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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

Department King's Printer of Acts of Parliament

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

Service of petition

41.49

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

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

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

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

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

Determining the petition

41.50

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

rule 41.12 (preparation and issue of the case),

rule 41.14 (lodging of case in court).

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

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

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

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

(4) For rule 41.14 substitute—

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

Service of the order

41.51

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

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

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

Expenses

41.52

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

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

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

(b) on the motion of a party.

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

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

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

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

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

(e) an appeal from the Land Court;

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

(fa) an appeal from the Sheriff Appeal Court;

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

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

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

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

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

Application and interpretation of this chapter

Form of summons

Service and calling of summons

Inspection and recovery of documents

Motions to dispense with timetable

Allocation of diets and timetables

Hearings on the By Order roll

Applications for sist or for variation of timetable order

Statements of valuation of claim

Pre-trial meetings

Applications for interim payments of damages

Adjustment on final decree

Applications for further damages

Actions by connected persons

Warrants for intimation in actions by connected persons

Applications to dispense with intimation in actions by connected persons

Subsequent disclosure of connected persons

Connected persons entering the process

Failure by connected person to enter process

Form of petition in administration procedure

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

Time and date of lodging in an administration

Applications during an administration

Applications under section 176A of the Act of 1986

74.30A

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

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

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

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

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

(b) the financial position of the company;

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

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

(2) The Deputy Principal Clerk shall–

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

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

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

Application to appoint a special manager

Other applications

Authority for service and intimation on signeting

Authority for diligence etc. before calling

13.6A

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

(a) arrestment to found jurisdiction; or

(b) diligence by—

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

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

(iii) arrestment in rem; or

(iv) dismantling a ship,

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

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

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

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

Service and intimation of summonses

Authority for intimation after signeting

Authority for diligence etc. after calling

13.8A

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

(a) arrestment to found jurisdiction; or

(b) diligence by—

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

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

(iii) arrestment in rem; or

(iv) dismantling a ship.

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

Effect of authority for inhibition on the dependence

Recall etc. of arrestment or inhibition

Movement of arrested property

Intimation of actions relating to heritable property

Calling

Protestation for not calling summons

Authority for diligence etc. on counterclaims

Authority for diligence etc. on third party notices

Service under the Council Regulation

16.2A

(1) In this rule—

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

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

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

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

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

Service by messenger-at-arms

Service by post

Service where address of person is not known

Translations of documents served or advertised abroad

Intimation of documents

Intimation on a warrant to intimate

Written intimation

Acceptance of service or intimation and dispensing with period of notice

No objection to regularity of service or intimation

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

Transfers to the Competition Appeal Tribunal

32A.1

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

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

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

(a) give written intimation of the transmission to—

(i) the other parties;

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

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

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

Receipt of transfers from the Competition Appeal Tribunal

32A.2

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

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

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

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

32A.3

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

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

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

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

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

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

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

32A.4

(1) Where—

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

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

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

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

Insistence in transfer by another party

32A.5

Where—

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

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

Re-transmission to Registrar of the Competition Appeal Tribunal

32A.6

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

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

(b) add his signature and the date; and

Directions

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

Registration under the Act of 1982 or the Lugano Convention

Appeals under the Act of 1982 or the Council Regulation

Reclaiming under the Act of 1982 or the Lugano Convention

Annulment etc. of overseas adoptions

Directions as to the status conferred by adoption

Notes of argument

Competency of appeals

41.3A

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

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

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

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

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

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

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

Disapplication of certain rules to this Part

41.46A

(1) The following rules shall not apply to a petition to which this Part applies:–

14.4 (form of petitions),

14.5 (first order in petitions),

14.6 (period of notice for lodging answers),

14.7 (intimation and service of petitions),

14.8 (procedure where answers lodged),

14.9 (unopposed petitions).

Application for review

Time limit for application

Intimation of petition etc.

Determining the petition

Service of the order

Expenses

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

41.53

The decision of the Lord Ordinary on an appeal heard in the Outer House by virtue of rule 41.52 (appeals to be heard in Outer House) may be reclaimed against.

Reclaiming against decision of the Lord Ordinary

41.54

In this Part, “an ACAS Scheme” means an arbitration scheme set out in an order under section 212A(7) of the Trade Union and Labour Relations (Consolidation) Act 1992.

Definitions

41.55

(1) A reference on a preliminary point under an ACAS Scheme shall be made to a procedural judge in Form 41.55 and shall—

(a) state in numbered paragraphs the facts and circumstances out of which the reference arises; and

(b) set out the question for answer by the court.

(2) On a reference under paragraph (1) being lodged, the court shall, without a motion being enrolled for that purpose, pronounce an interlocutor for—

(a) service of the reference on such persons as appears necessary; and

(b) any person on whom the reference has been served, to lodge answers, if so advised, within such period as is specified by the court.

(3) Within 14 days after the expiry of the period allowed for the lodging of answers, the person making the reference shall apply by motion for such further procedure as that person seeks, and the court shall make such order for further procedure as it thinks fit.

References under an ACAS Scheme

41.56

(1) Subject to paragraph (2), Part III (appeals in Form 41.25) shall apply to appeals under an ACAS Scheme.

(2) An appeal under an ACAS Scheme shall be made within the time limits specified in that scheme.

Reclaiming against decision of the Lord Ordinary

41.57

(1) This rule applies where an application is made to the court under section 13(4) of the Tribunals, Courts and Enforcement Act 2007 for permission to appeal a decision of the Upper Tribunal which falls within section 13(7) of that Act and for which the relevant appellate court is the Court of Session.

(2) Permission shall not be granted on the application unless the court considers that—

(a) the proposed appeal would raise some important point of principle ...; or

(b) there is some other compelling reason for the court to hear the appeal.

Appeals

41.58

(1) This Part applies to applications under—

(a) Section 63A of the Marine (Scotland) Act 2010;

(b) Section 73A of the Marine and Coastal Access Act 2009;

(d) Paragraph 5B of Schedule8 to the Electricity Act 1989.

(2) The following provisions of Part I (general provisions) shall not apply to an application mentioned in paragraph (1)—

(a) rule 41.2 (applications for leave to appeal);

(b) rule 41.3 (determination of applications for leave to appeal);

(3) Part III (appeals in Form 41.25) shall apply to an application mentioned in paragraph(1), subject to the following provisions of this Part.

(4) The following provision of Part III (appeals in Form 41.25) shall not apply to an application mentioned in paragraph (1)—

(a) rule 41.25 (form of appeal);

(b) rule 41.26 (lodging of application in court);

(d) rule 41.28(1) (motion for further procedure).

Applications

Documents for Accountant of Court

Procedure for fixing and finding caution

Time for finding caution

Administrator’s title to act

Accounts

Application for discharge of administrator

Appeals against determination of outlays and remuneration

Applications

Disclosure orders

Co-operation

Interpretation of this part

76.27

(1) In this Part–

(a) “the Act of 2002” means the Proceeds of Crime Act 2002;

(b) “the Overseas Forfeiture Order of 2005” means the Criminal Justice (International Co-operation) Act 1990 (Enforcement of Overseas Forfeiture Orders) Order 2005;

(ca) “the POCA Order of 2013” means the Proceeds of Crime Act 2002 (External Investigations) Order 2013;

(d) “external order” has the meaning given in section 447(2) of the Act of 2002;

(da) “interim freezing order” has the meaning given in section 396J(3) of the Act of 2002;

(db) “unexplained wealth order” has the meaning given in section396A(3) of the Act of 2002;

(e) references to an administrator are to an administrator appointed under section 125(1) or 128(3) of the Act of 2002, article 10(1) or 18(2) of the Overseas Forfeiture Order of 2005 or article 63(1) or 73(2) of the POCA Order of 2005.

(2) This Part applies to applications under–

(a) Parts 3 and 5 of the Act of 2002;

(b) Part 8 of the Act of 2002 in relation to property that is the subject of a civil recovery investigation or an interim freezing order or an unexplained wealth order;

(c) the Overseas Forfeiture Order of 2005 except article 13 (application to give effect to external forfeiture orders) and article 16 (registration of external orders);

(d) Parts 3 , 4B and 5 of the POCA Order of 2005 except article 66 (application to give effect to external orders) and article 69 (registration of external orders).

(e) articles 46A (unexplained wealth orders) to 46R (compensation) of the POCA Order of 2013.

Applications

76.28

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

(a) section 121(1) of the Act of 2002 (restraint orders);

(b) section 125(1) of the Act of 2002 (management administrators);

(d) article 6(1) of the Overseas Forfeiture Order of 2005 (restraint orders);

(e) article 10(1) of the Overseas Forfeiture Order of 2005 (management administrators);

(f) article 18(2) of the Overseas Forfeiture Order of 2005 (enforcement administrators);

(g) article 59(1) of the POCA Order of 2005 (restraint orders);

(h) article 63(1) of the POCA Order of 2005 (management administrators); ...

(i) article 73(2) of the POCA Order of 2005 (enforcement administrators).

(j) paragraph 4 of schedule 1 of the 2014 Regulations (sending overseas restraint orders to the court); and

(k) paragraph9 of schedule 1 to the 2014 Regulations (sending overseas confiscation orders to the court).

(2) An application under the following provisions shall be made by note in process:–

(a) section 121(5) of the Act of 2002 (recall and variation of restraint orders);

(b) section 134(2) of the Act of 2002 (protection of persons affected);

(d) article 6(4) of the Overseas Forfeiture Order of 2005 (recall or variation of restraint orders);

(e) article 22(2) of the Overseas Forfeiture Order of 2005 (protection of persons affected);

(f) article 59(4) (recall or variation of restraint orders) of the POCA Order of 2005;

(g) article 81(2) (protection of persons affected) of the POCA Order of 2005...

(h) paragraph2 of schedule 1 of the 2014 Regulations (domestic restraint orders: certification);

(3) An application under the following provisions shall be made by motion:–

(a) section 123(1) and (7) of the Act of 2002 (inhibition of property affected by restraint order);

(b) section 124(1) and (6) of the Act of 2002 (arrestment of property affected by restraint order);

(d) article 8(1) and (7) of the Overseas Forfeiture Order of 2005 (inhibition of property affected by restraint order);

(e) article 9(1) and (6) of the Overseas Forfeiture Order of 2005 (arrestment of property affected by restraint order);

(f) article 23(1) of the Overseas Forfeiture Order of 2005 (recall and variation of order appointing administrator);

(g) article 61(1) and (7) of the POCA Order of 2005 (inhibition of property affected by restraint order);

(h) article 62(1) and (6) of the POCA Order of 2005 (arrestment of property affected by restraint order; and

(i) article 82(1) of the POCA Order of 2005 (recall and variation of order appointing administrator).

(j) paragraph 6(4) of schedule 1 of the 2014 Regulations (application to cancel registration of overseas restraint order or to vary the property to which it applies); and

(k) paragraph11(4) of schedule1 to the 2014 Regulations (application to cancel registration of overseas confiscation order or to vary the property to which it applies).

(4) Before granting an application under the following provisions, the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit:–

(a) section 121(1) of the Act of 2002 (restraint orders);

(b) section 123(1) of the Act of 2002 (inhibition of property affected by restraint order);

(d) article 6(1) of the Overseas Forfeiture Order in Council of 2005 (restraint orders);

(e) article 8(1) of the Overseas Forfeiture Order of 2005 (inhibition of property affected by restraint order);

(f) article 9(1) of the Overseas Forfeiture Order of 2005 (arrestment of property affected by restraint order);

(g) article 59(1) of the POCA Order of 2005 (restraint orders);

(h) article 61(1) of the POCA Order of 2005 (inhibition of property affected by restraint order); and

(i) article 62(1) of the POCA Order of 2005 (arrestment of property affected by restraint order).

Documents for Accountant of Court

76.29

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

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

Procedure for fixing and finding caution

76.30

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

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

Time for finding caution

76.31

(1) Where the time within which caution is to be found is not stipulated in the interlocutor appointing the administrator, the time allowed for finding caution shall be, subject to paragraph (2) of this rule, limited to one calendar month from the date of the interlocutor.

(2) The court may, on application made before the expiry of the period for finding caution, and, on cause shown, allow further time for finding caution.

Administrator’s title to act

76.32

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

Accounts

76.33

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

(a) within six months after the date of his appointment; and

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

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

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

Application for discharge of administrator

76.34

An application to the court for the discharge of an administrator shall be made by minute in the process of the application in which the administrator was appointed.

Appeals against determination of outlays and remuneration

76.35

(1) An appeal under–

(a) paragraph 9(1) of Schedule 3 to the Act of 2002 (appeal against a determination by the Accountant of Court);

(b) paragraph 9(1) of Schedule 1 to the Overseas Forfeiture Order of 2005 (appeal against a determination by the Accountant of Court); or

shall be made by note in the process in which the administrator was appointed.

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

Applications

76.36

(1) An application for a recovery order under section 244(1) of the Act of 2002 (proceedings for recovery orders in Scotland) or article 144(1) of the POCA Order of 2005 (proceedings for a recovery order pursuant to the registration of an external order) shall be made by petition.

(2) There shall be produced with a petition in respect of an application under article 144 of the POCA Order of 2005 a copy of the external order which is sought to be registered.

(3) Where the court grants an application under article 144 of the POCA Order of 2005 the Deputy Principal Clerk shall enter the external order in the register of orders under the POCA Order of 2005.

(4) An application for a prohibitory property order under section 255A(1) of the Act of 2002 or article 161(1) of the POCA Order of 2005 or for an interim administration order under section 256(1) of the Act of 2002 or article 67(1) of the POCA Order of 2005 or a prohibition order under article141ZD(1) of the POCA Order of 2005 shall be made–

(a) if the application is made before the enforcement authority has commenced proceedings for a recovery order, by petition; or

(b) if it is made after the enforcement authority has commenced such proceedings, by note in process.

(5) An application under the following provisions shall be made by note in process:–

(a) section 260(1) of the Act of 2002 (supervision of interim administrator);

(b) section 283(1) of the Act of 2002 (compensation);

(d) article 194(1) of the POCA Order of 2005 (compensation).

(e) section 255G of the Proceeds of Crime Act 2002 (receivers in connection with prohibitory property orders) if the application is made after the application for a prohibitory property order.

(f) article 141ZHA of the POCA Order of 2005 (receivers in connection with prohibition orders) if the application is made after the application for a prohibition order under article 141ZC of that Order;

(g) article 166A of the POCA Order of 2005 (receivers in connection with prohibitory property orders) if the application is made after the application for a prohibitory property order under article 161 of that Order.

(6) An application under the following provisions shall be made by motion:–

(a) section 255E(1) and (6) of the Act of 2002 (arrestment of property affected by prohibitory property order);

(b) section 255F(1) and (6) of the Act of 2002 (inhibition of property affected by prohibitory property order);

(d) article141ZJ(2) or section 265(1) and (7) of the Act of 2002 (arrestment of property affected by interim administration order);

(e) article 165(1) and (6) of the POCA Order of 2005 (arrestment of property affected by prohibitory property order);

(f) article 166(1) and (6) of the POCA Order of 2005 (inhibition of property affected by prohibitory property order);

(g) article 169(1) and (7) of the POCA Order of 2005 (inhibition of property affected by interim administration order); and

(h) article 176(1) and (7) of the POCA Order of 2005 (arrestment of property affected by interim administration order).

(i) article141ZD(2) of the POCA Order of 2005 (variation and recall of prohibition order);

(j) article141ZH(1) and (6)(a) of the POCA Order of 2005 (inhibition of property affected by prohibition order);

(k) article141ZI(1) and (6) of the POCA Order of 2005 (arrestment of property affected by prohibition order).

(7) An application under the following provisions shall be made by motion by any party having an interest:–

(a) sections 255B(1) and 260(3) of the Act of 2002 (variation and recall of order);

(b) articles 162(1) and 171(3) of the POCA Order of 2005 (variation and recall of order).

(d) article 141ZHC of the POCA Order of 2005 (supervision of receiver and variations);

(e) article 166C of the POCA Order of 2005 (supervision of PPO receiver and variations).

(8) At the hearing of a motion under paragraph (7) 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 the court thinks fit.

(9) Before granting an application under the following provisions, the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit:–

(a) section 255E(1) and (6) of the Act of 2002;

(b) section 255F(1) and (6) of the Act of 2002;

(d) section 265 (1) and (7) of the Act of 2002;

(da) section 396I of the Act of 2002;

(e) article 165(1) and (6) of the POCA Order of 2005;

(f) article 166(1) and (6) of the POCA Order of 2005;

(g) article 169(1) and (7) of the POCA Order of 2005; and

(h) article 176(1) and (7) of the POCA Order of 2005.

(i) article141ZH(1) and (6)(a) of the POCA Order of 2005;

(j) article 141ZI(1) and (6) of the POCA Order of 2005.

Disclosure orders

76.37

(1) An application under section391(1) of the Act of 2002 or article50 of the Proceeds of Crime Act 2002 (External Investigations) Order 2013 (disclosure orders) shall be by petition.

(2) Before the court grants an application referred to in paragraph (1), the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit.

(3) An application under section396(4) of the Act of 2002 or article55(2) of the Proceeds of Crime Act 2002 (External Investigations) Order 2013 (supplementary) shall be by motion.

(4) Rule4.11 (documents not to be borrowed) shall not apply to an application under section391 of the Act of 2002.

(5) When an application is made under section391 of the Act of 2002—

(a) the process shall be marked “Restricted Access”;

(b) only the petitioner may borrow or inspect documents lodged in process.

(6) The restrictions referred to in paragraph(5) shall apply for a period of 5years from the date of the application.

(7) The petitioner may apply to the court by motion for extension of that 5year period.

(8) Any person affected by a disclosure order may apply to the court by motion to have the restrictions mentioned in paragraph(5) varied.

(9) A motion under paragraph(7) or (8) shall be granted only on cause shown.

Co-operation

76.38

(1) In this rule “the Order of 2002” means The Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002.

(2) An application for registration under paragraph 11 of the Order of 2002 shall be by petition.

(3) Before the court grants an application referred to in paragraph (2), the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit

(4) Where the Court makes an order under paragraph 11 of the Order of 2002, the Deputy Principal Clerk of Session shall–

(a) register the order; and

(b) send a copy of the order to any person affected by it.

(5) An order referred to in the foregoing paragraph shall be final and shall not be subject to review.

CHAPTER 86 — APPLICATIONS UNDER SECTION 28, 28A, 62, 62A, 63, 65G OR 65H OF THE COMPETITION ACT 1998

Application and interpretation of this Chapter

86.1

(1) This Chapter applies to applications for warrants under section 28, 28A, 62, 62A, 63, 65G or 65H of the Competition Act 1998.

(2) In this Chapter, “the Act of 1998” means the Competition Act 1998.

(3) Words and expressions used in this Chapter and in the Act of 1998 shall have the meanings given in the Act of 1998.

Disapplication of certain rules to this Chapter

86.2

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

rule 4.3 (lodging of processes),

rule 4.4 (steps of process),

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),

rule 4.12 (borrowing and returning documents),

rule 14.4 (form of petitions),

rule 14.5 (first order in petitions),

rule 14.6 (period of notice for lodging answers),

rule 14.7 (intimation and service of petitions),

rule 14.8 (procedure where answers lodged),

rule 14.9 (unopposed petitions).

Applications for warrants

86.3

(1) An application for a warrant under section 28, 28A, 62, 62A, 63, 65G or 65H of the Act of 1998 shall be made by petition in Form 86.3.

(2) The petition shall state–

(a) the address or other identification of the premises which are intended to be the subject of the warrant;

(b) the name of the occupier of those premises;

(d) the subject matter of the investigation to which the application relates;

(e) a statement of the grounds for the application; and

(f) a prayer indicating the warrant sought.

(3) There shall be lodged with the petition–

(a) a draft warrant;

(b) a signed witness statement in support of the application;

(c) the written authorisation of the OFT containing the name of the officer who it is intended will be the named officer;

(d) in the case of an application under section 62, 62A or 63 of the Act of 1998, the written authorisations of the European Commission containing the names of any of its officials and other persons authorised by it for any of the purposes set out in section 62(10), 62A(12) or 63(10) of the Act of 1998 as applicable who it is intended will accompany the named officer in executing the warrant; and

(e) the written authorisation of the OFT containing the names of any other person who it is intended will accompany the named officer in executing the warrant.

(4) On lodging the petition, the petitioner shall provide the Deputy Principal Clerk with the draft warrant in electronic form compatible with the software used by the court.

(5) The petition and any documents lodged, sent or retained under these Rules in connection with the petition shall be treated as confidential and open only to the court unless the Lord Ordinary otherwise directs.

Hearing of petition

86.4

(1) On the lodging of the petition, the Keeper of the Rolls shall appoint the petition to a hearing to determine the petition.

(2) The petition shall be heard and determined in private unless the Lord Ordinary otherwise directs.

Form of warrants

86.5

(1) A warrant issued under section 28, 28A, 62, 62A, 63, 65G or 65H of the Act of 1998 shall indicate–

(a) the address or other identification of the premises subject to the warrant;

(b) the names of the named officer and any other persons authorised by the warrant to accompany the named officer in executing the warrant;

(d) that the warrant continues in force until the end of the period of one month beginning with the day on which it is issued.

(2) Subject to paragraph (3), a warrant issued under section 28, 28A, 62, 62A, 63, 65G or 65H of the Act of 1998 may be borrowed by the petitioner.

(3) The petitioner shall give a receipt for any warrant borrowed under paragraph (2) and shall return the warrant to the Deputy Principal Clerk by the end of the period of one month referred to in paragraph (1)(d).

(4) Where a warrant is borrowed under paragraph (2), a certified copy of a warrant issued under section 28, 28A, 62, 62A, 63, 65G or 65H of the Act of 1998 shall be retained by the Deputy Principal Clerk.

Service of copy petition and interlocutor

86.6

Within 7 days after the date of first execution of a warrant which has been issued by the court under section 28, 28A, 62, 62A, 63, 65G or 65H of the Act of 1998, the petitioner shall serve on the occupier of the premises which are the subject of the warrant and such other persons as may be specified by the court in the interlocutor granting the prayer of the petition–

(a) a copy of the petition; and

(b) a certified copy of the interlocutor granting the prayer of the petition.

Applications for requests that evidence be taken under the Council Regulation

35.16

(1) In this rule–

“the Council Regulation” means the Council Regulation (EC) No. 1206/2001 of 28 May 2001 on co-operation between the courts of the Member States in the taking of evidence in civil or commercial matters;

“Member State” has the same meaning as in Article 1(3) of the Council Regulation;

“request” means a request to which Article 1(1)(a) of the Council Regulation applies; and

“requested court” has the same meaning as in Article 2(1) of the Council Regulation.

(2) This rule applies to an application under the Council Regulation for a request to a requested court in a Member State other than the United Kingdom for the purposes of a cause depending before the Court of Session.

(3) An application to which paragraph (2) applies shall be made by minute in Form 35.16–A with a proposed request in form A (request for the taking of evidence) or form I (request for direct taking of evidence) set out in the Annex to the Council Regulation.

(4) It shall be a condition of granting an application for a request that the agent for the applicant, or a party litigant, as the case may be, shall be personally liable, in the first instance, for any reimbursement required by the requested court in respect of any fees paid to experts and interpreters and the costs occasioned by the use of any requested special procedure in executing the request for evidence, or the use of requested communications technology at the performance of the taking of evidence; and that he shall consign into court any such sum as is required by the requested court as deposit or advance towards the costs of executing the request.

(5) Unless the requested court is in a country or territory–

(a) where English is an official language, or

(b) in relation to which the Deputy Principal Clerk certifies that no translation is required,

then the applicant shall, before the issue of the request, lodge in process a translation of the request and any interrogatories and cross-interrogatories into the official language of that country or territory.

(6) Where an application under this rule has been granted, the request shall be forwarded by the Deputy Principal Clerk to–

(a) the requested court; or

(b) the central body or competent authority designated by the other Member State to be responsible for taking decisions on requests to take evidence directly.

(7) The Deputy Principal Clerk shall, as soon as reasonably practicable after receipt of any communication from the requested court, send written intimation of that communication to the parties.

(8) If a request is made to take the evidence of a witness directly in another Member State, the Deputy Principal Clerk shall intimate to the witness who is to give evidence, a notice in Form 35.16–B and the witness shall return Form 35.16–C to the Deputy Principal Clerk, within 14 days after the date of intimation of the notice.

Declaration regarding an approved debt payment programme

72.2A

The petitioner shall lodge with the petition a declaration or declarations by the petitioner and any concurring creditors in Form 72.2A confirming that the debtor has not entered into an approved debt payment programme or that the debts founded on in the petition are in respect of credit as defined in regulation 35(1)(b) of the 2004 Regulations.

Notice of concurrent proceedings

Applications for transfer or remit of sequestration

Holding of sederunt book by Accountant in Bankruptcy

Prescribed forms

CHAPTER 87 — CAUSES RELATING TO ARTICLES 101 AND 102 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

Intimation of actions to the Office of Fair Trading

87.1

(1) In this rule–

“The Treaty” means the Treaty on the Functioning of the European Union, as referred to in section 1(2)(s) of the European Communities Act 1972;

“the OFT” means the Office of Fair Trading.

(2) In an action where an issue under Article 101 or 102 of the Treaty is raised:–

(a) by the pursuer or petitioner in the summons or petition;

(b) by the defender or respondent in the defences or answers; or

intimation of the action shall be given to the OFT by the party raising the issue, by a notice of intimation in Form 87.1.

(3) Where the issue under Article 101 or 102 of the Treaty is raised in the summons or petition, a warrant for intimation shall be inserted in the summons or petition in the following terms: ‘Warrant to intimate to the Office of Fair Trading’.

(4) Where the issue under Article 101 or 102 of the Treaty is raised in defences, answers or in any other part of the pleadings, the party raising the issue shall apply by motion for an order for intimation to the OFT.

(5) A certified copy of an interlocutor granting a motion under paragraph (4) shall be sufficient authority for the party to intimate by notice in Form 87.1.

(6) The notice of intimation shall be served on the OFT within such period as the court shall specify in the interlocutor allowing intimation.

(7) There shall be attached to the notice of intimation–

(a) a copy of the pleadings (including any adjustments and amendments);

(b) a copy of the interlocutor allowing intimation of the notice; and

Application and interpretation of this Part

62.67

(1) This Part applies to the registration and enforcement of a judgment under the Council Regulation.

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

“the Council Regulation” means Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility;

“judgment” includes an authentic instrument or enforceable agreement; and

“Member State” has the same meaning as in Article 2(3) of the Council Regulation.

Disapplication of certain rules to this Part

62.68

The following rules shall not apply to an application under this Part:–

4.1(1) (printed form for petition),

14.4 (form of petitions),

14.5 (first order in petitions),

14.6 (period of notice for lodging answers),

14.7 (intimation and service of petitions),

14.9 (unopposed petitions).

Enforcement of judgments from another Member State

62.69

(1) An application under Article 28 of the Council Regulation (enforceable judgments) shall be made by petition in Form 62.69.

(2) There shall be produced with the petition—

(a) an authentic copy of the judgment to be registered;

(b) a certificate under Article 39 of the Council Regulation (standard forms of certificate);

(i) the original or a certified copy of the document which establishes that the party against whom judgment was given in absence was served with the document initiating proceedings or with an equivalent; or

(ii) a document indicating that the party against whom the judgment was given in absence has accepted the judgment unequivocally;

(d) where applicable, a document showing that the applicant is in receipt of legal aid in the country in which the judgment was given;

(e) an affidavit stating–

(i) an address within the jurisdiction of the court for service on or intimation to the petitioner;

(ii) the name and address of the petitioner and his interest in the judgment;

(iii) the name and date of birth of each child in respect of whom the judgment was made, the present whereabouts or suspected whereabouts of that child and the name of any person with whom he is alleged to be;

(iv) the name and address of any other person with an interest in the judgment;

(v) whether the judgment is already registered and, if so, where it is registered;

(vi) details of any order known to the petitioner which affects a child in respect of whom the judgment was made and fulfils the conditions necessary for its recognition in Scotland.

(3) Where the petitioner does not produce a document required by paragraph (2)(b) to (e), the court may –

(a) fix a period within which that document is to be lodged;

(b) accept an equivalent document; or

Warrant for registration under the Council Regulation

62.70

(1) The court shall, on being satisfied that the petition complies with the requirements of the Council Regulation, pronounce an interlocutor–

(a) granting warrant for the registration of the judgment; and

(b) where necessary, granting decree in accordance with Scots law.

(2) The interlocutor pronounced under paragraph (1) shall specify–

(a) the period within which an appeal mentioned in rule 62.74 (appeals under the Council Regulation) against the interlocutor may be made; and

(b) that the petitioner–

(i) may register the judgment under rule 62.72 (registration under the Council Regulation); and

(ii) may not proceed to execution until the expiry of the period for lodging such appeal or its disposal.

Intimation to the petitioner

62.71

Where the court pronounces an interlocutor under rule 62.70(1) the Deputy Principal Clerk shall intimate such interlocutor to the petitioner by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service.

Registration under the Council Regulation

62.72

(1) Where the court pronounces an interlocutor under rule 62.70(1) granting warrant for registration, the Deputy Principal Clerk shall enter the judgment in the register of judgments, authentic instruments and court settlements kept in the Petition Department.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor under rule 62.70(1) granting warrant for registration,

(b) an authentic copy of the judgment and any translation of it, and

(c) any certificate of currency conversion under rule 62.2(1)(b) for any order concerning costs and expenses of proceedings under the Council Regulation;

they shall be registered in the register of judgments of the Books of Council and Session.

(3) On registration under paragraph (2), the Keeper of the Registers of Scotland shall issue an extract of the registered document with a warrant for execution.

Service of warrant for registration under the Council Regulation

62.73

The petitioner shall serve a copy of the interlocutor under rule 62.70(1) granting warrant for registration of a judgment and notice in Form 62.73 on the person against whom enforcement is sought.

Appeals under the Council Regulation

62.74

(1) An appeal under Article 33 (appeals against the enforcement decision) of the Council Regulation shall be made by motion–

(a) to the Lord Ordinary; and

(b) where the appeal is against the granting of warrant for registration under rule 62.70(1) within one month of service under rule 62.73 (service of warrant for registration under the Council Regulation) or within two months of such service where service was executed on a person domiciled in another Member State.

(2) Where the respondent in any such appeal is domiciled furth of the United Kingdom–

(a) in relation to an appeal against the granting of warrant for registration under rule 62.70(1), intimation of the motion shall be made to the address for service of the respondent in Scotland;

(b) in relation to an appeal against a refusal to grant warrant for registration under rule 62.70(1), intimation of the motion shall be made in accordance with rule 16.2 (service furth of United Kingdom) or rule 16.5 (service where address of the person is not known), as the case may be.

Reclaiming under the Council Regulation

62.75

Any party dissatisfied with the interlocutor of the Lord Ordinary in any appeal mentioned in rule 62.74 (appeals under the Council Regulation) may reclaim on a point of law against that interlocutor.

Recognition of judgments from another Member State

62.76

(1) For the purpose of Article 21 of the Council Regulation (recognition of a judgment), an interlocutor pronounced under rule 62.70(1) (warrant for registration under the Council Regulation) shall imply recognition of the judgment so dealt with.

(2) In an application under Article 21(3) of the Council Regulation for recognition of a judgment, rules 62.67 to 62.75 shall apply to such an application as they apply to an application under Article 28 of the Council Regulation (declarator of enforceability).

(3) In an application under Article 21(3) of the Council Regulation for non-recognition of a judgment, the rules under this part shall apply to such an application as they apply to an application under Article 28 of the Council Regulation (declarator of enforceability) subject to the following provisions–

(a) where the application relies on grounds under Article 22(b) or 23(c) of the Council Regulation (judgment given in default of appearance) for the judgment not to be recognised, it shall not be necessary to produce documents required by rule 62.69(2)(c)(document establishing service or acceptance of judgment); and

(b) rule 62.69(2)(b) (certificate under Article39 of the Council Regulation) shall not apply.

Cancellation of registration under the Council Regulation

62.77

Where an interlocutor under rule 62.70(1) (warrant for registration under the Council Regulation) is recalled and registration under rule 62.72(2) (registration under the Council Regulation) is ordered to be cancelled after an appeal under Article 33 of the Council Regulation (appeal against decision on enforceability) a certificate to that effect by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment, certificate or other documents to the person who applied for registration.

Enforcement in another Member State of Court of Session judgments etc.

62.78

(1) Where a person seeks to apply under the Council Regulation for recognition or enforcement in another Member State of a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for–

(a) a certificate under Article 39 of the Council Regulation (certificates concerning judgments in matrimonial matters or on matters of parental responsibility);

(b) a certified copy of the judgment; and

(2) If the application is for a certificate concerning a judgment on parental responsibility, the Deputy Principal Clerk shall not issue a certificate under paragraph (1)(a) above unless there is produced to him an execution of service of the judgment on the person against whom it is sought to be enforced.

(3) Where a judgment granting rights of access delivered by the Court of Session acquires a cross-border character after the judgment has been delivered and a party seeks to enforce the judgment in another Member State, he shall apply by letter to the Deputy Principal Clerk for–

(a) a certificate under Article 41 of the Council Regulation (certificate concerning rights of access); and

(b) a certified copy of the judgment.

Rectification of certificates under Articles 41 and 42 of the Council Regulation

62.79

Where a party seeks rectification of a certificate issued under Article 41 or 42 of the Council Regulation (certificate concerning rights of access or return of a child) he shall apply by letter to the Deputy Principal Clerk stating the details of the certificate that are to be rectified.

Practical arrangements for the exercise of rights of access

62.80

(1) An application by a party having an enforceable judgment granting a right of access, that has been certified under Article 41 of the Council Regulation or registered for enforcement, seeking an order making practical arrangements for organising the exercise of rights of access under Article 48 of the Council Regulation, shall be made by petition.

(2) There shall be produced with the petition—

(a) an authentic copy of the judgment;

(b) any certificate under Article 41 of the Council Regulation;

(d) where applicable, a document showing that the applicant is in receipt of legal aid in the country where the judgment was given.

Application and interpretation of this Part

70.15

(1) This Part applies to petitions under rule 70.5(1) (applications for the return of a child) under the Hague Convention where the Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility applies.

(2) In this Part—

“the Council Regulation” means Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility;

“central authority” means a central authority designated under Article 53 of the Council Regulation;

“the Hague Convention” means the Convention defined in section 1(1) of the Child Abduction and Custody Act 1985 and as set out in Schedule 1 to that Act;

“Member State” has the same meaning as in Article 2(3) of the Council Regulation;

“wrongful removal or retention” has the same meaning as in Article 2(11) of the Council Regulation.

Intimation on child

70.16

(1) Subject to paragraph (2), in a petition under rule 70.5(1) (form of applications under this Part) where the Council Regulation applies, the petitioner must—

(a) include in the prayer of the petition a crave for a warrant for intimation and the seeking of the child’s views in Form 49.8A;

(b) include in the statement of facts in the petition averments setting out the reasons why it is appropriate to send Form 49.8A to the child;

(c) when presenting the petition for first orders, submit a draft Form 49.8A, showing the details that the petitioner proposes to include when the form is sent to the child.

(2) Where the petitioner considers that it would be inappropriate to send Form 49.8A to the child (for example, where the child is under 5 years of age), the petitioner must —

(a) include in the prayer of the petition a crave to dispense with intimation and the seeking of the child’s views in Form 49.8A;

(b) include in the statement of facts in the petition averments setting out the reasons why it is inappropriate to send Form 49.8A to the child.

(3) The court must be satisfied that the draft Form 49.8A submitted under paragraph(1)(c) has been drafted appropriately.

(4) The court may dispense with intimation and the seeking of views in Form 49.8A or make any other order that it considers appropriate.

(5) An order granting warrant for intimation and the seeking of the child’s views in Form49.8A under this rule must be signed by the Lord Ordinary.

(6) Where the court orders intimation and the seeking of the child’s views in Form 49.8A, the petitioner must—

(a) send Form 49.8A to the child as soon as possible;

(b) on the same day, lodge—

(i) a copy of the Form 49.8A that was sent to the child;

(ii) a certificate of intimation in Form 49.8B;

Views of child

70.17

(1) In an application under rule 70.5(1)(application for the return of a child) where the Council Regulation applies and the child has–

(a) returned Form 49.8A, or

(b) otherwise indicated to the court a wish to express views on a matter affecting him,

the court shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where a child has indicated his wish to express his views, the court shall order such steps to be taken as it considers appropriate to ascertain the views of that child.

(3) The court shall not grant an order in a petition under rule 70.5(1) (return of a child) affecting a child who has indicated his wish to express his views, unless due weight has been given by the court to the views expressed by that child, having regard to his age and maturity.

Continuations

70.18

In an application under rule 70.5(1) (application for the return of the child), where the Council Regulation applies, the court may allow a continuation of the hearing for a period not exceeding 7 days or to the first suitable court date thereafter but any further continuations shall only be allowed on special cause shown.

Recording of hearings under Article 12 of the Hague Convention

70.19

(1) Any hearing on an application for the return of a child under rule 70.5(1) and Article 12 of the Hague Convention, where the Council Regulation applies, shall be recorded by—

(a) a shorthand writer to whom the oath de fidelis 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 ... hearing shall include—

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

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

(3) A transcript of the record of the hearing shall be made only where an order is made under Article 13 of the Hague Convention refusing to order the return of a child in an application where the Council Regulation applies.

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

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

(b) where the hearing 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 hearing as appear to it to be necessary after hearing parties; and, where such alterations are made, the Lord Ordinary shall authenticate the alterations.

Order under Article 13 of the Hague Convention

70.20

Where an order is made under Article 13 of the Hague Convention refusing to order the return of a child in an application under rule 70.5(1) where the Council Regulation applies, the Deputy Principal Clerk shall transmit a copy of the order and a transcript of the proceedings to the central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

CHAPTER 88 — CIVIL MATTERS INVOLVING PARENTAL RESPONSIBILITIES UNDER THE COUNCIL REGULATION

Interpretation

88.1

In this Chapter —

“the Council Regulation” means Council Regulation (E.C.) No. 2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility;

“foreign court” means a court in a Member State other than the United Kingdom;

“parental responsibility” has the same meaning as in Article 2(7) of the Council Regulation;

“Member State” has the same meaning as in Article 2(3) of the Council Regulation;

Transfers of cases involving matters of parental responsibility

88.2

Where the court receives a request under Article 15(1) (request for transfer to court better placed to hear the case) or an application under Article 15(2)(c) (application for transfer of case involving parental responsibilities to foreign court) of the Council Regulation, the request or application, as the case may be, shall–

(a) contain a detailed statement on the particular connection the child is considered to have with either Scotland or the Member State of the foreign court;

(b) contain the full name, designation and address of all the parties to the action involving parental responsibilities, including any Scottish agent instructed to represent any of the parties;

(c) in the case of a request under Article 15(1), be accompanied by any order of the foreign court confirming that at least one of the parties has accepted the request;

(d) be accompanied by any other documents considered by the foreign court to be relevant to the action involving parental responsibilities including any papers forming part of the process in the foreign court.

Transfers where proceedings ongoing in the sheriff court

88.3

(1) Where an application under Article 15(2)(c) of the Council Regulation (application for transfer of case involving parental responsibilities to foreign court) is received and states that proceedings involving the same parties and matters involving parental responsibility are ongoing in a sheriff court, the Deputy Principal Clerk shall, within four days after the application is received, transmit the request to the sheriff clerk of the sheriff court specified in the application.

(2) When transmitting an application under paragraph (1) the Deputy Principal Clerk shall give written intimation of the transmission to–

(a) the parties; and

(b) to the foreign court.

(3) Failure by the Deputy Principal Clerk to comply with paragraph (2) shall not affect the validity of a transfer under paragraph (1).

Translations of documents

88.4

Where any document received under rule 88.2 (transfer of cases involving matters of parental responsibility) is in a language other than English, there shall be lodged with that document a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Requests to accept transfer from a court in another Member State

88.5

(1) A request to the court to accept jurisdiction of an action involving parental responsibilities under rule 88.2 (request to transfer a case) shall be lodged with a summons in Form 13.2-A.

(2) When the summons lodged under paragraph (1) is signetted the pursuer shall request the Keeper of the Rolls to allocate a hearing within 14 days of the signetting, to determine whether the court will accept jurisdiction in the action.

(3) On allocation of the date of the hearing the pursuer shall serve a copy of the summons on the defender and at the same time intimate the date and time of the hearing on the defender by serving on him a notice in Form 88.5 (form of notice of intimation of a hearing to determine jurisdiction), not less than 7 days before the date of the hearing.

(4) The pursuer shall lodge a certificate of intimation in Form 16.2 (certificate of intimation furth of United Kingdom), 16.3 (certificate of service by messenger-at-arms) or 16.4 (certificate of service by post), as appropriate, at least 2 days before the date of the hearing.

(5) Where the court orders that it will accept jurisdiction of an action after a hearing under paragraph (2) the Deputy Principal Clerk shall, within seven days, send a copy of the interlocutor to the foreign court.

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