator;

(vi) on the Financial Services Compensation Scheme;

(vii) on any person who has given notice to the Financial Conduct Authority or the Prudential Regulation Authority in respect of the bank under section 120 of the Act of 2009;

(viii) if there is in force for the bank a voluntary arrangement under Part 1 of the Act of 1986, the supervisor of that arrangement; and

(ix) where a bank administrator has been appointed in relation to the bank, on that bank administrator;

(b) a requirement 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; and

(2) In fixing the time and date for the hearing of the petition mentioned in paragraph (1)(c), the court shall ensure that the date and time is as soon as reasonably practicable, having regard to the need to give the directors of the bank a reasonable opportunity to attend.

(3) Unless the court otherwise directs, where the petition is served under paragraph (1), one copy of the petition shall be sent electronically as soon as practicable to each of the persons named in the order and the other copy shall be served on those persons in accordance with Chapter 16 of these Rules.

(4) Any answers to the petition must be lodged 24 hours before the date fixed by the court under this rule and a copy of the answers must be served on the petitioner before that date.

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

(a) the identity of the petitioner;

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

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

(e) a statement that any person who intends to appear in the petition must lodge answers no later than 24 hours prior to the date set down for a hearing in terms of paragraph (1)(c).

Provisional bank liquidator

74.37

(1) An application to appoint a provisional bank liquidator under section 135 of the Act of 1986, as that provision is applied and modified by section 103 of the Act of 2009, 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 any other person entitled to make an application under section 95 of the Act of 2009, by note.

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

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

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

(3) Where the court decides to appoint a provisional bank 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 bank; and

(b) the applicant shall forthwith send a certified copy of such interlocutor to the person appointed and to such other persons as are specified under rule 12 of the Bank Insolvency Rules (order of appointment of provisional bank liquidator).

(4) On receiving a certified copy of an interlocutor pronounced under paragraph (3), the provisional bank liquidator shall intimate his appointment forthwith–

(a) once in the Edinburgh Gazette; and

(b) once in one or more such newspapers as the court has directed.

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

Applications and appeals in relation to a statement of affairs

74.38

(1) An application under section 131(5) of the Act of 1986, as applied and modified by section 103 of the Act of 2009, for–

(a) release from an obligation imposed under section 131(1) or (2) of the Act of 1986, as so applied and modified; 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 bank liquidator or provisional bank 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 bank liquidator or provisional bank liquidator lodges a report under paragraph (2), he shall forthwith send a copy of it to the noter.

(4) Where the bank liquidator or provisional bank 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) Where a certified copy of the interlocutor is sent to the bank liquidator or provisional bank liquidator in accordance with paragraph (4), the noter shall forthwith provide notice of that fact to the court.

(6) An appeal under rule 4.9(6) of the Insolvency Rules (appeal against refusal by liquidator of allowance towards expenses of preparing statement of affairs), as applied by rule 19 of the Bank Insolvency Rules, shall be made by note.

Appeals against adjudication of claims

74.39

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

Removal of bank liquidator

74.40

An application for an order under section 108 of the Act of 2009 (removal of bank liquidator by the court) shall be made by note.

Application in relation to remuneration of bank liquidator

74.41

(1) An application–

(a) by a bank liquidator under rule 4.34 of the Insolvency Rules (application to increase remuneration), as that rule is applied by rule 47 of the Bank Insolvency Rules; or

(b) by a creditor of the bank under rule 4.35 of the Insolvency Rules (application to reduce liquidator’s remuneration), as that rule is applied by rule 48 of the Bank Insolvency Rules,

shall be made by note.

Applications under section 176A of the Act of 1986

74.42

(1) An application by a bank liquidator or bank administrator under section 176A of the Act of 1986 (share of assets for unsecured creditors), as applied and modified by section 103 of the Act of 2009, shall be made by note in the existing bank liquidation or bank administration process.

(2) The Deputy Principal Clerk shall–

(a) after the lodging of any 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 noter.

(3) The 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.

Applications to appoint a special manager

74.43

(1) An application under section 177 of the Act of 1986 (application for the appointment of a special manager), as applied and modified by section 103 of the Act of 2009, shall be made by note.

(2) A bond of caution certified by the noter under rule 4.70(4) of the Insolvency Rules, as that rule is applied by rule 82 of the Bank Insolvency Rules, shall 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

74.44

(1) An application under the Act of 1986 as applied by the Act of 2009, under the Act of 2009 or under any subordinate legislation made under those Acts, in relation to a bank insolvency 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.

Petition for bank administration

74.45

(1) An application by the Bank of England for a bank administration order under section 142 of the Act of 2009 shall be made by petition.

(2) A petition under paragraph (1) shall include averments on the following matters–

(a) the name and address of the person to be appointed as the bank administrator, and his qualification to act;

(b) confirmation that the conditions for applying for a bank administration order, set out in section 143 of the Act of 2009, are met in respect of the bank;

(c) the bank’s current financial position to the best of the Bank of England’s knowledge and belief, including actual, contingent and prospective assets and liabilities;

(d) any security which the Bank of England knows or believes to be held by the creditors of the bank;

(e) whether any security confers power to appoint an administrator under paragraph 14 of Schedule B1 to the Act of 1986 (holder of qualifying floating charge) or a receiver of the whole (or substantially the whole) of the bank’s property, and whether such an administrator or receiver has been appointed;

(f) any insolvency proceedings which have been instituted in respect of the bank, including any process notified to the Financial Conduct Authority or the Prudential Regulation Authority under section 120 of the Act of 2009;

(g) details of any property transfer instrument which the Bank of England has made or intends to make under section 11(2)(b) or 12(2) of the Act of 2009 in respect of the bank;

(h) where the property transfer instrument has not yet been made, an explanation of what effect it is likely to have on the bank’s financial position;

(i) how the making of a bank administration order will achieve the objectives specified in section 137 of the Act of 2009;

(j) how functions are to be apportioned where more than one person is to be appointed as bank administrator and, in particular, whether functions are to be exercisable jointly or individually; and

(k) other matters which the Bank of England considers will assist the court in deciding whether to grant a bank administration order.

Hearing of petition

74.46

(1) Where a petition is lodged under rule 74.45, the court shall fix a time and date for the hearing of the petition and in doing so shall ensure that the date and time is as soon as is reasonably practicable, having regard to the need to give the directors of the bank a reasonable opportunity to attend.

(2) At the hearing of a petition, each of the following may appear or be represented–

(a) the Bank of England;

(b) the Financial Conduct Authority;

(ba) the Prudential Regulation Authority;

(d) any director of the bank;

(e) any person nominated for appointment as bank administrator of the bank;

(f) any person who holds a qualifying floating charge for the purposes of paragraph 14 of Schedule B1 to the Act of 1986; and

(g) with the permission of the court, any other person who appears to have an interest.

Provisional bank administrator

74.47

(1) An application to appoint a provisional bank administrator under section 135 of the Act of 1986, as that provision is applied and modified by section 145 of the Act of 2009, may be made by the Bank of England in the prayer of the petition or, if made after the petition has been presented, by note.

(2) The application mentioned in paragraph (1) shall include averments on the following matters–

(a) the grounds for appointment of the provisional bank administrator;

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

(d) the Bank of England’s estimate of the value of the assets in respect of which the provisional bank administrator is entitled to be appointed.

(3) An order appointing any provisional bank administrator shall specify the functions to be carried out in relation to the bank’s affairs and how those functions are to be apportioned where more than one person is to be appointed as provisional bank administrator and, in particular, shall specify whether functions are to be exercisable jointly or individually.

(4) Where the court decides to appoint a provisional bank administrator–

(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 bank; and

(b) it shall forthwith send a certified copy of the interlocutor to the person appointed ....

(5) On receiving a certified copy of an interlocutor pronounced under paragraph (4)(a), the provisional bank administrator shall intimate his appointment forthwith–

(a) once in the Edinburgh Gazette; and

(b) once in one or more such newspapers as the court has directed.

(6) An application for the discharge of a provisional bank administrator shall be made by note.

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

74.48

(1) Paragraph (2) shall apply where a report under paragraphs 53(2) or 54(6) of Schedule B1 to the Act of 1986 (report at conclusion of creditors' meeting), as those provisions are applied and modified by section 145 of the Act of 2009, discloses a failure to approve, or to approve a revision of, a bank 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, as that provision is applied and modified by section 145 of the Act of 2009.

Time and date of lodging in a bank administration

74.49

(1) The time and date of lodging of a notice or document relating to a bank administration under–

(a) the Act of 2009;

(b) the Act of 1986, as applied by the Act of 2009;

(d) the Insolvency Rules, as applied by the Bank Administration Rules,

shall be noted by the Deputy Principal Clerk upon the notice or document.

(2) Subject to any provision of the Bank Administration Rules, or the Insolvency Rules as applied by the Bank Administration Rules–

(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 have been 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 but is not lodged on that day, the date of lodging shall be the first business day after such delivery.

Applications during a bank administration

74.50

An application or appeal under any provision of the Act of 1986 as applied by the Act of 2009, the Insolvency Rules as applied by the Bank Administration Rules, the Act of 2009 or the Bank Administration Rules, during a bank administration 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 a bank administration has been lodged, by note in the process of that petition.

Application of rules to building society special administration

74.51

(1) Subject to paragraph (3), Part VIII of this Chapter applies to an application mentioned in paragraph (2) as it applies to an application for a bank administration order.

(2) An application referred to in paragraph (1) is an application for a building society special administration order under the Act of 2009, as that Act is applied and modified by section 90C of the Building Societies Act 1986 and the Building Societies (Insolvency and Special Administration) Order 2009.

(3) In the application of Part VIII of this Chapter under paragraph (1)–

(a) references to the Bank Administration Rules shall be read as references to the Building Society Special Administration (Scotland) Rules 2009;

(b) references to a rule in the Bank Administration Rules shall be read as references to the corresponding rule in the Building Society Special Administration (Scotland) Rules 2009;

(c) references to the Act of 2009 shall be read as references to the Act of 2009, as applied and modified by sections 84 and 90C of the Building Societies Act 1986 and the Building Societies (Insolvency and Special Administration) Order 2009; and references to specific provisions in the Act of 2009 shall be read accordingly;

(d) references to “bank” shall be read as references to “building society”;

(e) references to “bank administration” shall be read as references to “building society special administration”;

(f) references to “bank administration order” shall be read as references to “building society special administration order”;

(g) references to “bank administrator” shall be read as references to “building society special administrator”;

(h) in rule 74.45(2)(e) (averments on power to appoint administrator or receiver), the words “an administrator under paragraph 14 of Schedule B1 to the Act of 1986 (holder of qualifying floating charge) or” and “an administrator or” shall be omitted;

(i) in rule 74.45(2)(f) (averments on insolvency proceedings), for “section 120 of the Act of 2009” substitute “section 90D of the Building Societies Act 1986”; and

(j) in rule 74.46(2) (representation at hearing of petition), subparagraph (f) shall be omitted.

(4) The following rules shall, with the necessary modifications, apply in relation to building society special administration procedure as they apply in relation to bank administration procedure:–

rule 74.1 (application and interpretation of Chapter 74),

rule 74.2 (proceedings before insolvency judge),

rule 74.3 (notices and reports etc. sent to the court),

rule 74.9 (form of applications).

Form of Service of copy decree

16.16

The copy final decree served under section 73C(2) of the Debtors (Scotland) Act 1987 shall be in Form 16.16.

CHAPTER 67 — APPLICATIONS UNDER THE ADOPTION AND CHILDREN (SCOTLAND) ACT 2007

Application and interpretation

Disapplication of certain rules to this Chapter

Confidentiality of documents in process

Selection of reporting officer or curator ad litem

Orders for evidence

Intimation to Principal Reporter

Expenses

Application for adoption order

Additional requirements where child to be adopted abroad

Protection of identity of petitioner

Appointment of curator ad litem and reporting officer

Duties of reporting officer and curator ad litem

Consents

Intimation and hearing of adoption petition

Order for intimation

Procedure where child wishes to express a view

Hearing on By Order Roll

Pre-proof hearing

Communication to the Registrar General

Adoption orders

Final procedure

Amendment of adoption order

Applications under sections 20 to 24 of the 2007 Act

Interpretation

Application for a Convention adoption order

Application of Part 2 to this Part

Annulment etc. of overseas adoptions

Application for permanence order

Appointment of curator ad litem and reporting officer

Intimation of application

Hearing on the By Order Roll

Pre-proof hearing

Final procedure

Variation of ancillary provisions in order

Amendment of order to grant authority for child to be adopted

Revocation

Protection of address of child

Duties of reporting officer and curator ad litem

Consents

Procedure where child wishes to express a view

Procedure where leave of court required

Intimation to Principal Reporter

67.42

Where an application under this Part is made in respect of a child whose case has been referred to a children’s hearing or who is subject to a supervision requirement under the 1995 Act, the Deputy Principal Clerk shall intimate the fact that the application has been made to the Principal Reporter.

Report of children’s hearing

67.43

(1) On receipt of a report from a children’s hearing under section95(2) of the 2007 Act the Deputy Principal Clerk shall—

(a) lodge the report in the process of the application; and

(b) send a copy of the report together with a notice in Form67.43-A to—

(i) the parties to the application;

(ii) any relevant person in relation to the child within the meaning given by section 93(2) of the 1995 Act; and

(iii) such other person as the court considers appropriate.

(2) Any person who receives notice under paragraph(1)(b) and who wishes to oppose the proposals of the children’s hearing must lodge a form of response in Form 67.43-B within 7days of the date notice was given.

(3) Thereafter the court shall consider the report and any form of response lodged under paragraph (2) and decide whether to refer the child’s case to the Principal Reporter as mentioned in section 96(3) of the 2007 Act.

(4) Where the court decides to refer the child’s case to the Principal Reporter as mentioned in section 96(3) of the 2007 Act, the court shall pronounce an order to this effect which shall narrate in terms that the court is referring the child’s case to the Principal Reporter as mentioned in that provision.

(5) Where the court decides not to refer the child’s case to the Principal Reporter, it may nevertheless make such other order it considers appropriate for the expeditious progress of the case.

(6) In order to assist it to decide what to do under paragraph (3), the court may order the holding of a hearing.

(7) If the court so decides, it shall fix a date for the hearing which shall be not more than 7 days after the date of the order.

(8) The Deputy Principal Clerk of Session shall intimate any hearing under paragraph(6) to—

(a) the parties to the application;

(b) any person who lodged a form of response under paragraph (2);

(d) such other person as the court considers appropriate.

(9) The court may allow a continuation of a hearing under paragraph (6) on two occasions only, each for a period not exceeding 14days.

(10) After the court has made its decision under paragraph (3), the Deputy Principal Clerk of Session shall send a notice in Form 67.43-C to the Principal Reporter.

Interim orders

67.44

(1) An application for an interim order under section 97 of the 2007 Act is to be made by motion.

Reference of devolution issue to Supreme Court

Sist of cause on reference to Supreme Court

Appeals to the Supreme Court

Interpretation of this Chapter

Making of motions

23.1A

(1) A motion by a party may be—

(a) made orally at the bar with leave of the court during any hearing of a cause; or

(b) enrolled in the cause in accordance with the relevant rules.

(2) In paragraph(1)(b), the “relevant rules” are—

(a) where paragraph(3) applies, Parts2 and 4 of this Chapter;

(b) where paragraph(3) does not apply, Parts3 and 4 of this Chapter.

(3) This paragraph applies—

(a) where the cause was initiated by summons, is proceeding in the Outer House and is not a commercial action; and

(b) each party has provided to the Deputy Principal Clerk an email address for the purpose of transacting motion business.

(4) Subject to paragraph(5), an agent representing a party in a cause of the sort mentioned in paragraph(3)(a) must provide to the Deputy Principal Clerk an email address for the purpose of transacting motion business.

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

(a) sent to the Deputy Principal Clerk; and

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

(6) The Deputy Principal Clerk must maintain a list of the email addresses provided to him for the purpose of transacting motion business, which must be published in up-to-date form on the website of the Scottish Court Service.

(7) The Deputy Principal Clerk must also include on the list maintained under paragraph(6) an email address of the court for the purpose of enrolling motions.

(8) In this rule, “transacting motion business” means—

(a) intimating and enrolling motions;

(b) receiving intimation of motions;

(d) receiving intimation of or opposition to motions.

Interpretation of this Part

23.1B

(1) In this Part—

“court day” means a day on which the Office of Court is open;

“court day1” means the court day on which a motion is treated as being intimated under rule23.1C;

“court day3” means the second court day after court day1;

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

“enrolling party” means the party enrolling the motion; and

“receiving party” means a party receiving intimation of the motion from the enrolling party.

(2) In this Part, a reference to a party’s address is a reference to the email address listed for that party’s agent or, as the case may be, that party, in the list maintained under rule23.1A(6); and a reference to the court’s email address is a reference to the email address included on that list by virtue of rule23.1A(7).

Intimation of motions by email

23.1C

(1) Subject to paragraph(2) and any other provision in these Rules, an enrolling party in a cause where—

(a) appearance has been entered by a defender under rule17.1(1),

(b) defences, a minute or answers have been lodged by a party, or

shall give intimation of his intention to make such enrolment, and of the terms of the motion, to every such party by sending an email in Form23.1C to the addresses of every such party.

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

(a) having entered appearance, fails to lodge defences within the period for lodging those defences;

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

(3) Subject to rule23.1J, a motion intimated under this rule shall be intimated not later than 5p.m. on a court day.

Opposition to motions by email

23.1D

(1) A receiving party shall intimate any opposition to a motion intimated under rule23.1C by sending an email in Form23.1D to the address of the enrolling party.

(2) Subject to paragraph(3) and rule23.1J, any opposition to a motion under this rule shall be intimated to the enrolling party not later than 5p.m. on court day3.

(3) Late opposition to a motion under this rule should be sent to the email address of the court and may only be allowed with the leave of the court, on cause shown.

23.1E

Where a receiving party seeks to consent to a motion intimated under rule23.1C, the receiving party may intimate such consent by sending an email confirming the consent to the address of the enrolling party.

Enrolling unopposed motions by email

23.1F

(1) This rule applies where a motion has been intimated under rule23.1C and no opposition has been intimated under rule23.1D.

(2) The motion shall be enrolled by the enrolling party not later than 12.30p.m. on court day4 by sending an email in Form23.1C headed “Unopposed Motion” to the email address of the court.

(3) Subject to paragraph (4), a motion enrolled under paragraph(2) shall be determined by the court by 5p.m. on court day4.

(4) Where for any reason it is not possible for a motion enrolled under paragraph(2) to be determined by 5p.m. on court day4, the clerk of session shall advise the parties or their agents of that fact and shall give reasons.

(5) A motion enrolled under paragraph(2) shall appear in the rolls.

Enrolling opposed motions by email

23.1G

(1) This rule applies where opposition to a motion has been intimated under rule23.1D.

(2) The motion shall be enrolled by the enrolling party not later than 12.30p.m. on court day4 by sending an email in Form23.1C headed “Opposed Motion”, together with an attached Form23.1D to the email address of the court.

(3) Where a motion is enrolled under paragraph(2) the motion shall be heard on the first sitting day after court day4, or, if this is not possible, at another date and time convenient to the court and, where possible, to parties.

(4) Where a motion is opposed under this Part, the entry in the rolls in respect of that motion shall be starred.

Issuing of interlocutor by email

23.1H

Where the court pronounces an interlocutor in respect of a motion intimated and enrolled under this Part, the clerk of session shall forthwith email a copy of the interlocutor to the addresses of the enrolling party and every receiving party.

Other periods of intimation etc. under these Rules

23.1J

(1) Where these Rules otherwise provide for a period of intimation of—

(a) a motion;

(b) opposition to a motion; or

that period shall apply, notwithstanding the intimation period referred to in this Part.

(2) Paragraph(1) applies whether or not the intimation period mentioned elsewhere in these Rules is referred to by a specific number of days.

(3) Where—

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

(b) the court shortens the period of intimation,

the enrolling party, when intimating a motion by email under rule23.1C, may indicate that the period within which opposition to the motion is to be intimated by a receiving party is shortened accordingly; and rule23.1D(2) shall be read accordingly.

(4) Where paragraph(3) applies, notwithstanding the time periods referred to in rule23.1F(2), (3) and (4) and rule23.1G(2) and (3), the motion may be enrolled by the enrolling party, or heard or otherwise determined by the court at an earlier time and date than that which is specified in those rules.

(5) Subject to paragraphs(1) and (2), where a motion is intimated under this Part after the lapse of one year from the date of the last interlocutor in the cause—

(a) in the application of rule23.1D, the reference to court day3 shall be read as a reference to the fourteenth court day after court day1; and

(b) in the application of rules 23.1F and 23.1G, references to court day4 shall be read as references to the fifteenth court day after court day1.

Enrolment of motions

Intimation of motions

Opposition to motions

Hearing of motions

Motions in session outwith a term or in vacation

Motions by pursuer before calling or petitioner before first order

Motions where caveat lodged

Motions by defender or other person before calling

Statutory applications by motion

Expenses of motions

Conditions attached to granting of motions

Appearance by solicitor for certain motions

Starred motions

23.15

Where appearance for the party who enrolled the motion is required for a motion, the entry in the rolls in respect of that motion shall be starred.

Registration under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention

Appeals under the Act of 1982, the Council Regulation or the Lugano Convention

Reclaiming under the Act of 1982, the Council Regulation or the Lugano Convention

Dismissal of a claim due to delay

Inner House interlocutors relating to procedural business

4.16A

(1) This rule applies to interlocutors pronounced in the Inner House in relation to procedural business dealt with by a procedural judge within the meaning of rule37A.1 (quorum of Inner House for certain business) and rule 37A.2 (procedural judges in the Inner House).

(2) An interlocutor may be written by the clerk of court and shall be adjusted and signed by the procedural judge who determined the matter dealt with in the interlocutor.

(3) An interlocutor may be signed during session or in vacation.

(4) An extract of an interlocutor which is not signed in accordance with the provisions of this rule shall be void and of no effect.

(5) An interlocutor may, on cause shown, be corrected or altered at any time before extract by—

(a) the judge who signed it; or

(b) in the event of the death, disability or absence of that judge, any other procedural judge.

CHAPTER 37A — PROCEDURAL BUSINESS IN THE INNER HOUSE

Quorum of Inner House for certain business

37A.1

(1) In relation to such procedural business of the Inner House as is specified in paragraph (2), the quorum of a Division of the Inner House shall be one judge.

(2) The procedural business mentioned in paragraph (1) is such business as arises under—

(a) a reclaiming motion, up to and including the procedural steps mentioned in rule 38.16(2);

(b) an application for a new trial under section29 of the Act of 1988 or to enter a jury verdict under section31 of the Act of 1988 up to and including the procedural steps mentioned in rule39.7(2) or, as the case may be, rule39.9; and

(c) an appeal from an inferior court within the meaning of rule40.1(2)(c), up to and including the procedural steps mentioned in rule 40.14(2).

(d) an appeal to the court under Chapter 41 (appeals under statute)—

(i) in the case of an appeal under Part II of that Chapter (appeals by stated case etc.), up to and including the procedural steps mentioned in rule 41.21(2);

(ii) in the case of an appeal under Part III of that Chapter (appeals in Form 41.25), up to and including the procedural steps mentioned in rule 41.32(2).

Procedural judges in the Inner House

37A.2

(1) All judges of the Inner House, except the Lord President and the Lord Justice Clerk, are procedural judges before whom proceedings in the Inner House shall be brought in accordance with Chapters 38 to 41.

(2) In this rule and in Chapters 38 to 41, “procedural judge” means a judge as referred to in paragraph (1).

(3) A Division of the Inner House comprising three or more judges may deal with a matter which would otherwise be dealt with by a procedural judge in accordance with those Chapters where the Division considers that to be appropriate; and references in those Chapters to a procedural judge shall be construed accordingly.

CHAPTER 38 — RECLAIMING

Introduction

Reclaiming days

Leave to reclaim etc. in certain cases

Applications for leave to reclaim

Method of reclaiming

Effect of reclaiming

Effect of extracted interlocutor

Appeals treated as reclaiming motions

Reclaiming against decree by default

Reclaiming out of time

Urgent disposal of reclaiming motion

Objections to the competency of reclaiming

Timetable in reclaiming motion

Sist or variation of timetable in reclaiming motion

Failure to comply with timetable in reclaiming motion

Procedural hearing in reclaiming motion

Amendment of pleadings in reclaiming motion

Grounds of appeal in reclaiming motion

Lodging of appendices in reclaiming motion

Notes of evidence not extended when agreed

Single Bills

CHAPTER 39 — APPLICATIONS FOR NEW TRIAL OR TO ENTER JURY VERDICTS

Applications for new trial

Applications out of time

Objections to the competency of application

Timetable in application for a new trial

Sist or variation of timetable in application for a new trial

Failure to comply with timetable in application for a new trial

Procedural hearing in application for a new trial

39.7

(1) At the procedural hearing fixed under rules 39.4(1)(b), 39.5(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

(a) appoint the application to the Summar Roll for a hearing and allocate a date and time for that hearing;

(b) appoint the application to the Single Bills for a hearing and allocate a date and time for that hearing; or

Lodging of appendix

39.8

Rule 38.19 (lodging of appendices in reclaiming motion) shall, with the necessary modifications, apply to an application for a new trial under section 29(1) of the Act of 1988 or section 69(1) of the Act of 2014 as it applies to a reclaiming motion.

Applications to enter jury verdict

39.9

(1) An application under section 31(1) of the Act of 1988 (verdict may be returned subject to opinion of Inner House on point reserved) shall be made by motion to a procedural judge.

(2) On enrolling a motion under paragraph (1), the party enrolling it shall lodge in process four copies of the closed record incorporating—

(a) all interlocutors pronounced in the cause and any amendments to the record allowed;

(b) the issues and counter-issues;

(d) the verdict of the jury,

and send one copy of it to every other party.

(3) Unless the procedural judge otherwise directs, it shall not be necessary for the purposes of such a motion to print the notes of evidence, but the notes of the judge presiding at the trial may be produced at any time if required.

(4) In the case of complexity or difficulty, the procedural judge may appoint an application referred to in paragraph (1) to the Summar Roll for hearing.

Single Bills

39.10

At any hearing of an application for a new trial in the Single Bills, the Inner House may determine the application or make such other order as it thinks fit.

CHAPTER 40 — APPEALS FROM INFERIOR COURTS

Application and interpretation of this Chapter

Applications for leave to appeal from inferior court

Determination of applications for leave to appeal from inferior court

Time and method of appeal

Leave to appeal out of time

Transmission of appeal process

Procedure following transmission of appeal process

Sist of process of appeal

Urgent disposal of appeal

Objections to the competency of appeals

Timetable in appeal from inferior court

Sist or variation of timetable in appeal from inferior court

Failure to comply with timetable in appeal from inferior court

Procedural hearing in appeal from inferior court

Appeals deemed abandoned

Reponing against deemed abandonment

Amendment of pleadings in appeals

Grounds of appeal

Lodging of appendices in appeals

Notes of evidence not extended when agreed in appeals

Referral to family mediation in appeals from the sheriff court

Use of Gaelic

40.22

(1) This rule applies where an inferior court has authorised the use of Gaelic by a party.

(2) If the party wishes to address the Inner House in Gaelic at any hearing fixed under rule 40.14(2), he may—

(a) at any time up to and including the procedural hearing fixed under rules 40.11(1)(b), 40.12(4)(b) or (5)(a), apply by motion to the procedural judge for authority to do so; or

(b) at any time after the procedural hearing fixed under rules 40.11(1)(b), 40.12(4)(b) or (5)(a) and before final disposal of the appeal, apply by motion for authority to do so.

(3) Where proof has been ordered by the Inner House, if the party wishes to give oral evidence in Gaelic, he may apply by motion for authority to do so.

(4) Where the court has granted authority under paragraphs (2) or (3), an interpreter shall be provided by the court.

Single Bills

40.23

At any hearing of an appeal from a decision pronounced by an inferior court in the Single Bills, the Inner House may determine the motion or make such other order as it thinks fit.

CHAPTER 97 — APPLICATIONS FOR PARENTAL ORDERS UNDER THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 2008

Application and interpretation

97.1

(1) This Chapter applies to applications for parental orders under section 54 or 54A of the Human Fertilisation and Embryology Act 2008.

(2) In this Chapter, unless the context otherwise requires—

“the 2007 Act” means the Adoption and Children (Scotland) Act 2007;

“the 2008 Act” means the Human Fertilisation and Embryology Act 2008;

“Her Majesty’s Forces” means the regular forces as defined in section374 of the Armed Forces Act 2006;

“parental order” means an order under section54 or 54A of the 2008 Act;

“Registrar General” means the Registrar General of Births, Deaths and Marriages for Scotland; and

“the Regulations” means the Human Fertilisation and Embryology (Parental Orders) Regulations 2010.

Disapplication of certain rules

97.2

Unless otherwise provided in this Chapter, the following rules do not apply to a petition or note:—

rule14.5 (first order in petitions);rule14.6(1)(d) (period of notice for lodging answers where service by advertisement);rule14.7 (intimation and service of petitions);rule14.8 (procedure where answers lodged);rule14.9 (unopposed petitions).

Application for a parental order

97.3

(1) An application for a parental order is to be made by petition in Form97.3.

(2) The following documents must be lodged in process along with the petition—

(a) an extract or a certified copy of any entry in the Register of Births relating to the child who is the subject of the application;

(b) extracts or certified copies of any entries in the Register of Births relating to the birth of each of the petitioners;

(c) in the case of an application under section54(2)(a) of the 2008 Act, an extract or a certified copy of the entry in the Register of Marriages relating to the marriage of the petitioners;

(d) in the case of an application under section54(2)(b) of the 2008 Act, an extract or a certified copy of the entry in the Register of Civil Partnerships relating to the civil partnership of the petitioners; and

(e) any other document founded on by the petitioners in support of the terms of the petition.

Confidentiality of documents in process

97.4

(1) Unless the court otherwise directs, all documents lodged in process (including the reports by the curator ad litem and reporting officer)—

(a) are to be available only to the court, the curator ad litem, the reporting officer and the parties; and

(b) must be treated as confidential by any persons involved in, or a party to, the proceedings and by the clerk of court.

(2) The curator ad litem and reporting officer—

(a) must treat all information obtained in the exercise of their duties as confidential; and

(b) must not disclose any such information to any person unless disclosure of such information is necessary for the purpose of their duties.

Orders for evidence

97.5

(1) The court may, before determining the cause, order—

(a) production of further documents (including affidavits); or

(b) parole evidence.

(2) A party may apply by motion for the evidence of a person to be received in evidence by affidavit; and the court may make such order as it thinks fit.

Expenses

97.6

The court may make such order as to expenses, including the expenses of a reporting officer, a curator ad litem, or any other person who attended a hearing, as it thinks fit.

Protection of identity of petitioners

97.7

(1) Where persons who propose to apply for a parental order wish to prevent their identities being disclosed to any person whose agreement to the parental order is required, they may, before presenting the petition, apply by letter to the Deputy Principal Clerk for a serial number to be assigned to them for all purposes connected with the petition.

(2) On receipt of an application under paragraph(1), the Deputy Principal Clerk must—

(a) assign a serial number to the applicants; and

(b) enter a note of the number opposite the names of the applicants in a register of serial numbers.

(3) The contents of the register of serial numbers and the names of the persons to whom each number relates must be treated as confidential by the Deputy Principal Clerk and disclosed only to the court.

(4) Where a serial number has been assigned under paragraph(2)(a), any form of agreement to a parental order under section 54(6) or 54A(5) of the 2008 Act—

(a) must refer to the petitioners by means of the serial number assigned to them;

(b) must not contain the names and designation of the petitioners; and

Appointment of curator ad litem and reporting officer

97.8

(1) The court must, on the presentation of a petition under rule97.3, appoint a curator ad litem and reporting officer.

(2) The same person may be appointed as curator ad litem and reporting officer in the same petition, if the court considers that doing so is appropriate in the circumstances.

(3) Where the court appoints a reporting officer and a curator ad litem, and there is an established panel of persons from whom the appointment may be made, the reporting officer and curator ad item must be selected from that panel unless the court considers that it would be appropriate to appoint a person who is not on the panel.

(4) A person may, before presenting the petition, apply by letter to the Deputy Principal Clerk for the appointment of a reporting officer.

(5) An application under paragraph (4) does not require to be intimated to any person, but must—

(a) set out the reasons for which the appointment is sought;

(b) be accompanied by an interlocutor sheet; and

(6) The Deputy Principal Clerk must intimate the appointment of a curator ad litem and reporting officer under paragraph(1) or (4) to the petitioners and to the person or persons appointed.

(7) The decision of the Lord Ordinary on an application under paragraph(4) is final and not subject to review.

(8) The letter and the interlocutor sheet in an application under paragraph(4) must be kept in the Petition Department and subsequently placed in the process of the petition.

Duties of a reporting officer and curator ad litem

97.9

(1) The other duties of a reporting officer appointed under rule 97.8 prescribed for the purposes of section108(1)(b) of the 2007 Act as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3 to the Regulations (rules: appointment of curators ad litem and reporting officers) are—

(a) to ascertain the whereabouts of all persons whose agreement to the making of a parental order in respect of the child is required;

(b) to ascertain whether there is any person other than those mentioned in the petition upon whom notice of the petition should be served;

(c) in the case of each person who is not a petitioner and whose agreement to the making of a parental order is required under section54(6) or 54A(5) of the 2008 Act—

(i) to ascertain whether that person understands the effect of the parental order;

(ii) to ascertain whether alternatives to a parental order have been discussed with that person;

(iii) to confirm that that person understands that he or she may withdraw his or her agreement at any time before an order is made;

(iv) to ascertain whether that person suffers or appears to suffer from a mental disorder within the meaning of section328 of the Mental Health (Care and Treatment) (Scotland) Act 2003;

(d) to ascertain whether the conditions in subsections(2) to (8) of section54 (8A) of section 54 or subsections (2) to (8) of section 54A of the 2008 Act have been satisfied;

(e) to draw to the attention of the court any matter which may be of assistance; and

(f) to report in writing on the matters mentioned in subparagraphs(a) to (e) to the court within 4 weeks from the date of the interlocutor appointing the reporting officer, or within such other period as the court may allow.

(2) A curator ad litem appointed under rule97.8(1) must—

(a) have regard to safeguarding the interests of the child as his or her paramount duty;

(b) enquire, so far as he or she considers necessary, into the facts and circumstances averred in the petition;

(c) establish that the petitioners understand the nature and effect of a parental order and in particular that the making of the order will render them responsible for the maintenance and upbringing of the child;

(d) ascertain whether any money or other benefit which is prohibited by section 54(8) or 54A(7) of the 2008 Act (prohibition on gift or receipt of money or other benefit) has been received or agreed upon;

(e) ascertain whether it may be in the interests of the welfare of the child that the court should make the parental order subject to particular terms and conditions or require the petitioners to make special provision for the child and, if so, what provision;

(f) ascertain whether it would be better for the child that the court should make the order than it should not make the order;

(g) ascertain whether the proposed parental order is likely to safeguard and promote the welfare of the child throughout the child’s life; and

(h) ascertain from the child whether he or she wishes to express a view and, where a child indicates his or her wish to express a view, ascertain that view.

(3) Subject to paragraph(4), the curator ad litem must report in writing on the matters mentioned in paragraph(2) to the court within 4 weeks from the date of the interlocutor appointing the curator, or within such other period as the court in its discretion may allow.

(4) Subject to any order made by the court under rule97.11(1), the views of the child ascertained in terms of paragraph(2)(h) may, if the curator ad litem considers appropriate, be conveyed to the court orally.

(5) The reporting officer must, on completion of his or her report in terms of paragraph(1), in addition send to the Deputy Principal Clerk—

(a) a copy of his or her report for each party; and

(b) any agreement for the purposes of section54(6) or 54A(5) of the 2008 Act.

(6) The curator ad litem must, on completion of his or her report in terms of paragraph(3), in addition send a copy of it for each party to the Deputy Principal Clerk.

Agreement

97.10

(1) The agreement of a person required by section54(6) or 54A(5) of the 2008 Act is to be in Form97.10.

(2) The form of agreement mentioned in paragraph(1) must be witnessed—

(a) where it is executed in Scotland, by the reporting officer appointed under rule 97.8;

(b) where it is executed outwith Scotland but within the United Kingdom, by a justice of the peace or commissioner for oaths; or

(i) if the person who executes the form is serving in Her Majesty’s Forces, by an officer holding a commission in those forces; or

(ii) in any other case, by a British diplomatic or consular official or any person authorised to administer an oath or affirmation under the law of the place where the agreement is executed.

Procedure where child wishes to express a view

97.11

(1) Where a child to whom section54(11) or 54A(11) of the 2008 Act applies indicates his or her wish to express a view, the court, without prejudice to rule97.9(2)(h)—

(a) may order such procedural steps to be taken as the court considers appropriate to ascertain the views of that child; and

(b) must not make a parental order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where the views of the child, whether under this rule or under rule97.9(2)(h) have been recorded in writing, the court may direct that such a written record is to—

(a) be sealed in an envelope marked “Views of the child – confidential”;

(b) be available to the court only;

(d) not form a borrowable part of process.

Hearing

97.12

(1) On receipt of the reports referred to in rule97.9, the Deputy Principal Clerk shall—

(a) cause the reports and any other documents to be lodged in process;

(b) give written intimation to each party of the lodging of those documents and make them available to each party; and

(i) the petition to be put out on the By Order Roll before the Lord Ordinary; and

(ii) written intimation of the date of the hearing on the By Order Roll to be given to each party.

(2) At the hearing on the By Order Roll, the court—

(a) must pronounce an interlocutor appointing the petition to a hearing to determine the petition; and

(b) may, in such interlocutor—

(i) order any person whose agreement is required to attend such hearing;

(ii) order intimation of the date of the hearing to any person not mentioned in paragraph3(a), (b) or (c); and

(iii) order the reporting officer or curator ad litem to perform additional duties to assist the court in determining the petition.

(3) The petitioners or, where a serial number has been assigned under rule97.7(1) the Deputy Principal Clerk, must intimate a copy of the petition along with a notice of intimation in Form97.12 to—

(a) every person whose whereabouts are known to them and whose agreement is required;

(b) the reporting officer appointed under rule 97.8;

(d) any person on whom intimation has been ordered under paragraph(2)(b)(ii).

(4) At the hearing ordered under paragraph(2)(a)—

(a) the petitioners, the reporting officer and the curator ad litem must, if required by the court, appear and may be represented;

(b) any person required by the court to attend the hearing must appear and may be represented; and

Applications under sections 22 and 24 of the 2007 Act

97.13

An application under section22(3) (restrictions on removal: application for parental order pending), section24(1) (return of child removed in breach of certain provisions) or section24(2) (order directing person not to remove child) of the 2007 Act all as modified and applied in relation to applications for parental orders by regulation 4 of, and Schedule 3 to, the Regulations, is to be made by note in the process of the petition for a parental order to which it relates.

Amendment of parental order

97.14

(1) An application under paragraph7 of Schedule1 to the 2007 Act, as modified and applied in relation to parental orders by regulation 4 of, Schedule3 to, the Regulations (amendment of orders and rectification of registers), is to be made by petition.

(2) The court may order the petitioners to intimate the petition to such persons as it considers appropriate.

(3) Subject to paragraph(4), rule97.2 does not apply to an application mentioned in paragraph(1).

(4) An application mentioned in paragraph(1) shall not be intimated on the walls of the court or advertised.

Communication to the Registrar General

97.15

The communication to the Registrar General of a parental order required to be made by the clerk of court under paragraph4(1) of Schedule 1 to the 2007 Act, as modified and applied in relation to parental orders by regulation4 of, and Schedule 3 to, the Regulations (registration of parental orders), is to be made by sending a certified copy of the order to the Registrar General in a sealed envelope marked “Confidential”.

Extract of order

97.16

An extract of a parental order must not be issued except by order of the court on an application to it—

(a) where there is a petition for the parental order depending before the court, by motion in that process; or

(b) where there is no such petition depending before the court, by petition.

Final procedure

97.17

(1) Immediately after the communication is made under rule97.15 or immediately upon an extract of the order being issued under rule97.16 the clerk of court or the Extractor, as the case may be, must—

(a) place the whole process in an envelope bearing only—

(i) the name of the petitioners;

(ii) the full name of the child to whom the process relates; and

(iii) the date of the order; and

(b) seal the envelope and mark it “confidential”.

(2) The envelope referred to in paragraph(1) is not to be unsealed by the clerk of court or any other person having control of the records of the court, and the process is not to be made accessible to any person for one hundred years after the date for the granting of the order, except—

(a) to the person who is the subject of the parental order after he or she has reached the age of 16years;

(b) to a person on an application made by petition presented by him or her to the court setting forth the reason for which access to the process is required.

CHAPTER 98 — CORONERS AND JUSTICE ACT 2009

Applications

98.1

(1) An application under section166(5) of the Coroners and Justice Act 2009 for the court to determine that an exploitation proceeds order is to cease to have effect or to reduce the recoverable amount by such amount (if any) as it considers just and reasonable shall be made by motion.

Interpretation and application of 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.