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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

Source legislation.gov.uk

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(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection;

(d) reserve the objection for hearing with the merits.

Early disposal of reclaiming motion

38.13

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 38.13, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the reclaiming motion, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of grounds of appeal and answers;

(b) the lodging of any appendices to the reclaiming print or, as the case may be, the giving of intimation that the reclaimer does not intend to lodge any appendices;

(d) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the reclaiming motion.

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 38.12(4), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 38.12(7)(b), within 7days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the reclaiming motion under rule 38.12(9)(a) or following a Summar Roll hearing under rule 38.12(9)(b), or

(ii) an interlocutor has been pronounced under rule 38.12(9)(c) or (d),

within 7 days after the date of that interlocutor.

Objections to competency of reclaiming motion

38.14

(1) A reclaiming motion may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 38.13(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form 38.13.

Procedure where no objection to competency

38.15

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the reclaiming motion out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the reclaimer or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the reclaiming motion;

(b) in particular, where the reclaimer fails to comply with the timetable, refuse the reclaiming motion; or

(c) in particular, where a sole respondent fails or all respondents fail to comply with the timetable, grant the reclaiming motion.

Grounds of appeal in reclaiming motions

38.16

(1) At the procedural hearing fixed under rules 38.13(1)(b) or 38.14(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

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

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

(3) Where this paragraph applies the procedural judge is to make an order under paragraph (2)(c) appointing the reclaiming motion to be determined in chambers without appearance unless satisfied that cause exists for making some other order.

(4) Paragraph (3) applies where—

(a) the interlocutor reclaimed against is an interlocutor disposing of an application for a protective expenses order under Chapter 58A of these Rules; and

(b) the grounds of appeal do not seek to submit to the review of the Inner House any other interlocutor, other than a subsequent interlocutor dealing with expenses.

Orders for hearing

38.17

(1) Where, after a reclaiming motion has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears that the amendment makes a material change to the pleadings, the Inner House may recall the interlocutor of the Lord Ordinary reclaimed against and remit the cause back to the Lord Ordinary for a further hearing.

Reclaiming prints

38.18

(1) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the reclaiming motion should be granted.

(2) On lodging grounds of appeal, the party lodging them shall—

(a) lodge three copies of them in process; and

(b) send a copy of them to every other party.

(3) A party who has lodged grounds of appeal or answers to the grounds of appeal may apply by motion to amend the grounds or answers, on cause shown.

(4) An application under paragraph (3) shall include any necessary application under rule 38.14(1) (sist or variation of timetable).

Lodging of appendices in reclaiming motions

38.19

(1) Where, in a reclaiming motion, the reclaimer considers that it is not necessary to lodge an appendix to the reclaiming print, the reclaimer shall, by the relevant date specified in the timetable—

(a) give written intimation of that fact to the Deputy Principal Clerk; and

(b) send a copy of that intimation to each respondent.

(2) Where the reclaimer provides intimation under paragraph (1), a respondent may apply to a procedural judge, by motion, for an order requiring the reclaimer to lodge an appendix.

(3) An application under paragraph (2) shall include specification of the documents that the respondent seeks to have included in the appendix.

(4) Where an application is made under paragraph (2), a procedural judge may make an order requiring the reclaimer to lodge any appendix that the procedural judge considers necessary, within such time as the procedural judge may specify.

(5) An order under paragraph (4) may only be granted by a procedural judge after having heard parties.

(6) Paragraph (7) applies where—

(a) a respondent seeks to submit for consideration by the court notes of evidence or documents in respect of which the reclaimer has given written intimation to the respondent that the reclaimer does not intend to include in his appendix; and

(b) a procedural judge has not made an order under paragraph (2) requiring the reclaimer to lodge an appendix which includes such notes of evidence or documents.

(7) The respondent shall incorporate such notes or documents in an appendix which he shall lodge within such period as is specified by the procedural judge in disposing of the application under paragraph (4).

(8) Where, in any reclaiming motion other than one in which intimation is given under paragraph (1)—

(a) the opinion of the Lord Ordinary has not been included in the reclaiming print; or

(b) it is sought to submit notes of evidence or documents for consideration by the court,

the reclaimer shall lodge an appendix incorporating such documents within such period as shall be specified in the timetable.

Notes of evidence not extended when agreed

38.20

Where, in a reclaiming motion, the parties are agreed that on any particular issue the interlocutor reclaimed against is not to be submitted to review, it shall not be necessary to reproduce the notes of evidence or documents relating to that issue.

Amendment of pleadings in reclaiming motions

38.21

At any hearing of a reclaiming motion in the Single Bills, the Inner House may determine the motion or make such other order as it thinks fit.

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

Applications for new trial

39.1

(1) An application under section 29(1) of the Act of 1988 (application for new trial) shall be made to a procedural judge, by motion, within 7 days after the date on which the verdict of the jury was written on the issue and signed.

(2) A motion under paragraph (1) shall specify the grounds on which the application is made.

(3) An application under section 29(1)(a), (b) or (c) of the Act of 1988 may not be made unless—

(a) in the case of an application under section 29(1)(a) (misdirection of judge), the procedure in rule 37.7 (exceptions to judge’s charge) has been complied with;

(b) in the case of an application under section 29(1)(b) (undue admission or rejection of evidence), objection was taken to the admission or rejection of evidence at the trial and recorded in the notes of evidence under the direction of the judge presiding at the trial; or

(c) in the case of an application under section 29(1)(c) (verdict contrary to evidence), it sets out in brief specific numbered propositions the reasons the verdict is said to be contrary to the evidence.

(4) On enrolling a motion for a new trial under paragraph (1), the party enrolling it shall lodge—

(a) a print of the whole pleadings and interlocutors in the cause incorporating the issues and counter-issues;

(b) the verdict of the jury; and

(5) Rule 38.6 (effect of reclaiming) shall, with the necessary modifications, apply to an application for a new trial under section 29 of the Act of 1988 as it applies to a reclaiming motion.

Applications out of time

39.2

(1) A procedural judge may, on an application made in accordance with paragraph (2), allow an application for a new trial under section 29(1) of the Act of 1988 or section 69(1) of the Act of 2014 to be received outwith the period specified in rule 39.1(1) or rule 39.1A(1) and to proceed out of time on such conditions as to expenses or otherwise as the procedural judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion made under rule 39.1(1) or rule 39.1A.

Objections to competency of application

39.3

(1) Any party other than the applicant may object to the competency of an application for a new trial under section 29(1) of the Act of 1988 or section 69(1) of the Act of 2014 by—

(a) lodging in process; and

(b) serving on the applicant,

a note of objection in Form 39.3.

(2) A note of objection may be lodged only within the period of 7 days after the date on which the motion under rule 39.1(1) was enrolled.

(3) Where a note of objection is lodged, 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.

(4) Each party shall, within the period of 7 days after the date on which a note of objection is lodged–

(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.

(5) At the hearing allocated under paragraph (3), the procedural judge may—

(a) refuse the application for a new trial as incompetent;

(b) direct that the application for a new trial 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 application to be competent; or

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

(6) Where a procedural judge refers a question of competency under paragraph (5)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(7) At the hearing in the Single Bills arranged under paragraph (6), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection; or

Procedure where no objections to competency

39.4

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 39.4, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the application for a new trial, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of any appendices to the documents mentioned in rule 39.1(4) or, as the case may be, the giving of notice that the applicant does not intend to lodge any appendices;

(aa) the lodging of any appendices to the documents mentioned in rule 39.1A(4) or, as the case may be, the giving of notice that the applicant does not intend to lodge any appendices;

(b) the lodging of any notes of argument; and

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged within the period mentioned in rule39.3(2), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 39.3(5)(b), within 7 days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the application for a new trial under rule 39.3(7)(a) or following a Summar Roll hearing under rule 39.3(7)(b), or

(ii) an interlocutor has been pronounced under rule 39.3(7)(c),

within 7 days after the date of that interlocutor.

Lodging of appendix

39.5

(1) An application for a new trial may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 39.4(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form39.4.

Applications to enter jury verdict

39.6

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the application for a new trial out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the applicant or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the application;

(b) in particular, where the applicant fails to comply with the timetable, refuse the application; or

(c) in particular, where a sole respondent fails or all respondents fail to comply with the timetable, allow the application.

CHAPTER 40 — APPEALS FROM INFERIOR COURTS

Application and interpretation of this Chapter

40.1

(1) This Chapter applies to an appeal to the court from any decision pronounced by an inferior court which may be appealed to the court.

(2) In this Chapter—

(a) “appeal process” means—

(i) the process of the inferior court; or

(ii) where the cause is recorded in an official book of an inferior court, a copy of the record in that book certified by the clerk of the inferior court;

(b) “decision” includes interlocutor, judgment or other determination;

(i) the Lyon Court;

(ii) the Sheriff Appeal Court, in respect of an appeal under section 113(1) of the Act of 2014 or section 38(b) of the Sheriff Courts (Scotland) Act 1971;

(iii) the sheriff principal, in respect of an appeal under section 114(1) of the Act of 2014;

(d) any reference to leave to appeal includes permission to appeal in terms of section 113(1) of the Act of 2014.

Applications for leave to appeal from inferior court

40.2

(1) Where leave to appeal is required, an application for such leave shall be made in the first instance to the inferior court unless the enactment allowing the appeal requires the application to be made to the court.

(2) Where—

(a) the inferior court has refused leave to appeal and such refusal is not final, or

(b) leave to appeal is required from the court and not the inferior court,

any application to the court for leave to appeal shall be made in Form 40.2 to a procedural judge.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department—

(a) within the period prescribed by the enactment by virtue of which it is made; or

(b) where no such period is prescribed, within 14 days after the date specified in paragraph (4).

(4) The date referred to in paragraph (3)(b) is—

(a) the date on which the decision of the inferior court refusing leave to appeal was intimated to the appellant; or

(b) where the application for leave to appeal is required to be made to the court and not the inferior court—

(i) the date on which the decision of the inferior court complained of was issued; or

(ii) where the inferior court issued reasons for its decision later than the decision, the date of issue of the reasons.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)—

(a) a process in accordance with rule 4.4 (steps of process);

(b) where applicable—

(i) evidence that leave to appeal has been refused by the inferior court;

(ii) a copy of the grounds of appeal intimated to the inferior court; and

(iii) any note by the inferior court setting out the reasons for its refusal;

(d) where the inferior court itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Determination of applications for leave to appeal from inferior court

40.3

(1) An application for leave to appeal under rule 40.2 shall, without a motion being enrolled—

(a) during session, be brought before a procedural judge on the first available day after being made for an order for—

(i) service of the application on the respondent and such other person as the procedural judge thinks fit within 7 days of the date of the order or such other period as the procedural judge thinks fit; and

(ii) any person on whom the application has been served, to lodge answers, if so advised, within 14 days after the date of service or within such other period as the procedural judge thinks fit; and

(b) during vacation, be brought before the vacation judge for such an order.

(2) An order for service under paragraph (1) shall include a requirement to intimate the application to the clerk of the inferior court.

(3) Where an application for leave to appeal is served under paragraph (1), evidence of service in accordance with Chapter 16 of these Rules shall be provided to the General Department within 14 days from the date of service.

(4) Within 14 days after expiry of the period within which answers may be lodged, the applicant may apply by motion for the application to be granted.

Time and method of appeal

40.4

(1) An appeal from an inferior court shall be made–

(a) within the period prescribed by the enactment by virtue of which the appeal is made; or

(b) where no such period is prescribed, within 21 days after—

(i) the date on which the decision appealed against was given;

(ii) where the inferior court issued written reasons for its decision later than the decision, the date on which the written reasons were issued; or

(iii) where leave to appeal was granted by the inferior court or application for leave to appeal was made to the court under rule 40.2(2), the date on which leave was granted by the inferior court or the court, as the case may be.

(2) A party seeking to appeal from an inferior court shall mark an appeal by writing a note of appeal in Form 40.4—

(a) on the interlocutor sheet, minute of court or other written record containing the decision appealed against; or

(b) where such a decision is not available or the proceedings of the inferior court are recorded in an official book, on a separate sheet lodged with the clerk of the inferior court.

(3) A note of appeal shall—

(a) be signed by the appellant or his agent;

(b) bear the date on which its is signed; and

(c) where the appellant is represented, specify the name and address of the agent who will be acting for him in the appeal.

Leave to appeal out of time

40.5

(1) An application to allow an appeal to be received outwith the time prescribed for marking an appeal and to proceed out of time shall be included in the note of appeal.

(2) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process from the clerk of the inferior court under rule 40.6(1), the appellant shall apply by motion to allow the appeal to be received outwith the time prescribed for marking an appeal and for leave to proceed out of time.

(3) The motion enrolled in terms of paragraph (2) shall be disposed of by a procedural judge.

(4) Where a motion under paragraph (2) is refused, the Deputy Principal Clerk shall—

(a) give written intimation to the clerk of the inferior court that leave to appeal out of time has been refused; and

(b) transmit the appeal process and note of appeal to him.

Transmission of appeal process

40.6

(1) Within 4 days after an appeal has been marked, the clerk of the inferior court shall—

(a) give written intimation of the appeal to every other party and certify on the interlocutor sheet, other record or separate note of appeal, as the case may be, that he has done so; and

(b) transmit—

(i) the appeal process, and

(ii) any separate note of appeal,

to the Deputy Principal Clerk.

(2) On receipt of an appeal process sent to him under paragraph (1), the Deputy Principal Clerk shall—

(a) mark the date of receipt on the interlocutor sheet, other record or separate note of appeal, as the case may be; and

(b) give written intimation of that date to the appellant.

(3) Where the clerk of the inferior court or the Deputy Principal Clerk fails to comply with a provision of this rule, the appeal shall not be invalidated; but the court may give such remedy for any disadvantage or inconvenience occasioned thereby as it thinks fit.

Procedure following transmission of appeal process

40.7

(1) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process, each party seeking to appear in the appeal shall—

(a) give written intimation to the Deputy Principal Clerk of, or

(b) state by note written on the interlocutor sheet, minute of court, or other record containing the decision appealed against, or on the separate note of appeal, as the case may be,

his name and address and that of his agent (if any).

(2) Subject to rule 40.15(2) (appeals deemed abandoned), within 28 days after the date of receipt by the Deputy Principal Clerk of the appeal process, or the date of the interlocutor granting a motion made under rule 40.5(2) (leave to appeal out of time), whichever is the later, the appellant shall—

(a) lodge a process, including each part of the appeal process, in accordance with rule 4.4 (steps of process);

(b) lodge an appeal print in the form of a record which shall contain—

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

(ii) where the appeal is directed at the refusal of the inferior court to allow the pleadings to be amended, the text of the proposed amendment; and

(iii) where available, the judgment of the inferior court (including in an appeal in a summary cause under the Act of Sederunt (Summary Cause Rules) 2002 ..., the stated case of the sheriff , or in an appeal in a simple procedure case, the Decision Form and Appeal Report); and

Sist of process of appeal

40.8

(1) Within 14days after the date of receipt by the Deputy Principal Clerk of the appeal process, the appellant may apply by motion to a procedural judge for a sist of process.

(2) On enrolling a motion under rule40.5(2) (leave to appeal out of time) or under paragraph (1) of this rule, the appellant shall lodge a motion sheet and an interlocutor sheet, if not already lodged.

(3) Where the procedural judge grants a motion under paragraph(1), the period of 28days mentioned in rule40.7(2) (lodging process etc.) shall not run during any period in which the appeal is sisted.

(4) The provisions of this rule are without prejudice to the power of the court to sist an appeal, as referred to in rule 40.12.

Appeals deemed abandoned

40.9

(1) Where the appellant seeks urgent disposal of an appeal, he shall, on lodging an appeal print under rule 40.7(2)(b), apply by motion to a procedural judge for urgent disposal of the appeal, specifying in the motion whether he seeks urgent disposal on the Summar Roll or urgent disposal in the Single Bills.

(2) Where a respondent seeks urgent disposal of an appeal, he shall—

(a) within the period allowed for opposing the motion, endorse on the motion of the appellant under paragraph (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 in the Summar Roll” or the words “The respondent (name) seeks urgent disposal in the Single Bills”, as the case may be; or

(b) enrol a motion for urgent disposal on the Summar Roll or for urgent disposal in the Single Bills, within 7 days of the respondent intimating his name and address and that of his agent (if any) in terms of rule 40.7(1).

(3) The entry in the rolls in respect of a motion for urgent disposal under this rule 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 appeal.

(5) The procedural judge may—

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

(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 appeal as he thinks fit.

(7) Rules 40.10 to 40.14 shall apply to an appeal in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he so directs.

Reponing against deemed abandonment

40.10

(1) Any party other than the appellant may object to the competency of an appeal made under this Chapter by—

(a) lodging in process; and

(b) serving on the appellant,

a note of objection in Form 40.10.

(2) Where the Deputy Principal Clerk considers that an appeal made under this Chapter 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 at any time within the period of 14 days after receipt by the Deputy Principal Clerk of the appeal process .

(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 ... only within 14 days after the expiry of the period specified in rule 40.7(2) (lodging process etc.).

(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 appeal as incompetent;

(b) direct that the appeal 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 appeal to be competent; or

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

(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection;

(d) reserve the objection for hearing with the merits.

Early disposal of appeal

40.11

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 40.11, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the appeal, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of a process in accordance with rule 40.7(2)(a);

(b) the lodging and sending a copy of the appeal print in accordance with rule 40.7(2)(b);

(d) the lodging of grounds of appeal and answers;

(e) the lodging of appendices to the appeal print or, as the case may be, the giving of intimation that the appellant does not intend to lodge any appendices;

(f) the lodging of notes of argument; and

(g) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the appeal.

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 40.10(4), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 40.10(7)(b), within 7days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the appeal under rule 40.10(9)(a) or following a Summar Roll hearing under rule 40.10(9)(b), or

(ii) an interlocutor has been pronounced under rule 40.10(9)(c) or (d),

within 7 days after the date of that interlocutor.

Objections to competency of appeals

40.12

(1) An appeal under this Chapter may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 40.11(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form40.11.

Procedure where no objection to competency of appeal

40.13

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the appeal out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the appellant or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the appeal;

(b) in particular, where the appellant fails to comply with the timetable, refuse the appeal; or

Grounds of appeal

40.14

(1) At the procedural hearing fixed under rules 40.11(1)(b), 40.12(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

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

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

Orders for hearing of appeal

40.15

(1) If an appellant fails—

(a) to apply by motion in accordance with rule 40.5(2) (leave to appeal out of time), or

(b) to comply with the requirements of rule 40.7(2) (lodging process etc.),

he shall be deemed to have abandoned his appeal on the expiry of the period for marking an appeal or for complying with the requirements of rule 40.7(2), as the case may be.

(2) Where an appeal has been deemed to be abandoned by reason of paragraph (1)(b), a respondent may, within 7 days after the date on which the appeal is deemed to be abandoned, comply with the requirements of rule 40.7(2) (lodging process etc.) and thereafter insist in the appeal as if it had been marked by him; and the following provisions of this Chapter applying to an appellant shall, with the necessary modifications, apply to an appeal by a respondent under this paragraph.

(3) Where a respondent insists on an appeal under paragraph (2), the appellant shall be entitled to insist in the appeal notwithstanding that his appeal has been deemed to be abandoned.

(4) If, on the expiry of the period of 7 days after the date on which an appeal is deemed to be abandoned by virtue of paragraph (1)—

(a) the appellant has not been reponed under rule 40.16, and

(b) a respondent does not insist in the appeal under paragraph (2) of this rule,

the decision appealed against shall be treated in all respects as if no appeal had been marked, and the Deputy Principal Clerk shall transmit the appeal process to the clerk of the inferior court in accordance with paragraph (5) of this rule.

(5) Where an appeal process falls to be transmitted to the inferior court under paragraph (4), the Deputy Principal Clerk shall—

(a) write on the interlocutor sheet, minute of court or other record containing the decision appealed against or on the separate note of appeal, as the case may be, a certificate in Form 40.15;

(b) send the appeal process to the clerk of the inferior court; and

(6) Where an appeal is deemed to be abandoned under paragraph (1) and has been transmitted to an inferior court under paragraph (5)—

(a) a respondent in the appeal may apply by motion to that court for an award of the expenses of the abandoned appeal; and

(b) the inferior court shall on such motion grant decree for payment to that respondent of those expenses as taxed by the Auditor of the Court of Session.

Appeal prints

40.16

(1) An appellant may, within 7 days after the date on which the appeal has been deemed to be abandoned under rule 40.15(1), apply by motion to a procedural judge to be reponed.

(2) A procedural judge may grant a motion under paragraph (1) on such conditions as to expenses or otherwise as he thinks fit.

(3) On enrolling a motion under paragraph (1), the appellant shall lodge a process (or such necessary steps of process as have not already been lodged) and an appeal print.

Lodging of appendices in appeals

40.17

(1) Where, after an appeal has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears that the amendment makes a material change to the pleadings, the Inner House may set aside the decision, or recall the interlocutor of the inferior court appealed against and remit the cause back to the inferior court for a further hearing.

Notes of evidence not extended when agreed in appeals

40.18

(1) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed.

(2) On lodging grounds of appeal, the party lodging them shall—

(a) lodge three copies of them in process; and

(b) send a copy of them to every other party.

(3) A party who has lodged grounds of appeal or answers to the grounds of appeal may apply by motion to amend the grounds or answers, on cause shown.

(4) An application under paragraph (3) shall include any necessary application under rule 40.12(1).

Amendment of pleadings in appeals

40.19

(1) Where, in an appeal under this Chapter, the appellant considers that it is not necessary to lodge an appendix to the appeal print, the appellant shall, by the relevant date specified in the timetable—

(a) give written intimation of that fact to the Deputy Principal Clerk; and

(b) send a copy of that intimation to each respondent.

(2) Where the appellant provides intimation under paragraph (1), a respondent may apply to a procedural judge, by motion, for an order requiring the appellant to lodge an appendix.

(3) An application under paragraph (2) shall include specification of the documents that the respondent seeks to have included in the appendix.

(4) Where an application is made under paragraph (2), a procedural judge may make an order requiring the appellant to lodge any appendix that the procedural judge considers necessary, within such time as the procedural judge may specify.

(5) An order under paragraph (4) may only be granted by a procedural judge after having heard parties.

(6) Paragraph (7) applies where—

(a) a respondent seeks to submit for consideration by the court notes of evidence or documents in respect of which the appellant has given written intimation to the respondent that the appellant does not intend to include in his appendix; and

(b) a procedural judge has not made an order under paragraph (2) requiring the appellant to lodge an appendix which includes such notes of evidence or documents.

(7) The respondent shall incorporate such notes or documents in an appendix which he shall lodge within such period as is specified by the procedural judge in disposing of the application under paragraph (4).

(8) Where, in any appeal other than one in which intimation is given under paragraph (1)—

(a) the judgment of the inferior court has not been included in the appeal print, or

(b) it is sought to submit notes of evidence or documents for consideration by the court,

the appellant shall lodge an appendix incorporating such documents within such period as shall be specified in the timetable.

CHAPTER 41 — APPEALS UNDER STATUTE

Application and interpretation of this Chapter

41.1

(1) This Chapter applies to an appeal from any decision of a tribunal, unless one of the following Chapters applies—

(a) Chapter 38 (reclaiming);

(b) Chapter 39 (applications for new trial or to enter jury verdicts);

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

“appeal” includes stated case, case, special case (other than a special case under section 27 of the Act of 1988), reference or submission, or an application under an enactment by virtue of which a person may question the validity of a decision;

“case” means stated case, special case (other than a special case under section 27 of the Act of 1988), reference or submission;

“decision” includes assessment, determination, order or scheme;

“party” means the person appearing before the tribunal against the decision of which appeal is taken or any other person who has exercised a statutory right of appeal;

“tribunal” means court, Secretary of State, Minister (including the Scottish Ministers), Department, statutory tribunal, referee, authority or arbiter, as the case may be, against whose decision the appeal is taken.

Applications for leave to appeal

41.2

(1) Where leave to appeal is required, an application for such leave shall be made, in the first instance, to the tribunal which made the decision sought to be appealed against unless—

(a) the enactment allowing the appeal requires the application to be made to the court; or

(b) there are special circumstances which make it impracticable or impossible to apply to the tribunal.

(2) An application may be made to the court for leave to appeal under paragraph(3) where—

(a) the tribunal has refused leave to appeal and such refusal is not final, or

(b) leave to appeal is required from the court and not the tribunal.

(3) Any application to the court for leave to appeal shall be made in Form 40.2.

(4) An application to the court under paragraph (3) for leave to appeal shall be lodged in the General Department—

(a) within the period prescribed by the enactment by virtue of which it is made; or

(b) where no such period is prescribed—

(i) within 42days after the date on which the decision appealed against was intimated to the appellant;

(ii) where the tribunal issued a statement of reasons for its decision later than the decision, within 42days after the date of intimation of that statement of reasons to the appellant.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)—

(a) a process in accordance with rule 4.4 (steps of process);

(b) where applicable—

(i) evidence that leave to appeal has been refused by the tribunal;

(ii) a copy of the grounds of appeal submitted to the tribunal; and

(iii) any note by the tribunal setting out the reasons for its refusal;

(c) a copy of the document issued by the tribunal setting out the decision complained of and any reasons for that decision; and

(d) where the tribunal itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Determination of applications for leave to appeal

41.3

(1) An application for leave to appeal under rule 41.2 shall, without a motion being enrolled—

(a) during session, be brought before a procedural judge on the first available day after being made for an order for—

(i) service of the application on the respondent and such other person as the procedural judge thinks fit within 7 days of the date of the order or such other period as the procedural judge thinks fit; and

(ii) any person on whom the application has been served, to lodge answers, if so advised, within 14 days after the date of service or within such other period as the procedural judge thinks fit; and

(b) during vacation, be brought before the vacation judge for such an order.

(2) An order for service under paragraph (1) shall include a requirement to intimate the application to the clerk of the tribunal.

(3) Where an application for leave to appeal is served under paragraph (1), evidence of service in accordance with Chapter 16 of these Rules shall be provided to the General Department within 14 days from the date of service.

(4) Paragraph (5) applies where an enactment—

(a) provides that leave to appeal is required;

(b) does not prescribe a period for lodging an application for leave to appeal; and

(5) A procedural judge or, as the case may be, the vacation judge may order that answers may be lodged to the application for leave to appeal within such period as he or she considers appropriate, having regard to the need for the application for leave to appeal to be dealt with before the period prescribed for lodging an appeal.

(6) Within 14 days after expiry of the period within which answers may be lodged, the applicant may apply by motion to a procedural judge for the application to be granted.

(7) Where an application for leave to appeal has been granted—

(a) the Deputy Principal Clerk shall send a certified copy of the interlocutor granting the application to the tribunal; and

(b) in an appeal by stated case, within 14 days after the date on which the certified copy of the interlocutor was sent to it, the tribunal shall state a case in accordance with rule 41.12 (preparation and issue of the case).

(8) Where an application for leave to appeal has been refused, the Deputy Principal Clerk shall send to the tribunal a copy of the interlocutor refusing the application.

Application and interpretation of this Part

41.4

(1) Where the appellant or a respondent seeks urgent disposal of an appeal, he or she shall apply by motion for urgent disposal of the appeal, specifying in the motion whether the appellant or respondent seeks urgent disposal on the Summar Roll or urgent disposal in the Single Bills.

(2) An application under paragraph(1) may be made—

(a) in an appeal under Part II of this Chapter, at any time before the expiry of the period of 14 days from the date intimation is given of the lodging of the case under rule41.14(1)(b) (intimation of the lodging of the case in court);

(b) in an appeal under Part III of this Chapter, not later than three days after the expiry of the period allowed for lodging answers to the appeal.

(3) The entry in the rolls in respect of a motion for urgent disposal under this rule 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 appeal.

(5) The procedural judge may—

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

(b) refuse the motion for urgent disposal.

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

(7) The following rules apply to an appeal in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he or she so directs—

(a) rule 41.5 (competency of appeals);

(b) in an appeal under Part II of this Chapter, rules 41.18 to 41.21.

Applications for case

41.5

(1) Any party other than the appellant may object to the competency of an appeal made in accordance with this Chapter by lodging in process and serving on the appellant a note of objection in Form41.5.

(2) A note of objection referred to in paragraph (1) may be lodged—

(a) in an appeal dealt with under Part II of this Chapter, at any time before the expiry of the period of 14 days from the date intimation is given of the lodging of the case under rule 41.14(1)(b) (intimation of the lodging of the case in court); or

(b) in an appeal dealt with under Part III of this Chapter, at any time before the expiry of the period of 14 days from the date of service of the appeal under rule 41.27.

(3) Where the Deputy Principal Clerk considers that an appeal made under this Chapter may be incompetent he may refer the question of competency to a procedural judge—

(a) in an appeal dealt with under Part II of this Chapter, at any time within the period of 14 days from the date the case is lodged under rule 41.14; or

(b) in an appeal dealt with under Part III of this Chapter, at any time within the period of 14 days from the date the appeal is lodged under rule 41.26.

(4) 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.

(5) Where a note of objection is lodged, or the Deputy Principal Clerk refers 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, lodge in process and 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 appeal as incompetent;

(b) direct that the appeal 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 appeal to be competent; or

and the procedural judge may make such order as to expenses or otherwise as he or she thinks fit.

(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House composed of three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection;

(d) reserve the objection for hearing with the merits.

Additional questions by other parties

41.6

(1) The Deputy Principal Clerk shall send to the tribunal a copy of the final interlocutor in an appeal under this Chapter.

Consideration of application by tribunal

41.7

(1) Subject to the provisions of the enactment providing for appeal and to Parts III to XIII, this Part shall regulate the procedure in—

(a) an appeal by stated case, special case, case, reference or submission against the decision of a tribunal;

(b) a case stated by an arbiter;

(c) all statutory proceedings for obtaining the opinion of the court on a question before the issue of a decision by a tribunal or by appeal against such a decision; and

(d) a case required to be stated by a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992.

Procedure for ordaining tribunal to state a case

41.8

(1) An application for a case for the opinion of the court on any question shall be made by minute setting out the question on which the case is applied for.

(2) A minute under paragraph (1) shall be sent to the clerk of the tribunal—

(a) where the application must be made before the issue of the decision of the tribunal, at any time before the issue of the decision;

(b) where the application may be made after the issue of the decision of the tribunal, within the period mentioned in paragraph (3); or

(c) where, in a cause in which a statement of the reasons for the decision was given later than the issue of the decision, the application may be made after the issue of that statement, within the period mentioned in paragraph (3).

(3) The period referred to in paragraph (2)(b) and (c) is—

(a) the period prescribed by the enactment under which the appeal is made; or

(b) where no such period is prescribed, within 14 days after the issue of the decision or statement of reasons, as the case may be.

Preparation and issue of the case

41.9

(1) On receipt of an application under rule 41.8 (applications for case), the clerk of the tribunal shall send a copy of the minute to every other party.

(2) Within 14 days after the date on which the clerk of the tribunal complied with paragraph (1), any other party may lodge with the clerk a minute setting out any additional question he or she proposes for the case; and on so doing he or she shall send a copy of it to every other party.

Intimation of intention to proceed

41.10

(1) Within 21 days after the expiry of the period allowed for lodging a minute under rule 41.9(2) (additional questions by other parties), the tribunal shall—

(a) decide to state a case on the basis of the questions set out in the application for a case under rule 41.8(1) and any minute under rule 41.9(2);

(b) refuse to state a case on a proposed question where it is of the opinion that that question—

(i) does not arise;

(ii) does not require to be decided for the purposes of the appeal; or

(iii) is frivolous; or

(c) where the application under rule 41.8(1) is made before the facts have been ascertained and the tribunal is of the opinion that it is necessary or expedient that the facts should be ascertained before the application is disposed of, defer further consideration of the application until the facts have been ascertained by it.

(2) Where the tribunal has deferred a decision under paragraph (1)(c), it shall, within 14days after it has ascertained the facts, decide whether to state or refuse to state a case.

(3) Where the tribunal makes a decision under paragraph (1) or (2), the clerk of the tribunal shall intimate that decision to each party.

(4) Where the tribunal has refused to state a case on any question, there shall be sent to the applicant with the intimation under paragraph (3)—

(a) a certificate specifying—

(i) the date of the decision of the tribunal; and

(ii) the reasons for refusal; and

(b) where the refusal has been made after the facts have been ascertained, a note of the proposed findings-in-fact on which the tribunal proposes to base its decision; or

(c) where the refusal has been made before the facts have been ascertained, a note of, or sufficient reference to, the averments of the parties in the appeal on which the refusal is based.

Lodging of case in court

41.11

(1) Where the tribunal has refused to state a case on any question, the party whose application has been refused may, within 14 days after the date on which intimation of such refusal was made under rule 41.10(3), lodge in the General Department—

(a) an application by note to a procedural judge for an order to require the other party to show cause why a case should not be stated;

(b) the certificate and any note issued under rule 41.10(4); and

(2) A note under paragraph (1)(a) shall—

(a) state briefly the grounds on which the application is made; and

(b) specify the order and any incidental order sought.

(3) An application under paragraph (1) shall be placed before a procedural judge on the first available day after the date on which the note under paragraph (1)(a) was lodged for an order for service of the note on—

(a) the tribunal; and

(b) every other party.

(4) After the period for lodging answers has expired, the procedural judge shall, on a motion by the noter, without hearing parties—

(a) appoint the note to the Summar Roll for hearing; or

(b) direct that the note be heard in the Single Bills.

(5) The noter shall intimate the decision of the procedural judge on the note to the tribunal.

Abandonment of appeal

41.12

(1) Where the tribunal has decided, or is ordered under rule 41.11, to state a case, the tribunal shall, within 14 days after the date of intimation of its decision to the parties, cause the case to be prepared in Form 41.12 and copies of it to be submitted in draft to each party.

(2) The case shall—

(a) specify the relevant provision of the enactment under which it is prepared;

(b) state in numbered paragraphs the facts and the circumstances out of which the case arises, as agreed or found, or as the case may be, the decision of the tribunal and the reasons for the decision; and

(3) Within 21 days after the date on which the draft case is submitted under paragraph (1), each party shall—

(a) return a copy of it to the clerk of the tribunal with a note of any amendments which he or she seeks to have made; and

(b) intimate such amendments to every other party.

(4) Within 28 days after the expiry of the period for return of the case under paragraph(3), the tribunal—

(a) shall adjust and settle the case; and

(b) may, when so doing, add such further or additional findings-in-fact and such additional questions as it thinks necessary for the disposal of the subject-matter of the case.

(5) Where the tribunal does not accept any amendment sought by a party, it shall append to the case a note of—

(a) the terms of the amendment proposed by the party and any statement by that party in support of the proposal; and

(b) its reasons for rejecting the proposed amendment.

(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall send it to the party, or first party, who applied for it.

Reponing against deemed abandonment

41.13

(1) The party to whom the case has been sent under rule 41.12(6) or paragraph(3) of this rule shall, within 14 days after the date of receipt of it—

(a) intimate to every other party a notice stating whether or not he or she intends to proceed with the case; and

(b) send a copy of the case to every other party.

(2) Where the party to whom the case has been sent under rule 41.12(6) does not intend to proceed with it, he or she shall, on intimating that fact to every other party under paragraph (1), send the case back to the clerk of the tribunal.

(3) On receipt of the case sent back under paragraph (2), the clerk of the tribunal shall send it to any other party who had applied for a case.

Procedure on abandonment

41.14

(1) The party who applied for the case shall, within the period mentioned in paragraph (2)—

(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.

(2) The period referred to in paragraph (1) is—

(a) the period prescribed by the enactment under or by virtue of which the appeal is brought; or

(b) where no such period is prescribed, within 28 days after the date on which the case was received by the party from the clerk of the tribunal by virtue of rule 41.12(6) or 41.13(3), as the case may be.

Motions for hearing of appeals

41.15

(1) A party shall be deemed to have abandoned his or her appeal if he or she—

(a) fails to comply with a requirement of rule 41.14(1) (lodging of case in court); and

(b) does not apply to be reponed under rule 41.16 (reponing against deemed abandonment).

(2) Where a party is deemed to have abandoned his or her appeal under paragraph (1) and another party has also applied for a case and has had no opportunity of proceeding with his or her appeal, the party deemed to have abandoned his or her appeal shall—

(a) intimate to that other party that his or her appeal is abandoned; and

(b) send the case to that other party.

(3) Where paragraph (2) applies, that other party shall be entitled to proceed in accordance with rule41.14.

(4) In the application of rule 41.14 to a party entitled to proceed by virtue of paragraph(3) of this rule, for the words “on which the case” to “rule 41.12(6) or 41.13(3), as the case may be” in paragraph (2)(b) of that rule, substitute the words “of intimation of abandonment under rule 41.15(2)”.

Amendment or re-statement of case

41.16

A party may apply by motion to a procedural judge within 7 days after the expiry of the period specified in rule 41.14(2) (period for lodging of case in court), to be reponed against a failure to comply with a requirement of rule 41.14(1).

Remit to reporter

41.17

(1) On abandonment of the appeal by all parties entitled to proceed, the case shall be sent to the Deputy Principal Clerk.

(2) On receiving a case sent under paragraph (1), the Deputy Principal Clerk shall—

(a) endorse the case with a certificate in Form 41.17; and

(b) transmit the case to the clerk of the tribunal.

(3) Where a case has been transmitted under paragraph (2), the tribunal shall, on a motion being made to it to that effect—

(a) dispose of the cause; and

(b) where one party only has applied for a stated case, find that party liable for payment to the other party in the appeal of the expenses of the abandoned appeal as taxed by the Auditor of the Court of Session.

Application of this Part

41.18

(1) Where a case has been lodged in accordance with rule 41.14, the Keeper of the Rolls shall—

(a) issue a timetable in Form 41.29, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the appeal, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of any productions relating to, or appendices to, the appeal;

(b) the lodging of notes of argument; and

(c) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the appeal.

(3) The Keeper shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk, within 7 days after expiry of the 14 day period mentioned in rule 41.5(2)(a);

(b) where a procedural judge has made a direction under rule 41.5(7)(b), within 7 days after the date that direction was made;

(c) where a question of competency has been referred to a bench of three or more judges, within 7 days after the date of the interlocutor mentioned in paragraph (4).

(4) An interlocutor referred to in paragraph (3)(c) is—

(a) an interlocutor that has been pronounced sustaining the competency of the appeal under rule 41.5(9)(a) or following a Summar Roll hearing under rule41.5(9)(b);

(b) an interlocutor that has been pronounced under rule 41.5(9)(c) or (d).

Form of appeal

41.19

(1) An appeal under PartII of this Chapter may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 41.18(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form 41.29.

Lodging of appeal in court

41.20

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the appeal out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the appellant or a respondent fails to comply with the timetable, make such order as the procedural judge thinks fit to secure the expeditious disposal of the appeal;

(b) in particular, where the appellant fails to comply with the timetable, refuse the appeal; or

Orders for service and answers

41.21

(1) At the procedural hearing fixed under rule 41.18(1)(b), or rule 41.19(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) At the procedural hearing mentioned in paragraph (1), the procedural judge may—

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

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

Motion for further procedure

41.22

The Inner House may, at any time before the final determination of the case—

(a) allow the case to be amended with the consent of the parties; or

(b) remit the case for re-statement, or further statement, in whole or in part by the tribunal.

Revenue appeals by stated case

41.23

(1) Where, in order to determine the case, any inquiry into matters of fact may be made, the Inner House may remit to a reporter, the Lord Ordinary or, in the case of a bench of three or more judges, one of the Inner House’s own number to take evidence and to report to the court.

(2) On completion of a report made under paragraph (1), the reporter shall send his or her report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.

(3) On receipt of such a report, the Deputy Principal Clerk shall—

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that each party may uplift a copy of the report from process.

(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.

Revenue appeals from Special Commissioners

41.24

Subject to the provisions of the enactment providing for appeal, this Part applies to an appeal against a decision of a tribunal other than an appeal to which Part II (appeals by stated case, etc.) applies.

Appeals relating to penalties

41.25

(1) An appeal to which this Part applies shall be made in Form 41.25.

(2) An appeal referred to in paragraph (1) shall—

(a) specify the relevant provision of the enactment under the authority of which the appeal is brought;

(b) specify the decision complained of, the date on which the decision was made and on which it was intimated to the appellant, and any other necessary particulars;

(d) set out the decision appealed against or refer to the decision (a copy of which shall be appended to the appeal);

(e) state, in brief numbered propositions, the grounds of appeal; and

(f) set out in a schedule the names and addresses of the respondents in the appeal and the name and address, so far as known to the appellant, of any other person who may have an interest in the appeal.

Appeals relating to certain determinations of Commissioners for Her Majesty’s Revenue and Customs

41.26

(1) Subject to paragraphs (2) and (3), the appeal shall be lodged in the General Department—

(a) within the period prescribed by the enactment under which it is brought; or

(b) where no such period is prescribed—

(i) within 42 days after the date on which the decision appealed against was intimated to the appellant; or

(ii) where the tribunal issued a statement of reasons for its decision later than the decision, within 42 days after the date of intimation of that statement of reasons to the appellant.

(2) Where leave to appeal to the court has been granted by the tribunal under any of the following enactments, the appeal shall be lodged in the General Department within 42 days after the date on which the decision to grant leave was intimated to the appellant—

(a) section 37 of the Employment Tribunals Act 1996 (appeal on a question of law from a decision or order of the Employment Appeal Tribunal with leave of the Tribunal);

(b) section 15 of the Social Security Act 1998 (appeal from a decision of a commissioner on a question of law with leave of a commissioner);

(c) section 13 of the Tribunals, Courts and Enforcement Act 2007 (appeal from decision of Upper Tribunal with leave from the Upper Tribunal).

(3) Where an application for leave to appeal was made to the court within the period specified in paragraph (1)(b) but that period has expired before leave has been granted, the appeal may be lodged within 7 days after the date on which that leave was granted.

(4) There shall be lodged with the appeal under paragraph (1)—

(a) a process in accordance with rule 4.4 (steps of process), unless an application has already been made to the court for leave to appeal;

(b) where appropriate, evidence that leave to appeal has been granted by the tribunal;

(d) such other documents founded upon by the appellant so far as in his or her possession or within his or her control.

Form of appeal under the Act of 1943

41.27

(1) The appeal shall, without a motion being enrolled—

(a) during session, be brought before a procedural judge on the first available day after being lodged for an order for—

(i) service of the appeal on the respondent and such other person as the procedural judge thinks fit within 7days of the date of the order or such other period as the procedural judge thinks fit; and

(ii) any person on whom the appeal has been served, to lodge answers, if so advised, within the period of notice; and

(b) during vacation, be brought before the vacation judge for such an order.

(2) Where an appeal is served under paragraph (1), evidence of service in accordance with Chapter 16 of these Rules shall be provided to the General Department within 14 days from the date of service.

(3) In the application of paragraph (1) to an appeal under section 9(5) of the Transport Act 1985 (appeal from a decision of the Secretary of State), the order for service under that paragraph shall include a requirement to serve the appeal on—

(a) the Secretary of State; and

(b) every person who had, or if aggrieved would have had, a right of appeal to the Secretary of State, whether or not that person has exercised that right.

(4) In the application of paragraph (1) to an appeal under section 15 of the Social Security Act 1998 (appeal from a Social Security Commissioner) or, in respect of the exercise of functions transferred from a Child Support Commissioner or a Social Security Commissioner to the Upper Tribunal, section 13 of the Tribunals, Courts and Enforcement Act 2007 (appeal from Upper Tribunal), the order for service under that paragraph shall include a requirement to serve the appeal on—

(a) the Secretary of State for Work and Pensions; and

(b) if it appears to the court that a person has been appointed by the Secretary of State to pursue a claim for benefit to which the appeal relates, that person.

(5) In the application of paragraph (1) to an appeal from a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992, the order for service pronounced under that paragraph shall include a requirement to serve an appeal on every other party to the proceedings before the tribunal and on the clerk of the tribunal.

Application of Part II to this Part

41.28

(1) This rule applies—

(a) where no note of objection to competency has been lodged within the period mentioned in rule 41.5(2)(b) and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 41.5(3)(b);

(b) where a procedural judge has made a direction under rule 41.5(7)(b); or

(i) an interlocutor has been pronounced sustaining the competency of the appeal under rule 41.5(9)(a) or following a Summar Roll hearing under rule41.5(9)(b), or

(ii) an interlocutor has been pronounced under rule 41.5(9)(c) or (d).

(2) Where no answers to the appeal have been lodged, within 14 days after expiry of the period allowed for lodging answers, the appellant shall apply by motion to a procedural judge for—

(a) such order for further procedure as is sought; or

(b) an order for a hearing.

(3) The procedural judge shall, on a motion under paragraph (2)—

(a) in relation to a motion under paragraph (2)(a), make such order as he or she thinks fit; or

(b) in relation to a motion under paragraph (2)(b), without hearing parties—

(i) appoint the cause to the Summar Roll for hearing; or

(ii) direct that the cause be heard in the Single Bills.

Interpretation of this Part

41.29

(1) Where answers to the appeal have been lodged, the Keeper of the Rolls shall—

(a) issue a timetable in Form 41.29, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the appeal, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of any productions relating to, or appendices to, the appeal;

(b) the lodging of notes of argument; and

(c) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the appeal.

(3) The Keeper shall take the steps mentioned in paragraph (1) after answers have been lodged to the appeal and, in particular—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk, within 7 days of the lodging of answers to the appeal;

(b) where, after answers have been lodged to the appeal, a procedural judge has made a direction under rule 41.5(7)(b), within 7 days after the date that direction was made;

(c) where, after answers have been lodged to the appeal, a question of competency has been referred to a bench of three or more judges, within 7 days after the date of an interlocutor mentioned in paragraph (4).

(4) An interlocutor referred to in paragraph (3)(c) is—

(a) an interlocutor that has been pronounced sustaining the competency of the appeal under rule 41.5(9)(a) or following a Summar Roll hearing under rule 41.5(9)(b);

(b) an interlocutor that has been pronounced under rule 41.5(9)(c) or (d).

Lodging of reports and statements with sheriff clerk

41.30

(1) An appeal under Part III of this Chapter may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 41.29(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form 41.29.

Lodging etc. of reports and statements in court

41.31

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the appeal out for a hearing before a procedural judge.

(2) At a hearing mentioned in paragraph (1), the procedural judge may—

(a) in any case where the appellant or a respondent fails to comply with the timetable, make such order as the procedural judge thinks fit to secure the expeditious disposal of the appeal;

(b) in particular, where the appellant fails to comply with the timetable, refuse the appeal; or

Hearing in private

41.32

(1) At the procedural hearing fixed under rule 41.29(1)(b), or rule 41.30(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) At the procedural hearing mentioned in paragraph (1), the procedural judge may—

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

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

Expenses

41.33

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