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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

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CHAPTER 27 — DOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS

Lodging of documents founded on or adopted

27.1

(1) Any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him–

(a) when founded on or adopted in a summons, at the time of lodging the summons for calling;

(b) when founded on or adopted in a petition, note, application, minute, defences, counterclaim or answers, at the time of lodging that writ; and

(c) when founded on or adopted in an adjustment to any pleadings, at the time when such adjustment is intimated to any other party.

(2) Paragraph (1) shall be without prejudice to any power of the court to order the production of any document or to grant a commission and diligence for recovery of it.

Consequences of failure to lodge documents founded on or adopted

27.2

Where a party fails to lodge a document in accordance with rule 27.1(1), he may be found liable in the expenses of any order for the production or recovery of it obtained by any other party.

CHAPTER 28 — PROCEDURE ROLL

Hearings on procedure roll

28.1

(1) When a cause calls on the Procedure Roll and no counsel, other person having a right of audience or party attends, the Lord Ordinary may pronounce an interlocutor dismissing or refusing the cause, as the case may be, and finding no expenses due to or by any party.

(2) An interlocutor pronounced under paragraph (1) may, if reclaimed, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) The court, after hearing parties on the Procedure Roll, may dispose of all or any of the preliminary pleas and may–

(a) allow parties a preliminary proof on specified matters or in respect of specified pleas;

(b) allow parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(d) allow issues for jury trial; or

(e) make such other order as it thinks fit.

(4) Where a cause has been appointed to the Procedure Roll, parties may, of consent, apply by motion to withdraw the cause from that roll and for any order which might have been pronounced at the hearing of the cause on that roll.

CHAPTER 29 — ABANDONMENT

Abandonment of actions

29.1

(1) A pursuer may abandon an action by lodging a minute of abandonment in process and–

(a) consenting to decree of absolvitor; or

(b) seeking decree of dismissal.

(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless–

(a) full judicial expenses have been paid to the defender, and to any third party against whom the pursuer has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

(b) where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

(3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.

Application of abandonment of actions to counterclaims

29.2

Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.

Abandonment of petitions, minutes and notes

29.3

(1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be–

(a) enrolling a motion for abandonment of the cause; and

(b) intimating the motion to every person who lodged answers.

(2) The court may grant a motion under paragraph (1) subject to such conditions as to expenses or otherwise, if any, as it thinks fit.

CHAPTER 30 — WITHDRAWAL OF AGENTS

Intimation of withdrawal of agent to court

30.1

(1) This rule applies where an agent withdraws from acting on behalf of a party.

(2) The agent must intimate withdrawal by letter to the Deputy Principal Clerk and every other party.

(3) That letter must specify the last known address of the party.

(4) Where any previously fixed hearing is to take place within 14 days from the date of the withdrawal, the agent must confirm in the letter that they have taken all reasonable steps to—

(a) notify the party of the hearing date;

(b) advise the party that they must attend the hearing or arrange representation at the hearing to state whether or not they intend to proceed; and

(c) advise the party that a failure to attend or be represented at the hearing may result in the court granting decree or making another finding or order.

(5) The Deputy Principal Clerk must lodge the letter in process.

Intimation to party whose agent has withdrawn

30.2

(1) The court shall, on the motion of any other party or, where there is no other party, at its own instance , pronounce an interlocutor ordaining the party whose agent has withdrawn from acting to intimate to the Deputy Principal Clerk within 14 days (or such other period as the court, on cause shown, thinks fit) after service of the notice as required by paragraph (2) whether or not he intends to proceed, under certification that if he fails to intimate whether or not he intends to proceed, the court may grant such decree or make such order or finding as it thinks fit.

(2) The party who enrolled a motion under paragraph (1) , or the court where there is no other party, shall forthwith serve a notice in Form 30.2 ... to the party whose agent has withdrawn from acting.

Consequences of failure to intimate intention to proceed

30.3

Where a party on whom a notice ... has been served under rule 30.2(2) fails to intimate to the Deputy Principal Clerk within the period specified in the notice that he intends to proceed, the court shall, on the motion of any other party where a certificate of service of the notice has been lodged in process, grant such decree, order or finding as it thinks fit.

CHAPTER 31 — MINUTES OF SIST AND TRANSFERENCE

Minutes of sist

31.1

(1) Where a party dies or comes under legal incapacity while a cause is in dependence, any person claiming to represent that party or his estate may apply to the court by minute to be sisted as a party to the cause.

(2) Intimation of such an application shall be made to each party.

Minutes of transference

31.2

(1) Where a party dies or comes under legal incapacity while a cause is depending before the court and the provisions of rule 31.1 (minutes of sist) are not invoked, any other party may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

(1A) Where—

(a) a question of liability is the subject of proceedings before the court; and

(b) the effect of any statutory transfer while the cause is depending before the court is to transfer the liability if proved to a person other than an existing party to the cause,

any party to the proceedings may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, the person to whom the liability has been transferred.

(2) Where a minute of transference has been lodged in process, the court shall pronounce an interlocutor–

(a) granting warrant for service of a copy of the minute of transference, a copy of the pleadings (including any adjustments and amendments) and a copy of that interlocutor on such person; and

(b) allowing such person to lodge a minute of objection to the minute of transference within such period as the court thinks fit.

CHAPTER 32 — TRANSMISSION AND REMIT OF CAUSES

Remits to sheriff court

32.1

(1) An application by a party under section 93 of the Act of 2014 (remit of cases from the Court of Session) (remit from court to sheriff) shall be made by motion.

(2) Where an action is remitted to a sheriff ... , the Deputy Principal Clerk shall, within 4 days after the interlocutor remitting the cause has been pronounced, transmit the process to the sheriff clerk of the sheriff court specified in the interlocutor.

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

(a) give written intimation of the transmission to the parties; and

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

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

Transmissions on contingency

32.2

(1) An application under section 33 of the Act of 1988[^f00032] (transmission from sheriff on ground of contingency) shall be made–

(a) by motion at the instance of a party to the cause depending before the court; or

(b) by minute at the instance of any other person having an interest (including a party to the cause depending before the sheriff).

(2) A copy of the pleadings and the interlocutors in the cause depending before the sheriff, certified by the sheriff clerk, shall be lodged with any motion enrolled or any minute lodged under paragraph (1).

(3) A decision made on an application under paragraph (1) may not be reclaimed; but where an application has been refused, a subsequent application may be made where there has been a change of circumstances.

Intimation of receipt of process transmitted from sheriff court

32.3

On receipt of a process transmitted by a sheriff clerk by virtue of an order made under any enactment to remit a cause to the court, the Deputy Principal Clerk shall–

(a) write the date of receipt on the interlocutor sheet of the sheriff court process; and

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

Lodging of process and motion for further procedure

32.4

(1) Within 14 days after the date of receipt of the sheriff court process, the party who sought the remit must make up and lodge in the General Department a process incorporating the sheriff court process.

(2) Where that party has already lodged a process under rule 32.2A(b), the party must incorporate the sheriff court process in that process within the same period.

(3) When the party who sought the remit has complied with paragraph (1) or (2)—

(a) that party must apply by motion for an order for such further procedure as that party thinks fit,

(b) the cause is to proceed as if it had been an action in the court initiated by a summons.

(4) A motion under paragraph (3)(a) is to be disposed of by the Lord Ordinary.

Reponing against failure to comply with rule 32.4(1) or (2)

32.5

(1) Where the party who sought the remit fails to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), that party may apply by motion to be reponed within 7 days after the expiry of the period specified in rule 32.4(1).

(2) Paragraph (3) applies where the failure mentioned in paragraph (1) is a failure to lodge a process under rule 32.4(1), or incorporate a process in accordance with rule 32.4(2).

(3) The party enrolling a motion under paragraph (1) must, on enrolling that motion—

(a) lodge a process in accordance with rule 32.4(1), or, as the case may be, incorporate a process under rule 32.4(2);

(b) apply by motion for an order for such further procedure as that party thinks fit.

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

Insistence in remit by another party

32.6

Where the party who sought the remit has failed to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), any other party to the cause may, within 7 days after the expiry of the period specified in rule 32.4(1), comply with the requirements of those paragraphs and insist in the remit.

Re-transmission to sheriff clerk

32.7

Where, on the expiry of 21 days after the date of receipt of the process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court), no motion has been enrolled under rule 32.5(1) (reponing against failure to comply with rule 32.4) and no motion has been enrolled under rule 32.6 (insistence in remit by another party), the remit shall be deemed to be abandoned and the Deputy Principal Clerk shall–

(a) write on the interlocutor sheet the words “Re-ransmitted in respect that the remit has been abandoned.”;

(b) add his signature and the date; and

CHAPTER 33 — CAUTION AND SECURITY

Application of this Chapter

33.1

Subject to any other provisions in these Rules, this Chapter applies to–

(a) any cause in which the court has power to order a person to find caution or give other security; and

(b) security for expenses ordered to be given under section 136 of the Representation of the People Act 1983[^f00033] in an election petition.

Form of applications

33.2

(1) An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion.

(2) The grounds on which such an application is made shall be set out in the motion.

Orders to find caution or other security

33.3

Subject to section 726(2) of the Companies Act 1985[^f00034] (order on company to find caution), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

Methods of finding caution or giving security

33.4

(1) A person ordered–

(a) to find caution, shall do so by obtaining a bond of caution; or

(b) to consign a sum of money into court, shall do so by consignation under the Court of Session Consignations (Scotland) Act 1895[^f00035] in the name of the Accountant of Court.

(2) The court may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security.

(3) Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process.

(4) Where the court approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process.

(5) A bond of caution or consignation receipt lodged in process shall be accompanied by a copy of it.

Cautioners and guarantors

33.5

A bond of caution or other security shall be given only by a person authorised to carry on a regulated activity under section 31 of the Financial Services and Markets Act 2000.

Form of bonds of caution and other securities

33.6

(1) A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validly and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged.

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

Sufficiency of caution or security and objections

33.7

(1) The Deputy Principal Clerk shall satisfy himself that any bond of caution or other document, lodged in process under rule 33.4(3), is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 33.10 (failure to find caution or give security).

Juratory caution

33.8

(1) Where a pursuer in an action with a conclusion for suspension is ordered to find caution or give other security, he may offer to do so by juratory caution.

(2) Such an offer shall be made–

(a) at the time the order for caution or other security is made; or

(b) by enrolling a motion within the period allowed for finding caution or giving other security, as the case may be, or any prorogation of it, for the appointment of a commissioner.

(3) Where such an offer is made, the court shall–

(a) appoint a commissioner to take the deposition of the pursuer at a time and place to be fixed by the commissioner;

(b) ordain the pursuer to give notice of at least 7 days of the time and place so fixed by the commissioner to every other party to the action; and

(c) where the offer has been made by motion under paragraph (2)(b), prorogate the time for finding caution or giving other security, as the case may be, by such period as it thinks fit.

(4) At the time and place fixed by the commissioner in accordance with paragraph (3)(a), the pursuer shall be examined as to the nature and extent of his whole estate wheresoever situated and the other parties to the action shall be entitled to cross-examine him.

(5) After his examination, the pursuer shall send to the Deputy Principal Clerk–

(a) a bond of caution;

(b) a full inventory of his whole estate;

(c) a declaration attached to the inventory, stating that he will not dilapidate or dispose of any of his property or uplift any of the debts due to him, without the authority of the court (under pain of imprisonment or being otherwise punished as being guilty of fraud) or the consent of the party entitled to the benefit of the caution until the interlocutor disposing of the subject-matter of the action has become final and, where he has been found liable to pay any sum, including expenses, 12 weeks (and any further period that the court, on the motion of any party, may grant) have passed since the interlocutor became final;

(d) the vouchers of any debts due to the pursuer;

(e) the title deeds of any heritable property belonging to the pursuer, so far as in his possession or under his control; and

(f) where required by the party entitled to the benefit of the caution–

(i) a standard security in favour of such party over any heritable property belonging to the pursuer, and

(ii) as assignation of all debts or other rights due to the pursuer,

prepared at the expense of the pursuer.

(6) Subject to rule 33.12(1) (bond of caution or consignation receipt transmitted to Accountant of Court), the Deputy Principal Clerk shall retain any documents lodged under paragraph (5) of this rule until further order of the court.

Insolvency or death of cautioner or guarantor

33.9

Where caution has been found by bond of caution or security has been given by guarantee and the cautioner or guarantor, as the case may be–

(a) becomes apparently insolvent within the meaning assigned by section 16 of the Bankruptcy (Scotland) Act 2016 (meaning of apparent insolvency),

(b) calls a meeting of his creditors to consider the state of his affairs,

(d) is a company and–

(i) an administration order, bank administration order, building society special administration order, winding up order, bank insolvency order or building society insolvency order has been made, or a resolution for a voluntary winding up has been passed, with respect to it,

(ii) a receiver of all or any part of its undertaking has been appointed, or

(iii) a voluntary arrangement (within the meaning assigned by section 1(1) of the Insolvency Act 1986[^f00038]) has been approved under Part I of that Act,

the party entitled to benefit from the caution or guarantee may apply by motion for a new security or further security to be given.

Failure to find caution or give security

33.10

Where a party fails to find caution or give other security (such a party being in this rule referred to as “the party in default”), any other party may apply by motion–

(a) where the party in default is a pursuer, for decree of absolvitor; or

(b) where the party in default is a defender or a third party, for decree by default or for such other finding or order as the court thinks fit.

Interlocutors authorising uplifting of consignation receipts

33.11

An interlocutor authorising a party to uplift a consignation receipt from the Accountant of Court shall state the name of the person entitled to any interest which has accrued on the sum consigned.

Accountant of Court

33.12

(1) A bond of caution or a consignation receipt lodged in any process shall be transmitted by the party lodging it, after the Deputy Principal Clerk has complied with rule 33.7(1), to the Accountant of Court.

(2) A bond of caution may be uplifted from the Accountant of Court on exhibition to him of the interlocutor granting discharge.

(3) A consignation receipt may be uplifted from the Accountant of Court on exhibition to him of a certified copy of the interlocutor authorising it.

(4) The form of book to be kept by the Accountant of Court under section 4 of the Court of Session Consignations (Scotland) Act 1895 (consignations to be entered in books kept by Accountant of Court) shall be in Form 33.12.

CHAPTER 34 — REPORTS TO INNER HOUSE

Report by Lord Ordinary to Inner House

34.1

(1) The Lord Ordinary may, at any stage of a cause on intimation to the parties, report the cause or any incidental matter which arises in the course of it, to the Inner House for a ruling.

(2) The Lord Ordinary shall give effect to the ruling of a Division of the Inner House on a report to the Inner House unless the Division decides the cause or incidental matter itself or remits to the Lord Ordinary with directions to proceed in a particular way.

Fixing hearings for reports

34.2

(1) Where the Lord Ordinary reports a cause, or any incidental matter in a cause, under rule 34.1(1) to the Inner House, each party shall, within 7 days after the date on which the report of the Lord Ordinary is issued, inform the Keeper of the Rolls of the estimate of counsel or other person having a right of audience of the duration of the hearing before the Inner House.

(2) If a party fails to comply with paragraph (1), the Keeper of the Rolls may put the cause out on the By Order Roll before a Division of the Inner House.

(3) Where, at any time after an estimate has been given to the Keeper of the Rolls under paragraph (1), a party’s estimate of the likely length of the hearing alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(4) On the basis of the information provided to him under this rule, the Keeper of the Rolls shall–

(a) put the cause out for hearing before a Division of the Inner House in the Single Bills or on the Summar Roll as he thinks fit; and

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

Disposal of reports

34.3

(1) On considering the report of the Lord Ordinary and hearing parties, the Inner House may–

(a) dispose of the cause or matter reported to it; or

(b) remit to the Lord Ordinary with such directions as it thinks fit.

(2) The decision of the Inner House on a report to it under rule 34.1(1) shall be final.

(3) The Inner House may determine any question of expenses in respect of the matter reported to it or may reserve any such question.

(4) An interlocutor pronounced by the Lord Ordinary in obedience to directions given under paragraph (1) shall be deemed to be an interlocutor of the Inner House.

CHAPTER 35 — RECOVERY OF EVIDENCE

Application and interpretation of this Chapter

35.1

(1) This Chapter applies to the recovery of any evidence in a cause depending before the court.

(2) In this Chapter, “the Act of 1972” means the Administration of Justice (Scotland) Act 1972[^f00039].

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972

35.2

(1) An application by a party for–

(a) a commission and diligence for the recovery of a document, or

(b) an order under section 1 of the Act of 1972[^f00040],

shall be made by motion.

(2) At the time of enrolling a motion under paragraph (1), a specification of–

(a) the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b) the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

(3) A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a) every other party;

(b) in respect of an application for an order under section 1(1) of the Act of 1972, any third party haver; and

(i) the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

(ii) the Lord Advocate (in any other case),

and if there is any doubt, both.

(4) Where the Lord Ordinary grants a motion made under paragraph (1), in whole or in part, in an action before calling of the summons, he may order the applicant to find such caution or give such other security as he thinks fit.

(5) The decision of the Lord Ordinary on a motion under paragraph (1) in an action before calling of the summons shall be final and not subject to review.

(6) The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).

Optional procedure before executing commission and diligence

35.3

(1) Subject to rule35.3A (optional procedure where there is a party litigant), this rule applies where a party has obtained a commission and diligence for the recovery of a document on an application under rule35.2(1)(a).

(2) Such a party may, at any time before executing the commission and diligence against a haver, serve on the haver an order in Form 35.3-A (in this rule referred to as “the order”).

(3) The order and a copy of the specification referred to in rule 35.2(2), as approved by the court, shall be served on the haver or his known agent and shall be complied with by the haver in the manner and within the period specified in the order.

(4) Not later than the day after the date on which the order, and any document recovered, is received from a haver by the party who obtained the order, that party—

(a) shall give written intimation of that fact in Form 35.3-B to the Deputy Principal Clerk and every other party; and

(b) shall—

(i) if the document has been sent by post, send a written receipt for the document in Form 35.3-C to the haver; or

(ii) if the document has been delivered by hand, give a written receipt in Form 35.3-C to the person delivering the document.

(5) Where the party who has recovered any such document does not lodge it in process within 14 days of receipt of it, he shall—

(a) forthwith give written intimation to every other party that that party may borrow, inspect or copy the document within 14 days after the date of that intimation; and

(b) in so doing, identify the document.

(6) Where any party, who has obtained any such document under paragraph (5), wishes to lodge the document in process, he shall—

(a) lodge the document within 14 days after receipt of it; and

(b) at the same time, send a written receipt for the document in Form 35.3-D to the party who obtained the order.

(7) Where—

(a) no party wishes to lodge or borrow any such document under paragraph (5), the document shall be returned to the haver by the party who obtained the order within 14 days after the expiry of the period specified in sub-paragraph (a) of that paragraph; or

(b) any such document has been uplifted by another party under paragraph (5) and that party does not wish to lodge it in process, the document shall be returned to the haver by that party within 21 days after the date of receipt of it by him.

(8) Any such document lodged in process shall be returned to the haver by the party lodging it within 14 days after the expiry of any period allowed for appeal or reclaiming or, where an appeal or reclaiming motion has been marked, from the disposal of any such appeal or reclaiming motion.

(9) If any party fails to return any such document as provided for in paragraph (7) or (8), the haver shall be entitled to apply by motion (whether or not the cause is in dependence) for an order that the document be returned to him and for the expenses occasioned by that motion.

(10) The party holding any such document (being the party who last issued a receipt for it) shall be responsible for its safekeeping during the period that the document is in his custody or control.

(11) If the party who served the order is not satisfied that—

(a) full compliance has been made with the order, or

(b) adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 35.4.

(12) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the court may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(13) Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (12), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(14) The court may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

Execution of commission and diligence for recovery of documents

35.4

(1) The party who seeks to execute a commission and diligence for recovery of a document obtained on an application under rule 35.2(1)(a) shall–

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) fix a diet for the execution of the commission in consultation with every other party;

(d) be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(3) A haver shall be cited to appear at a commission for the recovery of documents by service on him of a citation in Form 35.4–A–

(a) by registered post or the first class recorded delivery service; or

(b) personally, by messenger-at-arms.

(4) A certificate of citation of a haver–

(a) under paragraph (3)(a) shall be in Form 35.4-B; and

(b) under paragraph (3)(b) shall be in Form 35.4–C.

(5) There shall be served on the haver with the citation a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

(6) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a haver cited to appear at a commission for that party.

(7) The parties and the haver shall be entitled to be represented by counsel or other person having a right of audience, or an agent, at the execution of the commission.

(8) At the commission, the commissioner shall–

(a) administer the oath de fideli administratione to the clerk and shorthand writer appointed for the commission; and

(b) administer to the haver the oath in Form 35.4-D, or, where the haver elects to affirm, the affirmation in Form 35.4-E.

(9) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(10) Not later than the day after the date on which such a report, any document recovered and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to the parties that he has received them.

(11) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (10).

(12) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (10), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(13) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (12), the Deputy Principal Clerk shall return it to the haver.

(14) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a) give written intimation of the return of the document to every other party; and

(b) if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972

35.5

(1) An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or r⅔ ecovery of that document or other property.

(2) Rule 35.3 (optional procedure before executing commission and diligence) and rule 35.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972

35.6

(1) An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment with or on, any such document or other property, as the case may be, subject to such conditions, if any, as the court thinks fit.

(2) A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3) When such an order is executed, the party who obtained the order shall serve on the haver a certified copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972

35.7

(1) An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property shall grant a commission and diligence for the detention and custody of that document or other property.

(2) The party who has obtained an order under paragraph (1) shall–

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) be responsible for the fees of the commissioner and his clerk; and

(3) The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the Deputy Principal Clerk for the further order of the court.

Confidentiality

35.8

(1) Where confidentiality is claimed for any document or other property sought to be recovered under any of the following rules, such document or other property shall, where practicable, be enclosed in a sealed packet:–

rule 35.3 (optional procedure before executing commission and diligence),

rule35.3A (optional procedure where there is a party litigant),

rule 35.4 (execution of commission and diligence for recovery of documents),

rule 35.5 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

rule 35.7 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972)

(2) A motion to have such a sealed packet opened up or such recovery allowed may be made by–

(a) the party who obtained the commission and diligence; or

(b) any other party after the date of intimation by the Deputy Principal Clerk under rule 35.3(5) or 35.4(12) (intimation of failure to uplift documents).

(3) In addition to complying with rule 23.3 (intimation of motions), the party enrolling such a motion shall intimate the terms of the motion to the person claiming confidentiality by registered post or the first class recorded delivery service.

(4) The person claiming confidentiality may oppose a motion made under paragraph (2).

Warrants for production of original documents from public records

35.9

(1) Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the court by motion.

(2) Written intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 2 days before the motion is enrolled.

(3) Where it appears to the court that it is necessary for the ends of justice that a motion under this rule should be granted, authority shall be given to such keeper, on production of a certified copy of the interlocutor granting the motion, to produce or exhibit, as the case may be, the original register or deed to the court.

(4) The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

Warrants for transmission of processes

35.10

(1) A party who seeks to lodge in process any process in the custody of the Keeper of the Records, or any process depending or which depended in any inferior court in Scotland, may apply by motion to the court for a warrant to authorise and direct the Keeper of the Records or the clerk of the inferior court, as the case may be, on production of a certified copy of the interlocutor granting the motion, to transmit that process to the Deputy Principal Clerk.

(2) A party who enrols a motion under paragraph (1) shall give written intimation of the motion to the Keeper of the Records or the clerk of the inferior court, as the case may be, at least 2 days before the motion is enrolled.

(3) The Deputy Principal Clerk shall grant a receipt for any process transmitted to him under an order made under paragraph (1) and lodge it in the process of the cause.

(4) No process transmitted under paragraph (1) may be borrowed.

(5) After a process transmitted under paragraph (1) ceases to be required, the Deputy Principal Clerk shall return it to the Keeper of the Records or the clerk of the inferior court, as the case may be.

Commissions for examination of witnesses

35.11

(1) This rule applies to a commission–

(a) to take the evidence of a witness on a ground mentioned in section 10(b) of the Act of 1988[^f00041];

(b) in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis; or

(c) on special cause shown, to take the evidence of a witness on a ground other than one referred to in sub-paragraph (a) or (b).

(2) An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the court.

(2A) A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder.

(3) Where a motion under paragraph (2) is made in an action before calling of the summons–

(a) the applicant shall give written intimation of the motion to every other person named in the instance; and

(b) the decision of the Lord Ordinary shall be final and not subject to review.

(4) The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

(5) A witness shall be cited to give evidence at a commission by service on him of a citation in Form 35.11–A–

(a) by registered post or the first class recorded delivery service; or

(b) personally, by a messenger-at-arms.

(6) The certificate of citation of a witness–

(a) under paragraph (5)(a) shall be in Form 35.11–B; and

(b) under paragraph (5)(b) shall be in Form 35.11–C.

(7) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited to appear at a commission for that party.

(8) At the commission, the commissioner shall–

(a) administer the oath de fideli administratione to the clerk and any shorthand writer appointed for the commission; and

(b) administer to the witness the oath in Form 35.4-D, or, where the witness elects to affirm, the affirmation in Form 35.4–E.

(9) In a cause involving the collision of ships, such an application shall be granted on condition, where necessary, that the applicant shall, at least 24 hours before the evidence is taken, lodge in process a preliminary act which the commissioner shall be entitled to open before the witness is examined.

(10) Where a commission is granted for the examination of a witness, the court may, on the motion of any party and on cause shown, dispense with interrogatories.

Commissions on interrogatories

35.12

(1) Where interrogatories have not been dispensed with, the party who obtained the commission to examine a witness under rule 35.11 shall lodge draft interrogatories to be adjusted at the sight of the clerk of court.

(2) Any other party may lodge cross-interrogatories to be adjusted at the sight of the clerk of court.

(3) The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the clerk of court for approval.

(4) The party who has obtained the commission shall–

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amendments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

(b) instruct the clerk; and

(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

(6) The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(7) Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(8) The party who obtained the commission to examine the witness shall lodge in process–

(a) the report of the commission; and

(b) the executed interrogatories and any cross-interrogatories.

Commissions without interrogatories

35.13

(1) Where interrogatories have been dispensed with, the party who has obtained a -commission to examine a witness under rule 35.11 shall–

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) fix a diet for the execution of the commission in consultation with the commissioner and every other party;

(d) be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) All parties shall be entitled to be present and represented by counsel or other person having a right of audience, or agent, at the execution of the commission.

(3) The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(4) Not later than the day after the date on which such report, any document and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(5) The party who obtained the commission to examine the witness shall lodge the report in process.

Evidence taken on commission

35.14

(1) Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 35.12 or 35.13 may be used as evidence at any proof or jury trial of the cause.

(2) Any party may object to the use of such evidence at a proof or jury trial; and the objection shall be determined by the court.

(3) Such evidence shall not be used at a proof or jury trial if the witness becomes available to attend the diet of proof or jury trial, as the case may be.

(4) A party may use such evidence in accordance with the preceding paragraphs of this rule notwithstanding that it was obtained at the instance of another party.

Letters of request

35.15

(1) This rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the Court of Session.

(2) An application to which paragraph (1) applies may be made in relation to a request–

(a) for the examination of a witness,

(b) for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be,

(d) for the taking and testing of samples of blood from any person, or

(e) for any other order for obtaining evidence,

for which an order could be obtained in the Court of Session.

(3) Such an application shall be made by minute in Form 35.15—A with a proposed letter of request in Form 35.15—B.

(4) It shall be a condition of granting a letter or request that the agent for the applicant, or the party litigant, as the case may be, shall be personally liable, in the first instance, for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness or haver who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the court thinks fit.

(5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory–

(a) where English is an official language, or

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

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

(6) The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 35.12 and the translations (if any), shall be forwarded by the Deputy Principal Clerk to such person and in such manner as the Lord president may direct.

CHAPTER 36 — PROOFS

Hearing parts of proof separately

36.1

(1) In any cause, the court may–

(a) at its own instance, or

(b) on the motion of any party,

order that proof on liability or any other specified issue be heard separately from proof on any other issue and determine the order in which the proofs shall be heard.

(2) The court shall pronounce such interlocutor as it thinks fit at the conclusion of the first proof of any cause ordered to be heard in separate parts under paragraph (1).

Citation of witnesses

36.2

(1) A witness shall be cited for a proof by service on him of a citation in Form 36.2–A–

(a) by registered post or the first class recorded delivery service, by the agent for the party on whose behalf he is cited; or

(b) personally, by a messenger-at-arms.

(2) A certified copy of the interlocutor allowing a proof shall be sufficient warrant to a messenger-at-arms to cite a witness on behalf of a party.

(3) A certificate of citation of a witness–

(a) under paragraph (1)(a) shall be in Form 36.2–B; and

(b) under paragraph (1)(b) shall be in Form 36.2–C.

(4) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited by him to appear at a proof.

(5) Where a party to a cause is a party litigant, he shall–

(a) not later than 12 weeks before the diet of proof, apply to the court by motion to fix caution for the expenses of witnesses in answering a citation in such sum as the court considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

(b) before instructing a messenger-at-arms to cite a witness, find the caution which has been fixed.

(6) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (5)(a) may apply by motion for variation of the amount of caution.

Lodging productions

36.3

(1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless–

(a) by consent of parties; or

(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Copy productions

36.4

(1) A copy of every documentary production, marked with the appropriate number of process of the principal production, shall be lodged for the use of the court at a proof not later than 48 hours before the diet of proof.

(2) Each copy production consisting of more than one sheet shall be securely fastened together by the party lodging it.

Returning borrowed documents before proof

36.5

All steps of process and productions which have been borrowed shall be returned to process before 12.30 p.m. on the day preceding the diet of proof.

Notices to admit and notices of non-admission

36.6

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

Admissions by parties

36.7

(1) Where a party admits–

(a) any matter of fact whether averred in the pleadings or not,

(b) the authenticity of any document, or

which has not been admitted in the pleadings or in respect of which a notice under rule 28A.1(1) has not been intimated, a minute of admission signed by counsel or other person having a right of audience for the party making such admission, shall be lodged in process.

(2) An admission made in a minute of admission may be used in evidence at a proof if otherwise admissible in evidence.

(3) In taxing any account of expenses, the Auditor shall disallow the expenses of any evidence led on matters covered by a minute of admission, unless special cause is shown to him.

Conditions for receiving certain written statements in evidence

36.8

A party who wishes to have any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988, received in evidence shall lodge the statement or report in process and shall intimate such lodging to the other party or parties.

Attendance, and lists, of witnesses

36.9

(1) It shall be the duty of each party to ensure that his witnesses, if any, are–

(a) in attendance in the vicinity of the courtroom; and

(b) available when called to give evidence.

(2) Each party shall, before his case begins, give to the macer of the court a numbered list of any witnesses of his in the order in which it is proposed to call them.

(3) No witness at a proof shall, except with leave of the court–

(a) be present in the courtroom during the proceedings prior to the giving of his evidence; or

(b) leave the courtroom after giving evidence.

(4) No party, other than the party citing a witness, shall have access to that witness while he is in attendance at court.

Administration of oath or affirmation to witnesses

36.10

The Lord Ordinary shall administer the oath to a witness in Form 36.10–A or, where the witness elects to affirm, the affirmation in Form 36.10–B.

Recording of evidence

36.11

(1) Subject to any other provision in these Rules, evidence at a proof shall be recorded by–

(a) a shorthand writer to whom the oath de fideli adminisratione 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 evidence at a proof 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 evidence shall be made only on the direction of the court; and the cost shall, in the first instance, be borne–

(a) in an undefended cause, by the agent for the pursuer; and

(b) in a defended cause, by the agents for the parties in equal proportions.

(4) The transcript of the record of the evidence provided for the use of the court shall be certified as a faithful record of the evidence 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 evidence as appear to it to be necessary after hearing the parties; and, where such alterations are made, the Lord Ordinary shall authenticate the alterations.

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

(7) Except with leave of the court, the transcript of the record of the evidence may be borrowed from process only for the purpose of enabling a party to consider whether to reclaim against the interlocutor of the court on the proof.

(8) Where a transcript of the record of the evidence is required for the purpose of a reclaiming motion but has not been directed to be transcribed under paragraph (3), the reclaimer–

(a) may request such a transcript from the shorthand writer, or as the case may be, the cost of the transcript being borne by the agent for the reclaimer in the first instance; and

(b) shall lodge the transcript in process;

and copies of it may be obtained by any party from the shorthand writer, or as the case may be, on payment of his fee.

Finality of decision on sufficiency of stamp

36.12

The decision of the Lord Ordinary that a document adduced in evidence is sufficiently stamped, or does not require to be stamped, shall be final and not subject to review.

Death, disability, retiral, etc., of Lord Ordinary

36.13

(1) Where the Lord Ordinary, before whom proof has been taken, in whole or in part, dies, retires or otherwise becomes unable to give judgment or to hear further proof, as the case may be, any party to the cause may apply by motion to the Inner House for directions–

(a) that the cause shall be continued before, and shall be disposed of by, another Lord Ordinary;

(b) that the notes of evidence already taken, as certified by the shorthand writer, shall be evidence in the cause; and

(c) that the notes of the Lord Ordinary taken at the proof shall be made available to the Lord Ordinary before whom the cause is to be continued.

(2) On making directions under paragraph (1), the Inner House may make such other order as it thinks fit.

(3) On enrolling a motion under paragraph (1), the party enrolling it shall–

(a) lodge in process four copies of the closed record (incorporating all interlocutors pronounced in the cause and amendments to the record allowed since the closing of the record); and

(b) send one copy of that record to every other party.

(4) It shall not be necessary for any documents to be lodged in support of such a motion unless the court otherwise directs.

(5) The vacation judge may not hear or determine a motion under paragraph (1).

CHAPTER 37 — JURY TRIALS

Applications for jury trial

37.1

(1) Within 14 days after the date of an interlocutor allowing issues in an action, the pursuer shall lodge in process the proposed issue for jury trial and a copy of it for the use of the court.

(2) Where a pursuer fails to lodge a proposed issue for jury trial under paragraph (1), he shall, unless–

(a) the court, on cause shown, otherwise orders, or

(b) a proposed issue is lodged by another party under paragraph (3),

be held to have departed from his right to jury trial; and any other party may apply by motion for a proof.

(3) Where a pursuer fails to lodge a proposed issue under paragraph (1), any other party may, within 7 days after the expiry of the period specified in that paragraph, lodge in process a proposed issue for jury trial and a copy of it.

(4) Where a proposed issue has been lodged under paragraph (1) or (3), any other party may, within 7 days after the date on which the proposed issue has been lodged, lodge in process a proposed counter-issue and a copy of it.

(5) A proposed counter-issue lodged by a party under paragraph (4) may include any question of fact which is made the subject of a specific averment on record or is relevant to his pleas-in-law notwithstanding that it does not in terms meet the proposed issue.

(6) The party lodging a proposed issue under paragraph (1) or (3) shall, on the day after the date on which the period for lodging a proposed counter-issue under paragraph (4) expires, apply by motion for approval of the proposed issue.

(7) Any party who has lodged a proposed counter-issue under paragraph (4) shall, within 7 days after the enrolment of a motion for approval of a proposed issue under paragraph (6), apply by motion for approval of his proposed counter-issue.

(8) Where a proposed counter-issue has been lodged, the motion for approval of a proposed issue shall be heard at the same time as the motion for approval of the proposed counter-issue.

(9) The Lord Ordinary, on granting a motion for approval of a proposed issue or proposed counter-issue, shall authenticate with his signature the proposed issue or proposed counter-issue as lodged or as adjusted.

(10) Where an issue or counter-issue has been approved by the court, the party whose issue or counter-issue it is shall lodge 18 copies of the approved issue or counter-issue for the use of the court; and such copies need not contain the authentication of the Lord Ordinary.

Citation of jurors

37.2

(1) Not less than 70 days before the diet for jury trial, the pursuer shall attend at the General Department and request the issue of a jury precept.

(2) Where the pursuer has failed to request the issue of a jury precept under paragraph (1), any other party may request a jury precept not less than 63 days before the diet for jury trial.

(3) A jury precept shall be in Form 37.2–A.

(4) Where a jury precept is issued, it shall be transmitted by a clerk of session to the sheriff principal of the sheriffdom of Lothian and Borders who shall cause a list of jurors to be prepared of an equal number of men and women in accordance with the precept.

(5) A citation of a person to attend as a juror shall be in Form 37.2–B and shall be executed by the sheriff clerk at Edinburgh (or a depute authorised by him) by post ....

(6) Where no party requests the issue of a jury precept under paragraph (1) or (2), each party shall be held to have departed from the application for a jury trial and inquiry into the facts of the cause shall be taken by proof.

Ineligibility for, and excusal from, jury service

37.3

(1) A person summoned to serve on a jury may, as soon as possible after receipt of his citation, apply in writing to the Deputy Principal Clerk to be released from his citation; and the Deputy Principal Clerk may, if he is satisfied that there are good and sufficient grounds for excusal, grant the application.

(2) The Lord Ordinary to preside at the jury trial may, at any time before the jury is empanelled, excuse any person summoned to attend as a juror from attendance if he is satisfied that there are good and sufficient grounds for doing so.

Application of certain rules relating to proofs

37.4

The following provisions of these Rules shall apply in relation to an action in which issues have been approved for jury trial as they apply to a cause in which a proof has been allowed:–

rule 36.2 (citation of witnesses),

rule 36.3 (lodging productions),

rule 36.4 (copy productions),

rule 36.5 (returning borrowed documents before proof),

rule 36.7 (admissions by parties),

rule 36.8 (conditions for receiving certain written statements in evidence),

rule 36.9 (attendance, and lists, of witnesses),

rule 36.10 (administration of oath or affirmation to witnesses),

Failure of party to appear at jury trial

37.5

Where a party does not appear at the diet for jury trial, then–

(a) if the party appearing is the pursuer or the party on whom the burden of proof lies, he shall be entitled to lead evidence, and go to the jury for a verdict;

(b) if the party appearing is the defender or the party on whom the burden of proof does not lie, he shall be entitled to obtain a verdict in his favour without leading evidence.

Administration of oath or affirmation to jurors

37.6

(1) Subject to paragraph (2), the clerk of court shall administer the oath collectively to the jury in Form 37.6–A.

(2) Where a juror elects to affirm, the clerk shall administer the affirmation to that juror in Form 37.6–B.

Exceptions to judge’s charge

37.7

(1) Where a party seeks to take exception to a direction on a point of law given by the Lord Ordinary in his charge to the jury or to request the Lord Ordinary to give a direction differing from or supplementary to the directions in the charge, he shall, immediately on the conclusion of the charge, so intimate to the Lord Ordinary, who shall hear counsel for the parties in the absence of the jury.

(2) The party dissatisfied with the charge to the jury shall formulate in writing the exception taken by him or the direction sought by him; and the exception or direction, as the case may be, and the judge’s decision on it, shall be recorded in a note of exception under the direction of the Lord Ordinary and shall be certified by him.

(3) After the note of exception has been certified by the Lord Ordinary, he may give such further or other directions to the jury in open court as he thinks fit before the jury considers its verdict.

Further questions for jury

37.8

The Lord Ordinary may, after the evidence has been led, submit to the jury in writing along with the issue and any counter-issue such further questions as he thinks fit.

Verdicts

37.9

After a verdict has been returned by a jury, the verdict shall be written on the issue and dated and signed by the clerk of court.

Application of verdicts

37.10

Any party may, after the expiry of 7 days after the date on which the verdict was written on the issue and signed, apply by motion to apply the verdict, grant decree in accordance with it and make any award in relation to expenses.

CHAPTER 38 — RECLAIMING

Interpretation of this Chapter

38.1

(1) This Chapter applies subject to any other provision in these Rules or any enactment.

(2) Any party to a cause who is dissatisfied with an interlocutor pronounced by—

(a) the Lord Ordinary;

(b) the Lord Ordinary in Exchequer Causes; or

and who seeks to submit that interlocutor to review by the Inner House shall do so by reclaiming within the reclaiming days in accordance with the provisions of this Chapter.

(3) In this Chapter, “reclaiming days” means the days within which an interlocutor may be reclaimed against.

Reclaiming

38.2

(1) An interlocutor disposing, either by itself or taken along with a previous interlocutor, of—

(a) the whole subject matter of the cause; or

(b) the whole merits of the cause whether or not the question of expenses is reserved or not disposed of,

may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(2) Where an interlocutor which reserves or does not dispose of the question of expenses is the subject of a reclaiming motion under paragraph (1)(b), any party to the cause who seeks an order for expenses before the disposal of the reclaiming motion shall apply by motion to the Lord Ordinary for such an order within 14 days of the date of enrolment of that reclaiming motion.

(3) An interlocutor disposing of the merits of the action and making an award of provisional damages under section 12(2)(a) of the Administration of Justice Act 1982 may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(4) An interlocutor mentioned in paragraph (5) may be reclaimed against, without leave, within 14 days after the date on which the interlocutor was pronounced.

(5) Those interlocutors are—

(a) an interlocutor disposing of part of the merits of a cause;

(b) an interlocutor allowing or refusing proof, proof before answer or jury trial (but, in the case of refusal, without disposing of the whole merits of the cause);

(d) an interlocutor adjusting issues for jury trial;

(e) an interlocutor granting, refusing, recalling, or refusing to recall, interim interdict or interim liberation;

(f) an interlocutor in relation to an exclusion order under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(g) an interlocutor granting ... or recalling a sist of execution or procedure;

(h) an interlocutor loosing, restricting or recalling an arrestment or recalling in whole or in part an inhibition used on the dependence of an action or refusing to loose, restrict or recall such an arrestment or inhibition;

(i) an interlocutor granting authority to move an arrested vessel or cargo;

(j) an interlocutor deciding (other than in a summary trial) that a reference to the European Court should be made.

(6) An interlocutor (other than a decree in absence or an interlocutor mentioned in paragraph (2), (3) or (5) of this rule) may be reclaimed against, with leave, within 14 days after the date on which the interlocutor was pronounced.

Reclaiming days

38.3

(1) An interlocutor granting or refusing a motion for summary decree may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(2) In the application of section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law arising from making, variation or recall of time to pay directions)—

(a) leave to appeal shall be sought within 14 days after the date of the decision of the Lord Ordinary appealed against; and

(b) an appeal shall be made by motion to the Inner House within 14 days after the date on which leave was granted.

(3) An interlocutor, other than an interlocutor—

(a) deciding whether to give permission (including the giving of permission either subject to conditions or only on particular grounds) for group proceedings to be brought under Chapter 26A (group procedure);

(b) deciding whether to grant permission for the application to proceed under section27B(1) of the Act of 1988 or an interlocutor determining the application, pronounced under Chapter 58 (applications for judicial review),

may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(4) The decision of the Lord Ordinary on a note of objection to the report of the Auditor under rule 42.4 may be reclaimed against only with the leave of the Lord Ordinary within 7 days after the date on which the decision was made.

(5) An interlocutor granting or refusing a motion under rule 47.10(1) (appointing action to be a commercial action) may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

(6) An interlocutor pronounced on the Commercial Roll, other than an interlocutor which makes such disposal as is mentioned in rule 38.2(1), may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

Leave to reclaim etc. in certain cases

38.4

(1) An application for leave to reclaim against an interlocutor shall be made by motion.

(2) A motion under paragraph (1) shall be brought—

(a) before the Lord Ordinary who pronounced the interlocutor;

(b) where that Lord Ordinary is, for whatever reason, unavailable, before another Lord Ordinary; or

(3) Where a motion under paragraph (1) is brought before a judge under paragraph (2)(b) or (c), that judge shall—

(a) continue the motion until the Lord Ordinary who pronounced the interlocutor is available; or

(b) where the matter is of such urgency that a continuation would not be appropriate, grant or refuse leave, as the case may be.

(4) Any period during which a motion under paragraph (1) is continued by virtue of an order under paragraph (3)(a) shall not be taken into account in calculating the reclaiming days under rule 38.2(6) (reclaiming days and leave) or rule 38.3 (leave to reclaim etc. in certain cases).

(5) In granting leave to reclaim, the Lord Ordinary may impose such conditions, if any, as he thinks fit.

(6) The decision of the Lord Ordinary or the vacation judge to grant or refuse leave to reclaim shall be final and not subject to review.

(7) Leave to reclaim against an interlocutor shall not excuse obedience to or implement of the interlocutor unless by order of the Lord Ordinary, a procedural judge or the vacation judge.

Applications for leave to reclaim

38.5

(1) A party who seeks to reclaim against an interlocutor shall mark a reclaiming motion by enrolling a motion for review in Form 38.5 before the expiry of the reclaiming days.

(2) On enrolling a motion for review under paragraph (1), the reclaimer shall lodge a reclaiming print in the form of a record which shall contain—

(a) the whole pleadings and interlocutors in the cause;

(b) where the reclaiming motion is directed at the refusal of the Lord Ordinary to allow the pleadings to be amended in terms of a minute of amendment and answers, the text of such minute and answers; and

(3) A party who reclaims against an interlocutor adjusting issues for jury trial shall, on enrolling the motion for review—

(a) lodge in process the issue or counter-issue proposed by him showing the amendment to the issues, as adjusted, sought to be made; and

(b) send a copy of the issue or counter-issue, as the case may be, to every other party.

Method of reclaiming

38.6

(1) Subject to paragraph (2), a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary or any interlocutor of the Lord Ordinary in a motion under rule 38.2(2), not only at the instance of the party reclaiming but also at the instance of any other party who appeared in the cause, and without the necessity of any counter-reclaiming motion.

(2) Where an interlocutor, either by itself or taken along with a previous interlocutor, has disposed of the whole merits of the cause, a reclaiming motion against a subsequent interlocutor dealing with expenses shall have the effect of submitting to review only that interlocutor and any other interlocutor so far as it deals with expenses.

(3) After a reclaiming motion has been enrolled, the reclaimer shall not be at liberty to withdraw it without the consent of the other parties who have appeared in the cause; and if he does not insist on the reclaiming motion, any other party may do so in the same way as if the motion had been enrolled at his instance.

(4) An unopposed motion by a party to refuse a reclaiming motion shall be treated as if all parties consented to it.

(5) Where an interlocutor contains an award of residence, contact or aliment, the marking of a reclaiming motion shall not excuse obedience to or implement of the award of residence, contact or aliment, as the case may be, unless by order of the court.

Leave to reclaim out of time

38.7

Review by the Inner House of an interlocutor shall not be prevented by reason only that extract has been issued before the expiry of the reclaiming days.

Effect of reclaiming

38.8

In respect of the following appeals, the rules in this Chapter shall apply to those appeals as they apply to reclaiming—

(a) an appeal from a decision of the Lord Ordinary under section 6 of and Article 37 or 41 of the convention in Schedule 1 or 3C to, the Civil Jurisdiction and Judgments Act 1982 (appeals in relation to decisions on enforcement); and

(b) an appeal from a decision of the Lord Ordinary under section6A of the Civil Jurisdiction and Judgments Act 1982 and Article44 and Annex IV to the Lugano Convention, as defined in rule62.26(2) (application and interpretation of Part V of Chapter62 of these Rules); and

(c) an appeal from a decision of the Lord Ordinary under section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law).

(d) an appeal from a decision of the Lord Ordinary concerning permission to proceed in petitions for judicial review under section 27D of the Act of 1988 (appeal following oral hearings).

Effect of extracted interlocutor

38.9

(1) Where decree by default has been granted against a party in respect of his failure to lodge a step of process or other document, a motion for review by that party of the interlocutor granting such decree shall be refused unless the document is lodged on or before the date on which the motion is enrolled.

(2) A decree by default may, if reclaimed against, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Appeals treated as reclaiming motions

38.10

(1) In a case of mistake or inadvertence, a procedural judge may, on an application made in accordance with paragraph (2), allow a motion for review to be received outwith the reclaiming days and to proceed out of time on such conditions as to expenses or otherwise as the judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion for review made under rule 38.5(1).

Reclaiming against decree by default

38.11

(1) Where the reclaimer seeks urgent disposal of a reclaiming motion, he shall include in his motion under rule 38.5(1) either the words “and for urgent disposal on the Summar Roll” or the words “and for urgent disposal in the Single Bills”.

(2) Where a respondent seeks urgent disposal of a reclaiming motion, he shall, within the period allowed for opposing the motion, endorse on the motion of the reclaimer under rule 38.5(1), or send by post or facsimile transmission a notice of opposition in Form 23.4 including the words “The respondent (name) seeks urgent disposal on the Summar Roll” or the words “The respondent (name) seeks urgent disposal in the Single Bills”, as the case may be.

(3) The entry in the rolls in respect of the motion for urgent disposal shall be starred; and the motion shall call before a procedural judge.

(4) At the hearing of the motion, the parties shall provide the procedural judge with an assessment of the likely duration of the hearing to determine the reclaiming motion.

(5) The procedural judge may—

(a) grant the motion for urgent disposal and either appoint the reclaiming motion to the Summar Roll for a hearing or direct that the reclaiming motion be heard in the Single Bills; or

(b) refuse the motion for urgent disposal.

(6) Where the procedural judge grants the motion for urgent disposal, he may make such order as to the future timetabling of, and procedure in, the reclaiming motion as he thinks fit.

(7) Rules 38.12 to 38.16 shall apply to a reclaiming motion in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he so directs.

Reclaiming against interlocutor adjusting issues

38.12

(1) Any party other than the reclaimer may object to the competency of a reclaiming motion by—

(a) lodging in process; and

(b) serving on the reclaimer,

a note of objection in Form 38.12.

(2) Where the Deputy Principal Clerk considers that a reclaiming motion may be incompetent he may (whether or not any party has lodged and served a note of objection under paragraph (1)) refer the question of competency to a procedural judge.

(3) Where the Deputy Principal Clerk refers a question of competency, he shall intimate to the parties the grounds on which he considers that question of competency arises.

(4) A note of objection may be lodged, and the Deputy Principal Clerk may refer a question of competency, only in the period of 14 days after the date on which the reclaiming motion was marked.

(5) Where a note of objection is lodged, or the Deputy Principal Clerk has referred a question of competency, the Keeper of the Rolls shall—

(a) allocate a diet for a hearing before a procedural judge; and

(b) intimate the date and time of that diet to the parties.

(6) Each party shall, within the period of 14 days after the date on which a note of objection is lodged or a question of competency is referred by the Deputy Principal Clerk—

(a) lodge in process; and

(b) serve on the other party,

a note of argument giving fair notice of the submissions which the party intends to make as to competency.

(7) At the hearing allocated under paragraph (5), the procedural judge may—

(a) refuse the reclaiming motion as incompetent;

(b) direct that the reclaiming motion is to proceed as if the note of objection had not been lodged or the question not been referred, whether under reservation of the question of competency or having found the reclaiming motion to be competent; or

and he may make such order as to expenses or otherwise as he thinks fit.

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