Legalize / United Kingdom / Statutory-Instrument

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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(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 1987³⁸ 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 1956³⁹ 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

(1) Defences in a commercial action shall be in the form of answers to the summons with any additional statement of facts or legal grounds on which it is intended to rely.

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

Transfer of action to procedure in this Chapter

47.7

(1) In an action in which the pursuer has not elected to adopt the procedure in this Chapter, any party may apply by motion at any time to have the action appointed to be a commercial action.

(2) A motion enrolled under paragraph (1) shall be heard by a commercial judge.

(3) An interlocutor appointing or refusing to appoint an action to be a commercial action shall be final and not subject to review.

Inspection and recovery of documents in commercial actions

47.8

(1) All proceedings in an action in which an election has been made under rule 47.3(1) or which has been transferred under rule 47.10 shall, in the Outer House, be heard and determined on the Commercial Roll on such dates and at such times as shall be fixed by the commercial judge.

(2) A commercial action shall call on the Commercial Roll for a preliminary hearing within 14 days after defences have been lodged.

(3) The appearance of a commercial action on the Commercial 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.

Exchange of lists of witnesses in commercial actions

47.9

(1) At any time before or at the preliminary hearing, the commercial judge shall—

(a) on the motion of a party, withdraw a commercial action from the procedure in this Chapter and appoint it to proceed as an ordinary action where, having regard to—

(i) the likely need for detailed pleadings to enable justice to be done between the parties,

(ii) the length of time required for preparation of the action, or

(iii) any other relevant circumstances,

he is satisfied that the speedy and efficient determination of the action would not be served by the cause being dealt with as a commercial action; and

(b) on the motion of a party with the consent of all other parties, withdraw a commercial action from the Commercial Roll and appoint it to proceed as an ordinary action.

(1A) At any time before or at the preliminary hearing the commercial judge may, on the motion of a party, if he is satisfied that the action is not a commercial action, withdraw it from the Commercial Roll and appoint it to proceed as an ordinary action.

(2) If a motion to withdraw a commercial action from the Commercial Roll made before or renewed at a preliminary hearing is refused, no subsequent motion to withdraw the action from the Commercial Roll shall be considered except on special cause shown.

(3) At any time the commercial judge may, at his own instance, after hearing the parties to the action, if he is satisfied that it is not appropriate for the action to remain on the Commercial Roll, withdraw it from the Commercial Roll and appoint it to proceed as an ordinary action.

Evidence generally in commercial actions

47.10

(1) In an action within the meaning of rule 47.1(2) (definition of commercial action) in which the pursuer has not made an election under rule 47.3(1), any party may apply by motion at any time to have the action appointed to be a commercial action on the Commercial Roll.

(2) A motion enrolled under paragraph (1) shall be heard by the commercial judge on such a date and at such a time as the Keeper of the Rolls shall fix in consultation with the commercial judge.

(3) Where an interlocutor is pronounced under paragraph (1) appointing an action to be a commercial action on the Commercial Roll, the action shall immediately proceed to a preliminary hearing.

Customs of trade

47.11

(1) Unless a commercial action is withdrawn under rule 47.9 from the Commercial Roll then, at the preliminary hearing of a commercial action in which an election has been made under rule 47.3(1), the commercial judge—

(a) shall determine whether and to what extent and in what manner further specification of the claim and defences should be provided;

(b) may make an order in respect of any of the following matters:—

(i) detailed written pleadings to be made by a party either generally or restricted to particular issues;

(ii) a statement of facts to be made by one or more parties either generally or restricted to particular issues;

(iii) the allowing of an amendment by a party to his pleadings;

(iv) disclosure of the identity of witnesses and the existence and nature of documents relating to the action or authority to recover documents either generally or specifically;

(v) documents constituting, evidencing or relating to the subject-matter of the action or any invoices, correspondence or similar documents relating to it to be lodged in process within a specified period;

(vi) each party to lodge in process, and sent to every other party, a list of witnesses;

(vii) reports of skilled persons or witness statements to be lodged in process;

(viii) affidavits concerned with any of the issues in the action to be lodged in process; and

(ix) the action to proceed to a hearing without any further preliminary procedure either in relation to the whole or any particular aspect of the action;

(d) may continue the preliminary hearing to a date to be appointed by him; and

(e) may make such other order as he thinks fit for the speedy determination of the action.

(2) Where the commercial judge makes an order under paragraph (1)(b)(i) or (ii) or (c), he may ordain the pursuer to—

(a) make up a record; and

(b) lodge that record in process within such period as the commercial judge thinks fit.

(3) At the conclusion of the preliminary hearing, the court shall, unless it has made an order under paragraph (1)(b)(ix) (order to proceed without a further hearing), fix a date for a procedural hearing to determine further procedure.

(4) The date fixed under paragraph (3) for a procedural hearing may be extended on cause shown by application to the court, by motion, not less than two days prior to the date fixed for the procedural hearing.

CHAPTER 48 — EXCHEQUER CAUSES

Proceedings before Lord Ordinary in Exchequer Causes

48.1

(1) Subject to Part IV of Chapter 41 (Exchequer appeals), all proceedings in an Exchequer cause shall be brought before the Lord Ordinary in Exchequer Causes.

(2) An application for the suspension of a decree, charge, threatened charge or diligence in an Exchequer cause shall be made to the Lord Ordinary in Exchequer Causes.

(3) Where another judge of the court acts in place of the Lord Ordinary in Exchequer Causes, any interlocutor pronounced by him shall state that he acted in the absence of the Lor d Ordinary in Exchequer Causes.

Procedure in Exchequer causes

48.2

An Exchequer cause commenced by summons shall proceed as an ordinary action.

Precedence of extracts

48.3

The Extractor shall give priority to extracts in Exchequer causes over all other business.

CHAPTER 49 — FAMILY ACTIONS

Interpretation of this Chapter

49.1

(1) In this Chapter, “family action” means–

(a) an action of divorce;

(b) an action of dissolution of a civil partnership;

(d) an action of declarator of nullity of marriage or civil partnership;

(e) an action of declarator of marriage;

(f) an action of declarator of legitimacy;

(g) an action of declarator of illegitimacy;

(h) an action of declarator of parentage;

(i) an action of declarator of non-parentage;

(j) an action of declarator of legitimation;

(k) an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.) except a petition for the appointment of a judicial factor;

(l) an action of, or application for or in respect of, aliment;

(m) an action or application for financial provision after a divorce or annulment an in overseas country with the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984;

(n) an action or application for financial provision after a dissolution or annulment of a civil partnership in an overseas country within the meaning of section 125 of and Schedule 11 to the Civil Partnership Act 2004;

(o) an action or application for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(p) an action or application for an order under Chapter 3 or 4 of Part 3 of the Civil Partnership Act 2004.

(q) an application under section 28 or 29 of the Family Law (Scotland) Act 2006 (financial provision for former co—habitants).

(r) an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973.

(s) an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.

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

“the Act of 1975” means the Children Act 1975;

“the Act of 1976” means the Divorce (Scotland) Act 1976;

“the Act of 1973” means the Domicile and Matrimonial Proceedings Act 1973;

“the Act of 1981” means the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

“the Act of 1985” means the Family Law (Scotland) Act 1985;

“the Act of 1995” means the Children (Scotland) Act 1995;

“the Act of 2004” means the Gender Recognition Act 2004;

“the CP Act of 2004” means the Civil Partnership Act 2004;

“civil partnership” has the same meaning as in section 1(1) of the CP Act of 2004;

“contact order” has the same meaning as in section 11(2)(d) of the Act of 1995;

“corrected gender recognition certificate” means a certificate issued under section 6(4) of the Act of 2004;

“dissolution of a civil partnership” means a decree granted under section 117(2) of the CP Act of 2004;

“full gender recognition certificate” and “interim gender recognition certificate” have the same meanings as in section 25 of the Act of 2004;

“Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Act of 2004;

“incapable” means incapable, by reason of mental disorder, of—acting;making decisions;communicating decisions;understanding decisions; orretaining the memory of decisions, but a person is not incapable by reason only of a lack of deficiency in a faculty of communication where that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“mental disorder” has the same meaning as in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003;

“action for declarator of nullity of a civil partnership” means an action for declarator that a civil partnership is void within the meaning of section 123 of the CP Act of 2004;

“order for financial provision” means, except in Parts VII and VIIA of this Chapter (financial provision after overseas divorce, dissolution of a civil partnership, or annulment of marriage or civil partnership), an order mentioned in section 8(1) of the Act of 1985;

“parental responsibilities” has the same meaning as in section 1(3) of the Act of 1995;

“parental rights” has the same meaning as in section 2(4) of the Act of 1995;

“residence order” has the same meaning as in section 11(2) of the Act of 1995;

“section 11 order” means an order under section 11 of the Act of 1995;

“action of separation of civil partners” means an action for decree under section 120 of the CP Act of 2004.

(3) For the purposes of rule 49.2 (averments in certain family actions about other proceedings) and rule 49.3 (averments where section 11 order sought), and in relation to proceedings in another jurisdiction, Schedule 3 to the Act of 1973 (sisting of consistorial actions in Scotland) and rule 49.18A (applications for sist in actions involving civil partnerships), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Averments in certain family actions about other proceedings

49.2

(1) This rule applies to an action of divorce, separation, declarator of marriage ... declarator of nullity of marriage dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership.

(2) In an action to which this rule applies, the pursuer shall state in the condescendence of the summons–

(a) whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage or civil partnership to which the summons relates or are capable of affecting its validity or subsistence; and

(b) where such proceedings are continuing–

(i) the court, tribunal or authority before which the proceedings have been commenced;

(ii) the date of commencement;

(iii) the names of the parties;

(iv) the date, or expected date of any proof (or its equivalent), in the proceedings; and

(v) such other facts as may be relevant to the question of whether or not the action in the Court of Session should be sisted under Schedule 3 to the Act of 1973, or rule 49.18A.

(3) Where–

(a) such proceedings are continuing;

(b) the action in the Court of Session is defended; and

(i) the summons does not contain the statement referred to in paragraph (2)(b), or

(ii) the particulars mentioned in paragraph (2)(b) as set out in the summons are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(b).

Averments where custody sought

49.3

(1) A party to a family action, who makes an application in that action for a section 11 order in respect of a child, shall include in his pleadings–

(a) where that action is an action of divorce, separation ... declarator of nullity of marriage , dissolution of a civil partnership, separation of civil partners or declarator of nullity of a civil partnership, averments giving particulars of any other proceedings known to him, whether in Scotland or elsewhere and whether concluded or not, which relate to the child in respect of whom the section 11 order is sought;

(b) in any other family action–

(i) the averments mentioned in sub-paragraph (a); and

(ii) averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the marriage or civil partnership of the parents or either of the parents of that child.

(2) Where such other proceedings are continuing or have taken place and the averments of the applicant for such a section 11 order–

(a) do not contain particulars of the other proceedings, or

(b) contain particulars which are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the family action shall include such particulars or such further or correct particulars as are known to him.

(3) In paragraph (1)(b)(ii), “child” includes a child of the family within the meaning assigned in section 42(4) of the Family Law Act 1986⁴⁰.

Averments where identity or address of person not known

49.4

In a family action, where the identity or address of any person referred to in rule 49.8 as a person in respect of whom a warrant for intimation requires to be applied for is not known and cannot reasonably be ascertained, the party required to apply for the warrant shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to ascertain the identity or address, as the case may be, of that person.

Averments about maintenance orders

49.5

In a family action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom a maintenance order (within the meaning of section 106 of the Debtors (Scotland) Act 1987⁴¹) has been granted in favour of or against that party or any other person in respect of whom the order is sought.

Averments where aliment sought for a child

49.6

(1) In this rule–

“the Act of 1991” means the Child Support Act 1991⁴²;

“child” has the meaning assigned in section 55 of the Act of 1991;

“conclusion relating to aliment” means–for the purposes of paragraph (2), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree; andfor the purposes of paragraph (3), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree or for the variation or termination of an agreement on aliment in relation to a child;

“maintenance assessment” has the meaning assigned in section 54 of the Act of 1991.

(2) A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 (top up maintenance orders) applies shall–

(a) include averments stating, where appropriate–

(i) that a maintenance assessment under section 11 of that Act is in force;

(ii) the date of the maintenance assessment;

(iii) the amount and frequency of periodical payments of child support maintenance fixed by the maintenance assessment; and

(iv) the grounds on which the sheriff retains jurisdiction under section 8(6), (7), (8) or (10) of that Act; and

(b) unless the court on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the party intimating the making of the maintenance assessment referred to in sub-paragraph (a).

(3) A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 does not apply, shall include averments stating–

(a) that the habitual residence of the absent parent, person with care or qualifying child, within the meaning of section 3 of that Act, is furth of the United Kingdom;

(b) that the child is not a child within the meaning of section 55 of that Act; or

(4) In an action for declarator of non-parentage or illegitimacy–

(a) the summons shall include an article of condescendence stating whether the pursuer previously has been alleged to be the parent in an application for a maintenance assessment under section 4, 6 or 7 of the Act of 1991 (applications for maintenance assessment); and

(b) where an allegation of paternity has been made against the pursuer, the Secretary of State shall be named as a defender in the action.

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.