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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

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(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 1967[^f00070]; or

(b) section 18(2) of the Legal Aid (Scotland) Act 1986[^f00071].

(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 1980[^f00072], 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.

(5C) Any estimate included or recorded by a party under paragraph (5A) or (5B) shall be certified in Form 43.6A by that party’s solicitor or by any counsel or other person having a right of audience instructed by that party to represent him at the preliminary proof, proof, jury trial or other hearing, as the case may be.

(5D) A certificate under paragraph (5C) shall be lodged–

(a) where it relates to an estimate included under paragraph (5A) at the time of enrolling the motion under paragraph (5);

(b) where it relates to an estimate recorded under paragraph (5B) at the time of recording that estimate.

(6) In the event that any party proposes to ask the court to make any order other than one of those specified in sub-paragraphs (b) or (c) of paragraph (5), that party shall, on enrolling or opposing (as the case may be) the pursuer’s motion, specify the order to be sought and give full notice in the motion or notice of opposition, of the grounds thereof.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

(a) by consent of parties; or

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

(9) In a cause which is one of more than one cause arising out of the same cause of action, the court may–

(a) on the motion of a party to that cause; and

(b) after hearing parties to all those causes,

appoint that cause or any other of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(10) In this rule, “pursuer ” includes additional pursuer, noter or minuter, as the case may be.

Failure to enter process

43.7

•

(1) Where the Keeper of the Rolls puts a case out to be heard on the By Order roll under paragraphs (3) or (7) of rule 43.6 or paragraph (3) of rule 43.10 he shall–

(a) put the cause out to be heard not less than seven days after the date of the notice referred to in sub-paragraph (b) on the By Order roll; and

(b) give notice to the parties to the action–

(i) of the date of the hearing of the cause on the By Order roll; and

(ii) requiring the party in default to lodge in process a written explanation as to why the timetable has not been complied with and to intimate a copy to all other parties, not less than two clear working days before the date of the hearing.

(2) At a hearing on the By Order roll under any of the provisions mentioned in the foregoing paragraph, the Lord Ordinary–

(a) shall consider any explanation provided by the party in default;

(b) may award expenses against that party; and

(3) Expenses awarded under paragraph (2)(b) shall not exceed the expenses of the process before the date of the hearing on the By Order roll.

Application and interpretation of this Part

43.8

(1) The action may be sisted or the timetable issued under rule 43.6 may be varied by the court on an application by any party to the action by motion.

(2) An application under paragraph (1)–

(a) shall be placed before the Lord Ordinary; and

(b) shall be granted only on ... cause shown.

(3) Any sist of an action shall be for a specific period.

(4) Where a timetable issued under rule 43.6 is varied under this rule, the Keeper of the Rolls shall issue a revised timetable in Form 43.6.

(5) A revised timetable issued under paragraph (4) shall have effect as if it were a timetable issued under rule 43.6 and any reference in this Chapter to any action being taken in accordance with the timetable shall be construed as a reference to its being taken in accordance with the timetable as varied under this rule.

Applications for interim payment of damages

43.9

(1) Each party to an action shall make a statement of valuation of claim in Form 43.9.

(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.

(3) Each party shall, on lodging a statement of valuation of claim–

(a) intimate the list of documents included in the statement of valuation of claim to every other party; and

(b) lodge each of those documents.

(6) Nothing in paragraph (3) shall affect–

(a) the law relating to, or the right of a party to object to the recovery of a document on the ground of, privilege or confidentiality; or

(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972.

(7) Without prejudice to paragraph (2) of rule 43.7 (hearings on the By Order roll), where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under paragraph (2) of rule 43.6 (allocation of diets and timetables) the court may at a hearing of the cause on the By Order roll under paragraph (3) of that rule–

(a) where the party in default is the pursuer, dismiss the action; or

(b) where the party in default is the defender, grant decree against the defender for an amount not exceeding the amount of the pursuer’s valuation.

Adjustment on final decree

43.10

(1) For the purposes of this rule, a pre-trial meeting is a meeting between the parties to—

(a) discuss settlement of the action; and

(b) agree, so far as is possible, the matters which are not in dispute between them.

(2) A pre-trial meeting must—

(a) be held not later than four weeks before the date assigned for the proof or trial; and

(b) be attended by parties—

(i) in person; or

(ii) by means of video-conference facilities.

(3) A joint minute of a pre-trial meeting, made in Form 43.10 (minute of pre-trial meeting), must be lodged in process by the pursuer not later than three weeks before the date for the proof or trial.

(4) Where a joint minute in Form 43.10 has not been lodged in accordance with paragraph (3) and by the date specified in the timetable, the Keeper of the Rolls must put the case out to be heard on the By Order roll.

(5) If a party is not in attendance during the pre-trial meeting, the representative of such party must have access to the party or another person who has authority to commit the party in settlement of the action.

Application and interpretation of this Part

43.11

(1) A pursuer may, at any time after defences have been lodged, apply by motion for an order for interim payment of damages to him by the defender or, where there are two or more of them, by any one or more of them.

(2) The pursuer shall give written intimation of a motion under paragraph (1) to every other party not less than 14 days before the date on which the motion is enrolled.

(3) On a motion under paragraph (1), the court may ordain–

(a) any defender who has admitted liability to the pursuer in the action; or

(b) where the court is satisfied that, if the action proceeded to proof, the pursuer would succeed on the question of liability without any substantial finding of contributory negligence on his part, or on the part of any person in respect of whose injury or death the claim of the pursuer arises, and would obtain decree for damages, any defender who has not admitted liability to the pursuer in the action,

to make an interim payment to the pursuer of such amount as it thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the court, are likely to be recovered by the pursuer.

(4) Any such payment may be ordered to be made in one lump sum or otherwise as the court thinks fit.

(5) No order shall be made against a defender under this rule unless it appears to the court that the defender is–

(a) a person who is insured in respect of the claim of the pursuer;

(aa) a person who is not insured but in respect of whose liability the Motor Insurers' Bureau will be liable to make payment;

(b) a public authority; or

(6) Notwithstanding the grant or refusal of a motion for an interim payment, a subsequent motion may be made where there has been a change of circumstances.

(7) Subject to Part IV (management of money payable to children), any interim payment shall be made to the pursuer unless the court otherwise directs.

(8) This rule shall, with the necessary modifications, apply to a counterclaim for damages for personal injuries made by a defender.

(9) In this rule “defender” includes a third party against whom the pursuer has a conclusion for damages.

(10) For the purposes of this rule, the reference in paragraph (5)(a) to a person who is insured in respect of the claim of a pursuer includes a reference to a person in respect of whose liability an insurer under section151 of the Road Traffic Act 1988 will be liable to make payment.

Applications for provisional damages

43.12

Where a defender has made an interim payment order under rule 43.11(3), the court may make such order, when final decree is pronounced, with respect to the interim payment as it thinks fit to give effect to the final liability of that defender to the pursuer; and in particular may order–

(a) repayment by the pursuer of any sum by which the interim payment exceeds the amount which that defender is liable to pay the pursuer; or

(b) payment by any other defender or a third party of any part of the interim payment which the defender who made it is entitled to recover from him by way of contribution or indemnity or in respect of any remedy or relief relating to, or connected with, the claim of the pursuer.

Applications for further damages

43.13

(1) An application for further damages by a pursuer in respect of whom an order under section 12(2)(b) of the Administration of Justice Act 1982 has been made shall be made by minute and shall include–

(a) a conclusion in Form 43.13-A; and

(b) averments in the statement of facts supporting that conclusion.

(2) On lodging such a minute in process, the pursuer shall apply by motion for warrant to serve the minute on–

(a) every other party; and

(b) where such other party is insured or otherwise indemnified, his insurer or indemnifier, if known to the pursuer.

(3) A notice of intimation in Form 43.13-B shall be attached to the copy of the minute served on a warrant granted on a motion under paragraph (2).

(4) Any such party, insurer or indemnifier may lodge answers to such a minute in process within 28 days after the date of service on him.

Interpretation of this Part

43.14

(1) This rule applies in an action of damages in which, following the death of any person from personal injuries, damages are claimed—

(a) in respect of the injuries from which the deceased died; or

(b) in respect of the death of the deceased.

(2) The pursuer ... shall aver in the condescendence, as the case may be–

(a) that there are no connected persons;

(b) that there are connected persons, being persons specified in the warrant for intimation; or

(i) the names or whereabouts of such persons are not known to, and cannot reasonably be ascertained by, the pursuer; or

(ii) such persons are unlikely to be awarded more than the sum of £200 each.

Orders for payment and management of money

43.15

(1) Where the pursuer makes averments under rule 43.14(2)(b) (existence of connected persons), he shall insert a warrant for intimation in the summons in the following terms:–

Warrant to intimate to (name and address) as a person who is believed to have title to sue the defender in an action in respect of the personal injuries from which the late (name and last place of residence) died [or the death of the late (name and last place of residence)]

(2) A notice of intimation in Form 43.15 shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (1).

Methods of management

43.16

(1) Where the pursuer makes averments under rule 43.14(2)(c) (dispensing with intimation to connected persons), he shall apply by motion for an order to dispense with intimation.

(2) In determining a motion under paragraph (1), the court shall have regard to–

(a) the desirability of avoiding multiplicity of actions; and

(b) the expense, inconvenience or difficulty likely to be involved in taking steps to ascertain the name or whereabouts of the connected person.

(3) Where the court is not satisfied that intimation to a connected person should be dispensed with, it may–

(a) order intimation to a connected person whose name and whereabouts are known;

(b) order the pursuer to take such further steps as it may specify in the interlocutor to ascertain the name or whereabouts of any connected person; and

(c) order that such advertisement be made in such manner, in such place and at such times as it may specify in the interlocutor.

Subsequent orders

43.17

Where the name or whereabouts of a person, in respect of whom the court has dispensed with intimation on a ground specified in rule 43.14(2)(c) (dispensing with intimation to connected persons), subsequently becomes known to the pursuer while the action is depending before the court, the pursuer shall apply by motion under rule 13.8(1) (warrants after signeting) for a warrant for intimation to such a person; and such intimation shall be made in accordance with rule 43.15(2).

Application and election of optional procedure

43.18

(1) A connected person may apply to the court by minute in the process of the action craving leave to be sisted as an additional pursuer to the action.

(2) Any such minute shall be placed before the Lord Ordinary who may grant the minute and shall make such order as he considers appropriate, having regard to the provisions in this Chapter.

Effect of election on right to jury trial

43.19

(1) Where a connected person to whom intimation is made–

(a) does not apply to be sisted as an additional pursuer to the action;

(b) subsequently brings a separate action against the same defender in respect of the same personal injuries or death; and

he shall not be awarded those expenses except on cause shown.

Proceedings before nominated judge

43.20

(1) This rule applies where liability to a relative of the pursuer may arise under section 5 of the Damages (Scotland) Act 2011 (discharge of liability to pay damages: exception for mesothelioma).

(2) On settlement of the pursuer’s claim, the pursuer may apply by motion for any or all of the following:–

(a) a sist for a specified period;

(b) discharge of the proof;

(3) Paragraphs (4) to (7) apply where a motion under paragraph (2) has been granted.

(4) As soon as reasonably practicable after the death of the pursuer, any agent who immediately prior to the death was instructed in a cause by the deceased pursuer shall notify the court of the death.

(5) The notification under paragraph (4) shall be by letter to the Deputy Principal Clerk and shall be accompanied by a certified copy of the death certificate relative to the deceased pursuer.

(6) A relative of the deceased may apply by motion for the recall of the sist and for an order for further procedure.

(7) On the expiration of the period of any sist pronounced on a motion under paragraph (2) the Keeper may put the case out to be heard on the By Order roll.

Defences in optional procedure action

43.21

Defences to the action shall be in the form of brief answers to the condescendence and appropriate pleas-in-law.

Application by defender for jury trial

43.22

(1) Where a defender intends to apply for jury trial in the action, he shall, at the same time as lodging defences, lodge a minute in process stating his intention to apply for jury trial.

(2) Where a defender does not lodge a minute under paragraph (1), he shall be taken to have waived his right to jury trial.

(3) Where a defender lodges a minute under paragraph (1)–

(a) the provisions of this Chapter and the waiver by the pursuer of his right to jury trial shall cease to have effect; and

(b) the action shall proceed as an ordinary action.

Disapplication of requirement for open record

43.23

An open record shall not be made up in, and Chapter 22 (making up and closing records) shall not apply to, the action unless otherwise ordered by the court.

Diet Roll

43.24

(1) Within 14 days after defences have been lodged, the action shall appear on the Diet Roll for a hearing on a specified date.

(2) The appearance of the action on the Diet Roll for a hearing on a specified date shall not affect the right of any party to apply by motion at any time under these Rules.

(3) Where an action appears on the Diet Roll, a motion (other than a motion for a commission and diligence for the recovery of medical records heard before the first hearing on the Diet Roll) which requires the attendance of counsel, or a motion mentioned in paragraph (5), shall be heard on the Diet Roll.

(4) At any hearing on the Diet Roll, the court may, at its own instance or on the motion of a party, on special cause shown where it is satisfied that the difficulty or complexity of the action makes it unsuitable for procedure under this Chapter, order that the action shall proceed as an ordinary action and ordain the pursuer to make up an open record.

(5) At any hearing on the Diet Roll, the court may, on the motion of any party–

(a) on special cause shown, allow a specified period of adjustment;

(b) on special cause shown, allow an amendment of the instance or conclusions of the summons;

(d) on cause shown, grant warrant for service of a third party notice: provided that–

(i) no such warrant may be granted after the final appearance on the Diet Roll unless on special cause shown; and

(ii) rule 43.21 (defences in optional procedure action) shall, with the necessary modifications, apply to answers by a third party as it applies to a defender;

(e) remit to a man of skill.

(6) At any hearing on the Diet Roll where adjustment has not been allowed or the period for adjustment has expired, the court shall–

(a) where necessary, continue the action on the Diet Roll;

(b) on special cause shown, appoint the action to the Procedure Roll;

(i) on the question of liability and the question of quantum of damages;

(ii) where liability is admitted, on the question of quantum of damages;

(iii) where quantum of damages is admitted or agreed, on the question of liability; or

(iv) where there is an issue between a defender and a third party, on that issue; or

(d) make such other order, if any, as it considers necessary for the further progress of the action.

(7) Where the court allows a proof or proof before answer under paragraph 6(c)(i) or (iv), it shall determine whether–

(a) the questions of liability and quantum of damages should be heard together or separately; and

(b) any issue between a defender and a third party should be heard with or separately from any question of liability or quantum of damages.

(8) Where the court makes an order under paragraph (6)(b), it may ordain a party–

(a) to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that any preliminary plea should be sustained, and

(b) to send a copy of it to every other party concerned,

within such period as the court thinks fit.

(9) When making an order under paragraph (6)(b) or (c), the court shall determine whether a record should be made up.

(10) Where the court orders a record to be made up under paragraph (8), rule 22.3(2) and (3) (lodging, etc. of closed records) shall apply to the action as it applies to an ordinary action.

Inspection and recovery of documents in optional procedure

43.25

(1) Without prejudice to rule 43.27 (exchange of reports skilled witnesses), within 14 days after an order has been pronounced under rule 43.24(6)(c) (allowance of proof), each party to the action shall–

(a) give written intimation to every other party of a list of the documents which are, or to the best of his knowledge have been, in his possession or control relating to the matters at issue between them;

(b) where such documents have been in his possession or control, state in that list the place where and the person with whom, to the best of his knowledge, those documents may be found; and

(2) A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list within 14 days after the receipt of the list at a time and place which is reasonable to both parties.

(3) A party inspecting documents under paragraph (2) shall have the right to obtain a copy or copies of any such document on payment of a copying fee of not more than that prescribed in Chapter I of the Table of Fees in rule 42.16.

(4) Nothing in this rule shall affect–

(a) the law relating to, or the right of a party to object to the inspection of a document on the ground of, privilege or confidentiality; or

(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972[^f00080].

Exchange of lists of witnesses in optional procedure

43.26

(1) Within 28 days after an order has been pronounced under rule 43.24(6)(c) (allowance of proof), each party to the action shall–

(a) give written intimation to every other party of a list containing the name, occupation (if known) and address of each person whom he intends to call as a witness; and

(b) lodge a copy of that list in process.

(2) A party who seeks to call as a witness a person not on his list intimated under paragraph (1) shall, if any other party objects to such a witness being called, seek leave of the court to call that person as a witness; and such leave may be granted on such conditions, if any, as the court thinks fit.

Exchange of reports of skilled witnesses in optional procedure

43.27

(1) Not less than 28 days before the diet of proof, a party shall–

(a) disclose to every other party in the form of a written report the substance of the evidence of any skilled person whom he intends to call as a witness; and

(b) lodge a copy of that report in process.

(2) Except on special cause shown, a party may only call as a skilled witness any person the substance of whose evidence has been disclosed in accordance with paragraph (1).

(3) Except on cause shown, the number of skilled witnesses for any party shall be limited to one medical expert and one expert of any other kind.

Evidence generally in optional procedure

43.28

Where possible, the parties shall agree photographs, sketch plans and any statement or document not in dispute.

CHAPTER 44 — TIME TO PAY DIRECTIONS

Application and interpretation of this Chapter

44.1

(1) This Chapter applies to an action in which a person may apply under section 1(1) of the Debtors (Scotland) Act 1987[^f00081] for a time to pay direction.

(2) In this Chapter–

“the Act of 1987” means the Debtors (Scotland) Act 1987;

“time to pay direction” means a direction made under section 1(1) of the Act of 1987.

Notice about time to pay directions

44.2

(1) In an action in which a defender may apply to the court for a time to pay direction, the pursuer shall serve on that defender a notice in Form 44.2–A and an application in Form 44.2–B at the same time as he serves a copy of the summons, or pleadings, as amended by a minute of amendment calling him as a defender.

(2) Before serving a notice and an application under paragraph (1), the pursuer shall insert in Form 44.2–A the date by which Form 44.2–B must be returned to the court by the defender (being the date on which the period of notice expires) and shall complete Part A of Form 44.2–B.

Applications for time to pay directions where appearance not entered

44.3

(1) Where a defender–

(a) does not enter appearance in an action,

(b) intends to apply to the court for a time to pay direction, and

he shall complete and send the application in Form 44.2–B to the Deputy Principal Clerk before the date specified in Form 44.2–A.

(2) On receipt of an application for a time to pay direction, the Deputy Principal Clerk shall–

(a) cause the application to be lodged in the process to which it relates; and

(b) give written intimation to the pursuer that he has received the application.

(3) Where the pursuer does not object to the application by a defender for a time to pay direction or the recall or restriction of an arrestment, he may apply by motion for decree in absence stating that he does not object to the application.

(4) Where the pursuer objects to the application by a defender for a time to pay direction or the recall or restriction of an arrestment, he shall intimate–

(a) the motion for decree in absence, and

(b) the grounds of objection to the application by the defender,

in Form 44.3 to the defender not less than 7 days before the date on which the motion is enrolled.

(5) On enrolling a motion for decree in absence, the pursuer shall lodge in process a copy of Form 44.3 intimated to the defender.

(6) The defender need not appear at the hearing of the motion for decree in absence and may send to the Deputy Principal Clerk written representations in response to the grounds of objection of the pursuer.

(7) A motion for decree in absence to which paragraph (4) applies shall require the appearance of counsel or other person having a right of audience.

Applications for time to pay directions where appearance entered but defences not lodged

44.4

(1) Where a defender–

(a) after entering appearance does not lodge defences,

(b) intends to apply to the court for a time to pay direction, and

then, notwithstanding the date specified in Form 44.2–A as the date by which Form 44.2–B must be returned, he shall complete and send the application in Form 44.2–B to the court not later than the day on which defences would have had to be lodged in process.

(2) Paragraphs (2) to (7) of rule 44.3 (applications for time to pay directions where appearance not entered) shall apply to an application under this rule as they apply to an application under that rule.

Applications for time to pay directions where defences lodged

44.5

An application for a time to pay direction by–

(a) a defender in an action in which defences have been lodged by that defender, or

(b) any other party,

shall be made by motion.

Applications for variation or recall of time to pay directions or arrestments

44.6

(1) An application under section 3(1) of the Act of 1987 (variation or recall of time to pay direction or recall or restriction of arrestment) shall be made by motion.

(2) The applicant shall–

(a) in a motion under paragraph (1), state briefly the grounds on which the order is sought; and

(b) give written intimation of the motion to the debtor or creditor, as the case may be, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation;

(b) the Post Office receipt or certificate of posting of that letter; and

Notice to debtor for payment of interest on decrees

47.7

Where a creditor seeks to recover interest (other than interest awarded as a specific sum) under a decree containing a time to pay direction, the notice to be served under section 1(7) of the Act of 1987 shall be served on the debtor by the creditor–

(a) in the case of a decree containing a time to pay direction for payment by instalments, not less than 14 days before the date on which the last instalment is due to be paid; and

(b) in the case of a decree which includes a time to pay direction for payment by deferred lump sum, not less than 14 days before the date on which the lump sum is due to be paid.

CHAPTER 45 — ACTIONS OF DIVISION AND SALE

Remit to reporter to examine property

45.1

(1) In an action of division and sale of heritable property, the court shall, in accordance with paragraph (2), remit to a reporter to examine the property and to report to the court–

(a) whether the property is capable of division in a manner equitable to the interests of the pro indiviso proprietors and, if so, how such division may be effected; and

(b) in the event that the property is to be sold–

(i) whether the property should be sold as a whole or in lots and, if in lots, what those lots should be;

(ii) whether the property should be exposed for sale by public roup or private bargain;

(iii) whether the sale should be subject to any upset or minimum price and, if so, the amount;

(iv) the manner and extent to which the property should be advertised for sale; and

(v) any other matter which the reporter considers pertinent to a sale of the property.

(2) A remit under paragraph (1) shall be made–

(a) where the action is undefended, on the motion of the pursuer at any time after the period for lodging defences has expired;

(b) where the action is defended–

(i) at the closing of the record, on the motion of any party to the action;

(ii) on the court finding, after a hearing on the Procedure Roll or a proof, that the pursuer is entitled to bring and insist in the action of division and sale; or

(iii) at such other time as the court thinks fit.

(3) On completion of a report made under paragraph (1), the reporter shall send the report, with a copy for each party, to the Deputy Principal Clerk.

(4) 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 he may uplift a copy of the report from the process.

(5) After the lodging of such a report, any party may apply by motion for further procedure or for approval of the report.

(6) At the hearing of a motion under paragraph (5), the court may–

(a) in the event of challenge to any part of the report, order a note of objection to the report and answers to the note to be lodged within such period as the court thinks fit; or

(b) in the absence of such challenge, order that the property be divided or sold, as the case may be, in accordance with the recommendations of the reporter, subject to such modification, if any, as the court thinks fit.

(7) Where, in accordance with paragraph (6)(a), the lodging of a note of objection and answers has been ordered, the cause shall be put out on the By Order Roll before the Lord Ordinary after the expiry of the period for lodging the note of objection and answers; and the court may make such order for further procedure as it thinks fit.

Division or sale of property

45.2

(1) Where the court orders the division or sale of heritable property, it shall direct that the division or sale, as the case may be, shall be conducted under the oversight and direction of the Deputy Principal Clerk or any other fit person whom it may appoint for that purpose.

(2) The Deputy Principal Clerk or person appointed under paragraph (1), as the case may be, may report any matter of difficulty arising in the course of the division or sale to the court.

(3) At a hearing on a report made under paragraph (2), the court may give such directions as it thinks fit, including authority to the Deputy Principal Clerk to sign, on behalf of any proprietor, a disposition of his interest in the property.

(4) On the conclusion of a sale of property–

(a) the proceeds of the sale, under deduction of the expenses of the sale, shall be consigned into court; and

(b) The Deputy Principal Clerk or the person appointed under paragraph (1), as the case may be, shall lodge in process a report of the sale and a proposed scheme of division of the proceeds of sale.

(5) At the hearing of a motion for approval of a report of the sale of property lodged under paragraph (4) and the proposed scheme of division, the court may–

(a) approve the report and scheme of division, and direct that payment of the proceeds of sale be made in terms of the report;

(b) deal with any question as to the expenses of process or of sale; and

CHAPTER 46 — ADMIRALTY ACTIONS

Interpretation of this Chapter

46.1

In this Chapter–

“Admiralty action” means an action having a conclusion appropriate for the enforcement of a claim to which section 47(2) of the Administration of Justice Act 1956[^f00082] applies ...

“ship” has the meaning assigned in section 48(f) of that Act.

Forms of action

46.2

(1) An Admiralty action against the owners or demise charterers of, or other parties interested in, a ship or the owners of the cargo may be brought–

(a) in rem, where the conclusion of the summons is directed to recovery in respect of a maritime lien against the ship or cargo or the proceeds of it as sold under order of the court or where arrestment in rem may be made under section 47(3) of the Administration of Justice Act 1956;

(b) in personam, where the conclusion of the summons is directed to a decree in common form against the defender; or

(2) When bringing an Admiralty action, the pursuer shall insert the words “Admiralty Action in rem”, “Admiralty Action in personam” or “Admiralty Action in rem and in personam”, as the case may be, immediately below the words “IN THE COURT OF SESSION” where they occur above the instance, and on the backing, of the summons and any copy of it.

Actions in rem

46.3

(1) In an Admiralty action in rem—

(a) where the owners or demise charterers of, or other parties interested in, the ship or the owners of the cargo against which the action is directed are known to the pursuer, they shall be called as defenders by name;

(b) where such owners or demise charterers or other parties are unknown to the pursuer—

(i) the pursuer may call them as defenders as “the owners or demise charterers of, or other parties interested in the ship (name and identify by its port of registry) [or the owners of the cargo]”; and

(ii) the master, if known, shall also be called as a defender representing the owners or demise charterers.

(2) In an Admiralty action in rem, the ship or cargo shall be arrested in rem and a warrant for such arrestment shall be inserted in the summons in the form in Form 13.2–A.

Actions in personam

46.4

(1) In an Admiralty action in personam directed against the owners or demise charterers, or other parties interested in a ship, or the owners of cargo, the defenders shall, if known to the pursuer, be called as defenders by name.

(2) In such an action, where–

(a) the vessel is not a British ship, and

(b) the names of the owners or demise charterers are not known to the pursuer,

the master of the ship may be called as the defender representing the owners or demise charterers.

(3) In an action to which paragraph (2) applies, any warrant to arrest to found jurisdiction shall be executed against the master of the ship in his representative capacity.

(4) In an action to which paragraph (2) applies, any decree shall be pronounced against the master in his representative capacity.

(5) A decree in an Admiralty action in personam may be pronounced against an owner or demise charterer of, or other party interested in, the ship or the owner of the cargo only where that owner or demise charterer or other party interested, as the case may be, has been called or added as a defender.

Sale of ship or cargo

46.5

(1) This rule shall not apply to the sale of a cargo arrested on the dependence of an Admiralty action in personam

(1A) Where section 47E of the Administration of Justice Act 1956 applies, the pursuer may apply for an order for the sale of the ship by public auction or private bargain.

(1B) Where the owner or demise charterer of the ship has made payment of the sum due under section 47E(2)(a) of the Administration of Justice Act 1956, or has tendered the sum due under section 47E(2)(b) of that Act and that tender has not been accepted within a reasonable time, the owner or demise charterer may apply to the court for an order declaring that the arrestment ceased to have effect from a specified date.

(2) Where, in an Admiralty action or an action of declarator and sale of a ship–

(a) the court makes a finding that the pursuer has a claim which falls to be satisfied out of an arrested ship or cargo, or

(b) a decree for a sum of money has been granted in an action in which a ship has been arrested on the dependence,

the pursuer may apply by motion for an order for the sale of that ship or a share in it, or the cargo, as the case may be, by public auction or private bargain.

(3) Before making such an order, the court shall remit to a reporter for the purpose of obtaining–

(a) an inventory of,

(b) a valuation and recommended upset price for, and

the ship, share or cargo.

(4) Where a remit is made under paragraph (3), the pursuer shall instruct the reporter within 14 days after the date of the interlocutor making the remit and be responsible, in the first instance, for payment of his fee.

(5) On completion of a report following a remit under paragraph (3), the reporter shall send the report and a copy for each party to the Deputy Principal Clerk.

(6) On receipt of such a report, the Deputy Principal Clerk shall–

(a) give written intimation to each party of receipt of the report;

(b) request the pursuer to show to him a discharge in respect of the fee for which he is responsible under paragraph (4); and

(i) lodge the report in process;

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

(iii) cause the action to be put out on the By Order Roll before the Lord Ordinary.

(7) Where the court orders the sale of a ship, share or cargo, the conduct of the sale, including any advertisement of it, shall be under the direction of the Deputy Principal Clerk.

(8) Where such a sale is the sale of a ship or a share in it, the interlocutor ordering the sale shall include a declaration that the right to transfer the ship or share to the purchaser is vested in the Deputy Principal Clerk.

(9) Where, in such a sale, no offer to purchase the ship, share or cargo, as the case may be, has reached the upset price, the pursuer may apply by motion for authority to expose such ship, share or cargo for sale at a reduced upset price.

(10) The proceeds of such a sale shall be consigned into court, under deduction of all dues to the date the court adjudges the ship, share or cargo to belong to the purchaser under paragraph (11)(a), payable to Her Majesty’s Customs and Excise or to the port or harbour authority within the jurisdiction of which the ship or cargo lies and in respect of which such port or harbour authority has statutory power to detain the ship or cargo.

(11) On consignation being made under paragraph (10), the court shall–

(a) adjudge the ship, share or cargo, as the case may be, declaring the same to belong to the purchaser, freed and disburdened of all bonds, mortgages, liens, rights of retention and other incumbrances affecting it and ordering such ship, share or cargo to be delivered to the purchaser on production of a certified copy of the interlocutor pronounced under this sub-paragraph; and

(b) order such intimation and advertisement, if any, for claims on the consigned fund as it thinks fit.

(12) The court shall, after such hearing or inquiry as it thinks fit–

(a) determine all questions of expenses;

(b) rank and prefer any claimants in order of preference; and

Ship collisions and preliminary acts

46.6

(1) Subject to rule 46.7 (applications to dispense with preliminary acts), this rule applies to an Admiralty action of damages arising out of a collision between ships at sea.

(2) An action to which this rule applies may be brought in rem in personam or in rem and in personam

(3) A summons in such an action shall not contain a condescendence or pleas-in-law.

(4) Where such an action is brought in personam, the conclusion of the summons shall contain sufficient detail to enable the defender to identify the date and place of, and the ships involved in, the collision.

(5) Within 7 days after the summons has called, the pursuer shall lodge in process a sealed envelope containing–

(a) a preliminary act in Form 46.6; and

(b) a brief condescendence and appropriate pleas-in-law.

(6) Within 28 days after the preliminary act for the pursuer has been lodged under paragraph (5), the defender shall lodge in process a sealed envelope containing a preliminary act in form 46.6.

(7) A party who lodges a preliminary act under paragraph (5) or (6) shall not send a copy of it to any other party.

(8) On the lodging of a preliminary act by the defender under paragraph (6), a clerk of session in the General Department shall–

(a) open both sealed envelopes;

(b) mark the contents of those envelopes with appropriate numbers of process; and

(9) On receipt of the written intimation under paragraph (8)(c), the pursuer and defender shall exchange copies of the contents of their respective envelopes.

(10) Within 7 days after the sealed envelopes have been opened up under paragraph (8), the defender may lodge defences to the action in process and any counterclaim on which he proposes to found.

(11) Within 7 days after a counterclaim has been lodged under paragraph (10), the pursuer may lodge answers to it in process.

(12) Within 14 days after defences have been lodged under paragraph (10) or answers have been lodged under paragraph (11), whichever is the earlier, the pursuer shall make up an open record with a copy of each of the preliminary acts appended to it; and Chapter 22 (making up and closing records) shall, subject to paragraph (13) of this rule, apply to the action as it applies to an ordinary action.

(13) No amendment, adjustment or alteration may be made to a preliminary act except by order of the court.

Applications t o dispense with preliminary acts

46.7

(1) Within 7 days after the date on which the summons has called, any party may apply for an order to dispense with preliminary acts in an action to which rule 46.6 applies.

(2) An application under paragraph (1) shall be made by minute craving the court to dispense with preliminary acts and setting out the grounds on which the application is made.

(3) Before lodging such a minute in process, the party making the application shall intimate a copy of the minute, and the date on which it will be lodged, to every other party.

(4) Any other party may lodge in process answers to such a minute within 14 days after such a minute has been lodged.

(5) After the expiry of the period mentioned in paragraph (4), the court may, on the motion of any party, after such further procedure, if any, as it thinks fit, dispense with preliminary acts.

(6) Where the court dispenses with preliminary acts, the pursuer shall lodge a condescendence with appropriate pleas-in-law within such period as the court thinks fit; and the action shall thereafter proceed in the same way as an ordinary action.

(7) Where the court refuses to dispense with preliminary acts, it shall ordain a party or parties, as the case may be, to lodge preliminary acts under rule 46.6 within such period as it thinks fit.

(8) An interlocutor dispensing or refusing to dispense with preliminary acts shall be final and not subject to review.

Ship collision and salvage actions

46.8

(1) Without prejudice to rule 36.3(1) (lodging productions for proof), in an Admiralty action arising out of a collision between ships at sea or salvage, the parties shall–

(a) within 4 days after the interlocutor allowing proof,

(b) within 4 days before the taking of evidence on commission, or

lodge in process the documents, if any, mentioned in paragraph (2).

(2) The documents to be lodged under paragraph (1) are–

(a) the log books, including scrap log books, of the ships concerned;

(b) all de recenti written reports in conection with the collision or salvage, as the case may be, by the masters or mates of the vessels concerned to their respective owners; and

International Oil Pollution Compensation Fund

46.9

(1) In this rule–

“the Act of 1995” means the Merchant Shipping Act 1995

“the Fund” means the International Fund established by the Fund Convention referred to in section 172(1)(b) of the Act of 1995.

the Supplementary Fund” has the meaning given in section 172(1)(f) of the Act of 1995

(2) In an action in respect of liability under section 153 of the Act of 1995, intimation of the action under section 177(2) of that Act to the Fund shall be given by the pursuer in accordance with paragraphs (3) and (4) of this rule.

(3) Where intimation is to be made under paragraph (2), the pursuer shall insert a warrant for intimation in the summons in the following terms:– “Warrant to intimate to the International Oil Pollution Compensation Fund (address) as a person having an interest in this action.”.

(4) Intimation under paragraph (2) shall be given by a notice of intimation in Form 46.9 attached to a copy of the summons.

(5) Where the Fund or the Supplementary Fund is not a party to an action to which this rule applies, a defender may apply by motion for warrant to serve a third party notice on the Fund or the Supplementary Fund, as the case may be .

(6) Where, in an action under section 175 of the Act of 1995 (compensation from Fund for persons suffering pollution damage) or section 176A of that Act (liability of the Supplementary Fund), the court grants decree against the Fund or the Supplementary Fund, as the case may be, the clerk of court shall, within 14 days after the date of the decree, send a copy of it by first class post to the fund or the Supplementary Fund, as the case may be.

(7) Any notice under section 176(3)(b) or section 176B(2)(b) of the Act of 1995 (notification of whether amount of claim to be reduced) by the Fund or the Supplementary Fund, as the case may be to the court shall be sent to the Deputy Principal Clerk.

(8) An application by virtue of section 176(3)(a) or section 176B(2)(a) of the Act of 1995 for leave to enforce a decree against the Fund or the Supplementary Fund, as the case may be shall be made by motion.

CHAPTER 47 — COMMERCIAL ACTIONS

Application and interpretation of this Chapter

47.1

(1) This Chapter applies to a commercial action.

(2) In this Chapter—

“commercial action” means an action arising out of, or concerned with, any transaction or dispute of a commercial or business nature in which an election has been made under rule 47.3(1) or which has been transferred under rule 47.10;

“preliminary hearing” means a hearing under rule 47.11;

“procedural hearing” means a hearing under rule 47.12.

Proceedings before commercial judge

47.2

All proceedings in the Outer House in a commercial action shall be brought before a judge of the court nominated by the Lord President as a commercial judge or, where a commercial judge is not available, any other judge of the court (including the vacation judge); and “commercial judge” shall be construed accordingly.

Election of procedure for commercial actions and form of summons

47.3

(1) The pursuer may elect to adopt the procedure in this Chapter by bringing an action in which there are inserted the words “Commercial Action” immediately below the words “IN THE COURT OF SESSION” where they occur above the instance, and on the backing, of the summons and any copy of it.

(2) A summons in a commercial action shall—

(a) specify, in the form of conclusions, the orders sought;

(b) identify the parties to the action and the transaction or dispute from which the action arises;

(ba) specify any special capacity in which the pursuer is bringing the action or any special capacity in which the action is brought against the defender;

(d) set out the grounds on which the action proceeds.

(3) There shall be appended to a summons in a commercial action a schedule listing the documents founded on or adopted as incorporated in the summons , which should also be lodged as an inventory of productions.

Disapplication of requirement for open record

47.4

(1) The requirement in rule 4.1(4) for a step of process to be folded lengthwise shall not apply in a commercial action.

(2) An open record shall not be made up in, and Chapter 22 (making up and closing records) shall not apply to, a commercial action unless otherwise ordered by the court.

(3) The following rules shall not apply to a commercial action:—

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

rule 25.1(3) (form of counterclaim),

rule25.2(1) (authority for diligence etc. on counterclaims),

rule 36.3 (lodging productions).

Commercial Roll

47.5

Subject to the provisions of this Chapter, the procedure in a commercial action shall be such as the commercial judge shall order or direct.

Withdrawal of action from procedure in this Chapter

47.6

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

Application of this Part

41.34

Form of appeal under this Part

41.35

Consolidated appeals

41.36

Hearing before Registration Appeal Court

41.37

Decision of Registration Appeal Court

41.38

Case stated by tribunal at its own instance

41.39

Modifications of Part II to appeals under this Part

41.40

Form of appeal under certain Social Security Acts

41.41

Modifications of Part II to appeals under this Part

41.42

Application of Parts II and III to this Part

41.43

CHAPTER 42 — TAXATION OF ACCOUNTS, ETC.

Remit to the Auditor

42.1

Diet of taxation

42.2

Report of taxation

42.3

Objections to report of the Auditor

42.4

Modification or disallowance of expenses

42.5

Modification of expenses awarded against assisted persons

42.6

Taxation of solicitors' own accounts

42.7

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

Special provisions in relation to particular proceedings

CHAPTER 43 — ACTIONS OF DAMAGES

Application and interpretation of this Part

43.1

Averments in actions to which this Part applies

43.2

Warrants for intimation

43.3

Applications to dispense with intimation

43.4

Subsequent disclosure of connected persons

43.5

Connected persons entering process

43.6

Failure to enter process

43.7

Application and interpretation of this Part

43.8

Applications for interim payment of damages

43.9

Adjustment on final decree

43.10

Application and interpretation of this Part

43.11