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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

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Where a petition for suspension, suspension and interdict, or suspension and liberation has been refused–

(a) for failure by the petitioner to–

(i) find caution or give other security, or to consign money into court, or

(ii) comply with any other condition imposed by the court under rule 60.3 (first order), or

(b) on any other ground other than on the merits,

the petitioner may, having paid any expenses in which he was found liable, present another petition for suspension, suspension and interdict, or suspension and liberation, as the case may be.

Appointing petition to Adjustment Roll

60.5

(1) Any party may, within 7 days after any answers have been lodged, apply by motion for an order appointing the petition and answers to the Adjustment Roll.

(2) Where the court grants a motion under paragraph (1), the petitioner shall, within 14 days after the interlocutor granting the motion–

(a) send at least four copies of the petition and answers in the form of an open record to the respondent, and

(b) lodge two copies of the record in process;

and thereafter the cause shall proceed as an action.

Suspension of decree of inferior court or tribunal

60.6

(1) This rule applies to a petition for the suspension of a decree, order, decision or warrant of whatever nature of an inferior court or tribunal.

(2) The petition shall be served on the clerk of the inferior court or tribunal to which the petition relates.

(3) The Lord Ordinary may pronounce an interlocutor ordering production to the court of any part of the proceedings in the inferior court or tribunal within such period as he thinks fit.

(4) On an interlocutor being pronounced under paragraph (1), the petitioner shall exhibit to the clerk of the inferior court or tribunal a certified copy of the interlocutor; and that clerk shall transmit the documents ordered to be produced to the Deputy Principal Clerk.

(5) Where the petitioner fails to comply with the requirement on him under paragraph (4), the petition shall be refused.

(6) An interlocutor granting suspension shall include a direction to the clerk of court to send a copy of the interlocutor by post to the clerk of the inferior court or tribunal on whom service was executed under paragraph (2).

(7) Where an interlocutor granting suspension is reclaimed against, the reclaimer shall give written intimation of that fact to the clerk of the inferior court or tribunal as soon as possible after the reclaiming motion has been marked.

(8) The interlocutor disposing of such a reclaiming motion shall include a direction to the clerk of court to send a copy of that interlocutor to the clerk of the inferior court or tribunal on whom service was executed under paragraph (2).

Interlocutor refusing suspension after proof

60.7

Where the Lord Ordinary, after a proof, refuses a petition for suspension of a decree or decision of an inferior court or tribunal, he shall specify in his interlocutor the relevant facts of the case which he finds to be established and the points of law which he has applied to such facts.

CHAPTER 61 — JUDICIAL FACTORS

Application and interpretation of this Chapter

61.1

(1) This Chapter applies to an application for the appointment of a judicial factor, and to a judicial factor appointed by the court.

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

“the Act of 1849” means the Judicial Factors Act 1849[^f00154];

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

“judicial factor” includes a curator bonis, a factor loco absentis, a factor on trust or other estates, and a guardian.

Form of applications to appoint judicial factor

61.2

(1) An application for the appointment of a judicial factor shall be made by petition.

(2) An application under section 9(5)(a) of the Act of 1995 (application by Accountant of Court for appointment of judicial factor to administer certain property of a child) shall be made by petition in Form 61.2; and Chapter 14 shall not apply as respects any such petition.

(3) A petition in Form 61.2 shall, after being lodged in the Petition Department and recorded in the Petitions Register but without appearing in the Motion Roll, be presented to the Lord Ordinary in court or in chambers; and he may—

(a) forthwith make the appointment sought; or

(b) make an order—

(i) for such intimation, service and advertisement of the petition as he considers appropriate; and

(ii) for a hearing, on such date as he may specify, as respects the petition.

(4) Without prejudice to the generality of paragraph (3)(b)(i), any order under that paragraph as to intimation may specify that Rule 16.4 shall not apply and that the Accountant of Court shall make intimation by post in such manner as the Lord Ordinary thinks fit.

Crave to dispense with service on incapax

61.3

Where, in a petition for the appointment of a curator bonis to an incapax, dispensation of service on the incapax is craved on the ground that such service would be injurious to the health of the incapax, two medical certificates to that effect shall be lodged in process.

Incidental applications

61.4

Unless otherwise provided in this Chapter, an incidental application to the court in a petition for the appointment of a judicial factor shall be made by note.

Intimation and service

61.5

(1) The order for intimation and service under rule 14.5 (first order in petitions) in a petition or note relating to a judicial factory shall include a requirement for intimation to the Accountant of Court (except where the petition is in Form 61.2) by first class recorded delivery post of the petition or note, as the case may be, and any production lodged with the petition or note.

(2) The Lord Ordinary may order publication of an advertisement of the petition in Form 61.5–A in the case of a petition for the appointment of a judicial factor or in Form 61.5–B in the case of a petition for the discharge o f a judicial factor.

(3) Where publication of an advertisement has been made under paragraph (2), there shall be lodged in process–

(a) a copy of the newspaper or other publication containing the advertisement; or

(b) a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

(4) After a petition for the appointment of a judicial factor is lodged in the Petition Department, the Clerk of Session in that department may (whether or not any order is made, or is competent, under rule 14.5(1)(a)) provide any interested party with details of the petition.

Documents for Accountant of Court

61.6

(1) A person who lodges any document in a cause relating to a judicial factory (other than a petition for appointment of a judicial factor) shall send a copy of that document to the Accountant of Court.

(2) The clerk of session in the Petition Department shall transmit to the Accountant of Court any part of a process in a cause relating to a judicial factory as the Accountant of Court may request unless such part of the process is, at the time of request, required by the court.

Accountant of Court to send information on prior application

61.7

The Accountant of Court, on receiving intimation of a petition for the appointment of a judicial factor, shall report any information he may possess which he considers may be of use to the court in disposing of the petition.

Transmission of process to Accountant of Court to find caution

61.8

The clerk of session in the Petition Department shall, on the appointment of the judicial factor being made by the court, transmit the process of the petition to the Accountant of Court for the fixing and finding of caution.

Finding caution

61.9

(1) The appointment of a person as a judicial factor shall be subject to his finding caution; and the interlocutor appointing a judicial factor shall ordain him to find caution.

(2) The court may, on cause shown, on a motion made before the expiry of the period for finding caution specified by virtue of rule 33.3 (orders to find caution or other security), allow further time for finding caution.

(3) The Accountant of Court shall, on receiving the process in a petition for the appointment of a judicial factor transmitted to him under rule 61.8, fix the caution to be found by the judicial factor.

(4) Where the Accountant of Court considers that any caution fixed by the court under section 27 of the Act of 1849[^f00155] (amount of caution limited by court), should be increased–

(a) the Accountant of Court may increase the amount unless the judicial factor requires him to report to the court;

(b) where the judicial factor requires him to report to the court, the Accountant of Court shall do so; and

(c) on the report mentioned in sub-paragraph (b) being received, the cause shall be put out on the By Order Roll before the Lord Ordinary to determine the amount of caution.

(5) A bond of caution or other security offered by a judicial factor shall be delivered to the Accountant of Court; and rule 33.4(3) (lodging of bond of caution in process) and rule 33.7(1) (Deputy Principal Clerk to satisfy himself that the bond of caution or other security is in proper form) shall not apply.

(6) Except in relation to paragraph (7), where caution has been found to the satisfaction of the Accountant of Court, he shall endorse and sign, on the interlocutor sheet of the process appointing the judicial factor, a certificate stating that caution has been found, the amount of caution and the date of the certificate.

(7) During the subsistence of a judicial factory, the Accountant of Court may, at any time–

(a) require the judicial factor to increase the amount of, or find new or additional, caution; or

(b) authorise the judicial factor to reduce the amount of existing caution.

Issue of official certified copy interlocutor

61.10

An official certified copy of the interlocutor appointing a judicial factor shall not be issued by a clerk of session without a certificate having been endorsed on the interlocutor sheet in accordance with rule 61.9(6).

Judicial factor’s title to act

61.11

A judicial factor shall not be entitled to act until he has received the official certified copy of the interlocutor appointing him.

Remission or modification of penal interest

61.12

The Accountant of Court may, if satisfied that the circumstances justify it, remit or modify any interest incurred by a judicial factor under section 5(1) of the Act of 1849[^f00156] (interest incurred for failure by factor to lodge money in bank etc.).

Applications to encroach on capital

61.13

(1) Where the income from the estate of a ward is insufficient for the maintenance of the ward, the judicial factor may apply to the Accountant of Court for his consent to encroach on the capital of the estate for the purpose of maintaining the ward.

(2) An application under paragraph (1) shall be made by letter and shall be supported by such information as the Accountant of Court may require.

(3) On receipt of such an application, the Accountant of Court—

(a) may, if the proposed encroachment does not exceed 5% of the capital value of the estate as at the date when application is first made under paragraph (1), consent to the application subject to such conditions as he thinks fit to impose; and

(b) if he is unable, or declines, to consent under sub-paragraph (a), shall—

(i) ordain the judicial factor to intimate, in accordance with paragraphs (5) and (6), the making of the application; or

(ii) ordain him to apply by note to the Lord Ordinary for special powers.

(4) A person to whom intimation is given in accordance with paragraphs (5) and (6) may object to the application by–

(a) lodging an objection in writing with the Accountant of Court; and

(b) sending a copy of his objection to the judicial factor within 28 days after the date on which intimation was given to him.

(5) The persons to whom intimation under paragraph (3)(b)(i) is to be given are–

(a) any cautioner of the judicial factor;

(b) any petitioner for the appointment of the judicial factor (other than a petitioner using Form 61.2);

(c) the ward, unless the circumstances of the ward are such as would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;

(d) the persons on whom the petition for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and

(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.

(6) The intimation under paragraph (3)(b)(i) shall include–

(a) a copy of the letter of application; and

(b) a notice setting out–

(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (4); and

(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.

(7) The judicial factor shall, on giving intimation under paragraph (3)(b)(i), send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice sent attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.

(8) Where no objections have been lodged under paragraph (4), the Accountant of Court may, on the expiry of the period for lodging objections–

(a) consent to the application subject to such conditions as he thinks fit; or

(b) require the judicial factor to apply to the court for special powers.

(9) Where any objection has been lodged under paragraph (4), the judicial factor shall, on expiry of the period for lodging objections, apply to the court for special powers.

Applications under section 2(3) of the Trusts (Scotland) Act 1961

61.14

(1) An application under section 2(3) of the Trusts (Scotland) Act 1961[^f00157] to the Accountant of Court for his consent to the doing of an act to which that section applies shall be made by letter and shall be supported by such information as the Accountant of Court may require.

(2) Any person to whom intimation requires to be given in accordance with paragraph (3) may object to the application by lodging any objection with the Accountant of Court, and sending a copy of it to the judicial factor, within 28 days after the date on which the intimation was given.

(3) On the date on which he makes the application referred to in paragraph (1), the judicial factor shall intimate the application to–

(a) any cautioner of the judicial factor;

(b) any person who petitioned for the judicial factor to be appointed (except where the petition was in Form 61.2);

(c) the ward, unless the circumstances of the ward are such that would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;

(d) the persons upon whom the application for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and

(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.

(4) The intimation to be given under paragraph (3) shall include–

(a) a copy of the letter of application, and

(b) a notice setting out–

(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (2); and

(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.

(5) The judicial factor shall, on giving intimation under paragraph (3), send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice required under paragraph (4) attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.

Applications for special powers or authority under section 5 of the Trusts (Scotland) Act 1921

61.15

(1) This rule applies to an application by a judicial factor–

(a) for special powers at common law or under section 7 of the Act of 1849[^f00158]; or

(b) under section 5 of the Trusts (Scotland) Act 1921[^f00159] (application for authority to do an act at variance with terms or purposes of the judicial factory).

(2) An application may be made–

(a) in the petition for the appointment of the judicial factor; or

(b) by note in the process of that petition.

(3) Before making an application, the judicial factor shall apply to the Accountant of Court for an opinion by lodging with him a report explaining why the special powers or authority are necessary and concluding with a statement of the precise powers he seeks.

(4) The Accountant of Court shall, after making any necessary inquiry, send his written opinion to the judicial factor.

(5) The judicial factor shall lodge in process his report to, and the opinion of, the Accountant of Court.

(6) The judicial factor shall send to the Accountant of Court a copy of the interlocutor disposing of the application within 2 days after the date of the interlocutor.

(7) An application by a judicial factor for special powers under this rule shall not be made before he has received an official certified copy of the interlocutor appointing him.

(8) An application by a judicial factor in respect of special powers sought in the petition for his appointment shall be made by him by motion.

Application of this Part

61.16

This Part applies to a petition under section 11A of the Judicial Factors (Scotland) Act 1889[^f00160] (appointment of a judicial factor on estate of person deceased).

Form of applications under section 11A of the Judicial Factors (Scotland) Act 1889

61.17

A petition to which this Part applies shall include averments stating–

(a) the name, last known address and date of death of the deceased person;

(b) the reasons for the appointment being necessary;

(i) if a creditor, the nature and amount of the debt, how constituted, vouched or established, or

(ii) if a person having an interest in the succession to the estate, the nature of that interest;

(d) details of the estate of the deceased person so far as known to the petitioner including heritable and moveable property, any stock in trade, interests in any business or partnership, debts owed to or by the deceased and any other relevant facts;

(e) the names and addresses of all persons known to the petitioner as having an interest in the estate either as creditors or in the succession to the estate, and the nature of the interest in each case; and

(f) the name, designation and address of the person nominated to be the judicial factor.

Intimation and service of section 11A petition

61.18

The order for intimation and service under rule 14.5 (first order in petitions) in a petition under this Part shall include a requirement for–

(a) a notice of the petition in the Edinburgh Gazette in Form 61.18; and

(b) service of the petition on such persons named in the petition as personal representatives of the deceased who are not parties to the petition.

Interim appointment

61.19

The court may make an interim appointment of a judicial factor in a petition to which this Part applies when the petition is presented or at any time thereafter.

Notice calling for claims

61.20

(1) In order to ascertain the claims on the estate, the judicial factor shall, within 14 days after he has received the official certified copy of the interlocutor appointing him, place a notice in the Edinburgh Gazette, and in such other newspaper as he thinks fit, in Form 61.20.

(2) The judicial factor shall lodge in process–

(a) a copy of each newspaper containing the notice under paragraph (1); or

(b) a certificate of publication by the publisher of each such newspaper stating the date of publication and text of the notice.

(3) The period within which a creditor shall intimate a claim on the estate to the judicial factor shall be 4 months from the date of publication of the notice under paragraph (1).

Claims

61.21

(1) The judicial factor shall examine the claims of creditors in order to ascertain whether the debts are properly due from the estate of the deceased, and may–

(a) call for further evidence in support of the claims;

(b) if he thinks fit, require a creditor to constitute such claim by decree in a competent court in an action in which the judicial factor shall be called as a defender.

(2) For the purpose of ranking and payment of creditors, the date of the appointment of the judicial factor shall be deemed to be equivalent to the date of sequestration.

Custody and inspection of inventory of estate, etc.

61.22

There shall remain in the possession of the Accountant of Court and be open to inspection, within his office, by any creditor or person in the succession of the deceased–

(a) the inventory of estate, when adjusted and approved by the Accountant of Court and signed by him and the judicial factor;

(b) any report of the state of debts; and

Administration, deathbed and funeral expenses

61.23

(1) Out of the first funds realised by him, the judicial factor shall reserve sufficient funds to defray the estimated costs of his administration including the legal expenses of the judicial factory.

(2) On the expiry of the period for lodging claims, the judicial factor shall be entitled to pay out of such funds, with the prior approval of the Accountant of Court, those debts listed in paragraphs (a) to (e) of section 129(1) of the Bankruptcy (Scotland) Act 2016 (priority in distribution).

Procedure where there are creditors

61.24

(1) Where claims are lodged, the judicial factor shall–

(a) where funds remain available for division after payment of the claims referred to in rule 61.23(2), prepare a state of funds and scheme of division amongst the creditors; or

(b) where no such funds remain after payment of those claims, prepare a state of funds only.

(2) The judicial factor shall–

(a) lodge with the Accountant of Court–

(i) the state of funds and any scheme of division,

(ii) all relevant writings and documents; and

(b) provide the Accountant of Court with such explanations as he may require.

(3) The Accountant of Court shall prepare a written report on the state of funds and any scheme of division containing such observations as he thinks fit for consideration by the court.

(4) The Accountant of Court shall issue the report under paragraph (3) to the judicial factor.

Notice to creditors

61.25

(1) As soon as the report of the Accountant of Court under rule 61.24(3) has been issued, the judicial factor shall–

(a) lodge in process that report, the state of funds and any scheme of division;

(b) send to each person who has lodged with him a claim on the estate of the deceased a notice by first class post, or, if that person is furth of Europe, by air mail, stating–

(i) that the state of funds and scheme of division or state of funds only, as the case may be, and a report have been lodged in court; and

(ii) the amount for which the creditor has been ranked and whether his claim is to be paid in full or by a dividend and the amount of it; or

(iii) that his claim has been rejected; or

(iv) that no funds are available for division;

(d) if–

(i) any person, other than a person who has lodged a claim with him, is stated in the application or in the books, deed of settlement, or other papers of the deceased, to be a creditor of the estate or has an interest in the estate, or

(ii) he has reason to believe that any other person is either a creditor of the estate or has an interest in the estate,

give notice to such person, by first class post or, if that person is furth of Europe, by air mail, that no dividend is allotted to him in the scheme of division.

(2) Any creditor or person having an interest in the succession to the deceased’s estate shall be entitled to examine–

(a) the state of funds and any scheme of division lodged in process; and

(b) the claims and supporting vouchers or evidence lodged with the judicial factor.

Approval of state of funds or scheme of division

61.26

(1) Any creditor or person having an interest in the succession to the estate of the deceased who is dissatisfied with the state of funds or any scheme of division may lodge in process a note of objection within 28 days after the date of the notice given under rule 61.25(1)(b) and, until the expiry of that period, the court shall not approve the state of funds and any scheme of division.

(2) Where a note of objection under paragraph (1) is lodged, the court shall dispose of the note after hearing any objector and the judicial factor and making such investigations as it thinks fit.

(3) If any objection is sustained to any extent, the necessary alterations shall be made to the state of funds and any scheme of division, and shall be approved by the court.

(4) Where no note of objection is lodged, the court shall approve the state of funds and any scheme of division.

Payment following approval of scheme of division

61.27

After the court has approved a scheme of division, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the scheme.

Partial division on first scheme of division

61.28

(1) Where, in the opinion of the judicial factor, a partial division of funds among the creditors who have claimed may be made with safety in the interests of all concerned, the judicial factor may, with the approval of the Accountant of Court, prepare a state of funds and first scheme of division as soon as possible after the period for lodging claims has expired.

(2) The following provisions of this Part shall apply to a state of funds and first scheme of division prepared under paragraph (1) of this rule as they apply to a state of funds and scheme of division prepared under rule 61.24(1)(a):–

rule 61.24(2) (lodging of state of funds etc. with Accountant of Court),

rule 61.24(3) (report by Accountant of Court on state of funds),

rule 61.25 (notice to creditors),

rule 61.26 (approval of state of funds or scheme of division) subject to paragraph (3) of this rule.

(3) Subject to paragraph (4), the court may, not earlier than 6 months after the death of the deceased, approve the first scheme of division and, where it so approves, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the first scheme.

(4) Out of the funds there shall be retained and deposited in an institution authorised under the Banking Act 1987[^f00162] or other appropriate institution a sufficient sum to meet–

(a) the amount of the claims of creditors whose debts have not at that time been admitted by the judicial factor, or whose debts are future or contingent; and

(b) the full amount of such debts as are claimed as preferable but the priority of which is not admitted by the judicial factor.

Procedure where no creditors

61.29

Where, on the expiry of the period for lodging claims, no creditor has lodged a claim, the judicial factor shall not lodge a state of funds but shall prepare a report with regard to the disposal of the surplus estate in accordance with rule 61.30.

Disposal of surplus estate

61.30

(1) Where, after payment of the creditors, there is a surplus, the judicial factor shall lodge with the Accountant of Court a statement of–

(a) the amount of the surplus;

(b) the parties claiming that surplus and their respective grounds of claim; and

(c) those parties who, in the opinion of the judicial factor, are entitled to the suplus and the reasons for his opinion.

(2) The Accountant of Court shall prepare a written opinion on the statement of the judicial factor lodged under paragraph (1) and issue that opinion to the judicial factor.

(3) On receipt of the opinion of the Accountant of Court under paragraph (2), the judicial factor shall–

(a) lodge in process that opinion and the statement prepared under paragraph (1); and

(b) give notice to each party claiming an interest or apparently entitled to any part of the estate, by first class post or, if that person is furth of Europe, by air mail, that–

(i) the statement of the judicial factor and the opinion of the Accountant of Court have been lodged in process; and

(ii) should any such party wish to lodge any objection to the statement, he shall lodge a note of objection with the Deputy Principal Clerk within 28 days after the date of the posting of the notice by the judicial factor.

(4) On expiry of the period for lodging objections under paragraph (3)(b)(ii), the court, on considering the statement, opinion, and any note of objection and, after such procedure as it thinks fit, shall–

(a) determine which parties are entitled to the surplus estate and direct the judicial factor to make payment accordingly; or

(b) if the court considers that it is desirable that the judicial factor should continue to administer the surplus estate, direct the judicial factor to do so.

Applications for discharge to Accountant of Court

61.31

(1) This rule applies to a judicial factor appointed as a–

(a) curator bonis;

(b) guardian;

(d) commissary factor.

(2) Where a judicial factory is terminated by reason of the recovery, death or coming of age of the ward, or by reason of the exhaustion of the estate, the judicial factor, or where he has died, his representative, may apply to the Accountant of Court for a certificate of discharge.

(3) The judicial factor shall intimate a notice in Form 61.31 of an application under paragraph (2) to–

(a) the cautioner; and

(b) any person having an interest in the estate of the ward.

(4) Any person to whom intimation has been given under paragraph (3) may make written representations relating to the application to the Accountant of Court within 21 days after the date of such intimation.

(5) On the expiry of the period specified in paragraph (4), the Accountant of Court shall, after considering the application and representations made, send to–

(a) the factor,

(b) the Deputy Principal Clerk, and

a copy of his decision to issue or refuse to issue a certificate of discharge and a note of his reasons for making that decision.

(6) The Accountant of Court–

(a) shall not sign a certificate of discharge until the time for lodging an appeal under rule 61.32 has expired; and

(b) shall, on issuing a certificate of discharge, give written intimation of the issue of the certificate to the Deputy Principal Clerk.

(7) The issue of a certificate of discharge shall be sufficient authority for the judicial factor to uplift his bond of caution.

Appeals against decisions under rule 61.31

61.32

(1) The judicial factor, or any person who has made representations under rule 61.31(4), may, within 14 days after intimation of a decision to him under rule 61.31(5), appeal to the Lord Ordinary against the determination of the Accountant of Court.

(2) An appeal under paragraph (1) shall be–

(a) made by letter to the Deputy Principal Clerk containing a statement of the grounds of appeal; and

(b) intimated to the Accountant of Court.

(3) On receipt of an appeal under paragraph (1), the Deputy Principal Clerk shall place the appeal before the Lord Ordinary in chambers for determination.

(4) On disposing of such an appeal, the Lord Ordinary may–

(a) direct the Accountant of Court to sign the certificate of discharge;

(b) ordain the judicial factor to lodge a petition for his discharge; or

(5) The decision of the Lord Ordinary on an appeal to him under paragraph (1) shall be final and not subject to review.

Applications for discharge to court

61.33

(1) Where a judicial factor, other than one to whom rule 61.31 (applications for discharge to Accountant of Court) applies, seeks his discharge, he, or where he has died, his representative, shall apply to the court by petition for his discharge.

(2) The order for intimation and service under rule 14.5 (first order in petitions) in a petition for discharge of a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889 shall include a requirement for–

(a) a notice of the petition in the Edinburgh Gazette in Form 61.33; and

(b) service on the cautioner and on the personal representatives of the deceased person in respect of whom the appointment was made.

(3) The court shall remit a petition under paragraph (1) to the Accountant of Court to report to the court on the petition.

Other proceedings in relation to statutory applications

CHAPTER 62 — RECOGNITION, REGISTRATION AND ENFORCEMENT OF FOREIGN JUDGMENTS, ETC.

Disapplication of certain rules to this Chapter

62.1

Subject to Part XIII, the following rules shall not apply to a petition or application under this Chapter:–

14.5 (first order in petitions),

14.6 (period of notice for lodging answers),

14.7 (intimation and service of petitions),

14.9 (unopposed petitions).

Certificate of currency conversion

62.2

(1) Subject to paragraph (4), where the sum payable under a judgment, award, recommendation or determination to be registered in accordance with a provision of this Chapter is expressed in a currency other than sterling, the petitioner or applicant, as the case may be, before applying to the Keeper of the Registers for registration of such a document, shall lodge in the Petition Department–

(a) a certified statement of the rate of exchange prevailing at–

(i) the date of the judgment, award, recommendation or determination,

(ii) the date on which the certified statement is lodged, or

(iii) a date within three days before the date on which the certified statement is lodged,

and of the sterling equivalent, at that rate, of the principal sum, interest and expenses contained in the judgment, award, recommendation or determination, as the case may be; and

(b) a certificate of currency conversion in Form 62.2.

(2) The certified statement required under paragraph (1) shall be by an official in the Bank of England or an institution authorised under the Banking Act 1987[^f00163].

(3) On receipt of the documents specified in paragraph (1), the clerk of session shall, if satisfied with the terms of those documents, sign and date the certificate of currency conversion.

(4) This rule does not apply in relation to an application for registration of a judgment, court settlement or authentic instrument on uncontested claims certified as a European Enforcement Order under the Regulation, as defined in rule 62.81(1).

Translation of document lodged

62.3

Where a judgment, award, or other document lodged with a petition or application to which this Chapter applies is in a language other than English, there shall be produced with the petition a translation into English certified as correct by the translator; and the certificate shall include his full name, address and qualification.

Application and interpretation of this Part

62.4

(1) This Part applies to an application to the court under the Administration of Justice Act 1920[^f00164] or the Foreign Judgments (Reciprocal Enforcement) Act 1933[^f00165].

(2) In this Part–

“the Act of 1920” means the Administration of Justice Act 1920;

“the Act of 1933” means the Foreign Judgments (Recriprocal Enforcement) Act 1933.

Applications for registration under the Act of 1920 or 1933

62.5

(1) An application under section 9 of the Act of 1920 (enforcement in United Kingdom of judgments obtained in superior courts in other British Dominions etc.) shall be made by petition.

(2) An application under section 2 of the Act of 1933[^f00166] (application for registration of a foreign judgment) shall be made by petition.

Supporting documents

62.6

(1) There shall be produced with the petition for registration referred to in rule 62.5 an affidavit–

(a) referring to the judgment or a certified copy of the judgment issued by the original court and authenticated by its seal; and

(b) stating–

(i) the full name, title, trade or business and the usual or last known place of residence or business of the judgment creditor and the judgment debtor respectively;

(ii) that the petitioner is entitled to have the judgment registered under the Act of 1920 or the Act of 1933, as the case may be;

(iii) where the judgment is in respect of several matters, only some of which may be registered, those in respect of which the petitioner seeks registration;

(iv) the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the date of the affidavit;

(v) the amount of the judgment which is unsatisfied;

(vi) that at the date of presentation of the petition the judgment may be enforced by execution in the country of the original court;

(vii) that if the judgment were registered, the registration would not be, or be liable to be, set aside under section 4 of the Act of 1933; and

(viii) that the judgment is not a judgment to which section 5 of the Protection of Trading Interests Act 1980[^f00167] (restriction on enforcement of certain overseas judgments) applies.

(2) There shall be produced with a petition referred to in rule 62.5 such other evidence with respect to the matters referred to in sub-paragraphs (b)(iv) and (b)(vi) of paragraph (1) as may be required having regard to the provisions of an order in Council made under section 1 of the Act of 1933[^f00168] (power to extend the Act of 1933 to the country of the original court).

Warrant for registration under the Act of 1920 or 1933

62.7

(1) The court shall, on being satisfied that the petition complies with the requirements of the Act of 1920 or the Act of 1933, as the case may be, pronounce an interlocutor granting warrant for the registration of the judgment.

(2) The interlocutor under paragraph (1) shall specify a date by which the judgment debtor may apply to the court to set aside the registration; and in fixing such date, regard shall be had to the place of residence of the judgment debtor.

(3) In fixing the date under paragraph (2), the court shall have regard, in the case of a judgment debtor furth of Scotland, to the periods for superseding extract of a decree in absence in rule 19.1(5).

Registration of judgments under the Act of 1920 or 1933

62.8

(1) Where the court pronounces an interlocutor under rule 62.7(1) granting warrant for registration, the Deputy Principal Clerk shall enter details of the judgment in a register of judgments under the Act of 1920 or the Act of 1933, as the case may be, kept in the Petition Department.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor under rule 62.7(1) granting warrant for registration,

(b) the judgment or a certified copy of the judgment and any translation of it, and

they shall be registered in the register of judgments of the Books of Council and Session.

(3) An extract of a registered judgment with a warrant for execution shall not be issued by the Keeper of the Registers until the certificate mentioned in rule 62.10(3) is produced to him.

Service on judgment debtor

62.9

On registration of a judgment under rule 62.8(2), the petitioner shall serve a notice of the registration on the judgment debtor in Form 62.9.

Application to set aside registration under the Act of 1920 or 1933

62.10

(1) An application by a judgment debtor to set aside the registration of a judgment shall be made by note and supported by affidavit and any documentary evidence.

(2) In relation to such an application, the court may order such inquiry as it thinks fit.

(3) Where no such application is made by the date specified in the interlocutor pronounced under rule 62.7(2) or where the application has been made and refused, the Deputy Principal Clerk shall, at the request of the petitioner, issue a certificate to that effect.

(4) Subject to paragraph (5), where such an application is granted, a certificate to that effect issued by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment to the petitioner.

(5) Where the court makes an order under section 5(3) of the Act of 1933 (judgment ordered to be registered for balance payable), it shall pronounce an interlocutor–

(a) recalling the warrant for registration granted under rule 62.7; and

(b) granting warrant for registration of the judgment in respect of the balance remaining payable at the date of the original petition for registration.

Application for enforcement abroad under the Act of 1920 or 1933

62.11

(1) An application under section 10 of the Act of 1920[^f00169] or the Act of 1933[^f00170], as the case may be, for a certified copy of a judgment pronounced by the court shall be made by letter to the Deputy Principal Clerk.

(2) On receipt of such an application, the Deputy Principal Clerk shall issue under the seal of the court a copy of the judgment certified by him in Form 62.11.

(3) Where such an application is made under section 10 of the Act of 1933, the Deputy Principal Clerk shall issue with the certified copy of the judgment a further certificate under the seal of the court signed by him containing the details, and having appended the documents, mentioned in paragraph (4).

(4) A certificate under paragraph (3) shall–

(a) state–

(i) the manner in which the principal writ or counterclaim was served on the judgment debtor;

(ii) whether or not the judgment debtor entered appearance or lodged answers in the process of the cause;

(iii) any objection made to the jurisdiction;

(iv) that the time limit for appeal has expired and that no appeal has been taken, or that an appeal was taken but was refused; and

(v) such other particulars as may be required by the foreign court which may enable execution of the judgment; and

(b) number, identify and have appended to it a copy of–

(i) the principal writ or counterclaim showing the manner in which such writ was served on the judgment debtor;

(ii) the pleadings, if any, in the cause resulting i n the judgment; and

(iii) a copy of the opinion, if any, of the judge or judges who issued the judgment.

(5) Where necessary, the applicant shall provide the copies of the documents mentioned in paragraph (4).

Application and interpretation of this Part

62.12

(1) This Part applies to the registration of awards under the Arbitration (International Investment Disputes) Act 1966[^f00171].

(2) In this Part–

“the Act of 1966” means the Arbitration (International Investment Disputes) Act 1966;

“award” has the meaning assigned to it in section 1(7) of the Act of 1966;

“the Convention” means the convention mentioned in section 1(1) of the Act of 1966.

Applications for registration under the Act of 1966

62.13

(1) An application for recognition or enforcement of an award under Article 54 of the Convention shall be made by petition.

(2) There shall be produced with such a petition an affidavit–

(a) exhibiting a copy of the award certified under the Convention; and

(b) stating–

(i) the full name, title, trade or business and the usual or the last known place of residence or, where appropriate, of the business of the petitioner and of the party against whom the award was made;

(ii) that the petitioner is entitled to have the award registered under the Act of 1966;

(iii) the amount of the award which is unsatisfied;

(iv) whether the enforcement of the award has been sisted (provisionally or otherwise) under the Convention and whether any, and if so what, application has been made under the Convention which, if granted, might result in a sist of enforcement of the award.

Warrant for registration under the Act of 1966

62.14

The court shall, subject to rule 62.17 (sist of enforcement), on being satisfied that the petition complies with the requirements of the Act of 1966, pronounce an interlocutor granting warrant for the registration of the award.

Registration under the Act of 1966

62.15

(1) Where the court pronounces an interlocutor under rule 62.14 granting warrant for registration, the Deputy Principal Clerk shall enter details of the interlocutor and the award in a register of awards under the Act of 1966.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor under rule 62.14,

(b) a certified copy of the award and any translation of it, and

they shall be registered in the register of judgments of the Books of Council and Session.

(3) An extract of the registered award with warrant for execution shall not be issued by the Keeper of the Registers until a certificate of service under rule 62.16 is produced to him.

Service on party against whom award made

62.16

On registration under rule 62.15, the petitioner shall forthwith serve a notice of the registration on the party against whom the award was made in Form 62.16.

Sist of enforcement under the Act of 1966

62.17

(1) Where it appears to the court that–

(a) the enforcement of the award has been sisted (whether provisionally or otherwise) under the Convention, or

(b) any application has been made under the Convention which, if granted, might result in a sist of the enforcement of the award,

the court shall, or in the case referred to in sub-paragraph (b) may, sist the petition for such time as it thinks fit.

(2) Where the court has granted a warrant for registration under rule 62.14, the party against whom the award was made may apply to the court for suspension or interdict of execution of the award.

(3) An application under paragraph (2) shall–

(a) be made on ground (a) or (b) of paragraph (1);

(b) notwithstanding rule 60.2 (form of applications for suspension), be made by note in the process of the petition under rule 62.13; and

Interpretation of this Part

62.18

(1) In this Part–

“EU judgment” means any decision, judgment or order which is enforceable under or in accordance with– Article 280 or 299 of the Treaty on the Functioning of the European Union,Article 18, 159 or 164 of the Euratom Treaty, ...Article 44 or 92 of the E.C.S.C. Treaty; orArticle 82 of Regulation 40/94 of December 20, 1993 regulation of the Council of the European Union: on the Community trade mark)

“Euratom inspection order” means an order made by or in the exercise of the functions of the President of the European Court or by the Commission of the European Union under Article 81 of the Eurotom Treaty;

“European Court” means the Court of Justice of the European Union;

“order for enforcement” means an order by or under the authority of the Secretary of State that the EU judgment to which it is appended is to be registered for enforcement in the United Kingdom.

(2) In paragraph (1), the expressions ... “Euratom Treaty” and “E.C.S.C. Treaty” have the meanings assigned respectively in Schedule 1 to the European Communities Act 1972[^f00172].

(3) In paragraph (1), “the Treaty on the Functioning of the European Union” means the treaty referred to in section 1(2)(s) of the European Communities Act 1972.

Register of European Community judgments

62.19

A register shall be kept by the Deputy Principal Clerk for the purpose of registering–

(a) any EU judgment to which the Secretary of State has attached an order for enforcement

(b) any Euratom inspection order; or

Applications for registration of European Community judgments

62.20

(1) An application for registration of an EU judgment or Euratom inspection order shall be made by petition.

(2) Where the application is for registration of an EU judgment under which a sum of money is payable, the petition shall set out–

(a) the name, trade or business and the usual or last known place of residence or business of the judgment debtor, so far as known to the petitioner; and

(b) the amount of the judgment which remains unsatisfied.

(3) There shall be produced with a petition referred to in paragraph (1) the EU judgment and the order for its enforcement or the Euratom inspection order, as the case may be, or a copy of it.

Warrant for registration of European Community judgments

62.21

(1) On an application being made under rule 62.20, the court shall direct that any Euratom inspection order or any EU judgment which has appended to it an order for enforcement shall be entered in the register kept under rule 62.19 and–

(a) in respect of an EU judgment, subject to paragraph (2), pronounce an interlocutor granting warrant for registration of the judgment in the Books of Council and Session; or

(b) in respect of a Euratom inspection order, pronounce such interlocutor as is necessary for the purpose of ensuring that effect is given to that order.

(2) Where it appears that an EU judgment under which a sum of money is payable has been partly satisfied at the date of the application under rule 62.20, warrant for registration in the Books of Council and Session shall be granted only in respect of the balance remaining payable at that date.

Registration of European Community judgments

62.22

(1) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of an interlocutor pronounced under rule 62.21(1)(a),

(b) the EU judgment or a certified copy of it and any translation of it, and

they shall immediately be registered in the register of judgments of the Books of Council and Session.

(2) On registration under paragraph (1), the Keeper of the Registers shall issue an extract of the registered EU judgment with a warrant for execution.

Service on judgment debtor of European Community judgment

62.23

On an interlocutor being pronounced under rule 62.21(1)(a), the petitioner shall forthwith serve a copy of it on the person against whom the EU judgment was given or the Euratom inspection order was made, as the case may be.

Variation or cancellation of registration

62.24

(1) An application for the variation or cancellation of any registration shall be made by note in the process of the petition under rule 62.20(1).

(2) Where the court grants an application under paragraph (1), it may direct that the entry in the register kept under rule 62.19, and, in the case of variation of an EU judgment, the entry in the Books of Council and Session, shall be varied as sought by the noter.

Suspension of enforcement of Community judgments

62.25

(1) An order of the European Court that enforcement of a registered EU judgment be suspended–

(a) shall–

(i) on production of the order to the Court of Session, and

(ii) on application made by note,

be registered forthwith, and

(b) shall be of the same effect as if the order had been an order made by the Court of Session on the date of its registration suspending the execution of the judgment for the same period and on the same conditions as are stated in the order of the European Court.

(2) No steps to enforce the judgment mentioned in paragraph (1) shall be taken while such an order of the European Court remains in force.

Application and interpretation of this Part

62.26

(1) This Part applies to the recognition and enforcement of a judgment under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention.

(2) Unless the context otherwise requires, in this Part—

“the Act of 1982” means the Civil Jurisdiction and Judgments Act 1982;

“Contracting State” has the meaning assigned in section 1(3) of the Act of 1982;

“the Council Regulation” means Council Regulation (EC) No. 44/2001 of 22ndDecember 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and as applied by the Agreement of 19th October 2005 between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters;

“the 2005 Hague Convention” means the Convention on Choice of Court Agreements concluded on 30th June 2005 at the Hague;

“judgment” includes an authentic instrument or court settlement;

“the Lugano Convention” means the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Kingdom of Denmark and signed by the European Community on 30th October 2007;

“Member State” has the same meaning as Member State in the Council Regulation.

Disapplication of certain rules to this Part

62.27

The following provisions shall not apply to an application under this Part in addition to those rules mentioned in rule 62.1:–

rule 4.1(1) (printed form for petition),

14.4 (form of petitions).

Enforcement of judgements, authentic instruments or court settlements from another Contracting State

62.28

(1) An application under—

(a) section 4 of, and Article 31 (enforcement of judgment from another Contracting State) or Article 50 (enforcement of authentic instrument or court settlement from another Contracting State) of the Convention in Schedule 1 ... to, the Act of 1982; ...

(b) Article 38 (enforcement of judgment from Member State), Article 57 (enforcement of authentic instrument from another Member State) or Article 58 (enforcement of court settlement from another Member State) of the Council Regulation; ...

(ba) section 4B of the Act of 1982 (registration and enforcement of judgments under the 2005 Hague Convention); or

(c) Article 38 (enforcement of judgment from another State bound by the Lugano Convention), Article 57 (enforcement of authentic instrument from another State bound by the Lugano Convention) or Article 58 (enforcement of court settlement from another State bound by the Lugano Convention) of the Lugano Convention.

shall be made by petition in Form 62.28.

(2) Subject to paragraphs (3), (3AA) and (3AB), there must be produced with the petition–

(a) an authentic copy of the judgment to be registered;

(b) a document which establishes that, according to the law of the country in which the judgment has been given, the judgment is enforceable and has been served;

(c) where judgment has been given in absence (that is to say, in default of appearance), the original or a certified copy of the document which establishes that the party against whom judgment was given in absence was served with the document initiating the proceedings or with an equivalent document;

(d) where applicable, a document showing that the applicant is in receipt of legal aid in the country in which the judgment was given;

(e) an affidavit stating—

(i) whether the judgment provides for the payment of a sum of money;

(ii) whether interest is recoverable on the judgment under the law of the country in which judgment was given and, if so, the rate of interest, the date from which interest is due and the date on which interest ceases to accrue;

(iii) an address within the jurisdiction of the court for service on or intimation to the petitioner;

(iv) the usual or last known place of residence or business of the person against whom the judgment was given;

(v) the grounds on which the petitioner is entitled to enforce the judgment; and

(vi) the part of the judgment which is unsatisfied.

(3) Paragraph (2)(b) and (d) do not apply to a petition under Article 38 (enforcement of judgment from another Member State), Article 57 (enforcement of authentic instrument from another Member State) or Article 58 (enforcement of settlement from another Member State) of the Council Regulation but there must be produced with such a petition a certificate under Article 54 (standard form of certificate of judgment), Article 57 (standard form of certificate of authentic instrument) or Article 58 (standard form of certificate of court settlement) of the Council Regulation.

(3AA) For applications to which paragraph (1)(ba) applies, in addition to the information specified in paragraph (2), the following must be produced with the petition—

(a) the exclusive choice of court agreement, a certified copy thereof, or other evidence of its existence; and

(b) in the case referred to in Article 12 (judicial settlements) of the 2005 Hague Convention, a certificate of a court of the State of origin that the judicial settlement or a part of it is enforceable in the same manner as a judgment in the State of origin.

(3AB) An application for recognition or enforcement may be accompanied by a certificate issued by a court (including an officer of the court) of the State of origin under Article13(3) of the 2005 Hague Convention.

(3A) Paragraph (2)(b) and (d) shall not apply to a petition under Article 38 (enforcement of judgment from another State bound by the Lugano Convention), Article 57 (enforcement of authentic instrument from another State bound by the Lugano Convention) or Article 58 (enforcement of court settlement from another State bound by the Lugano Convention) of the Lugano Convention but there shall be produced with such a petition a certificate under Article 54 (standard form of certificate of judgment), Article 57 (standard form of certificate of authentic instrument) or Article 58 (standard form of certificate of court settlement) of the Lugano Convention.

(4) Where the petitioner does not produce a document required under , (3AA), (3AB) or (3A), the court may—

(a) fix a period within which that document is to be lodged;

(b) accept an equivalent document; or

Protective measures and interim interdict

62.29

(1) On lodging a petition, the petitioner may, at any time until the expiry of the period for lodging an appeal referred to in rule 62.34 or 62.34A or its disposal, apply by motion for a warrant for the execution of protective measures.

(2) On lodging such a petition, the petitioner may, at any time until the expiry of the period for lodging an appeal mentioned in rule 62.34 or 62.34A or its disposal, apply by motion for an interim interdict.

Warrant for registration under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention

62.30

(1) The court shall, on being satisfied that the petition complies with the requirements of the Act of 1982 or, as the case may be, the Council Regulation , the 2005 Hague Convention or the Lugano Convention, pronounce an interlocutor—

(a) granting warrant for the registration of the judgment;

(b) granting warrant for the execution of protective measures; and

(2) The interlocutor pronounced under paragraph (1) shall specify—

(a) the period within which an appeal mentioned in rule 62.34 or 62.34A against the interlocutor may be made; and

(b) that the petitioner—

(i) may register the judgment under rule 62.32; and

(ii) may not proceed to execution until the expiry of the period for lodging such an appeal or its disposal.

Intimation to petitioner

62.31

Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall intimate such interlocutor to the petitioner by sending to his address for service in Scotland a certified copy of the interlocutor by registered post or the first class recorded delivery service.

Registration under the Act of 1982

62.32

(1) Where the court pronounces an interlocutor under rule 62.30(1) granting warrant for registration, the Deputy Principal Clerk shall enter the judgment in a register of judgments, authentic instruments and court settlements under the Act of 1982 , the Council Regulation , the 2005 Hague Convention and the Lugano Convention kept in the Petition Department.

(2) On presentation by the petitioner to the Keeper of the Registers of—

(a) a certified copy of the interlocutor under rule 62.30(1) granting warrant for registration;

(b) an authentic copy of the judgment and any translation of it; and

they shall be registered in the register of judgments of the Books of Council and Session.

(3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered judgment with a warrant for execution.

Service of warrant for registration under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention

62.33

The petitioner shall serve a copy of the interlocutor granting warrant for registration of a judgment and a notice in Form 62.33 on the person liable under the judgment.

Appeals under the Act of 1982

62.34

(1) An appeal under Article 37 of the convention in Schedule 1 to the Act of 1982 (appeal against granting of warrant for registration), an appeal under Article 43 (appeals by either party) of the Council Regulation or an appeal under Article 43 (appeals by either party) of the Lugano Convention against the granting of a warrant for registration shall be made by motion—

(a) to the Lord Ordinary; and

(b) within one month of service under rule 62.33 (service of warrant for registration under the Act of 1982 , the Council Regulation or the Lugano Convention) or within two months of such service where service was executed on a person domiciled in another Contracting State or, as the case may be Member State or State bound by the Lugano Convention.

(2) An appeal under Article 40 of the convention in Schedule 1 to the Act of 1982 (appeal against refusal to grant warrant for registration) , an appeal under Article 43 (appeals by either party) of the Council Regulation or an appeal under Article 43 (appeals by either party) of the Lugano Convention against a refusal to grant warrant for registration shall be made by motion—

(a) to the Lord Ordinary; and

(b) within one month of the interlocutor pronounced under rule 62.30(1) (warrant for registration under the Act of 1982 , the Council Regulation or the Lugano Convention).

(3) Where the respondent in any such appeal is domiciled furth of the United Kingdom—

(a) in relation to an appeal under paragraph (1), intimation of the motion shall be made to the address for service of the respondent in Scotland; and

(b) in relation to an appeal under paragraph (2), intimation of the motion shall be made in accordance with rule 16.2 (service furth of United Kingdom) or rule 16.5 (service where address of person is not known), as the case may be.

(4) Where an appeal under paragraph (1) is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.

Reclaiming under the Act of 1982

62.35

(1) Any party dissatisfied with the interlocutor of the Lord Ordinary in any appeal mentioned in rule 62.34 (appeals under the Act of 1982 , the Council Regulation or the Lugano Convention) or rule 62.34A (appeals under section 6B(1) of the Act of 1982) may reclaim on a point of law against that interlocutor.

(2) Where a reclaiming motion under paragraph (1) against the registration of a judgment is successful, the court shall, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.

Recognition of judgments from another Contracting State, Member State or State bound by the Lugano Convention

62.36

(1) For the purposes of Article 26 of the convention in Schedule 1 to the Act of 1982 , Article 33 of the Council Regulation (recognition of judgment) , section 4B of the Act of 1982 (registration and enforcement of judgments under the 2005 Hague Convention) or Article 33 of the Lugano Convention (recognition of judgment), an interlocutor pronounced under rule 62.30(1) (warrant for registration under the Act of 1982, , the Council Regulation , the 2005 Hague Convention or the Lugano Convention) shall imply recognition of the judgment so dealt with.

(2) In an application under Article 26(2) of the convention in Schedule 1 to the Act of 1982 (application for recognition of a judgment) , Article 33(2) of the Council Regulation (application for recognition of a judgment) or Article 33(2) of the Lugano Convention (application for recognition of a judgment), rules 62.26 to 62.35 shall apply to such an application as they apply to an application under Article 31 of the convention in Schedule1 to the Act of 1982, subject to the following provisions—

(a) it shall not be necessary to produce any documents required by rule 62.28(2)(b) and (d); and

(b) rule 62.32 shall not apply.

Enforcement of judgments from another part of the United Kingdom in Scotland (money provisions)

62.37

(1) An application under paragraph 5 of Schedule 6 to the Act of 1982 (application for registration in the Court of Session of a certificate in relation to a money provision in a judgment from another part of the United Kingdom) shall be made by presenting to the Keeper of the Registers—

(a) a certificate under paragraph 4(1) of Schedule 6 to the Act of 1982; and

(b) any certificate of currency conversion under rule 62.2(1)(b).

(2) On presentation of the certificate mentioned in paragraph (1)(a), the Keeper of the Registers shall—

(a) register the certificate in the register of judgments of the Books of Council and Session; and

(b) issue an extract of the certificate with a warrant for execution.

(3) An application under—

(a) paragraph 9 of Schedule 6 to the Act of 1982 (application to sist proceedings for enforcement of a certificate registered under paragraph (2) of this rule); or

(b) paragraph 10 of Schedule 6 to the Act of 1982 (application for reduction of registration),

shall be made by petition.

Enforcement of judgments from another part of the United Kingdom in Scotland (money provisions)

62.38

(1) An application under paragraph 5 of Schedule 7 to the Act of 1982 (application for registration in the Court of Session of a non-money provision in a judgment from another part of the United Kingdom) shall be made by petition in Form 62.38.

(2) There shall be produced with the petition under paragraph (1)—

(a) a certified copy of the judgment of the original court; and

(b) a certificate under paragraph 4(1)(b) of Schedule 7 to the Act of 1982.

(3) The petition under paragraph (1) shall be heard by the Lord Ordinary in chambers and shall not require any appearance for the applicant unless the court so requires.

(4) The court shall, on being satisfied that the petition complies with the requirements of section 18 of, and Schedule 7 to, the Act of 1982, pronounce an interlocutor—

(a) granting warrant for the registration of the judgment; and

(b) where necessary, granting decree in accordance with Scots law.

(5) Where the court pronounces an interlocutor under paragraph (4), rule 62.32 shall apply to the registration of a judgment under this rule as it applies to the registration of a judgment under that rule.

(6) An application under—

(a) paragraph 8 of Schedule 7 to the Act of 1982 (application to sist proceedings for enforcement of a judgment registered under paragraph (5) of this rule); or

(b) paragraph 9 of Schedule 7 to the Act of 1982 (application to reduce the registration under paragraph (5) of this rule),

shall be made by petition.

Cancellation of registration under the Act of 1982, the Council Regulation or the Lugano Convention

62.39

Where—

(a) an interlocutor under rule 62.30(1) (warrant for registration under the Act of 1982 , the Council Regulation , the 2005 Hague Convention or the Lugano Convention) is recalled and registration under rule 62.32 (registration under the Act of 1982 , the Council Regulation , the 2005 Hague Convention or the Lugano Convention) is ordered to be cancelled after an appeal under Article 37 of the convention in Schedule 1 to the Act of 1982 , an appeal under Article 43 of the Council Regulation , an appeal under section 6B of the Act of 1982 (appeals in relation to registration of judgments under the 2005 Hague Convention) or an appeal under Article 43 of the Lugano Convention; or

(b) registration under rule 62.37(2) (registration of judgments from another part of the United Kingdom in Scotland (money provisions)) or rule 62.38(5) (registration of judgments from another part of the United Kingdom in Scotland (non-money provisions)) is reduced,

a certificate to that effect by the Deputy Principal Clerk shall be sufficient warrant to the Keeper of the Registers to cancel the registration and return the judgment, certificate or other documents to the person who applied for registration.

Enforcement in another Contracting State or Member State of Court of Session judgments etc.

62.40

(1) Subject to paragraph (2ZA), where a person seeks to apply under section 12 of the Act of 1982 for recognition or enforcement in another Contracting State of a judgment given by the court or a court settlement in the court, he shall apply by letter to the Deputy Principal Clerk for–

(a) a certificate in Form 62.40-A;

(b) a certified copy of the judgment; and

(2) Where a person seeks to apply under Chapter III of the Council Regulation for recognition or enforcement in another Member State of a judgment given by the court, the person must apply by letter to the Deputy Principal Clerk for—

(a) a certificate under Article 54 of the Council Regulation;

(b) a certified copy of the judgment; and

(2ZA) Where a person seeks to apply under Chapter III of the 2005 Hague Convention for recognition or enforcement in another Contracting State of a judgment given by the court, that person must apply by letter to the Deputy Principal Clerk for—

(a) a certificate under Article 13(3) of the 2005 Hague Convention;

(b) a certified copy of the judgment; and

(2A) Where a person seeks to apply under Title III of the Lugano Convention for recognition or enforcement in another State bound by the Lugano Convention of a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for—

(a) a certificate under Article 54 of the Lugano Convention;

(b) a certified copy of the judgment; and

(3) The Deputy Principal Clerk shall not issue a certificate under paragraph (1)(a) , (2)(a) , (2ZA)(a) or (2A)(a) unless there is produced to him an execution of service of the judgment on the person on whom it is sought to be enforced.

(4) Where a person seeks to apply under Article 50 of the convention in Schedule 1 ... to the Act of 1982 for enforcement of an authentic instrument or court settlement registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for—

(a) a certificate in Form 62.40-B or; and

(b) an extract of the authentic instrument or court settlement.

(5) Where a person seeks to apply under Article 57 or 58 of the Council Regulation for enforcement in another Member State of an authentic instrument or court settlement registered for execution in the Books of Council and Session, the person must apply by letter to the Keeper of the Registers for—

(a) a certificate under Article 57 or 58 of the Council Regulation; and

(b) an extract of the authentic instrument or court settlement.

(5ZA) Where a person seeks to apply under Article 12 of the 2005 Hague Convention for enforcement in another Contacting State of a court settlement registered for execution in the Books of Council and Session, that person must apply by letter to the Keeper of the Registers for—

(a) a certificate under Article 13(1)(e) of the 2005 Hague Convention; and

(b) an extract of the court settlement.

(5A) Where a person seeks to apply under Article 57 or 58 of the Lugano Convention for enforcement in another State bound by the Lugano Convention of an authentic instrument or court settlement registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for—

(a) a certificate under Article 57 or 58 of the Lugano Convention; and

(b) an extract of the authentic instrument or court settlement.

(6) The Keeper of the Registers shall not issue a certificate under paragraph (4) , (5) , (5ZA) or (5A) unless there is produced to him an affidavit verifying that enforcement has not been suspended and that the time available for enforcement has not expired.

Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (money provisions)

62.41

(1) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a money provision in a judgment given by the court, he shall apply by letter to the Deputy Principal Clerk for a certificate in Form 62.41 A.

(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating—

(a) the sum or aggregate of sums including interest and expenses payable and unsatisfied;

(b) that the time for making an appeal against such judgment has expired or such appeal has been finally determined;

(c) that enforcement of the judgment has not been suspended and the time available for its enforcement has not expired; and

(d) the address of the party entitled to enforce, and the usual or last known address of the party liable to execution on, the judgment.

(3) Where a person seeks to apply under Schedule 6 to the Act of 1982 for enforcement in another part of the United Kingdom of a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for—

(a) a certificate in Form 62.41 B; and

(b) an extract of the document.

(4) The Keeper of the Registers shall not issue a certificate under paragraph (3) unless there is produced to him an affidavit which includes the statements required under paragraph (2)(a), (c) and (d).

Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (money provisions)

62.42

(1) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a judgment of the court, he shall apply by letter to the Deputy Principal Clerk for—

(a) a certificate in Form 62.42 A; and

(b) a certified copy of such judgment.

(2) The Deputy Principal Clerk shall not issue a certificate under paragraph (1) unless there is produced to him an affidavit stating—

(a) that the time for making an appeal against such judgment has expired or such appeal has been finally determined; and

(b) the address of the party entitled to enforce, and the usual or last known address of the party liable to execution on, the judgment or registered document.

(3) Where the Deputy Principal Clerk issues a certificate in Form 62.42-A, he shall attach it to the certified copy judgment.

(4) Where a person seeks to apply under Schedule 7 to the Act of 1982 for enforcement in another part of the United Kingdom of a non-money provision in a document registered for execution in the Books of Council and Session, he shall apply by letter to the Keeper of the Registers for—

(a) a certificate in Form 62.42; and

(b) an extract of the document.

(4) The Keeper of the Registers shall not issue a certificate under paragraph (4) unless there is produced to him an affidavit referred to in paragraph (2).

(5) Where the Keeper of the Registers issues a certificate in Form 62.42-B, he shall attach it to the extract of the document.

Application and interpretation of this Part

62.43

(1) This part applies to an application under section 9 of the Merchant Shipping (Liner Conferences) Act 1982[^f00177] (recognition and enforcement of recommendations, etc., of conciliators).

(2) In this Part, “the Liner Conferences Act” means the Merchant Shipping (Liner Conferences) Act 1982.

Applications for registration under the Liner Conferences Act

62.44

(1) An application under–

(a) section 9(1)(b) of the Liner Conferences Act (application for registration for enforcement of a recommendation, determination or award), or

(b) section 9(3) of that Act (application for registration for enforcement of a determination of costs),

shall be made by petition.

(2) A petition under section 9(1)(b) of the Liner Conferences Act shall include averments in relation to–

(a) the reasons for the petition; and

(b) where appropriate, the limited extent to which the recommendation is enforceable under section 9(2) of that Act.

(3) There shall be produced with the petition–

(a) a certified copy of the recommendation, the reasons for the recommendation and the record of settlement;

(b) a copy of the acceptance of the recommendation by the parties on whom it is binding.

(4) There shall be produced with a petition under section 9(3) of the Liner Conferences Act a certified copy of the determination of costs.

Warrant for registration under the Liner Conferences Act

62.45

The court, on being satisfied that the recommendation, determination or award may be registered, shall pronounce an interlocutor granting warrant for registration of the recommendation, determination or award, as the case may be.

Registration under the Liner Conferences Act

62.46

(1) Where the court pronounces an interlocutor under rule 62.45 granting warrant for registration–

(a) the Deputy Principal Clerk shall enter the warrant in the register of recommendations, deter-minations and awards to be registered under section 9 of the Liner Conferences Act; and

(b) the petitioner shall serve a copy of the interlocutor containing such warrant on the party against whom the recommendation, determination or award may be enforced.

(2) On presentation by the petitioner to the Keeper of the Registers of–

(a) a certified copy of the interlocutor under rule 62.45 granting warrant for registration,

(b) a certified copy of the recommendation, determination or award to be registered and any translation of it, and

they shall be registered in the register of judgments of the Books of Council and Session.

(3) On registration under paragraph (2), the Keeper of the Registers shall issue an extract of the registered recommendation, determination or award, as the case may be, with a warrant for execution.

Interpretation of this Part

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