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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

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(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

(1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under—

(a) section 13(5) of the Stamp Act 1891 (appeal from Commissioners for Her Majesty’s Revenue and Customs); or

(b) regulation 20(1) of the General Commissioners (Jurisdiction and Procedure) Regulations 1994.

(2) In relation to appeals in respect of instruments executed before 1st October 1999, paragraph (1)(a) has effect as if the reference to section 13(5) of the Stamp Act 1891 were a reference to section 13(1) of that Act as it has effect in relation to such instruments.

(3) Subject to paragraph (4), Part II (appeals by stated case etc.) shall apply to an appeal to which paragraph (1) applies.

(4) The following provisions of Part II shall not apply to an appeal to which this rule applies—

rule 41.8 (applications for case),

rule 41.9 (additional questions by other parties),

rule 41.10 (consideration of application by tribunal),

rule 41.11 (procedure for ordaining tribunal to state a case),

rule 41.12 (preparation and issue of the case),

rule 41.13 (intimation of intention to proceed).

Application of this Part

41.34

(1) This rule applies to an appeal against a determination of the Commissioners for Her Majesty’s Revenue and Customs specified in a notice to the appellant under section 221 of the Inheritance Tax Act 1984 or regulation 6 of the Stamp Duty Reserve Tax Regulations 1986.

(2) Where the court grants leave to appeal under rule 41.3(6) in an application notified to it under section 222(3) of the said Act or regulation 8(3) of the said Regulations, as the case may be, or it is agreed between the appellant and the Commissioners of Inland Revenue that the appeal is to be notified to the court, the appellant shall, within 30 days after the date on which leave to appeal is granted or, as the case may be, after the date on which the Board intimates its agreement to the appellant—

(a) lodge a statement of facts and grounds of appeal in Form 41.25, and a process unless a process has already been lodged under rule 41.2(6) (lodging process in applications for leave to appeal), in which case the statement of facts and grounds of appeal shall be lodged in that process; and

(b) on so doing, apply by motion for an order for service in accordance with rule 41.27 (orders for service and answers).

(3) The appellant shall apply by motion to a procedural judge for an order for a hearing—

(a) following the lodging of answers or on the expiry of any period of adjustment allowed, or

(b) where no answers have been lodged, on the expiry of the period allowed for lodging answers.

(4) A motion under paragraph (3) shall be intimated to the solicitor in Scotland to the Commissioners of Her Majesty’s Revenue and Customs whether or not answers have been lodged by the Commissioners.

(5) Rule 41.28(3)(b) shall apply to a motion under paragraph (3) of this rule as it applies to a motion under paragraph (2)(b) of that rule.

(6) If an appellant fails to comply with any time-limit imposed by this rule, the appellant shall be deemed to have abandoned the appeal.

(7) Where it appears to the court in an appeal under this rule that any question as to the value of land in the United Kingdom requires to be determined, the court shall remit the cause—

(a) where the land is in Scotland, to the Lands Tribunal for Scotland,

(b) where the land is in England and Wales, to the Upper Tribunal (Lands Chamber),

to determine that question and remit back to a procedural judge for further procedure.

Form of appeal under this Part

41.35

Part II (appeals by stated case etc.) shall apply to an appeal to the court by stated case under sections163, 164 or 165 of the Act of 2011 subject to the following provisions of this Part.

Consolidated appeals

41.36

In this Part—

“the Act of 2011” means the Children’s Hearings (Scotland) Act 2011;

“the Principal Reporter” means the Principal Reporter appointed under paragraph8 of Schedule3 to the Act of 2011 or any person to whom there is delegated, under paragraph10(1) of Schedule3 to the Act of 2011, any function of the Principal Reporter under that Act.

Hearing before Registration Appeal Court

41.37

(1) Paragraph(2) applies where, on an appeal being made to the court by stated case under section163, 164 or 165 of the Act of 2011—

(a) it appears to the sheriff or the Sheriff Appeal Court that any report or statement lodged under section155(2), or report lodged under section155(6) of that Act in the appeal to the sheriff or the Sheriff Appeal Court is relevant to any issue which is likely to arise in the stated case; and

(b) the report or statement has been returned to the Principal Reporter.

(2) The sheriff or the Sheriff Appeal Court may require the Principal Reporter to lodge the report or statement with the sheriff clerk or the Clerk of the Sheriff Appeal Court; but on the stated case being sent to the person who applied for it, the sheriff clerk or the Clerk of the Sheriff Appeal Court shall return the report or statement to the Principal Reporter.

Decision of Registration Appeal Court

41.38

(1) Within seven days after the date on which the case is lodged under rule 41.14(1), the Principal Reporter shall send to the Deputy Principal Clerk the principal and three copies of every report or statement which he was required, under rule 41.37, to lodge.

(2) Neither the principal nor any copy of any such report or statement shall be made available to any of the other parties unless the court otherwise orders.

(3) Subject to any such order, every such report or statement shall remain in the custody of the Deputy Principal Clerk until the appeal has been determined or abandoned and then shall be returned by the Deputy Principal Clerk to the Principal Reporter.

Case stated by tribunal at its own instance

41.39

The court may direct that all or part of the appeal shall be heard in private.

Modifications of Part II to appeals under this Part

41.40

(1) No expenses shall be awarded to or against any party in respect of the appeal.

(2) Rule 41.17(3)(b) (award of expenses in abandoned appeal) shall not apply to an appeal to which this Part applies.

41.41

This Part applies to an appeal under section 56, as applied by section 57, of the Representation of the People Act 1983 (registration appeals).

Modifications of Part II to appeals under this Part

41.42

An appeal to which this Part applies shall be made by stated case to which Part II (appeals by stated case etc.) shall apply subject to the following provisions of this Part.

Application of Parts II and III to this Part

41.43

In the application of Part II by virtue of this Part, references to a procedural judge shall be read as references to the Registration Appeal Court constituted under section 57(2) of the Representation of the People Act 1983.

CHAPTER 42 — TAXATION OF ACCOUNTS, ETC.

Remit to the Auditor

42.1

(1) Where expenses are found due to a party in any cause, the court shall–

(a) pronounce an interlocutor finding that party entitled to expenses and, subject to rule 42.6(1) (modification of expenses awarded against assisted persons), remitting to the Auditor for taxation; and

(b) without prejudice to rule 42.4 (objections to report of the Auditor), unless satisfied that there is special cause shown for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the Auditor.

(2) Any party found entitled to expenses shall–

(a) lodge an account of expenses in process not later than four months after the final interlocutor in which a finding in respect of expenses is made; or

(b) ... lodge such account at any time with leave of the court but subject to such conditions (if any) as the court thinks fit to impose.

(2A) On lodging an account under paragraph (2)(a) or (b), any party found entitled to expenses must intimate a copy of it forthwith to the party found liable to pay those expenses.

(3) Rule 4.6(1) (intimation of steps of process) shall not apply to the lodging of an account of expenses.

Diet of taxation

42.2

(1) Subject to paragraph(2), the Auditor shall fix a diet of taxation on receipt of—

(a) the process of the cause;

(b) vouchers in respect of all outlays, including counsel’s fees; and

(c) a letter addressed to the Auditor confirming that the items referred to in subparagraph(b) have been intimated to the party found liable in expenses.

(2) The Auditor may fix a diet of taxation notwithstanding that paragraphs(1)(b) and (c) have not been complied with.

(3) The Auditor shall intimate the diet of taxation to—

(a) the party found entitled to expenses; and

(b) the party found liable in expenses.

(4) The party found liable in expenses shall, not later than 4.00pm on the fourth business day before the diet of taxation, intimate to the Auditor and to the party found entitled to expenses, particular points of objection, specifying each item objected to and stating concisely the nature and ground of objection.

(5) Subject to paragraph(6), if the party found liable in expenses fails to intimate points of objection under paragraph(4) within the time limit set out there, the Auditor shall not take account of them at the diet of taxation.

(6) The Auditor may relieve a party from the consequences of a failure to comply with the requirement contained in paragraph(5) because of mistake, oversight or other excusable cause on such conditions, if any, as the Auditor thinks fit.

(7) At the diet of taxation or within such reasonable period of time thereafter as the Auditor may allow, the party found entitled to expenses shall make available to the Auditor all documents, drafts or copies of documents sought by the Auditor and relevant to the taxation.

(8) In this rule, a “business day” means any day other than a Saturday, Sunday, or public holiday as directed by the Lord President of the Court of Session.

Report of taxation

42.3

(1) The Auditor must—

(a) prepare a statement of the amount of expenses as taxed;

(b) transmit the process of the cause, the taxed account and the statement to the appropriate Department of the Office of Court; and

(c) on the day on which the documents mentioned in sub-paragraph (b) are transmitted, intimate that fact and the date of the statement to each party to whom the Auditor intimated the diet of taxation.

(2) The party found entitled to expenses shall, within 7 days after the date of receipt of intimation under paragraph(1)(c), exhibit the taxed account, or send a copy of it, to the party found liable to pay the expenses.

Objections to report of the Auditor

42.4

(1) Any party to a cause who has appeared or been represented at the diet of taxation may object to the Auditor’s statement by lodging in process a note of objection within 14 days after the date of the statement.

(2) A party lodging a note of objection shall—

(a) intimate a copy of the note and a motion under subparagraph(b) to the Auditor and to any party who appeared or was represented at the diet of taxation;

(b) apply by motion for an order allowing the note to be received; and

(2A) Within 14 days after the date of receipt of intimation under paragraph(2)(c), the Auditor shall lodge a minute stating the reasons for his or her decision in relation to the items to which objection is taken in the note.

(3) After the minute of the Auditor has been lodged in process, the party who lodged the note of objection shall, in consultation with any other party wishing to be heard, arrange with the Keeper of the Rolls for a diet of hearing before the appropriate court.

(4) At the hearing on the note of objection, the court may–

(a) sustain or repel any objection in the note or remit the account of expenses to the Auditor for further consideration; and

(b) find any party liable in the expenses of the procedure on the note.

(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification or disallowance of expenses

42.5

(1) In any cause where the court finds a party entitled to expenses, the court may direct that expenses shall be subject to such modification as the court thinks fit.

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

Modification of expenses awarded against assisted persons

42.6

(1) In a cause in which the court finds an assisted person liable in expenses, the court may, on the motion of any party to the cause, instead of remitting the account of expenses of the party in whose favour the finding is made to the Auditor for taxation, determine to what extent the liability of the assisted person for such expenses shall be modified under–

(a) section 2(6)(e) of the Legal Aid (Scotland) Act 1967³⁵; or

(b) section 18(2) of the Legal Aid (Scotland) Act 1986³⁶.

(2) Where a remit is made to the Auditor for taxation in a cause in which an assisted person is found liable in expenses, an application for modification under a statutory provision mentioned in paragraph (1) may be made by motion within 14 days after the date of the report of the Auditor made under rule 42.3 (report of taxation).

Taxation of solicitors' own accounts

42.7

(1) Subject to section 61A(1) of the Solicitors (Scotland) Act 1980³⁷, the court may remit to the Auditor the account of a solicitor to his client–

(a) where the account is for work done in relation to a cause in the Court of Session, on the motion of the solicitor or the client; or

(b) in an action in which the solicitor or his representative sues the client for payment of the account.

(2) A motion under paragraph (1)(a) may be enrolled notwithstanding that final decree in the cause has been extracted.

(3) The account referred to in paragraph (1) shall–

(a) be in such form as will enable the Auditor to establish the nature and extent of the work done to which the account relates;

(b) detail the outlays incurred by the solicitor; and

(4) The Auditor shall–

(a) fix a diet of taxation not earlier than 14 days after the date on which he receives the account; and

(b) intimate the diet to the solicitor.

(5) On receipt of intimation of the diet of taxation from the Auditor, the solicitor shall forthwith send to his client by registered post or the first class recorded delivery service–

(a) a copy of the account to be taxed;

(b) a copy of the interlocutor remitting the account; and

(6) In taxing an account remitted to him under paragraph (1), the Auditor–

(a) shall allow a sum in respect of such work and outlays as have been reasonably incurred;

(b) shall allow, in respect of each item of work and outlay, such sum as may be fair and reasonable having regard to all the circumstances of the case;

(c) shall, in determining whether a sum charged in respect of an item of work is fair and reasonable, take into account any of the following factors:–

(i) the complexity of the cause and the number, difficulty or novelty of the questions raised;

(ii) the skill, labour, and specialised knowledge and responsibility required, of the solicitor;

(iii) the time spent on the item of work and on the cause as a whole;

(iv) the number and importance of any documents prepared or perused;

(v) the place and circumstances (including the degree of expedition required) in which the work of the solicitor or any part of it has been done;

(vi) the importance of the cause or the subject-matter of it to the client;

(vii) the amount or value of money or property involved in the cause; and

(viii) any informal agreement relating to fees;

(d) shall presume (unless the contrary is demonstrated to his satisfaction) that–

(i) an item of work or outlay was reasonably incurred if it was incurred with the express or implied approval of the client;

(ii) the fee charged in respect of an item of work or outlay was reasonable if the amount of the fee or the outlay was expressly or impliedly approved by the client; and

(iii) an item of work or outlay was not reasonably incurred, or that the fee charged in respect of an item of work or outlay was not reasonable if the item of work, outlay or fee charged, was unusual in the circumstances of the case, unless the solicitor informed the client before carrying out the item of work or incurring the outlay that it might not be allowed (or that the fee charged might not be allowed in full) in a taxation in a cause between party and party; and

(e) may disallow any item of work or outlay which is not vouched to his satisfaction.

(7) The Auditor must—

(a) prepare a statement of the fees and outlays as taxed;

(b) transmit the statement and the taxed account to the appropriate Department of the Office of Court; and

(7A) The solicitor shall, within 7 days after the date of receipt of the statement under paragraph(7)(c), exhibit the taxed account, or send a copy of it, to his or her client.

(8) The solicitor or his client may, where he or a representative attended the diet of taxation, state any objection to the Auditor’s statement; and rule 42.4 (objections to report of the Auditor) shall apply to such objection as it applies to an objection under that rule.

Application and interpretation of this Part

42.8

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

Form of account of expenses

42.9

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

Basis of charging

42.10

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

Posts and incidental expenses

42.11

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

Value added tax

42.12

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

Charges for witnesses

42.13

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

Additional fee

42.14

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

Fees of a reporter

42.15

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

Table of fees

42.16

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

Fees of solicitors in speculative causes

42.17

(1) Where–

(a) any work is undertaken by a solicitor in the conduct of a cause for a client,

(b) the solicitor and client agree that the solicitor shall be entitled to a fee for the work only if the client is successful in the cause, and

(c) the agreement is that the fee of the solicitor for all work in connection with the cause is to be based on an account prepared as between party and party,

the solicitor and client may agree that the fees element in that account shall be increased by a figure not exceeding 100 per cent.

(2) The client of the solicitor shall be deemed to be successful in the cause where–

(a) the cause has been concluded by a decree which, on the merits, is to any extent in his favour;

(b) the client has accepted a sum of money in settlement of the cause; or

(c) the client has entered into a settlement of any other kind by which his claim in the cause has been resolved to any extent in his favour.

(3) In paragraph (1), “the fees element” means all the fees in the account of expenses of the solicitor–

(a) for which any other party in the cause other than the client of the solicitor has been found liable as taxed or agreed between party and party;

(b) before the deduction of any award of expenses against the client; and

(i) any fees payable for copying documents and the proportion of any session fee in the Table of Fees and posts and incidental expenses under rule 42.11;

(ii) any additional fee allowed under rule 42.14 to cover the responsibility undertaken by the solicitor in the conduct of the cause; and

(iii) any charges by the solicitor for his outlays.

Special provisions in relation to particular proceedings

CHAPTER 43 — ACTIONS OF DAMAGES

Application and interpretation of this Part

43.1

(1) Subject paragraph (4) and to rule 43.1A (actions based on clinical negligence), this Chapter applies to a personal injuries action.

(2) In this Chapter–

“connected person” means a person, not being a party to the action, who has title to sue the defender in respect of the personal injuries from which a deceased died or in respect of his death;

“personal injuries” includes any disease or impairment, whether physical or mental;

“personal injuries action” means an action of damages for, or arising from, personal injuries or death of a person from personal injuries; and

“relative” has the meaning assigned to it by section 14(1) of the Damages (Scotland) Act 2011.

(3) The following rules shall not apply to an action to which this Chapter applies–

rule 4.9(2) (prorogation of time for lodging document),

rule 6.2 (fixing and allocation of diets in Outer House),

rule 13.2 (form of summonses),

rule 13.6A(1)(a) (arrestment to found jurisdiction),

rule 13.7 (service and intimation of summonses),

rule 13.13(6) (falling of instance),

rule 18.1(1)(b) (defences to include pleas-in-law),

rule 22.1 (making up open record),

rule 22.2 (adjustment),

rule 22.3 (closing record),

rule 26.5(2)(c) (answers by third party to include pleas-in-law),

rule 36.3 (lodging productions).

(4) This Chapter does not apply to any claim for loss of life or personal injury which falls to be dealt with as an Admiralty action within the meaning of rule 46.1 (interpretation of Chapter 46).

Averments in actions to which this Part applies

43.2

(1) The summons shall be in Form 43.2-A and there shall be annexed to it a brief statement containing–

(a) averments in numbered paragraphs relating only to those facts necessary to establish the claim; and

(b) the names of every medical practitioner from whom, and every hospital or other institution in which, the pursuer or, in an action in respect of the death of a person, the deceased received treatment for the personal injuries.

(2) An application for an order under section 12(2)(a) of the Administration of Justice Act 1982 (provisional damages for personal injuries) shall be made by including in the summons a conclusion for provisional damages; and, where such an application is made, averments as to the matters referred to in paragraphs (a) and (b) of section 12(1) of that Act shall be included in the statement made under paragraph (1)(a).

(3) In paragraph (2) above “provisional damages” means the damages referred to in section 12(4)(a) of the Administration of Justice Act 1982.

(4) A summons may include–

(a) warrants for intimation in so far as permitted under these Rules; and

(b) a specification of documents in Form 43.2-B.

(5) In relation to an action to which this Chapter applies, any references to the condescendence of a summons and to articles of the condescendence shall be construed as a reference to the statement required under paragraph (1) above and numbered paragraphs of that statement.

Warrants for intimation

43.3

(1) Where a summons in an action to which this Chapter applies is to be executed, a copy of the summons which has passed the signet shall be–

(a) served on the defender with a citation in Form 43.3 attached to it; and

(b) intimated to any person named in a warrant for intimation.

(2) Where a summons has not called within three months and a day after the date of signeting, the instance shall fall.

(3) Where a summons cannot be served within the period of notice determined in accordance with rule 13.4 and called before the expiry of the period mentioned in paragraph (2), the Court may–

(i) on the application of the pursuer by motion; and

(ii) on cause shown,

extend that period.

(4) An application under paragraph (3) shall be made before the expiry of the period mentioned in paragraph (2).

Applications to dispense with intimation

43.4

(1) This rule applies where the summons contains a specification of documents by virtue of rule 43.2(4)(b).

(2) Upon signet an order granting commission and diligence for the production and recovery of the documents mentioned in the specification shall be granted and the Deputy Principal Clerk of Session shall certify Form 43.2-B to that effect.

(3) An order under paragraph (2) shall be treated for all purposes as an interlocutor of the court granting commission and diligence signed by the Lord Ordinary.

(4) The pursuer may serve an order under paragraph (2) and the provisions of rule 35.3 or 35.3A shall thereafter apply, subject to any necessary modifications, as if the order were an order obtained on an application made under rule 35.2(1)(a).

(5) Nothing in this rule shall affect the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or for an order under section 1 of the Administration of Justice (Scotland) Act 1972 in respect of any document or other property not mentioned in the specification annexed to the summons.

Subsequent disclosure of connected persons

43.5

(1) Any party to an action may, within 28 days of the lodging of defences, by motion apply to have the action withdrawn from the procedure in this Chapter and to be appointed to proceed as an ordinary action.

(2) No motion under paragraph (1) shall be granted unless the court is satisfied that there are exceptional reasons for not following the procedure in this Chapter.

(3) In determining whether there are exceptional reasons justifying the granting of a motion made under paragraph (1), the Lord Ordinary shall have regard to–

(a) the likely need for detailed pleadings;

(b) the length of time required for preparation of the action; and

(4) Where the court appoints the cause to proceed as an ordinary action under paragraph (1)–

(a) the pursuer shall, within seven days, lodge an open record in terms of rule 22.1; and

(aa) on the application of a party by motion, the court may, if satisfied that it is appropriate–

(i) ordain a party to lodge a medical report which would have been lodged under Chapter 43 had the action not been withdrawn from that procedure;

(ii) ordain a party to lodge a statement of valuation of claim which would otherwise have been lodged under rule 43.9;

(iii) ordain the parties to hold a pre-trial meeting which would otherwise have been held under rule 43.10, and to lodge a minute of such meeting within such period as the court deems appropriate;

(b) rules 43.11, 43.12 and 43.13 shall apply to the action.

Connected persons entering process

43.6

(1) The Keeper of the Rolls shall, on the lodging of defences or, where there is more than one defender the first lodging of defences–

(a) allocate a diet for proof of the action;

(b) issue a timetable stating the date mentioned in sub-paragraph (a) and calculated by reference to periods specified from time to time by the Lord President, in accordance with which–

(i) an application for a third party notice under rule 26.1 may be made;

(ii) the pursuer may serve a commission for recovery of documents under rule 43.4;

(iii) parties may adjust their pleadings;

(iv) the pursuer shall lodge a statement of valuation of claim in process;

(v) the pursuer shall lodge a record;

(vi) the defender (and any third party to the action) shall lodge a statement of valuation of claim in process;

(vii) the parties shall each lodge in process a list of witnesses together with any productions upon which they wish to rely; and

(viii) the pursuer shall lodge in process the minute of the pre-trial meeting.

(2) A timetable issued under paragraph (1) shall be in Form 43.6 and shall be treated for all purposes as an interlocutor of the court signed by the Lord Ordinary; and so far as the timetable order is inconsistent with any provision in these rules which relates to a matter to which the timetable relates, the timetable shall prevail.

(3) Where a party fails to comply with any requirement of a timetable ... the Keeper of the Rolls may put the cause out to be heard on the By Order roll.

(4) The pursuer shall lodge two copies of the record, which shall consist of the pleadings of the parties, in process by the date specified in the timetable and shall at the same time send one copy to the defender and any other parties.

(5) The pursuer shall, on lodging the copies of the record as required by paragraph (4), enrol a motion craving the court–

(a) to allow to parties a preliminary proof on specified matters;

(b) to allow a proof;

(d) to make some other specified order.

(5A) The pursuer shall include in the enrolled motion under paragraph (5) his estimate of the likely duration of the preliminary proof, proof or jury trial, or any other hearing sought, and request that the diet be allocated accordingly.

(5B) If any party considers that the estimate included under paragraph (5A) is too low, he shall record upon the enrolled motion his own estimate.

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