Search Legislation

Sheriff Courts (Scotland) Act 1907

What Version

 Help about what version

Advanced Features

 Help about advanced features

Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to Sheriff Courts (Scotland) Act 1907. Any changes that have already been made by the team appear in the content and are referenced with annotations. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.

S

Sheriff Courts (Scotland) Act 1907

1907 CHAPTER 51 7 Edw 7

An Act to regulate and amend the Laws and practice relating to the civil procedure in Sheriff Courts in Scotland, and for other purposes.

[28th August 1907]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

PreliminaryS

1 Short title.S

This Act may be cited for all purposes as the Sheriff Courts (Scotland) Act 1907.

2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

3 Interpretation.S

In construing this Act (unless where the context is repugnant to such construction)—

(a)[F2 sheriff principal] includes [F2sheriff];

(b)Tenant” includes sub-tenant;

(c)Lease” includes sub-lease;

(d)Action[F3or “cause] includes every civil proceeding competent in the ordinary sheriff court;

(e)Person” includes company, corporation, or association and firm of any description nominate or descriptive, or any Board corporate or unincorporate;

(f)Sheriff clerk” includes sheriff-clerk depute;

(g)Agent” means a law-agent enrolled in terms of the M1Law Agents (Scotland) Act 1873;

(h)Final judgment” means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that expenses found due may not have been modified, taxed, or decerned for;

(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F4

(j)Small Debt Acts” means and includes the Small Debt (Scotland) Acts 1837 to 1889, and Acts explaining or amending the same;

(k)Initial writ” means the statement of claim, petition, note of appeal, or other document by which the action is initiated;

(l)Procurator-Fiscal” means procurator-fiscal in the sheriff-court;

(m). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5

(n)Pursuer” means and includes any person making a claim or demand, or seeking any warrant or order competent in the sheriff court;

(o)Defender” means and includes any person who is required to be called in any action;

(p)Summary application” means and includes all applications of a summary nature brought under the common law jurisdiction of the [F2sheriff principal], and all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows, that the same shall be disposed of in a summary manner, but which does not more particularly define in what form the same shall be heard, tried, and determined;

(q). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F2Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Marginal Citations

JurisdictionS

[F74 Jurisdiction.S

The jurisdiction of the [F8sheriffs principal], within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores, and anchoring grounds in or adjoining such sheriffdoms. And the powers and jurisdictions formerly competent to the High Court of Admiralty in Scotland in all maritime causes and proceedings, civil and criminal, including such as may apply to persons furth of Scotland, shall be competent to the [F8sheriffs principal], provided the defender shall upon any legal ground of jurisdiction be amenable to the jurisdiction of the [F8sheriff principal] before whom such cause or proceeding may be raised, and provided also that it shall not be competent to the [F8sheriffs principal] to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land; Provided always that where sheriffdoms are separated by a river, firth, or estuary, the [F8sheriffs principal] on either side shall have concurrent jurisdictions over the intervening space occupied by water.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F7S. 4 repealed so far as relating to criminal proceedings by Criminal Procedure (Scotland) Act 1975 (c. 21), Sch. 10 Pt. I; extended by Hovercraft Act 1968 (c. 59), s. 2

F8Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

5 Extension of jurisdiction. S

Nothing herein contained shall derogate from any jurisdiction, powers, or authority presently possessed or in use to be exercised by the [F9sheriffs principal] of Scotland, and such jurisdiction shall extend to and include—

(1)Actions of declarator F10. . . :

(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F11

[F12(2)Actions for aliment or separation (other than any action mentioned in subsection (2A) below) . . . F13]

[F14(2A)Actions, arising out of an application under section 31(1) of the Maintenance Orders (Reciprocal Enforcement) Act 1972, for the recovery of maintenance:]

[F15(2B)Actions for divorce]

F16(2C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Actions of division of commonty and of division or division and sale of common property, in which cases the M2Division of Commonties Act 1695 concerning the division of commonties shll be read and construed as if it conferred jurisdiction upon the sherrif court in the same manner as upon the Court of Session:

(4)Actions relating to questions of heritable right or title (except actions of adjudication save in so far as now competent and actions of reduction) including all actions of declarator of irritancy and removing, whether at the instance of a superior against a vassal or of a landlord against a tenant:

(5)Suspension of charges or threatened charges upon the decrees of court granted by the [F9sheriff principal] or upon decrees of registration proceeding upon bonds, bills, contracts or other obligations registered in the books of the sheriff court, the books of council and session, or any others competent . . . F17: . . . F18: . . . F19.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F9Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

Marginal Citations

[F205A Power of sheriff to order sheriff clerk to execute deeds relating to heritage.S

(1)This section applies where—

(a)an action relating to heritable property is before the sheriff; or

(b)it appears to the sheriff that an order under this section is necessary to implement a decree of a sheriff relating to heritable property.

(2)Where the grantor of any deed relating to the heritable property cannot be found or refuses or is unable or otherwise fails to execute the deed, the sheriff may—

(a)where subsection (1)(a) above applies, on application;

(b)where subsection (1)(b) above applies, on summary application,

by the grantee, make an order dispensing with the execution of the deed by the grantor and directing the sheriff clerk to execute the deed.

(3)Where in pursuance of an order under this section a deed is executed by the sheriff clerk, it shall have the like force and effect as if it had been executed by the grantor.

(4)In this section—

  • grantor” means a person who is under an obligation to execute the deed; and

  • grantee” means the person to whom that obligation is owed.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

[F216 Action competent in sheriff court. S

[F22Subject to section 8 of the M3Domicile and Matrimonial Proceedings Act 1973 [F23and Chapter III of Part I of the Family Law Act 1986].] Any action competent in the sheriff court may be brought within the jurisdiction of the [F24sheriff principal]

(a)Where the defender (or when there are several defenders [F25over each of whom a sheriff court has jurisdiction in terms of this Act] where one of them) resides within the jurisdiction, or having resided there for at least forty days . . . F26 has ceased to reside there for less than forty days [F26and has no known residence in Scotland]:

(b)Where the defender carries on business, and has a place of business within the [F27jurisdiction], and is cited either personally or at such place of business:

(c)Where the defender is a person not otherwise subject to the jurisdiction of the courts of Scotland, and a ship or vessel of which he is owner or part owner or master, or goods, debts, money, or other moveable property belonging to him, have been arrested within the jurisdiction:

(d)Where the defender is the owner or part owner or tenant or joint tenant, whether individually or as a trustee, of heritable property within the jurisdiction, and the action relates to such property or to his interest therein:

(e)Where the action is for interdict against an alleged wrong being committed or threatened to be committed within the jurisdiction:

(f)Where the action relates to a contract the place of execution or performance of which is within the jurisdiction, and the defender is personally cited there:

(g)Where in an action of furthcoming or multiplepoinding the fund or subject in medio is situated within the jurisdiction; or the arrestee or holder of the fund is subject to the jurisdiction of the court:

(h)Where the party sued is the pursuer in any action pending within the jurisdiction against the party suing:

[F28“(i) where the action is founded on delict, and the delict forming the cause of action was committed within the jurisdiction”.]

(j)Where the defender prorogates the jurisdiction of the court.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F21S. 6 repealed by Administration of Justice Act 1956 (c. 46), s. 45(6) in relation to actions to which s. 45 of that Act applies

F24Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

Marginal Citations

7X1Privative jurisdiction in causes under fifty pounds value.S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F30, all causes not exceeding [F31one thousand five hundred pounds] in value exclusive of interest and expenses competent in the sheriff court shall be brought and followed forth in the sheriff court only, and shall not be subject to review by the Court of Session:

. . . F32Provided . . . F32 that nothing herein contained shall affect any right of appeal competent under any Act of Parliament in force for the time being.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Editorial Information

X1Unreliable marginal note

Amendments (Textual)

F31Words substituted by virtue of S.I. 1988/1993, art. 2

Modifications etc. (not altering text)

C5S. 7 extended (2.10.2000) by S.S.I. 2000/301, rule 4

8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F33S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F34S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

10 Privilege not to exempt from jurisdiction.S

No person shall be exempt from the jurisdiction of the sheriff court on account of privilege by reason of being a member of the College of Justice.

SheriffsS

11X2Appointment of sheriffs and salaried sheriffs-substitute.S

The right of appointing to the salaried offices of [F35sheriff principal] and salaried [F35sheriff] shall be vested in His Majesty, and shall be exercised on the recommendation of the [F36Secretary of State].

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Editorial Information

X2Unreliable marginal note

Amendments (Textual)

F35Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

F36Words substituted by virtue of Secretaries of State Act 1926 (c. 18), s. 1(3)

12, 13.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F37S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

14 Salaries of sheriffs and sheriffs-substitute.S

It shall be lawful to grant to any [F38sheriff principal or sheriff] such salary as to the Treasury may seem meet, and every such salary shall be paid [F39quarterly or otherwise in every year as the Treasury may determine], and shall be charged upon and be payable out of the Consolidated Fund.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F38Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C6S. 14 modifed (9.11.1998) by 1998 c. 42, ss. 18(4)(e), 22(2) (with ss. 7(8), 22(5))

S. 14 modified (27.9.1999) by 1999 c. 22, ss. 68(3)(a), 108(3) (with Sch. 14 para. 7(2))

15, 16.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F40S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

17 Honorary sheriff-substitute.S

The [F41sheriff principal] may by writing under his hand appoint such persons as he thinks proper to hold the office of [F41honorary sheriff] within his sheriffdom during his pleasure, and for whom he shall be answerable. An [F41honorary sheriff], during the subsistence of his commission, shall be entitled to exercise the powers and duties appertaining to the office of [F41sheriff]. An [F41honorary sheriff] shall hold office, notwithstanding the death, resignation, or removal of the [F41sheriff principal], until his commission shall be recalled by a succeeding [F41sheriff principal]. In this section [F41sheriff principal]does not include [F41sheriff.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F41Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

18, 19.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F42S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F43S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F44S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

22—24.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F45S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

25, 26.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F46S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

AppealsS

27 Appeal to sheriff.S

Subject to the provisions of this Act an appeal to the [F47sheriff principal] shall be competent against all final judgments of the [F47sheriff] and also against interlocutors—

(A)Granting or refusing interdict, interim or final;

(B)Granting interim decree for payment of money other than a decree for expenses, or making an order ad factum præstandum;

(C)Sisting an action;

(D)Allowing or refusing or limiting the mode of proof . . . F48;

(E)[F49Refusing a reponing note; or

(F)]Against which the [F47sheriff] either ex proprio motu or on the motion of any party grants leave to appeal;

  • Provided always that notwithstanding the death, resignation, or removal of a [F47sheriff principal] appeals may be taken from the judgment of the [F47sheriff], which appeals shall be heard by the succeeding [F47sheriff principal] when he shall enter upon office.

  • [F49It shall be competent for the [F47sheriff principal]. when the action is before him on appeal on any point, to open the record ex proprio motu, if the record shall appear to him not to have been properly made up, or to allow further proof.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F47Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

[F5028 Appeal to Court of Session.S

(1)Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment either of a [F51sheriff principal or sheriff] if the interlocutor appealed against is a final judgment or is an interlocutor—

(a)Granting interim decree for payment of money other than a decree for expenses; or

(b)Sisting an action; or

(c)Refusing a reponing note; or

(d)Against which the [F51sheriff principal or sheriff] either ex proprio motu or on the motion of any party, grants leave to appeal:

. . . F52

(2)Nothing in this section nor in section twenty-seven of this Act contained shall affect any right of appeal or exclusion of such right provided by any Act of Parliament in force for the time being.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F51Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

29 Effect of appeal.S

An appeal shall be effectual to submit to review the whole of the interlocutors pronounced in the cause, and shall be available to and may be insisted in by all other parties in the cause notwithstanding they may not have noted separate appeals. An appeal shall not prevent immediate execution F53. . . of warrants to take inventories, or place effects in custody ad interim, or warrants for interim preservation, and an interim interdict, although appealed against shall be binding till recalled.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F54S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F55S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F56S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F57S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

RemovingsS

34 Removings. S

Where lands exceeding two acres in extent are held under a probative lease specifying a term of endurance, and whether such lease contains an obligation upon the tenant to remove without warning or not, such lease, or an extract thereof from the books of any court of record, shall have the same force and effect as an extract decree of removing obtained in an ordinary action at the instance of the lessor, or any one in his right, against the lessee or any party in possession, and such lease or extract shall, along with authority in writing signed by the lessor or any one in his right or by his factor or law agent, be sufficient warrant to any sheriff officer or messenger-at-arms of the sheriffdom within which such lands or heritages are situated to eject such party in possession, his family, sub-tenants, cottars, and dependants, with their goods, gear and effects, at the expiry of the term or terms of endurance of the lease: Provided that previous notice in writing to remove shall have been given—

(A)When the lease is for three years and upwards not less than one year and not more than two years before the termination of the lease; and

(B)In the case of leases from year to year (including lands occupied by tacit relocation) or for any other period less than three years, not less than six months before the termination of the lease (or where there is a separate ish as regards land and houses or otherwise before that ish which is first in date):

Provided that if such written notice as aforesaid shall not be given the lease shall be held to be renewed by tacit relocation for another year, and thereafter from year to year: Provided further that nothing contained in this section shall affect the right of the landlord to remove a tenant who has been sequestrated under the M4Bankruptcy (Scotland) Act 1856, or against whom a decree of cessio has been pronounced under the M5Debtors (Scotland) Act 1880, or who by failure to pay rent has incurred any irritancy of his lease or other liability to removal: Provided further that removal or ejectment in virtue of this section shall not be competent after six weeks from the date of the ish last in date: Provided further that nothing herein contained shall be construed to prevent proceedings under any lease in common form; and that the foregoing provisions as to notice shall not apply to any stipulations in a lease entitling the landlord to resume land for building, planting, feuing, or other purposes or to subjects let for any period less than a year.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

Marginal Citations

35 Letter of removal.S

Where any tenant in possession of any lands exceeding two acres in extent (whether with or without a written lease) shall, either at the date of entering upon the lease or at any other time, have granted a letter of removal, F58. . .such letter of removal shall have the same force and effect as an extract decree of removing, and shall be a sufficient warrant for ejection to the like effect as is provided in regard to a lease or extract thereof, and shall be operative against the granter of such letter of removal or any party in his right within the same time and in the same manner after the like previous notice to remove: Provided always that where such letter is dated and signed within twelve months before the date of removal or before the first ish, if there be more than one ish, it shall not be necessary that any notice of any kind shall be given by either party to the other.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F58Words in s. 35 repealed (1.8.1995) by 1995 c. 7, ss. 14(2), 15(2), Sch. 5 (with ss. 9(3)(5)(7), 13)

36 Notice to remove.S

Where lands exceeding two acres in extent are occupied by a tenant without any written lease, and the tenant has given to the proprietor or his agent no letter of removal, the lease shall terminate on written notice being given to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant not less than six months before the determination of the tenancy, and such notice shall entitle the proprietor, in the event of the tenant failing to remove, to apply for and obtain a summary warrant of ejection against the tenant and everyone deriving right from him.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C9S. 36 applied (10.6.2002) by Act of Sederunt (Summary Cause Rules) 2002 (S.S.I. 2002/132), art. 2, {Sch. 1 rule 30.3} (with art. 3)

37 Notice of termination of tenancy.S

In all cases where houses, with or without land attached, not exceeding two acres in extent, lands not exceeding two acres in extent let without houses, mills, fishings, shootings, and all other heritable subjects (excepting land exceeding two acres in extent) are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor or to the proprietor by or on behalf of the tenant: Provided always that notice under this section shall not warrant summary ejection from the subjects let to a tenant, but such notice, whether given to or by or on behalf of the tenant, shall entitle the proprietor to apply to the [F59sheriff principal] for a warrant for summary ejection in common form against the tenant and every one deriving right from him: Provided further that the notice provided for by this section shall be given at least forty days before the fifteenth day of May when the termination of the tenancy is the term of Whitsunday, and at least forty days before the eleventh day of November when the termination of the tenancy is the term of Martinmas.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F59Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C10S. 37 applied (10.6.2002) by Act of Sederunt (Summary Cause Rules) 2002 (S.S.I. 2002/132), art. 2, {Sch. 1 rule 30.3} (with art. 3)

[F6037AException for certain tenanciesS

The provisions of this Act relating to removings (including summary removings) shall not apply to or in relation to short limited duration tenancies or limited duration tenancies within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11).]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Summary RemovingsS

38 Summary removing.S

Where houses or other heritable subjects are let for a shorter period than a year, any person by law authorised may present to the [F61sheriff principal] a summary application for removing, and a decree pronounced in such summary cause shall have the full force and effect of a decree of removing and warrant of ejection. Where asuch a let is for a period not exceeding four months, notice of removal therefrom shall, in the absence of express stipulation, be given as many days before the ish as shall be equivalent to at least one-third of the full period of the duration of the let; and where the let exceeds four months, notice of removal shall, in the absence of express stipulation be given at least forty days before the expiry of the said period.

[F62Provided that in no case shall notice of removal be given less than 28 days before the date on which it is to take effect.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F61Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C11S. 38 applied (10.6.2002) by Act of Sederunt (Summary Cause Rules) 2002 (S.S.I. 2002/132), art. 2, {Sch. 1 rule 30.3} (with art. 3)

[F6338A Notice of termination in respect of dwelling-houses.S

Any notice of termination of tenancy or notice of removal given under section 37 or 38 above in respect of a dwelling-house, on or after 2nd of December 1974, shall be in writing and shall contain such information as may be prescribed by virtue of section 112 of the M6Rent (Scotland) Act 1984, and Rule 112 of Schedule 1 to this Act shall no longer apply to any such notice under section 37 above.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Marginal Citations

[F64Consistorial CausesS

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

38B Lord Advocate as party to action for divorce.S

F65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F6638C]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Procedure RulesS

39 Procedure rules.S

Subject to the provisions of any Act of Parliament in force after the passing of this Act, the procedure in all civil causes shall be conform to the rules of procedure set forth in the First Schedule hereto annexed. Such rules shall be construed and have effect as part of this Act.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C12S. 39 excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3

40 Court of Session to regulate fees, &c.S

The Court of Session may from time to time, by Act of Sederunt, make such regulations, . . . F67 for regulating the fees of agents [F68(other than such of the fees of agents as the Secretary of State may regulate under or by virtue of section 14A of the M7Legal Aid (Scotland) Act 1967)] , officers, shorthand writers, and others, . . . F69; . . . F70 Provided . . . F71 that every such Act of Sederunt shall, within one week from the date thereof, be transmitted by the Lord President of the Court of Session to the [F72Secretary of State], in order that it may be laid before the Houses of Parliament; and, if either of the Houses of Parliament shall within thirty-six days after it has been laid before them resolve that the whole or any part of such Act of Sederunt ought not to continue in force, the whole or such part thereof as shall be included in such resolution shall from and after the date of the passing of such resolution cease to be binding.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F72Words substituted by virtue of Secretaries of State Act 1926 (c. 18), s. 1(3)

Marginal Citations

M71967 c.43 (77:2).

41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F73S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

42—48.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F74S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F75S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Summary ApplicationsS

50 Summary applications.S

In summary applications (where a hearing is necessary) the [F76sheriff principal] shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the [F76sheriff principal] shall order a record) shall summarily dispose of the matter and give his judgment in writing: Provided that wherever in any Act of Parliament an application is directed to be heard, tried, and determined summarily or in the manner provided by section fifty-two of the M8Sheriff Courts (Scotland) Act 1876, such direction shall be read and construed as if it referred to this section of this Act: Provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F76Words substituted by virtue of Sheriff Courts (Scotland) Act 1971 (c. 58), s. 4

Modifications etc. (not altering text)

C13S. 50 applied (14.7.2000) by S.S.I. 2000/233, art. 44(4)

Marginal Citations

51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F77S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F78S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

SCHEDULES

F79first scheduleS ORDINARY CAUSE RULES 1993

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F79Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.

Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3

Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)

Initiation andprogress of causesS

CHAPTER 1SCITATION, INTERPRETATION, REPRESENTATION AND FORMS

CitationS

1.1.These Rules may be cited as the Ordinary Cause Rules 1993.

InterpretationS

1.2.(1)In these Rules, unless the context otherwise requires—

  • “document” has the meaning assigned to it in section 9 of the M9Civil Evidence (Scotland) Act 1988;

  • [F80enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;]

  • “period of notice” means the period determined under rule 3.6 (period of notice after citation).

  • [F81the Act of 2004” means the Vulnerable Witnesses (Scotland) Act 2004]

(2)For the purposes of these Rules—

(a)“affidavit” includes an affirmation and a statutory or other declaration; and

(b)an affidavit shall be sworn or affirmed before a notary public or any other competent authority.

(3)Where a provision in these Rules requires a party to intimate or send a document to another party, it shall be sufficient compliance with that provision if the document is intimated or sent to the solicitor acting in the cause for that party.

(4)Unless the context otherwise requires, anything done or required to be done under a provision in these Rules by a party may be done by the agent for that party acting on his behalf.

(5)Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form, is a reference to the Chapter, Part, rule or form in Appendix 1, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of that paragraph or that head of that sub-paragraph, in which the reference occurs.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F81Sch. 1 rule 1.2(1): definition of "the Act of 2004" inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {para. 2(2)}

Marginal Citations

RepresentationS

1.3.(1)Subject to paragraph (2), a party to any proceedings arising solely under the provisions of the M10Debtors (Scotland) Act 1987 shall be entitled to be represented by a person other than a solicitor or an advocate provided that the sheriff is satisfied that such person is a suitable representative and is duly authorised to represent that party.

(2)Paragraph (1) shall not apply to an appeal to the sheriff principal.

[F82(3)A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment.

(4)The person referred to in paragraph (3) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Marginal Citations

FormsS

1.4.Where there is a reference to the use of a form in these Rules, that form in Appendix 1 or Appendix 2, as the case may be, to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

CHAPTER 2SRELIEF FROM COMPLIANCE WITH RULES

Relief from failure to comply with rulesS

2.1.(1)The sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2)Where the sheriff relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

CHAPTER 3SCOMMENCEMENT OF CAUSES

Form of initial writS

3.1.[F83(1)A cause shall be commenced–

(a)in the case of an ordinary cause, by initial writ in Form G1; or

(b)in the case of a commercial action within the meaning of Chapter 40, by initial writ in Form G1A.]

(2)The initial writ shall be written, typed or printed on A4 size paper of durable quality and shall not be backed or folded.

(3)Where the pursuer has reason to believe that an [F84agreement] exists prorogating jurisdiction over the subject-matter of the cause to another court, the [F85initial] writ shall contain details of that agreement.

(4)Where the pursuer has reason to believe that proceedings are pending before another court involving the same cause of action and between the same parties as those named in the instance of the initial writ, the [F85initial] writ shall contain details of those proceedings.

(5)An article of condescendence shall be included in the [F85initial] writ averring—

(a)the ground of jurisdiction; and

(b)the facts upon which the ground of jurisdiction is based.

(6)Where the residence, registered office or place of business, as the case may be, of the defender is not known and cannot reasonably be ascertained, the pursuer shall set out in the instance that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.

(7)The initial writ shall be signed by the pursuer or his solicitor (if any) and the name and address of that solicitor shall be stated on the back of every service copy of that writ.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F83Rule 3.1(1)(a)(b) substituted for rule 3.1(1) (1.3.2001) by S.S.I. 2001/8, para. 2(1)(2)

F84Word in rule 3.1(3) substituted (1.1.1996) by S.I. 1996/2445, para. 3(2)(a)(i)

F85Word in rule 3.1(3)-(5) substituted (1.11.1996) by S.I. 1996/2445, para. 3(2)(a)(ii)(b)(c)

Actions relating to heritable propertyS

3.2.(1)In an action relating to heritable property, it shall not be necessary to call as a defender any person by reason only of any interest he may have as the holder of a heritable security over the heritable property.

(2)Intimation of such an action shall be made to the holder of the heritable security referred to in paragraph (1)—

(a)where the action relates to any heritable right or title; and

(b)in any other case, where the sheriff so orders.

[F86(3)In an action falling within section 1(1)(b) or (c) of the Mortgage Rights (Scotland) Act 2001 M11, the initial writ shall include averments about those persons who appear to the pursuer to be entitled to apply for an order under section 2 of that Act and such persons shall, so far as known to the pursuer, be called as defenders for their interest.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F86Rule 3.2(3) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(2)}

Marginal Citations

Warrants of citationS

3.3.(1)The warrant of citation in any cause other than—

(a)a family action within the meaning of rule 33.1(1),

(b)an action of multiplepoinding,

(c)an action in which a time to pay direction under the Debtors (Scotland) Act 1987 [F87 or a time order under the Consumer Credit Act 1974 F88] may be applied for by the defender,

[F89(d)an action to which rule 3.2(3) applies,]

[F90(e)a civil partnership action within the meaning of rule 33A.1(1).]

shall be in [F91Form O1].

(2)In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 [F92or a time order under the Consumer Credit Act 1974] may be applied for the defender, the warrant of citation shall be in [F91Form O2].

(3)In a cause in which a warrant of citation in accordance with [F91Form O2] is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in [F91Form O3].

[F93(4)In an action to which rule 3.2(3) applies, the warrant of citation shall be in Form O2A.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F89Rule 3.3(1)(d) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(3)(a)}

F90Sch. 1 rule 3.3(1)(e) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(2)}

F91Words in rule 3.3 substituted (1.11.1996) by S.I. 1996/2445, para. 3(3)

F93Rule 3.3(4) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(3)(b)}

Warrants for arrestment to found jurisdictionS

3.4.(1)Where an application for a warrant for arrestment to found jurisdiction may be made, it shall be made in the crave of the [F94initial] writ.

(2)Averments to justify the granting of such a warrant shall be included in the condescendence.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F94Word in rule 3.4(1) substituted (1.11.1996) by S.I. 1996/2445, para. 3(4)

Warrants and precepts for arrestment on dependenceS

3.5.F95. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Period of notice after citationS

3.6.(1)Subject to rule 5.6(1) (service where address of person is not known) and to paragraph (2) of this rule, a cause shall proceed after one of the following periods of notice has been given to the defender:—

(a)where the defender is resident or has a place of business within Europe, 21 days after the date of execution of service; or

(b)where the defender is resident or has a place of business outside Europe, 42 days after the date of execution of service.

(2)Subject to paragraph (3), the sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the method or manner of service as he thinks fit.

(3)A period of notice may not be reduced to a period of less than 2 days.

(4)Where a period of notice expires on a Saturday, Sunday, or public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk’s office is open for civil court business.

F96F96CHAPTER 4S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

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

CHAPTER 5SCITATION, SERVICE AND INTIMATION

Signature of warrantsS

5.1.(1)Subject to paragraph (2), a warrant for citation, [F97 or intimation] may be signed by the sheriff or sheriff clerk.

(2)The following warrants shall be signed by the sheriff:—

(a)a warrant containing an order shortening or extending the period of notice or any other order other than a warrant which the sheriff clerk may sign;

[F98(b)a warrant for arrestment to found jurisdiction;

(ba)a warrant for arrestment on the dependence;]

(c)a warrant for intimation ordered under rule 33.8 (intimation where [F99alleged] association).

[F100(d)a warrant for intimation ordered under rule 33A.8 (intimation where alleged association).]

(3)Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the initial writ may apply to the sheriff for the warrant.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F99Word in Sch. 1 rule 5.1(2)(c) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(3)(a)}

F100Sch. 1 rule 5.1(2)(d) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(3)(b)}

Form of citation and certificateS

5.2.(1)Subject to rule 5.6 (service where address of person is not known), in any cause other than—

(a)a family action within the meaning of rule 33.1(1),

[F101(aa)a civil partnership action within the meaning of rule 33A.1(1);]

(b)an action of multiplepoinding, F102. . .

(c)an action in which a time to pay direction under the Debtors (Scotland) Act 1987 [F103or a time order under the Consumer Credit Act 1974] may be applied for by the defender, [F104or]

[F105(d)an action to which rule 3.2(3) applies,]

[F106citation of] any person shall be in Form O4 which shall be attached to a copy of the [F107initial] writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

(2)In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 [F108or a time order under the Consumer Credit Act 1974] may be applied for by the defender, citation shall be in Form O5 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

[F109(2A)In an action to which rule 3.2(3) applies, citation shall be in Form O5A which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.]

(3)The certificate of citation in any cause other than a family action within the meaning of rule 33.1(1) or an action of multiplepoinding shall be in Form O6 which shall be attached to the initial writ.

(4)Where citation is by a sheriff officer, one witness shall be sufficient for the execution of citation.

(5)Where citation is by a sheriff officer, the certificate of citation shall be signed by the sheriff officer and the witness and shall state—

(a)the method of citation; and

(b)where the method of citation was other than personal or postal citation, the full name and designation of any person to whom the citation was delivered.

(6)Where citation is executed under paragraph 3 of rule 5.4 (depositing or affixing by sheriff officer), the certificate shall include a statement—

(a)of the method of service previously attempted;

(b)of the circumstances which prevented such service being executed; and

(c)that a copy was sent in accordance with the provisions of paragraph (4) of that rule.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F101Sch. 1 rule 5.2(1)(aa) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(4)}

F102Word in rule 5.2(1)(b) omitted (17.1.2002) by virtue of Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(4)(a)}

F104Word in rule 5.2(1)(c) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(4)(b)}

F105Rule 5.2(1)(d) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(4)(c)}

F106Words in rule 5.2(1) substituted (1.11.1996) by S.I. 1996/2445, para. 3(5)(a)

F107Word in rule 5.2(1) substituted (1.11.1996) by S.I. 1996/2445, para. 3(5)(b)

F109Rule 5.2(2A) inserted (17.1.2002) by Act of Sederunt (Amendment of Ordinary Cause Rules and Summary Applications, Statutory Applications and Appeals etc. Rules) (Applications under the Mortgage Rights (Scotland) Act 2001) 2002 (S.S.I. 2002/7), {para. 2(4)(d)}

Postal service or intimationS

5.3.(1)In any cause in which service or intimation of any document or citation of any person may be by recorded delivery, such service, intimation or citation shall be by the first class recorded delivery service.

(2)Notwithstanding the terms of section 4(2) of the M13Citation Amendment (Scotland) Act 1882 (time from which period of notice reckoned), where service or intimation is by post, the period of notice shall run from the beginning of the day after the date of posting.

(3)On the face of the envelope used for postal service or intimation under this rule there shall be written or printed the following notice:—

“This envelope contains a citation to or intimation from (specify the court). If delivery cannot be made at the address shown it is to be returned immediately to:- The Sheriff Clerk (insert address of sheriff clerk’s office).”

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Service within Scotland by sheriff officerS

5.4.(1)An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served by a sheriff officer on any person shall be served—

(a)personally; or

(b)by being left in the hands of a resident at the person’s dwelling place or an employee at his place of business.

(2)Where service is executed under paragraph (1)(b), the certificate of citation or service shall contain the full name and designation of any person in whose hands the intial writ, decree, charge, warrant or other order or writ, as the case may be, was left.

(3)Where a sheriff officer has been unsuccessful in executing service in accordance with paragraph (1), he may, after making diligent enquiries, serve the document in question—

(a)by depositing it in that person’s dwelling place or place of business; or

(b)by affixing it to the door of that person’s dwelling place or place of business.

(4)Subject to rule 6.1 (service of schedule of arrestment), where service is executed under paragraph (3), the sheriff officer shall, as soon as possible after such service, send a letter containing a copy of the document by ordinary first class post to the address at which he thinks it most likely that the person on whom service has been executed may be found.

[F110(5)Where the firm which employs the sheriff officer has in its possession–

(a)the document or a copy of it certified as correct by the pursuer’s solicitor, the sheriff officer may serve the document upon the defender without having the document or certified copy in his possession, in which case he shall if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the document or certified copy to the person; or

(b)a certified copy of the interlocutor pronounced allowing service of the document, the sheriff officer may serve the document without having in his possession the certified copy interlocutor if he has in his possession a facsimile copy of the certified copy interlocutor (which he shall show, if required, to the person on whom service is executed).]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Service on persons furth of ScotlandS

5.5.(1)Subject to the following provisions of this rule, an initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served on a person furth of Scotland shall be served—

(a)at a known residence or place of business in England, Wales, Northern Ireland, the Isle of Man, the Channel Islands or any country with which the United Kingdom does not have a convention providing for service of writs in that country—

(i)in accordance with the rules for personal service under the domestic law of the place in which service is to be executed; or

(ii)by posting in Scotland a copy of the document in question in a registered letter addressed to the person at his residence or place of business;

(b)in a country which is a party to the M14Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965 or the Convention in Schedule 1 or 3C to the M15Civil Jurisdiction and Judgments Act 1982—

(i)by a method prescribed by the internal law of the country where service is to be executed for the service of documents in domestic actions upon persons who are within its territory;

(ii)by or through the central, or other appropriate, authority in the country where service is to be executed at the request of the [F111Secretary of State for Foreign and Commonwealth Affairs]:

(iii)by or through a British Consular Office in the country where service is to be executed at the request of the [F111Secretary of State for Foreign and Commonwealth Affairs];

(iv)where the law of the country in which the person resides permits, by posting in Scotland a copy of the document in a registered letter addressed to the person at his residence; or

(v)where the law of the country in which service is to be executed permits, service by an huissier, other judicial officer or competent official of the country where service is to be executed; F112. . . [F113 or]

(c)in a country with which the United Kingdom has a convention on the service of writs in that country other than the conventions mentioned in sub-paragraph (b), by one of the methods approved in the relevant convention. [F114; or

(d)F115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F116(1A)In a country to which the Council Regulation applies, service–

(a)may be effected by the methods prescribed in paragraph (1)(b)(ii) and (iii) only in exceptional circumstances; and

(b)is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (6).]

(2)Any document which requires to be posted in Scotland for the purposes of this rule shall be posted by a solicitor or a sheriff officer; and on the face of the envelope there shall be written or printed the notice set out in rule 5.3(3).

(3)In the case of service by a method referred to in paragraph (1)(b)(ii) and (iii), the pursuer shall—

(a)send a copy of the writ and warrant of service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the Secretary of State for Foreign and Commonwealth Affairs; and

(b)lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4)In the case of service by a method referred to in paragraph (1)(b)(v), the pursuer or the sheriff officer, shall—

(a)send a copy of the writ and warrant for service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b)lodge in process a certificate of the official who executed service stating that it has been, and the manner in which is was, served.

(5)Where service is executed in accordance with paragraph (1)(a)(i) or (1)(b)(i) other than on another party in the United Kingdom, the Isle of Man or the Channel Islands, the party executing service shall lodge a certificate by a person who is conversant with the law of the country concerned and who practises or has practised law in that country or is a duly accredited representative of the Government of that country, stating that the method of service employed is in accordance with the law of the place where service was executed.

(6)Every writ, document, citation or notice on the face of the envelope mentioned in rule 5.3(3) shall be accompanied by a translation in an official language of the country in which service is to be executed unless English is F117. . .

[F118(a)an official language of the country in which service is to be executed; or

(b)in a country to which the Council Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed.]

(7)A translation referred to in paragraph (6) shall be certified as correct by the person making it; and the certificate shall—

(a)include his full name, address and qualifications; and

(b)be lodged with the execution of citation or service.

[F119(8)In this rule “the Council Regulation” means Council Regulation (EC) No. 1348/2000 of 29 May 2000 on service in the Member States of judicial and extrajudicial documents in civil or commercial matters as amended from time to time and as applied by the Agreement of 19 October 2005 between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters F120;]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F111Words in rule 5.5(1)(b)(ii)(iii) substituted (1.11.1996) by S.I. 1996/2445, para. 3(6)

F119Sch. 1 rule 5.5(8) substituted (9.10.2007) by Act of Sederunt (Sheriff Court Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Council Regulation (EC) No. 1348 of 2000 Extension to Denmark) 2007 (S.S.I. 2007/440), {rule 2(2)}

F120O.J. No. L 160, 30.6.2000 p.37-52 and O.J. No. L 300, 17.11.2005 p.55-60.

Marginal Citations

M14Cmnd. 3986 (1969).

Service where address of person is not knownS

5.6.[F121(A1)Subject to rule 6.A7 this rule applies to service where the address of a person is not known.]

(1)Where the address of a person to be cited or served with a document is not known and cannot reasonably be ascertained, the sheriff shall grant warrant for citation or service upon that person—

(a)by the publication of an advertisement in Form G3 in a specified newspaper circulating in the area of the last known address of that person, or

(b)by displaying on the walls of court a copy of the instance and crave of the initial writ, the warrant of citation and a notice in Form G4;

and the period of notice fixed by the sheriff shall run from the date of publication of the advertisement or display on the walls of court, as the case may be.

(2)Where service requires to be executed under paragraph (1), the pursuer shall lodge a service copy of the intial writ and a copy of any warrant of citation with the sheriff clerk from whom they may be uplifted by the person for whom they are intended.

(3)Where a person has been cited or served in accordance with paragraph (1) and, after the cause has commenced, his address becomes known, the sheriff may allow the initial writ to be amended subject to such conditions as to re-service, intimation, expenses or transfer of the cause as he thinks fit.

(4)Where advertisement in a newspaper is required for the purpose of citation or service under this rule, a copy of the newspaper containing the advertisement shall be lodged with the sheriff clerk by the pursuer.

(5)Where display on the walls of court is required under paragraph (1)(b), the pursuer shall supply to the sheriff clerk for that purpose a certified copy of the instance and crave of the initial writ and any warrant of citation.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Persons carrying on business under trading or descriptive nameS

5.7.(1)A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone; and an extract—

(a)of a decree pronounced in the sheriff court, or

(b)of a decree proceeding upon any deed, decree arbitral, bond, protest of a bill, promissory note or banker’s note or upon any other obligation or document on which execution may proceed, recorded in the sheriff court books F122. . .,

[F123against such person under such trading or descriptive name shall be a valid] warrant for diligence against such person.

(2)An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree in a cause in which a person carrying on business under a trading or descriptive name sues or is sued in that name shall be served—

(a)at any place of business or office at which such business is carried on within the sheriffdom of the sheriff court in which the cause is brought; or

(b)where there is no place of business within that sheriffdom, at any place where such business is carried on (including the place of business or office of the clerk or secretary of any company, corporation or association or firm).

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F122Words in rule 5.7(1)(b) omitted (1.11.1996) by S.I. 1996/2445, para. 3(7)(a)

F123Words in rule 5.7(1) substituted (1.11.1996) by S.I. 1996/2445, para. 3(7)(b)

Endorsation unnecessaryS

5.8.An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree may be served, enforced or otherwise lawfully executed anywhere in Scotland without endorsation by a sheriff clerk; and, if executed by a sheriff officer, may be so executed by a sheriff officer of the court which granted it or by a sheriff officer of the sheriff court district in which it is to be executed.

Re-serviceS

5.9.Where it appears to the sheriff that there has been any failure or irregularity in citation or service on a person, he may order the pursuer to re-serve the initial writ on such conditions as he thinks fit.

No objection to regularity of citation, service or intimationS

5.10.(1)A person who appears in a cause shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him; and his appearance shall remedy any defect in such citation, service or intimation.

(2)Nothing in paragraph (1) shall preclude a party from pleading that the court has no jurisdiction.

CHAPTER 6S[F124INTERIM DILIGENCE]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

InterpretationS

[F1256.A1.In this Chapter–

  • the 1987 Act” means the Debtors (Scotland) Act 1987 M16; and

  • the 2002 Act” means the Debt Arrangement and Attachment (Scotland) Act 2002 M17.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Marginal Citations

Application for interim diligenceS

6.A2.(1)The following shall be made by motion–

(a)an application under section 15D(1) of the 1987 Act for warrant for diligence by arrestment or inhibition on the dependence of an action or warrant for arrestment on the dependence of an admiralty action;

(b)an application under section 9C of the 2002 Act for warrant for interim attachment.

(2)Such an application must be accompanied by a statement in Form G4A.

(3)A certified copy of an interlocutor granting a motion under paragraph (1) shall be sufficient authority for the execution of the diligence concerned.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Effect of authority for inhibition on the dependenceS

6.A3.(1)Where a person has been granted authority for inhibition on the dependence of an action, a certified copy of the interlocutor granting the motion may be registered with a certificate of execution in the Register of Inhibitions and Adjudications.

[F126(2)A notice of a certified copy of an interlocutor granting authority for inhibition under rule 6.A2 may be registered in the Register of Inhibitions and Adjudications; and such registration is to have the same effect as registration of a notice of inhibition under section 155(2) of the Titles to Land Consolidation (Scotland) Act 1868 F127.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F1271868 c. 101.Section 155(2) was substituted by the Bankruptcy and Diligence etc. (Scotland) Act 2007, section 149.

Recall etc of arrestment or inhibitionS

6.A4.An application by any person having an interest–

(a)to loose, restrict, vary or recall an arrestment or an interim attachment; or

(b)to recall, in whole or in part, or vary, an inhibition,

shall be made by motion.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Incidental applications in relation to interim diligence, etcS

6.A5.An application under Part 1A of the 1987 Act or Part 1A of the 2002 Act other than mentioned above shall be made by motion.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

6.A6.F128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Service of inhibition on the dependence where address of defender not knownS

6.A7.(1)Where the address of a defender is not known to the pursuer, an inhibition on the dependence shall be deemed to have been served on the defender if the schedule of inhibition is left with or deposited at the office of the sheriff clerk of the sheriff court district where the defender's last known address is located.

(2)Where service of an inhibition on the dependence is executed under paragraph (1), a copy of the schedule of inhibition shall be sent by the sheriff officer by first class post to the defender's last known address.

Form of schedule of arrestment on the dependenceS

6.A8.(1)An arrestment on the dependence shall be served by serving the schedule of arrestment on the arrestee in Form G4B.

(2)A certificate of execution shall be lodged with the sheriff clerk in Form G4C.]]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Service of schedule of arrestmentS

6.1.If a schedule of arrestment has not been personally served on an arrestee, the arrestment shall have effect only if a copy of the schedule is also sent by registered post or the first class recorded delivery service to—

(a)the last known place of residence of the arrestee, or

(b)if such place of residence is not known, or if the arrestee is a firm or corporation, to the arrestee’s principal place of business if known, or, if not known, to any known place of business of the arrestee;

and the sheriff officer shall, on the certificate of execution, certifiy that this has been done and specify the address to which the copy of the schedule was sent.

6.2F130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Movement of arrested propertyS

6.3(1)Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment to found jurisdiction or on the dependence of a cause.

(2)Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

CHAPTER 7S UNDEFENDED CAUSES

Application of this ChapterS

7.1.This Chapter applies to any cause other than an action in which the sheriff may not grant decree without evidence.

Minute for granting of decree without attendanceS

7.2.(1)Subject to the following paragraphs, where the defender—

(a)does not lodge a notice of intention to defend,

(b)does not lodge an application for a time to pay direction under the M18Debtors (Scotland) Act 1987 [F131or a time order under the Consumer Credit Act 1974],

(c)has lodged such an application for a time to pay direction [F132or time order] and the pursuer does not object to the application or to any recall or restriction of an arrestment sought in the application,

the sheriff may, on the pursuer endorsing a minute for decree on the initial writ, at any time after the expiry of the period for lodging that notice or application, grant decree in absence or other order in terms of the minute so endorsed without requiring the attendance of the pursuer in court.

(2)The sheriff shall not grant decree under paragraph (1)—

(a)unless it appears ex facie of the initial writ that a ground of jurisdiction exists under the M19Civil Jurisdiction and Judgments Act 1982 where that Act applies; and

(b)the cause is not a cause—

(i)in which decree may not be granted without evidence;

(ii)to which paragraph (4) applies; or

(iii)to which rule 33.31 (procedure in undefended family action for [F133a section 11 order]) applies.

(3)Where a defender is domiciled in another part of the United Kingdom or in another Contracting State, the sheriff shall not grant decree in absence until it has been shown that the defender has been able to receive the initial writ in sufficient time to arrange for his defence or that all necessary steps have been taken to that end; and for the purposes of this paragraph—

(a)the question whether a person is domiciled in another part of the United Kingdom shall be determined in accordance with sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982;

(b)the question whether a person is domiciled in another Contracting State shall be determined in accordance with Article 52 of [F134the Convention in]Schedule 1 or 3C to that Act; and

(c)the term “Contracting State” has the meaning assigned in section 1 of that Act.

(4)Where an initial writ has been served in a country to which the M20Hague Convention on the Service Abroad of Judicial and Exta-Judicial Documents in [F135Civil or Commercial] Matters dated 15th November 1965 applies, decree shall not be granted until it is established to the satisfaction of the sheriff that the requirements of Article 15 of that Convention have been complied with.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F133Words in rule 7.2(2)(b)(iii) substituted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 1

F134Words in rule 7.2(3)(b) inserted (1.11.1996) by S.I. 1996/2445, para. 3(8)(a)

F135Words in rule 7.2(4) substituted (1.11.1996) by S.I. 1996/2445, para. 3(8)(b)

Marginal Citations

M20Cmnd. 3986 (1969).

Applications for time to pay directions [F136or time orders] in undefended causesS

7.3.(1)This rule applies to a cause in which

[F137(a)] a time to pay direction may be applied for under the Debtors (Scotland) Act 1987.

[F138; or

(b)a time order may be applied for under the Consumer Credit Act 1974]

(2)A defender in a cause which is otherwise undefended, who wishes to apply for a time to pay direction [F139or time order], and where appropriate, to have an arrestment recalled or restricted, shall complete and lodge with the sheriff clerk the appropriate part of Form O3 before the expiry of the period of notice.

(3)Where the pursuer does not object to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff may grant decree or other order in terms of the application and minute.

(4)Where the pursuer objects to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff clerk shall thereafter fix a hearing on the application of the defender and intimate the hearing to the pursuer and defender.

(5)The sheriff may determine an application in which a hearing has been fixed under paragraph (4) whether or not any of the parties appear.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Decree for expensesS

7.4.On granting decree in abence or thereafter, the sheriff may grant decree for expenses.

Finality of decree in absenceS

7.5.Subject to section 9(7) of the M21Land Tenure Reform (Scotland) Act 1974 (decree in action of removing for breach of condition of long lease to be final when extract recorded in Register of Sasines), a decree in absence which has not been recalled or brought under review by suspension or by reduction shall become final and shall have effect as a decree in foro contentioso—

(a)on the expiry of six months from the date of the decree or from the date of a charge made under it, [F140as the case may be,]where the service of the initial writ or of the charge has been personal; and

(b)in any event, on the expiry of 20 years from the date of the decree.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F140Words in rule 7.5(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(9)

Marginal Citations

Amendment of initial writS

7.6.(1)In an undefended cause, the sheriff may—

(a)allow the pursuer to amend the initial writ in any way permitted by rule 18.2 (powers of sheriff to allow amendment); and

(b)order the amended [F141initial] writ to be re-served on the defender on such period of notice as he thinks fit.

(2)The defender shall not be liable for the expense occasioned by any such amendment unless the sheriff so orders.

(3)Where an amendment has been allowed under paragraph (1), the amendment—

(a)shall not validate diligence used on the dependence of a cause so as to prejudice the rights of [F142creditors of] the party against whom the diligence has been executed, who are interested in defeating such diligence; and

(b)shall preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F141Word in rule 7.6(1)(b) substituted (1.11.1996) by S.I. 1996/2445, para. 3(10)(a)

F142Words in rule 7.6(3)(a) substituted (1.11.1996) by S.I. 1996/2445, para. 3(10)(b)

Disapplication of certain rulesS

[F1437.7.The following rules in Chapter 15 (motions) shall not apply to an action in which no notice of intention to defend has been lodged or to any action in so far as it proceeds as undefended:–

  • rule 15.2 (intimation of motions),

  • rule 15.3 (opposition to motions),

  • rule 15.5 (hearing of motions).]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F143Rule 7.7 inserted (1.11.1996) by S.I. 1996/2445, para. 3(11)

CHAPTER 8SREPONING

ReponingS

8.1.(1)In any cause other than—

(a)a cause mentioned in rule 33.1(1)(a) to (h) [F144(n) or (o)](certain family actions), or

[F145(aa)a cause mentioned in rule 33A.1(a), (b) or (f) (certain civil partnership actions);]

(b)a cause to which Chapter 37 (causes under the Presumption of death (Scotland) Act 1977) applies,

the defender [F146or any party with a statutory title or interest] may apply to be reponed by lodging with the sheriff clerk, before implement in full of a decree in absence, a reponing note setting out his proposed defence [F147or the proposed order or direction,] and explaining his failure to appear.

(2)A copy of the note lodged under paragraph (1) shall be served on the pursuer [F148and any other party].

(3)The sheriff may, on considering the reponing note, recall the decree so far as not implemented subject to such order as to expenses as he thinks fit; and the cause shall thereafter proceed as if [F149

(a)] the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree in absence was recalled.[F150  ; or

(b)the party seeking the order or direction had lodged the appropriate application on the date when the decree was recalled]

(4)A reponing note, when duly lodged with the sheriff clerk and served upon the pursuer [F151and any other party], shall have effect to sist diligence.

[F152(4A)Where an initial writ has been served on a defender furth of the United Kingdom under rule 5.5(1)(b) (service on persons furth of Scotland) and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the defender applying to be reponed in accordance with paragraph (1) above, recall the decree and allow defences to be received if–

(a)without fault on his part, he did not have knowledge of the initial writ in sufficient time to defend;

(b)he has disclosed aprima facie defence to the action on the merits; and

(c)the reponing note is lodged within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of decree.]

(5)Any interlocutor or order recalling, or incidental to the recall of, a decree in absence shall be final and not subject to appeal.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F144Words in Sch. 1 rule 8.1(1)(a) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(5)(a)}

F145Sch. 1 rule 8.1(1)(aa) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(5)(b)}

F152Sch. 1 rule 8.1(4A) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(2)

CHAPTER 9S STANDARD PROCEDURE IN DEFENDED CAUSES

Notice of intention to defendS

9.1.(1)Subject to rules 33.34 (notice of intention to defend and defences in family action) [F153, 33A.34 (notice of intention to defend and defences in civil partnership action)] and 35.8 (lodging of notice of appearance in action of multiplepoinding), where the defender intends to—

(a)challenge the jurisdiction of the court,

(b)state a defence, or

(c)make a counterclaim,

he shall, before the expiry of the period of notice, lodge with the sheriff clerk a notice of intention to defend in Form O7 [F154and,at the same time, send a copy to the pursuer].

(2)The lodging of a notice of intention to defend shall not imply acceptance of the jurisdiction of the court.

[F155(3)This Chapter shall not apply to a commercial action within the meaning of Chapter 40.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F153Words in Sch. 1 rule 9.1(1) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(6)}

F154Words in rule 9.1(1) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 2

F155Rule 9.1(3) inserted (1.3.2001) by S.S.I. 2001/8, para. 2(1)(3)

Fixing date for Options HearingS

9.2.(1)[F156Subject to paragraph (1A),] On the lodging of a notice of intention to defend, the sheriff clerk shall fix a date and time for an Options Hearing which date shall be on the first suitable court day occurring not sooner than 10 weeks after the expiry of the period of notice.

[F157(1A)Where in a family action [F158or a civil partnership action]

(i)the only matters in dispute are an order in terms of section 11 of the M22Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.); or

(ii)the matters in dispute include an order in terms of section 11 of that Act,

there shall be no requirement to fix an Options Hearing in terms of paragraph (1) above insofar as the matters in dispute relate to an order in terms of section 11(2) of the Children (Scotland) Act 1995.

[F159(1B)In paragraph (1A) above—

(a)family action” has the meaning given in rule 33.1(1); and

(b)civil partnership action” has the meaning given in rule 33A.1(1).]

(2)On fixing the date for the Options Hearing, the sheriff clerk shall—

(a)forthwith intimate to the parties in Form G5—

(i)the last date for lodging defences;

(ii)the last date for adjustment; and

(iii)the date of the Options hearing; and

(b)prepare and sign an interlocutor recording those dates.

(3)The fixing of the date for the Options Hearing shall not affect the right of [F160a party] to make any incidental application to the court.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F156Words in Sch. 1 rule 9.2(1) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(3)(a)

F157Sch. 1 rule 9.2(1A)(1B) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(3)(b)

F158Words in Sch. 1rule 9.2(1A) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(7)(a)}

F159Sch. 1 rule 9.2(1B) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(7)(b)}

F160Words in rule 9.2(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(12)

Marginal Citations

Alteration of date for Options HearingS

[F1619.2A.(1)Subject to paragraph (2), at any time before the date and time fixed under rule 9.2 (fixing date for Options Hearing) or under this rule, the sheriff–

(a)may, of his own motion or on the motion of any party–

(i)discharge the Options Hearing; and

(ii)fix a new date and time for the Options Hearing; or

(b)shall, on the joint motion of the parties–

(i)discharge the Options Hearing; and

(ii)fix a new date and time for the Options Hearing.

(2)The date and time to be fixed–

(a)under paragraph (1)(a)(ii) may be earlier or later than the date and time fixed for the discharged Options Hearing;

(b)under paragraph (1)(b)(ii) shall be earlier than the date and time fixed for the discharged Options Hearing.

(3)Where the sheriff is considering making an order under paragraph (1)(a) of his own motion and in the absence of the parties, the sheriff clerk shall–

(a)fix a date, time and place for the parties to be heard; and

(b)inform the parties of that date, time and place.

(4)The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

(5)On the discharge of the Options Hearing under paragraph (1), the sheriff clerk shall forthwith intimate to all parties–

(a)that the Options Hearing has been discharged under paragraph (1)(a) or (b), as the case may be;

(b)the last date for lodging defences, if appropriate;

(c)the last date for adjustment, if appropriate; and

(d)the new date and time fixed for the Options Hearing under paragraph (1)(a) or (b), as the case may be.

(6)Any reference in these Rules to the Options Hearing or a continuation of it shall include a reference to an Options Hearing for which a date and time has been fixed under this rule.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Return of initial writS

9.3.Subject to rule 9.4 (lodging of pleadings before Options Hearing), the pursuer shall return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days after the expiry of the period of notice.

Lodging of pleadings before Options HearingS

9.4.Where any hearing, whether by motion or otherwise, is fixed before the Options Hearing, each party shall lodge in process a copy of his pleadings, or, where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

Process folderS

9.5.(1)On receipt of the notice of intention to defend, the sheriff clerk shall prepare a process folder which shall include—

(a)interlocutor sheets;

(b)duplicate interlocutor sheets;

(c)a production file;

(d)a motion file; and

(e)an inventory of process.

(2)Any production or part of process lodged in a cause shall be placed in the process folder.

DefencesS

9.6.(1)Where a notice of intention to defend has been lodged, the defender shall [F162(subject to paragraph (3))] lodge defences within 14 days after the expiry of the period of notice.

(2)Subject to rule 19.1(3) (form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender.

[F163(3)In a family action (within the meaning of rule 33.1(1)) [F164or a civil partnership action (within the meaning of rule 33A.1(1))], neither a crave nor averments need be made in the defences which relate to any order under section 11 of the Children (Scotland) Act 1995.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F162Words in rule 9.6(1) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 3(a)

F163Rule 9.6(3) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 3(b)

F164Words in Sch. 1 rule 9. 6(3) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(8)}

Implied admissionsS

9.7.Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.

Adjustment of pleadingsS

9.8.(1)Parties may adjust their pleadings until 14 days before the date of the Options Hearing or any continuation of it.

(2)Any adjustments shall be exchanged between parties and not lodged in process.

(3)Parties shall be responsible for maintaining a record of adjustments made during the period for adjustment.

(4)No adjustments shall be permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

Effect of sist on adjustmentS

9.9.(1)Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as a part of the period for adjustment.

(2)On recall of the sist of a cause, the sheriff clerk shall—

(a)fix a new date for the Options Hearing;

(b)prepare and sign an interlocutor recording that date; and

(c)intimate that date to each party.

Open recordS

9.10.The sheriff may, at any time before the closing of the record in a cause to which this Chapter applies, of his own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

Record for Options HearingS

9.11.(1)The pursuer shall, at the end of the period for adjustment referred to in rule 9.8(1) and before the Options Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record.

(2)Not later than 2 days before the Options Hearing, the pursuer shall lodge a certified copy of the record in process.

[F165(3)Where the Options Hearing is continued under rule 9.12(5), and further adjustment or amendment is made to the pleadings, a copy of the pleadings as adjusted or amended, certified by the pursuer, shall be lodged in process not later than 2 days before the Options Hearing so continued.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F165Rule 9.11(3) inserted (1.11.1996) by S.I. 1996/2445, para. 3(14)

Options HearingS

9.12(1)At the Options Hearing the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2)It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

(3)At the Options Hearing the sheriff shall, except where the cause is ordered to proceed under the procedure in Chapter 10 (additional procedure), close the record and—

(a)appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

(b)after having heard parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

(c)after having heard parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which [F166if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree].

(4)At the Options Hearing the sheriff may, having heard parties—

(a)of his own motion or on the motion of any party, and

(b)on being satisfied that the difficulty or complexity of the cause makes it unsuitable for the procedure under this Chapter,

order that the cause proceed under the procedure in Chapter 10 (additional procedure).

(5)The sheriff may, on cause shown, of his motion or on the motion of any party, allow a continuation of the Options Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

(6)On closing the record—

(a)where there are no adjustments made since the lodging of the record under rule 9.11.(2), that record shall become the closed record; and

(b)where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

(7)For the purposes of rules 16.2 (decrees where party in default) [F167, 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action)], an Options Hearing shall be a diet in accordance with those rules.

[F168(8)Where the cause is appointed, under paragraph (3), to a proof or proof before answer, the sheriff shall consider whether a pre-proof hearing should be fixed under rule 28A.1]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F167Words in Sch. 1 rule 9.12(7) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(9)}

Options HearingS

9.12(1)At the Options Hearing the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2)It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

(3)At the Options Hearing the sheriff shall, except where the cause is ordered to proceed under the procedure in Chapter 10 (additional procedure), close the record and—

(a)appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

(b)after having heard parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

(c)after having heard parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which [F166if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree].

[F654(d)consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

(e)ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.]

(4)At the Options Hearing the sheriff may, having heard parties—

(a)of his own motion or on the motion of any party, and

(b)on being satisfied that the difficulty or complexity of the cause makes it unsuitable for the procedure under this Chapter,

order that the cause proceed under the procedure in Chapter 10 (additional procedure).

(5)The sheriff may, on cause shown, of his motion or on the motion of any party, allow a continuation of the Options Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

(6)On closing the record—

(a)where there are no adjustments made since the lodging of the record under rule 9.11.(2), that record shall become the closed record; and

(b)where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

(7)For the purposes of rules 16.2 (decrees where party in default) [F167, 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action)], an Options Hearing shall be a diet in accordance with those rules.

[F168(8)Where the cause is appointed, under paragraph (3), to a proof or proof before answer, the sheriff shall consider whether a pre-proof hearing should be fixed under rule 28A.1]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F167Words in Sch. 1 rule 9.12(7) substituted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(9)}

F654Sch. 1 rule 9.12(3)(d)(e) inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(3)}

Inspection and recovery of documentsS

9.13.F169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Exchange of lists of witnessesS

9.14.F170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Applications for time to pay directionsS

9.15.F171. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

[F172CHAPTER 9ASDOCUMENTS AND WITNESSES

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Application of this ChapterS

9A.1.This Chapter applies to any cause proceeding under Chapters 9 and 10.

Inspection and recovery of documentsS

9A.2.(1)Each party shall, within 14 days after the date of the interlocutor allowing proof or proof before answer, intimate to every other party a list of the documents, which are or have been in his possession or control and which he intends to use or put in evidence at the proof, including the whereabouts of those documents.

(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 at a time and place fixed by that party which is reasonable to both parties.

(3)A party who seeks to use or put in evidence at a proof a document not on his list intimated under paragraph (1) shall, if any other party objects to such document being used or put in evidence, seek leave of the sheriff to do so; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(4)Nothing in this rule shall affect–

(a)the law relating, 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 28.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972 F173.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Exchange of lists of witnessesS

9A.3.(1)Within 28 days after the date of the interlocutor allowing a proof or proof before answer, each party shall–

(a)intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence he intends to rely at proof; and

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

(2)A party who seeks to rely on the evidence of a person not on his list intimated under paragraph (1) shall, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence whether it is to be given orally or not; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

(3)The list of witnesses intimated under paragraph (1) shall include the name, occupation (where known) and address of each intended witness[F174 and indicate whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F174Words in Sch. 1 rule 9A.3(3) inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(4)}

Applications in respect of time to pay directions, arrestments and time ordersS

9A.4.An application for–

(a)a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987;

(b)the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act; or

(c)a time order under section 129 of the Consumer Credit Act 1974,

in a cause which is defended, shall be made by motion lodged before the sheriff grants decree.]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

CHAPTER 10S ADDITIONAL PROCEDURE

Additional period for adjustmentS

10.1.(1)Where, under rule 9.12(4) (order at Options Hearing to proceed under Chapter 10), the sheriff orders that a cause shall proceed in accordance with the procedure in this Chapter, he shall continue the cause for adjustment for a period of 8 weeks.

(2)Paragraphs (2) and (3) of rule 9.8 (exchange and record of adjustments) shall apply to a cause in which a period for adjustment under paragraph (1) of this rule has been allowed as they apply to the period for adjustment under that rule.

Effect of sist on adjustment periodS

10.2.Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as part of the period for adjustment.

Variation of adjustment periodS

10.3.(1)At any time before the expiry of the period for adjustment the sheriff may close the record if parties, of consent or jointly, lodge a motion seeking such an order.

(2)The sheriff may, if satisfied that there is sufficient reason for doing so, extend the period for adjustment for such period as he thinks fit, if any party—

(a)lodges a motion seeking such an order; and

(b)lodges a copy of the record adjusted to the date of lodging of the motion.

(3)A motion lodged under paragraph (2) shall set out—

(a)the reasons for seeking an extension of the period for adjustment; and

(b)the period for adjustment sought.

Order for open recordS

10.4.The sheriff may, at any time before the closing of the record in a cause to which this Chapter applies, of his own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

Closing recordS

10.5.(1)On the expiry of the period for adjustment, the record shall be closed and, without the attendance of parties, the sheriff clerk shall forthwith—

(a)prepare and sign an interlocutor recording the closing of the record and fixing the date of the Procedural Hearing under rule 10.6, which date shall be on the first suitable court day occurring not sooner than 21 days after the closing of the record; and

(b)intimate the date of the hearing to each party.

(2)The pursuer shall, within 14 days after the date of the interlocutor closing the record, lodge a certified copy of the closed record in process.

(3)The closed record shall contain only the pleadings of the parties.

Procedural HearingS

10.6.(1)At the Procedural Hearing, the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

(2)It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

(3)At the Procedural Hearing the sheriff shall—

(a)appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

(b)after having heard the parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

(c)after having heard the parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which [F176if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree].

[F177(d)consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

(e)ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.]

(4)For the purposes of [F178 rules 16.2 (decrees where party in default), 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action)], a Procedural Hearing shall be a diet in accordance with [F179those rules].

[F180(5)Where the cause is appointed, under paragraph (3), to a proof or proof before answer, the sheriff shall consider whether a pre-proof hearing should be fixed under rule 28A.1]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F177Sch. 1 rule 10.6(3)(d)(e) inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(5)}

CHAPTER 11STHE PROCESS

Form and lodging of parts of processS

11.1.All parts of process shall be written, typed or printed on A4 size paper of durable quality and shall be lodged, unbacked and unfolded, with the sheriff clerk.

Custody of processS

11.2.(1)The initial writ, and all other parts of process lodged in a cause, shall be placed by the sheriff clerk in the process folder.

(2)The initial writ, interlocutor sheets, borrowing receipts and the process folder shall remain in the custody of the sheriff clerk.

(3)The sheriff [F181clerk may,] on cause shown, authorise the initial writ to be borrowed by the pursuer, his solicitor or the solicitor’s authorised clerk.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F181Words in rule 11.2(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(15)

Borrowing and returning of processS

11.3.(1)Subject to paragraph (3), a process, or any part of a process which may be borrowed, may be borrowed only by a solicitor or by his authorised clerk.

(2)All remedies competent to enforce the return of a borrowed process may proceed on the warrant of the court from the custody of which the process was obtained.

(3)A party litigant—

(a)may borrow a process only—

(i)with leave of the sheriff; and

(ii)subject to such conditions as the sheriff may impose; or

(b)may inspect a process and obtain copies, where practicable, from the sheriff clerk.

(4)The sheriff may, on the motion of any party, ordain any other party who has borrowed a part of process to return it within such time as the sheriff thinks fit.

Failure to return parts of processS

11.4.(1)Where a solicitor or party litigant has borrowed any part of process and fails to return it for any diet or hearing at which it is required, the sheriff may impose on such solicitor or party litigant a fine not exceeding £50, which shall be payable to the sheriff clerk; but an order imposing a fine may, on cause shown, be recalled by the sheriff.

(2)An order made under this rule shall not be subject to appeal.

Replacement of lost documentsS

11.5.Where any part of process is lost or destroyed, a copy of it, authenticated in such manner as the sheriff thinks fit, may be substituted for and shall, for the purposes of the cause to which the process relates, be treated as having the same force and effect as the original.

Intimation of parts of process and adjustmentsS

11.6.(1)After a notice of intention to defend has been lodged, any party lodging a part of process or making an adjustment to his pleadings shall [F182, at the same time,] intimate such lodging or adjustment to every other party who has entered the process by delivering to every other party a copy of each part of process or adjustment, including, where practicable, copies of any documentary production.

(2)Unless otherwise provided in these Rules, the party required to give intimation under paragraph (1) shall deliver to every other party who has entered the process a copy of the part of process or adjustment or other document, as the case may be, by—

(a)any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

(b)where intimation is to a party represented by a solicitor—

(i)personal delivery,

(ii)facsimile transmission,

(iii)first class ordinary post,

(iv)delivery to a document exchange,

to that solicitor.

(3)Subject to paragraph (4), where intimation is given under—

(a)paragraph (2)(b)(i) or (ii), it shall be deemed to have been given—

(i)on the day of transmission or delivery where it is given before 5.00 pm on any day; or

(ii)on the day after transmission or delivery where it is given after 5.00 pm on any day; or

(b)paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

(4)Where intimation is given [F183or, but for this paragraph, would be deemedto be given]on a Saturday, Sunday or public or court holiday, it shall be deemed to have been given on the next day on which the sheriff clerk’s office is open for civil court business.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F182Words in rule 11.6(1) inserted (1.11.1996) by S.I. 1996/2445, para. 3(16)(a)

F183Words in rule 11.6(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(16)(b)

Retention and disposal of parts of process by sheriff clerkS

11.7.(1)Where any cause has been finally determined and the period for marking an appeal has expired without an appeal having been marked, the sheriff clerk shall—

(a)retain—

(i)the initial writ;

(ii)any closed record;

(iii)the interlocutor sheets;

(iv)any joint minute;

(v)any offer and acceptance of tender;

(vi)any report from a person of skill;

(vii)any affidavit; and

(viii)any extended shorthand notes of the proof; and

(b)dispose of all other parts of process (except productions) in such a manner as seems appropriate.

(2)Where an appeal has been marked on the final determination of the cause, the sheriff clerk shall exercise his duties mentioned in paragraph (1) after the final disposal of the appeal and any subsequent procedure.

Uplifting of productions from processS

11.8.(1)Each party who has lodged productions in a cause shall—

(a)within 14 days after the final determination of the cause, where no subsequent appeal has been marked, or

(b)within 14 days after the disposal of any appeal marked on the final determination of the cause,

uplift the productions from process.

(2)Where any production has not been uplifted as required by paragraph (1), the sheriff clerk shall intimate to—

(a)the solicitor who lodged the production, or

(b)where no solicitor is acting, the party himself or such other party as seems appropriate,

that if he fails to uplift the production within 28 days after the date of such intimation, it will be disposed of in such a manner as the sheriff directs.

CHAPTER 12STHE PROCESS

Signature of interlocutors by sheriff clerkS

12.1.In accordance with any directions given by the sheriff principal, any interlocutor other than a final interlocutor may be written and signed by the sheriff clerk and—

(a)any interlocutor written and signed by a sheriff clerk shall be treated for all purposes as if it had been written and signed by the sheriff; and

(b)any extract of such an interlocutor shall not be invalid by reason only of its being written and signed by a sheriff clerk.

Further provisions in relation to interlocutorsS

12.2.(1)The sheriff may sign an interlocutor when furth of his sheriffdom.

(2)At any time before extract, the sheriff may correct any clerical or incidental error in an interlocutor or note attached to it.

[F184(3)In any cause, other than a family action within the meaning of rule 33.1(1) [F185or a civil partnership action within the meaning of rule 33A.1(1)] which has proceeded as undefended, where at any stage evidence has been led, the sheriff shall–

(a)in the interlocutor, make findings in fact and law; and

(b)append to that interlocutor a note setting out the reasons for his decision.

(4)In any other interlocutor, the sheriff may, and shall when requested by a party, append a note setting out the reasons for his decision.]

(5)Where the sheriff reserves his decision and gives his decision at a date later than the date of the hearing outwith the presence of the parties—

(a)the date of the interlocutor of the sheriff shall be the date on which it is received by the sheriff clerk; and

(b)the sheriff clerk shall—

(i)enter that date in the interlocutor; and

(ii)forthwith send a copy of the interlocutor and any note attached to it free of charge to each party.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F184Rule 12.2(3)(4) substituted (1.11.1996) by S.I. 1996/2445, para. 3(17)

F185Words in Sch. 1 rule 12.2(3) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(10)}

CHAPTER 13S PARTY MINUTER PROCEDURE

Person claiming title and interest to enter process as defenderS

13.1.(1)A person who has not been called as a defender or third party may apply by minute for leave to enter a process as a party minuter and to lodge defences.

(2)A minute under paragraph (1) shall specify—

(a)the applicant’s title and interest to enter the process; and

(b)the grounds of the defence he proposes to state.

(3)Subject to paragraph (4), after hearing the applicant and any party, the sheriff may—

(a)if he is satisfied that the applicant has shown title and interest to enter the process, grant the applicant leave to enter the process as a party minuter and to lodge defences; and

(b)make such order as to expenses or otherwise as he thinks fit.

(4)Where an application under paragraph (1) is made after the closing of the record, the sheriff shall only grant leave under paragraph (3) if he is satisfied as to the reason why earlier application was not made.

Procedure following leave to enter processS

13.2.(1)Where a party minuter lodges [F186defences], the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the party minuter had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers.

(2)At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit.

(3)A decree or other order against the party minuter shall have effect and be extractable in the same way as a decree or other order against a defender.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F186Word in rule 13.2(1) substituted (1.11.1996) by S.I. 1996/2445, para. 3(18)

[F187CHAPTER 13ASINTERVENTIONS BY THE COMMISSION FOR EQUALITY AND HUMAN RIGHTS

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

InterpretationS

13A.1.In this Chapter “the CEHR” means the Commission for Equality and Human Rights.

Interventions by the CEHRS

13A.2.(1)The CEHR may apply to the sheriff for leave to intervene in any cause in accordance with this Chapter.

(2)This Chapter is without prejudice to any other entitlement of the CEHR by virtue of having title and interest in relation to the subject matter of any proceedings by virtue of section 30(2) of the Equality Act 2006 F188 or any other enactment to seek to be sisted as a party in those proceedings.

(3)Nothing in this Chapter shall affect the power of the sheriff to make such other direction as he considers appropriate in the interests of justice.

(4)Any decision of the sheriff in proceedings under this Chapter shall be final and not subject to appeal.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Applications to interveneS

13A.3.(1)An application for leave to intervene shall be by way of minute of intervention in Form O7A and the CEHR shall–

(a)send a copy of it to all the parties; and

(b)lodge it in process, certifying that subparagraph (a) has been complied with.

(2)A minute of intervention shall set out briefly–

(a)the CEHR's reasons for believing that the proceedings are relevant to a matter in connection with which the CEHR has a function;

(b)the issue in the proceedings which the CEHR wishes to address; and

(c)the propositions to be advanced by the CEHR and the CEHR's reasons for believing that they are relevant to the proceedings and that they will assist the sheriff.

(3)The sheriff may–

(a)refuse leave without a hearing;

(b)grant leave without a hearing unless a hearing is requested under paragraph (4);

(c)refuse or grant leave after such a hearing.

(4)A hearing, at which the applicant and the parties may address the court on the matters referred to in paragraph (6)(c), may be held if, within 14 days of the minute of intervention being lodged, any of the parties lodges a request for a hearing.

(5)Any diet in pursuance of paragraph (4) shall be fixed by the sheriff clerk who shall give written intimation of the diet to the CEHR and all the parties.

(6)The sheriff may grant leave only if satisfied that–

(a)the proceedings are relevant to a matter in connection with which the CEHR has a function;

(b)the propositions to be advanced by the CEHR are relevant to the proceedings and are likely to assist him; and

(c)the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability for expenses.

(7)In granting leave the sheriff may impose such terms and conditions as he considers desirable in the interests of justice, including making provision in respect of any additional expenses incurred by the parties as a result of the intervention.

(8)The sheriff clerk shall give written intimation of a grant or refusal of leave to the CEHR and all the parties.

Form of interventionS

13A.4.(1)An intervention shall be by way of a written submission which (including any appendices) shall not exceed 5000 words.

(2)The CEHR shall lodge the submission and send a copy of it to all the parties by such time as the sheriff may direct.

(3)The sheriff may in exceptional circumstances–

(a)allow a longer written submission to be made;

(b)direct that an oral submission is to be made.

(4)Any diet in pursuance of paragraph (3)(b) shall be fixed by the sheriff clerk who shall give written intimation of the diet to the CEHR and all the parties.

CHAPTER 13BSINTERVENTIONS BY THE SCOTTISH COMMISSION FOR HUMAN RIGHTS

InterpretationS

13B.1.In this Chapter–

  • the Act of 2006” means the Scottish Commission for Human Rights Act 2006; and

  • the SCHR” means the Scottish Commission for Human Rights.

Application to interveneS

13B.2.(1)An application for leave to intervene under section 14(2)(a) of the Act of 2006 shall be by way of minute of intervention in Form O7B and the SCHR shall–

(a)send a copy of it to all the parties; and

(b)lodge it in process, certifying that subparagraph (a) has been complied with.

(2)In granting leave the sheriff may impose such terms and conditions as he considers desirable in the interests of justice, including making provision in respect of any additional expenses incurred by the parties as a result of the intervention.

(3)The sheriff clerk shall give written intimation of a grant or refusal of leave to the SCHR and all the parties.

(4)Any decision of the sheriff in proceedings under this Chapter shall be final and not subject to appeal.

Invitation to interveneS

13B.3.(1)An invitation to intervene under section 14(2)(b) of the Act of 2006 shall be in Form O7C and the sheriff clerk shall send a copy of it to the SCHR and all the parties.

(2)An invitation under paragraph (1) shall be accompanied by–

(a)a copy of the pleadings in the proceedings; and

(b)such other documents relating to those proceedings as the sheriff thinks relevant.

(3)In issuing an invitation under section 14(2)(b) of the Act of 2006, the sheriff may impose such terms and conditions as he considers desirable in the interests of justice, including making provision in respect of any additional expenses incurred by the parties as a result of the intervention.

Form of interventionS

13B.4.(1)An intervention shall be by way of a written submission which (including any appendices) shall not exceed 5000 words.

(2)The SCHR shall lodge the submission and send a copy of it to all the parties by such time as the sheriff may direct.

(3)The sheriff may in exceptional circumstances–

(a)allow a longer written submission to be made;

(b)direct that an oral submission is to be made.

(4)Any diet in pursuance of paragraph (3)(b) shall be fixed by the sheriff clerk who shall give written intimation of the diet to the SCHR and all the parties.]

CHAPTER 14S APPLICATIONS BY MINUTE

Application of this ChapterS

14.1.(1)Where an application may be made by minute, the form of the minute and the procedure to be adopted shall, unless otherwise provided in these Rules, be in accordance with this Chapter.

(2)This Chapter shall not apply to—

(a)a minute of amendment; F189. . .

(b)a minute of abandonment [F190; or]

[F191(c)a joint minute.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F189Word in rule 14.1(2)(a) omitted (1.11.1996) by S.I. 1996/2445, para. 3(19)(a)

F190Rule 14.1(2)(b): “; or” substituted for the full-stop (1.11.1996) by S.I. 1996/2445, para. 3(19)(b)

F191Rule 14.1(2)(c) inserted (1.11.1996) by S.I. 1996/2445, para. 3(19)(c)

Form of minuteS

14.2.A minute to which this Chapter applies shall contain—

(a)a crave;

(b)where appropriate, a condescendence in the form of a statement of facts supporting the crave; and

(c)where appropriate, pleas-in-law.

Lodging of minutesS

[F19214.3.(1)Before intimating any minute, the minuter shall lodge the minute in process.

(2)On the lodging of a minute, and any document under rule 21.1(1)(b) (lodging documents founded on or adopted), the sheriff–

(a)may make an order for answers to be lodged;

(b)may order intimation of the minute without making an order for answers; or

(c)where he considers it appropriate for the expeditious disposal of the minute or for any other specified reason, may fix a hearing.

(3)Any answers ordered to be lodged under paragraph (2)(a) shall, unless otherwise ordered by the sheriff, be lodged within 14 days after the date of intimation of the minute.

(4)Where the sheriff fixes a hearing under paragraph (2)(c), the interlocutor fixing that hearing shall specify whether–

(a)answers are to be lodged;

(b)the sheriff will hear evidence at that hearing; and

(c)the sheriff will allow evidence by affidavit.

(5)Any answers or affidavit evidence ordered to be lodged under paragraph (4) shall be lodged within such time as shall be specified in the interlocutor of the sheriff.

(6)The following rules shall not apply to any hearing fixed under paragraph (2)(c):–

  • rule 14.7 (opposition where no order for answers made),

  • rule 14.8 (hearing of minutes where no opposition or no answers lodged),

  • rule 14.10 (notice of opposition or answers lodged).

(7)The sheriff clerk shall forthwith return the minute to the minuter with any interlocutor pronounced by the sheriff.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F192Rule 14.3 substituted (1.11.1996) by S.I. 1996/2445, para. 3(20)

Intimation of minutesS

[F19314.4.(1)The party lodging a minute shall, on receipt from the sheriff clerk of the minute, intimate to every other party including any person referred to in rule 14.13(1)–

(a)a notice in Form G7A, G7B or G7C, as the case may be, by any of the methods provided for in rule 14.5 (methods of intimation); and

(b)a copy of–

(i)the minute;

(ii)any interlocutor; and

(iii)any document referred to in the minute.

(2)The sheriff may, on cause shown, dispense with intimation.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F193Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Methods of intimationS

F19414.5.(1)Intimation of a minute may be given by–

(a)any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

(b)where intimation is to a party represented by a solicitor, by–

(i)personal delivery,

(ii)facsimile transmission,

(iii)first class ordinary post, or

(iv)delivery to a document exchange,

to that solicitor.

(2)Where intimation is given–

(a)under paragraph (1)(b)(i) or (ii), it shall be deemed to have been given–

(i)on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

(ii)on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

(b)under paragraph 1(b)(iii) or (iv), it shall be deemed to have been given on the day after the date of posting or delivery.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F194Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Return of minute with evidence of intimationS

F19514.6.Where intimation of any minute has been given, the minute and a certificate of intimation in Form G8 shall be returned to the sheriff clerk within 5 days after the date of intimation.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F195Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Opposition where no order for answers madeS

F19614.7.(1)Where a party seeks to oppose a minute lodged under rule 14.3 (lodging of minutes) in which no order for answers has been made under paragraph (2)(a) of that rule, that party shall, within 14 days after the date of intimation of the minute to him–

(a)complete a notice of opposition in Form G9;

(b)lodge the notice with the sheriff clerk; and

(c)intimate a copy of that notice to every other party.

(2)Rule 14.5 (methods of intimation) and rule 14.6 (return of minute with evidence of intimation) shall apply to intimation of opposition to a minute under paragraph (1)(c) of this rule as they apply to intimation of a minute.

(3)The sheriff may, on cause shown, reduce or dispense with the period for lodging the notice mentioned in paragraph (1)(b).

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F196Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Hearing of minutes where no opposition or no answers lodgedS

F19714.8.(1)Where no notice of opposition is lodged or where no answers have been lodged to the minute within the time allowed, the minute shall be determined by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs.

(2)Where the sheriff requires to hear a party on a minute, the sheriff clerk shall–

(a)fix a date, time and place for the party to be heard; and

(b)inform that party–

(i)of that date, time and place; and

(ii)of the reasons for the sheriff wishing to hear him.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F197Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Intimation of interlocutorS

F19814.9.Where a minute has been determined in accordance with rule 14.8 (hearing of minutes where no opposition or no answers lodged), the sheriff clerk shall intimate the interlocutor determining that minute to the parties forthwith.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F198Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Notice of opposition or answers lodgedS

F19914.10.(1)Where a notice of opposition has, or answers have, been lodged to the minute, the sheriff clerk shall–

(a)assign a date, time and place for a hearing on the first suitable court day after the date of the lodging of the notice of opposition or answers, as the case may be; and

(b)intimate that date, time and place to the parties.

(2)The interlocutor fixing a hearing under paragraph (1) shall specify whether the sheriff will hear evidence at the hearing or receive evidence by affidavit.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F199Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Procedure for hearingS

F20014.11.(1)A certified copy of the interlocutor assigning a hearing under this Chapter and requiring evidence to be led shall be sufficient warrant to a sheriff officer to cite a witness on behalf of a party.

(2)At the hearing, the sheriff shall hear parties on the minute and any answers lodged, and may determine the minute or may appoint such further procedure as he considers necessary.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F200Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Consent to minuteS

F20114.12.Subject to paragraph (2) of rule 14.8 (hearing of minutes where no opposition or no answers lodged), where all parties to the action indicate to the sheriff, by endorsement of the minute or otherwise in writing, their intention to consent to the minute, the sheriff may forthwith determine the minute in chambers without the appearance of parties.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F201Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

Procedure following grant of minuteS

F20214.13.(1)Where the minute includes a crave seeking leave–

(a)for a person–

(i)to be sisted as a party to the action, or

(ii)to appear in the proceedings, or

(b)for the cause to be transferred against the representatives of a party who has died or is under a legal incapacity,

the sheriff, on granting the minute, may order a hearing under rule 9.12 (Options Hearing) to be fixed or may appoint such further procedure as he thinks fit.

(2)Where an Options Hearing is ordered under paragraph (1), the sheriff clerk shall–

(a)fix a date and time for such hearing, which date, unless the sheriff otherwise directs, shall be on the first suitable court day occurring not sooner than 10 weeks after the date of the interlocutor of the sheriff ordering such hearing be fixed;

(b)forthwith intimate to the parties in Form G5–

(i)where appropriate, the last date for lodging defences;

(ii)where appropriate, the last date for adjustment; and

(iii)the date of the Options Hearing; and

(c)prepare and sign an interlocutor recording those dates.

(3)For the purpose of fixing the date for the Options Hearing referred to in paragraph (1), the date of granting the minute shall be deemed to be the date of expiry of the period of notice.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F202Rules 14.4-14.13 inserted (1.11.1996) by S.I. 1996/2445, para. 3(21)

[F203CHAPTER 15S MOTIONS

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F203Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

Modifications etc. (not altering text)

C17Sch. 1 Chapter 15 applied (with modifications) (28.9.2009) by Act of Sederunt (Sheriff Court Rules Amendment) (Adoption and Children (Scotland) Act 2007) 2009 (S.S.I. 2009/284), para. 2, {Sch. rule 52(2)}

F204 Lodging of motionsS

15.1.(1)A motion may be made–

(a)orally with leave of the court during any hearing of a cause; or

(b)by lodging a written motion in Form G6.

(2)Subject to paragraph (3), a written motion shall be lodged with the sheriff clerk within 5 days after the date of intimation of the motion required by rule 15.2 (intimation of motions) with–

(a)a certificate of intimation in Form G8; and

(b)so far as practicable any document referred to in the written motion and not already lodged in process.

(3)Where the period for lodging opposition to the motion is varied under rule 15.2(4) (variation of and dispensing with period of intimation) to a period of 5 days or less, the written motion and certificate to be lodged in terms of paragraph (2) shall be lodged no later than the day on which the period for lodging opposition expires.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F204Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

F205 Intimation of motionsS

15.2.(1)Subject to paragraphs (4) and (7), a party intending to lodge a motion in accordance with rule 15.1(1)(b) (lodging written motion) shall intimate the motion in Form G7, and a copy of any document referred to in the motion, to every other party.

(2)Intimation of a motion may be given by–

(a)any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

(b)where intimation is to a party represented by a solicitor, by–

(i)personal delivery,

(ii)facsimile transmission,

(iii)first class ordinary post, or

(iv)delivery to a document exchange,

to that solicitor.

(3)Where intimation is given–

(a)under paragraph (2)(b)(i) or (ii), it shall be deemed to have been given–

(i)on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

(ii)on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

(b)under paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

(4)The sheriff may, on the application of a party intending to lodge a written motion, vary the period of 7 days specified in rule 15.3(1)(c) for lodging opposition to the motion or dispense with intimation.

(5)An application under paragraph (4) shall be made in the written motion, giving reasons for such variation or dispensation.

(6)Where the sheriff varies the period within which notice of opposition is to be lodged under rule 15.3(1)(c), the form of intimation required under rule 15.2(1) (intimation of motion in Form G7) shall state the date by which such notice requires to be lodged.

(7)A joint motion by all parties lodged in Form G6 need not be intimated.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F205Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

Opposition to motionsS

F20615.3.(1)Where a party seeks to oppose a motion made in accordance with rule 15.1(1)(b) (written motion), he shall–

(a)complete a notice of opposition in Form G9;

(b)intimate a copy of that notice to every other party; and

(c)lodge the notice with the sheriff clerk within 7 days after the date of intimation of the motion or such other period as the sheriff may have determined under rule 15.2(6).

(2)Paragraphs (2) and (3) of rule 15.2 (methods and time of intimation of motions) shall apply to the intimation of opposition to a motion under paragraph (1)(b) of this rule as they apply to intimation under that rule.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F206Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

F207 Consent to motionsS

15.4.Where a party consents to a written motion, he shall endorse the motion, or give notice to the sheriff clerk in writing, of his consent.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F207Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

F208 Hearing of motionsS

15.5.(1)Subject to paragraph (2), where no notice of opposition is lodged with the sheriff clerk within the period specified in rule 15.3(1)(c), or ordered by virtue of rule 15.2(4), the motion shall be determined by the sheriff in chambers without the appearance of parties, unless the sheriff otherwise directs.

(2)In accordance with any directions given by the sheriff principal, the sheriff clerk may determine any motion other than a motion which seeks a final interlocutor.

(3)Where the sheriff clerk considers that a motion dealt with by him under paragraph (2) should not be granted, he shall refer that motion to the sheriff who shall deal with it in accordance with paragraph (1).

(4)Where the sheriff requires to hear a party on a motion which is not opposed, the sheriff clerk shall–

(a)fix a date, time and place for the party to be heard, and

(b)inform that party–

(i)of that date, time and place; and

(ii)of the reasons for the sheriff wishing to hear him.

(5)Where a notice of opposition is lodged in accordance with rule 15.3(1), the sheriff clerk shall–

(a)assign a date, time and place, on the first suitable court day after the lodging of the notice of opposition, for the motion to be heard; and

(b)intimate that date, time and place to the parties.

(6)Where a motion has been determined under paragraph (1) or (2), the sheriff clerk shall intimate the interlocutor determining that motion to all parties forthwith.

(7)Where the sheriff, under paragraph (4) of rule 15.2, dispenses with intimation required by paragraph (1) of that rule, he shall make such order as he thinks fit for intimation of his determination of the motion to every party to the action in respect of whom intimation has been so dispensed with.

(8)Subject to paragraph (4), where all parties consent to a written motion, the sheriff may determine the motion in chambers without the appearance of parties.

(9)Subject to paragraph (4) where a joint motion of all parties in Form G6 is lodged with the sheriff clerk, the sheriff may determine the motion in chambers without the appearance of parties.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F208Chapter 15 substituted (1.11.1996) by S.I. 1996/2445, para. 3(22)

Motions to sistS

15.6.(1)Where a motion to sist is made, either orally or in writing in accordance with rule 15.1(1)(a) or (b)–

(a)the reason for the sist shall be stated by the party seeking the sist; and

(b)that reason shall be recorded in the interlocutor.

(2)Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

CHAPTER 16SDECREES BY DEFAULT

Application of this ChapterS

16.1.This [F210Chapter] applies to any cause other than—

(a)an action to which rule 33.37 (decree by default in family action) applies;

[F211(aa)an action to which rule 33A.37 (decree by default in a civil partnership action) applies;]

(b)an action of multiplepoinding; F212. . .

(c)a cause under the Presumption of Death (Scotland) Act 1977 F213. [F214; or

F214(d)a commercial action within the meaning of Chapter 40.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F210Word in rule 16.1 substituted (1.3.2001) by S.S.I. 2001/8, para. 2(1)(4)(a)

F211Sch. 1 rule 16. 1(aa) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(11)}

F212Word in rule 16.1(b) omitted (1.3.2001) by virtue of S.S.I. 2001/8, para. 2(1)(4)(b)

F214Rule 16.1(d) and the preceding word “or” inserted (1.3.2001) by S.S.I. 2001/8, para. 2(1)(4)(c)

Decrees where party in defaultS

16.2.(1)In a cause to which this Chapter applies, where a party fails—

(a)to lodge, or intimate the lodging of, any production or part of process within the period required under a provision in these Rules or an order of the sheriff,

(b)to implement an order of the sheriff within a specified period, F215. . .

(c)to appear or be represented at any diet, [F216, or

(d)otherwise to comply with any requirement imposed upon that party by these Rules]

that party shall be in default.

[F217(2)Where a party is in default the sheriff may, as the case may be–

(a)grant decree as craved with expenses;

(b)grant decree of absolvitor with expenses;

(c)dismiss the cause with expenses; or

(d)make such other order as he thinks fit to secure the expeditious progress of the cause.]

(3)Where no party appears at a diet, the sheriff may dismiss the cause.

(4)In this rule, “diet” includes—

(a)a hearing under rule 9.12 (Options Hearing);

(b)a hearing under rule 10.6 (Procedural Hearing);

(c)a proof or proof before answer; and

(d)a debate.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Prorogation of time where party in defaultS

16.3.In an action to which this Chapter applies, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process or for giving intimation or for implementing any order.

CHAPTER 17SSUMMARY DECREES

Application of this ChapterS

17.1.This Chapter applies to any action other than—

(a)a family action within the meaning of rule 33.1(1);

[F218(aa)a civil partnership action within the meaning of rule 33A.1(1);]

(b)an action of multiplepoinding; or

(c)a cause under the Presumption of Death (Scotland) Act 1977.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F218Sch. 1 rule 17. 1(aa) inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {rule 2(12)}

Applications for summary decreeS

17.2.(1)Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or part of it, disclosed in the defences.

(2)In applying for summary decree, the pursuer may move the sheriff—

(a)to grant decree in terms of all or any of the craves of the initial writ;

(b)to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(c)to dispose of the whole or part of the subject-matter of the cause.

F219(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)On a motion under paragraph (1), the sheriff may—

(a)if satisfied that there is no defence to the action or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or

(b)ordain any party, or a partner, director, officer or office-bearer of, any party—

(i)to produce any relevant document or article; or

(ii)to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.

(5)Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change of circumstances.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F219Sch. 1 rule 17.2(3) omitted (2.10.2000) by virtue of S.S.I. 2000/239, para. 3(1)(6)

Application of summary decree to counterclaims, etc.S

17.3.(1)Where a defender has lodged a counterclaim—

(a)he may apply by motion for summary decree against the pursuer on that counterclaim on the ground that there is no defence to the counterclaim, or a part of it, disclosed in the answers to it; and

(b)paragraphs (2) to (5) of rule 17.2 shall, with the necessary modifications, apply to a motion by a defender under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

(2)Where a defender or third party has made a claim against another defender or third party who has lodged defences or answers, as the case may be—

(a)he may apply by motion for summary decree against that other defender or third party on the ground that there is no defence to the claim, or a part of it, disclosed in the defences or answers, as the case may be; and

(b)paragraphs (2) to (5) of rule 17.2 shall, with the necessary modifications, apply to a motion by a defender or third party under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

CHAPTER 18SAMENDMENT OF PLEADINGS

Alteration of sum sued forS

18.1.(1)In a cause in which all other parties have lodged defences or answers, the pursuer may, before the closing of the record, alter any sum sued for by amending the crave of the initial writ, F220. . . and any record.

(2)The pursuer shall forthwith intimate any such amendment in writing to every other party.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F220Words in rule 18.1(1) omitted (1.11.1996) by S.I. 1996/2445, para. 3(23)

Powers of sheriff to allow amendmentS

18.2.(1)The sheriff may, at any time before final judgment, allow an amendment mentioned in paragraph (2).

(2)Paragraph (1) applies to the following amendments:—

(a)an amendment of the initial writ which may be necessary for the purpose of determining the real question in controversy between the parties, notwithstanding that in consequence of such amendment—

(i)the sum sued for is increased or restricted after the closing of the record; or

(ii)a different remedy from that originally craved is sought;

(b)an amendment which may be necessary—

(i)to correct or supplement the designation of a party to the cause;

(ii)to enable a party who has sued or has been sued in his own right to sue or be sued in a representative capacity;

(iii)to enable a party who has sued or has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity;

(iv)to add the name of an additional pursuer or person whose concurrence is necessary;

(v)where the cause has been commenced or presented in the name of the wrong person, or it is doubtful whether it has been commenced or presented in the name of the right person, to allow any other person to be sisted in substitution for, or in addition to, the original person; or

(vi)to direct a crave against a third party brought into an action under Chapter 20 (third party procedure);

(c)an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties; and

(d)where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting in the initial writ an additional or substitute party and directing existing or additional craves, averments and pleas-in-law against that party.

Applications to amendS

18.3.(1)A party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, lodge a motion—

(a)to allow the minute of amendment to be received; and

(b)to allow—

(i)amendment in terms of the minute of amendment and, where appropriate, to grant an order under rule 18.5(1)(a) (service of amendment for additional or substitute party); or

(ii)where the minute of amendment may require to be answered, any other person to lodge answers within a specified period.

(2)Where the sheriff has pronounced an interlocutor allowing a minute of amendment to be received and answered, he may allow a period for adjustment of the minute of amendment and answers and, on so doing, shall fix a date for parties to be heard on the minute of amendment and answers as adjusted.

[F221(3)Any adjustment to any minute of amendment or answers shall be exchanged between parties and not lodged in process.

F221(4)Parties shall be responsible for maintaining a record of adjustment made and the date of their intimation.

F221(5)No adjustments shall be permitted after the period of adjustment allowed, except with leave of the sheriff.

F221(6)Each party shall, no later than 2 days before the hearing fixed in terms of paragraph (2), lodge in process a copy of their minute of amendment or answers with all adjustments made thereto in italic or bold type, or underlined.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F221Sch. 1 rule 18.3(3)-(6) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(7)

Applications for diligence on amendmentS

18.4.(1)Where a minute of amendment is lodged by a pursuer under rule 18.2(2)(d) (all parties not, or wrong person, called), he may apply by motion for warrant to use any form of diligence which could be used on the dependence of a separate action.

(2)A copy certified by the sheriff clerk of the interlocutor granting warrant for diligence on the dependence applied for under paragraph (1) shall be sufficient authority for the execution of that diligence.

Service of amended pleadingsS

18.5.(1)Where an amendment under rule [F22218.2(b)(iv), (v) or (vi) (additional or substitute defenders added by amendment) or rule] 18.2(2)(d) (all parties not, or wrong person, called) has been made—

(a)the sheriff shall order that a copy of the initial writ or record, as the case may be, as so amended be served by the party who made the amendment on that additional or substitute party with—

(i)in a cause in which a time to pay direction under the M23Debtors (Scotland) Act 1987 [F223or a time order under the Consumer Credit Act 1974] may be applied for, a notice in Form O8 specifying the date by which a notice of intention to defend must be lodged in process, a notice in Form O3 and a notice of intention to defend in Form O7; or

(ii)in any other cause, a notice in Form O9 specifying the date by which a notice of intention to defend must be lodged in process and a notice of intention to defend in Form O7; and

(b)the party who made the amendment shall lodge in process—

(i)a copy of the initial writ or record as amended;

(ii)a copy of the notice sent in Form O8 or Form O9; and

(iii)a certificate of service.

(2)When paragraph (1) has been complied with, the cause as so amended shall proceed in every respect as if that party had originally been made a party to the cause.

(3)Where a notice of intention to defend is lodged by virtue of paragraph (1)(a), the sheriff clerk shall fix a date and time for a hearing under rule 9.12 (Options Hearing).

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F222Words in rule 18.5(1) inserted (1.11.1996) by S.I. 1996/2445, para. 3(24)

Marginal Citations

Expenses and conditions of amendmentS

18.6.The sheriff shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as he thinks fit.

Effect of amendment on diligenceS

18.7.Where an amendment has been allowed, the amendment—

(a)shall not validate diligence used on the dependence of a cause so as to prejudice the rights of [F224creditors of] the party against whom the diligence has been executed, who are interested in defeating such diligence; and

(b)shall preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F224Words in rule 18.7(a) substituted (1.11.1996) by S.I. 1996/2445, para. 3(25)

Preliminary pleas inserted on amendmentS

18.8.(1)Where a party seeks to add a preliminary plea by amendment or answers to an amendment, or by adjustment thereto, a note of the basis for the plea shall be lodged at the same time as the minute, answers or adjustment, as the case may be.

(2)If a party fails to comply with paragraph (1), that party shall be deemed to be no longer insisting on the preliminary plea and the plea shall be repelled by the sheriff.

CHAPTER 19SCOUNTERCLAIMS

CounterclaimsS

19.1.(1)In any action other than a family action within the meaning of rule 33.1(1) [F225, a civil partnership action within the meaning of rule 33A.1(1)] or an action of multiplepoinding, a defender may counterclaim against a pursuer—

(a)where the counterclaim might have been made in a separate action in which it would not have been necessary to call as defender any person other than the pursuer; and

(b)in respect of any matter—

(i)forming part, or arising out of the grounds, of the action by the pursuer;

(ii)the decision of which is necessary for the determination of the question in controversy between the parties; or

(iii)which, if the pursuer had been a person not otherwise subject to the jurisdiction of the court, might have been the subject-matter of an action against that pursuer in which jurisdiction would have arisen by reconvention.

(2)A counterclaim shall be made in the defences—

(a)when the defences are lodged or during the period for adjustment;

(b)by amendment at any other stage, with the leave of the sheriff and subject to such conditions, if any, as to expenses or otherwise as the sheriff thinks fit.

(3)Defences which include a counterclaim shall commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and shall include—

(a)answers to the condescendence of the initial writ as required by rule 9.6(2) (form of defences);

(b)a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences; and

(c)appropriate pleas-in-law.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F225Words in Sch. 1 rule 19. 1 inserted (4.5.2006) by Act of Sederunt (Ordinary Cause Rules) Amendment (Family Law (Scotland) Act 2006 etc.) 2006 (S.S.I. 2006/207), {para. 2(13)}

Warrants for diligence on counterclaimsS

19.2.(1)A defender who makes a counterclaim may apply for a warrant for arrestment on the dependence which would have been permitted had the warrant been sought in an initial writ in a separate action.

(2)An application for a warrant under paragraph (1) shall be made—

(a)at the time of making the counterclaim, by inserting [F226after] the crave of the counterclaim the words “Warrant for arrestment on the dependence applied for.”; or

(b)after the counterclaim has been made [F227by application], for a precept of arrestment.

(3)An application for a warrant under paragraph (2)(a) may be granted by the sheriff F228. . . writing on the defences, defences as adjusted or minute of amendment, as the case may be, the words “Warrant granted as craved.” after the warrant sought, and adding his signature and the date below those words.

(4)A warrant granted under paragraph (3) shall have the same effect as if the warrant had been in an initial writ.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F226Word in rule 19.2(2)(a) substituted (1.11.1996) by S.I. 1996/2445, para. 3(26)

Form of record where counterclaim lodgedS

[F22919.2A.Where, under rule 9.10 (open record), 9.11 (record for Options Hearing), 10.4 (open record), or 10.5 (closed record), a record requires to be lodged in an action in which a counterclaim is included in the defences, the pleadings of the parties shall be set out in the record in the following order:–

(a)the crave of the initial writ;

(b)the condescendence and answers relating to the initial writ;

(c)the pleas-in-law of the parties relating to the crave of the initial writ;

(d)the crave of the counterclaim;

(e)the statement of facts and answers relating to the counterclaim; and

(f)the pleas-in-law of the parties relating to the counterclaim.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F229Rule 19.2A inserted (1.11.1996) by S.I. 1996/2445, para. 3(27)

Effect of abandonment of causeS

19.3.(1)The right of a pursuer to abandon a cause under rule 23.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition of, or in consequence of, such abandonment shall not include the expenses of the counterclaim.

(2)Notwithstanding abandonment by the pursuer, a defender may insist in his counterclaim; and the proceedings in the counterclaim shall continue in dependence as if the counterclaim were a separate action.

Disposal of counterclaimsS

19.4.The sheriff may—

(a)deal with a counterclaim as if it had been stated in a separate action;

(b)regulate the procedure in relation to the counterclaim as he thinks fit; and

(c)grant decree for the counterclaim in whole or in part or for the difference between it and the sum sued for by the pursuer.

CHAPTER 20STHIRD PARTY PROCEDURE

Applications for third party noticeS

20.1.(1)Where, in an action, a defender claims that—

(a)he has in respect of the subject-matter of the action a right of contribution, relief or indemnity against any person who is not a party to the action, or

(b)a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such person is—

(i)solely liable, or jointly or jointly and severally liable with the defender, to the pursuer in respect of the subject-matter of the action, or

(ii)liable to the defender in respect of a claim arising from or in connection with the liability, if any, of the defender to the pursuer,

he may apply by motion for an order for service of a third party notice on that other person in Form O10 for the purpose of convening that other person as a third party to the action.

(2)Where—

(a)a pursuer against whom a counterclaim has been made, or

(b)a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form O10 in the same manner as a defender under that paragraph; and rules 20.2 to [F23020.6] shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F230Word in rule 20.1(2) substituted (1.11.1996) by S.I. 1996/2445, para. 3(28)

Averments where order for service of third party notice soughtS

20.2.(1)Where a defender intends to apply by motion for an order for service of a third party notice before the closing of the record, he shall, before lodging the motion, set out in his defences, by adjustment to those defences, or in a separate statement of facts annexed to those defences—

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action; and

(b)appropriate pleas-in-law.

(2)Where a defender applies by motion for an order for service of a third party notice after the closing of the record, he shall, on lodging the motion, lodge a minute of amendment containing—

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action, and

(b)appropriate pleas-in-law,

unless those grounds and pleas-in-law have been set out in the defences in the closed record.

(3)A motion for an order for service of a third party notice shall be lodged before the commencement of the hearing of the merits of the cause.

Warrants for diligence on third party noticeS

20.3.(1)A defender who applies for an order for service of a third party notice may apply for a warrant for arrestment to found jurisdiction or for arrestment on the dependence which would have been permitted had the warrant been sought in an initial writ in a separate action.

(2)Averments in support of the application for such a warrant shall be included in the defences or the separate statement of facts referred to in rule 20.2(1).

(3)An application for a warrant under paragraph (1) shall be made by motion—

(a)at the time of applying for the third party notice; or

(b)if not applied for at that time, at any stage of the cause thereafter.

(4)A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) shall be sufficient authority for execution of the diligence.

Service on third partyS

20.4.(1)A third party notice shall be served on the third party within 14 days after the date of the interlocutor allowing service of that notice.

(2)Where service of a third party notice has not been made within the period specified in paragraph (1), the order for service of it shall cease to have effect; and no service of the notice may be made unless a further order for service of it has been applied for and granted.

[F231(3)There shall be served with a third party notice–

(a)a copy of the pleadings (including any amendments or adjustments); and

(b)where the pleadings have not been amended in accordance with the minute of amendment referred to in rule 20.2, a copy of that minute.]

(4)A copy of the third party notice, with a certificate of service attached to it, shall be lodged in process by the defender.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Answers to third party noticeS

20.5.(1)An order for service of a third party notice shall specify 28 days, or such other period as the sheriff on cause shown may specify, as the period within which the third party may lodge answers.

(2)Answers for a third party shall be headed “Answers for [E.F.], Third Party in the action at the instance of [A.B.], Pursuer against [C.D.], Defender” and shall include—

(a)answers to the averments of the defender against him in the form of numbered paragraphs corresponding to the numbered articles of the condescendence in the initial writ and incorporating, if the third party so wishes, answers to the averments of the pursuer; or

(b)where a separate statement of facts has been lodged by the defender under rules 20.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

(c)appropriate pleas-in-law.

Consequences of failure to amend pleadingsS

[F23220.5A.Where the pleadings have not been amended in accordance with the minute of amendment referred to in rule 20.2, no motion for a finding, order or decree against a third party may be enrolled by the defender unless, at or before the date on which he enrols the motion, he enrols a motion to amend the pleadings in accordance with that minute.]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Procedure following answersS

20.6(1)Where a third party lodges answer, the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the third party had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers.

(2)At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit.

(3)A decree or other order against the third party shall have effect and be extractable in the same way as a decree or other order against a defender.

CHAPTER 21SDOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS

Lodging documents founded on or adoptedS

21.1.(1)Subject to any other provision in these Rules, any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him—

(a)when founded on or adopted in an initial writ, at the time of returning the initial writ under rule 9.3;

(b)when founded on or adopted in a minute, defences, counterclaim or answers, at the time of lodging that part of process; and

(c)when founded on or adopted in an adjustment to any pleadings, at the time when such adjustment is intimated to any other party.

(2)Paragraph (1) shall be without prejudice to any power of the sheriff to order the production of any document or grant a commission and diligence for recovery of it.

Consequences of failure to lodge documents founded on or adoptedS

21.2.Where a party fails to lodge a document in accordance with rule 21.1(1), he may be found liable in the expenses of any order for production or recovery of it obtained by any other party.

Objection to documents founded onS

21.3.(1)Where a deed or writing is founded on by a party, any objection to it by any other party may be stated and maintained by exception without its being reduced.

(2)Where an objection is stated under paragraph (1) and an action of reduction would otherwise have been competent, the sheriff may order the party stating the objection to find caution or give such other security as the sheriff thinks fit.

CHAPTER 22SPRELIMINARY PLEAS

Note of basis of preliminary pleaS

22.1.(1)A party intending to insist on a preliminary plea shall, not later than 3 days before the Options Hearing under rule 9.12 or the Procedural Hearing under rule 10.6—

(a)lodge in process a note of the basis for the plea; and

(b)intimate a copy of it to every other party.

[F233(2)Where the Options Hearing is continued under rule 9.12(5) and a preliminary plea is added by adjustment, a party intending to insist on that plea shall, not later than 3 days before the date of the Options Hearing so continued–

(a)lodge in process a note of the basis for the plea; and

(b)intimate a copy of it to every other party.]

[F234(3)]If a party fails to comply with paragraph (1) [F235or (2)], he shall be deemed to be no longer insisting on the preliminary plea; and the plea shall be repelled by the sheriff at the Options Hearing or Procedural Hearing.

[F234(4)]At any proof before answer or debate, parties may [F236on cause shown] raise matters in addition to those set out in the note mentioned in paragraph (1) [F235or (2)].

[F237(5)Where a note of the basis of a preliminary plea has been lodged under paragraph (1), and the Options Hearing is continued under rule 9.12(5), unless the basis of the plea has changed following further adjustment, it shall not be necessary for a party who is insisting on the plea to lodge a further note before the Options Hearing so continued.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F233Rule 22.1(2) inserted (1.11.1996) by S.I. 1996/2445, para. 3(29)(b)

F234Rule 22.1(2)(3) renumbered as rule 22.1(3)(4) (1.11.1996) by S.I. 1996/2445, para. 3(29)(a)

F235Words in rule 22.1(3)(4) (as renumbered) inserted (1.11.1996) by S.I. 1996/2445, para. 3(29)(c)

F236Words in Sch. 1 rule 22.1(4) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(8)

F237Rule 22.1(5) inserted (1.11.1996) by S.I. 1996/2445, para. 3(29)(d)

CHAPTER 23SABANDONMENT

Abandonment of causesS

23.1.(1)A pursuer may abandon a cause at any time before decree of absolvitor or dismissal by lodging a minute of abandonment and—

(a)consenting to decree of absolvitor; or

(b)seeking decree of dismissal.

(2)The sheriff shall not grant decree of dismissal under paragraph (1)(b) unless full judicial expenses have been paid to the defender, and any third party against whom [F238the pursuer] has directed any crave, within 28 days after the date of taxation.

(3)If the pursuer fails to pay the expenses referred to in paragraph (2) to the party to whom they are due within the period specified in that paragraph, that party shall be entitled to decree of absolvitor with expenses.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Application of abandonment to counterclaimsS

23.2.Rule 23.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of a cause.

CHAPTER 24S WITHDRAWAL OF SOLICITORS

Intimation of withdrawal to courtS

24.1.(1)[F239Subject to paragraph (3),]Where a solicitor withdraws from acting on behalf of a party, he shall intimate his withdrawal by letter to the sheriff clerk and to every other party.

(2)The sheriff clerk shall [F240forthwith] lodge such letter in process.

[F241(3)Where a solicitor withdraws from acting on behalf of a party in open court and in the presence of the other parties to the action or their representatives, paragraph (1) shall not apply.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F239Words in Sch. 1 rule 24.1(1) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(9)(a)

F240Word in Sch. 1 rule 24.1(2) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(9)(b)

Intimation to party whose solicitor has withdrawnS

24.2.(1)[F242Subject to paragraph (1A),] The sheriff shall, of his own motion, or on the motion of any other party, pronounce an interlocutor ordaining the party whose solicitor has withdrawn from acting to appear or be represented at a specified diet fixed by the sheriff to state whether or not he intends to proceed, under certification that if he fails to do so the sheriff may grant decree or make such other order or finding as he thinks fit.

[F243(1A)Where any previously fixed diet is to occur within 14 days from the date when the sheriff first considers the solicitor’s withdrawal, the sheriff may either–

(a)pronounce an interlocutor in accordance with paragraph (1); or

(b)consider the matter at the previously fixed diet.]

(2)The diet fixed in the interlocutor under paragraph (1) shall not be less than 14 days after the date of the interlocutor unless the sheriff otherwise orders.

(3)The party who has lodged the motion under paragraph (1), or any other party appointed by the sheriff, shall forthwith serve on the party whose solicitor has withdrawn a copy of the interlocutor and a notice in Form G10; and a certificate of service shall be lodged in process.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F242Words in Sch. 1 rule 24.2(1) inserted (2.10.2000) by S.S.I. 2000/239, para. 3(1)(10)(a)

Consequences of failure to intimate intention to proceedS

24.3.Where a party on whom a notice and interlocutor has been served under rule 24.2(2) fails to appear or be represented at a diet fixed under rule 24.2(1) and to state his intention as required by that paragraph, the sheriff may grant decree or make such other order or finding as he thinks fit.

CHAPTER 25S WITHDRAWAL OF SOLICITORS

Minutes of sistS

25.1Where a party dies or comes under legal incapacity while a cause is depending, any person claiming to represent that party or his estate may apply by minute to be sisted as a party to the cause.

Minutes of transferenceS

F244 . . .Where a party dies or comes under legal incapacity while a cause is depending and the provisions of rule 25.1 are not invoked, any other party may apply by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

F245(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F244Rule 25.2: “-(1)” at the beginning of paragraph (1) is omitted (1.11.1996) by S.I. 1996/2445, para. 3(30)(a)

F245Rule 25.2(2) omitted (1.11.1996) by S.I. 1996/2445, para. 3(30)(b)

CHAPTER 26STRANSFER AND REMIT OF CAUSES

Transfer to another sheriff courtS

26.1.(1)The sheriff may, on cause shown, remit any cause to another sheriff court.

(2)Subject to paragraph (4), where a cause in which there are two or more defenders has been brought in the sheriff court of the residence or place of business of one of them, the sheriff may transfer the cause to any other sheriff court which has jurisdiction over any of the defenders.

(3)Subject to pargagraph (4), where a plea of no jurisdiction is sustained, the sheriff may transfer the cause to the sheriff court before which it appears to him the cause ought to have been brought.

(4)The sheriff shall not transfer a cause to another sheriff court under paragraph (2) or (3) except—

(a)on the motion of a party; and

(b)where he considers it expedient to do so having regard to the convenience of the parties and their witnesses.

(5)On making an order under paragraph (1), (2) or (3), the sheriff—

(a)shall state his reasons for doing so in the interlocutor; and

(b)may make the order on such conditions as to expenses or otherwise as he thinks fit.

(6)The court to which a cause is transferred under paragraph (1), (2) or (3) shall accept the cause.

(7)A transferred cause shall proceed in all respects as if it had been originally brought in the court to which it is transferred.

(8)An interlocutor transferring a cause may, with leave of the sheriff, be appealed to the sheriff principal but shall not be subject to appeal to the Court of Session.

Remit to Court of SessionS

26.2.(1)The sheriff clerk shall, within four days after the sheriff has pronounced an interlocutor remitting a cause to the Court of Session, transmit the process to the Deputy Principal Clerk of Session.

(2)The sheriff clerk shall, within the period specified in paragraph (1), send written notice of the remit to each party and certify on the interlocutor sheet that he has done so.

(3)Failure by a sheriff clerk to comply with paragraph (2) shall not affect the validity of a remit made under paragraph (1).

Remit from Court of SessionS

26.3.On receipt of the process in an action which has been remitted from the Court of Session under section 14 of the M24Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, the sheriff clerk shall—

(a)record the date of receipt on the interlocutor sheet;

(b)fix a hearing to determine further procedure on the first suitable court day occurring not earlier than 14 days after the date of receipt of the process; and

(c)forthwith send written notice of the date of the hearing fixed under sub-paragraph (b) to each party.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

CHAPTER 27S CAUTION AND SECURITY

Application of this ChapterS

27.1.This Chapter applies to—

(a)any cause in which the sheriff has power to order a person to find caution or give other security; and

(b)security for expenses ordered to be given by the election court or the sheriff under section 136(2)(i) of the M25Representation of the People Act 1983 in an election petition.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Form of applicationsS

27.2.(1)An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion.

(2)The grounds on which such an application is made shall be set out in the motion.

OrdersS

27.3.Subject to section 726(2) of the M26Companies Act 1985 (expenses by certain limited com panies), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Methods of finding caution or giving securityS

27.4.(1)A person ordered—

(a)to find caution, shall do so by obtaining a bond of caution; or

(b)to consign a sum of money into court, shall do so by consignation under the M27Sheriff Court Consignations (Scotland) Act 1893 in the name of the sheriff clerk.

(2)The sheriff may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security.

(3)Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process.

(4)Where the sheriff approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process.

(5)Any document lodged in process, by which an order to find caution or give other security is satisifed, shall not be borrowed from process.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C18Rule 27.4 applied (with modifications) (1.1.1994) by S.I. 1993/3128, para. 3(2).

Marginal Citations

Cautioners and [F246guarantors]S

27.5.A bond of caution or other security [F247 shall be given only by a person who is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000 F248].

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F246Word in rule 27.5 heading substituted (1.11.1996) by S.I. 1996/2445, para. 3(31)

Modifications etc. (not altering text)

C19Rule 27.5 applied (with modifications) (1.1.1994) by S.I. 1993/3128, para. 3(2).

Forms of bonds of caution and other securitiesS

27.6.(1)A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validity and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged.

(2)A bond of caution or other security document given [F249 by a person shall state whether that person is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000].

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Modifications etc. (not altering text)

C20Rule 27.6 applied (with modifications) (1.1.1994) by S.I. 1993/3128, para. 3(2).

Sufficiency of caution or security and objectionsS

27.7.(1)The sheriff clerk shall satisfy himself that any bond of caution, or other document lodged in process under rule 27.4(3), is in proper form.

(2)A party who is dissatisified with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 27.9 (failure to find caution or give security).

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C21Rule 27.7 applied (with modifications) (1.1.1994) by S.I. 1993/3128, para. 3(2).

Insolvency or death of cautioner or guarantorS

27.8.Where caution has been found by bond of caution or security has been given by guarantee and the cautioner or guarantor, as the case may be—

(a)becomes apparently insolvent within the meaning assigned by section 7 of the M28Bankruptcy (Scotland) Act 1985(constitution of apparent insolvency),

(b)calls a meeting of his creditors to consider the state of his affairs,

(c)dies unrepresented, or

(d)is a company and—

(i)an administration or winding up order has been made, or a resolution for a voluntary winding up has been passed, with respect to it,

(ii)a receiver of all or any part of its undertaking has been appointed, or

(iii)a voluntary arrangement (within the meaning assigned by section 1(1) of the M29Insolvency Act 1986) has been approved under Part I of that Act,

the party entitled to benefit from the caution or guarantee may apply by motion for a new security or further security to be given.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Modifications etc. (not altering text)

C22Rule 27.8 applied (with modifications) (1.1.1994) by S.I. 1993/3128, para. 3(2).

Marginal Citations

Failure to find caution or give securityS

27.9.Where a party fails to find caution or give other security (in this rule referred to as “the party in default”), any other party may apply by motion—

(a)where the party in default is a pursuer, for decree of absolvitor; or

(b)where the party in default is a defender or a third party, for decree by default or for such other finding or order as the sheriff thinks fit.

CHAPTER 28SRECOVERY OF EVIDENCE

Application and interpretation of this ChapterS

28.1.(1)This Chapter applies to the recovery of any evidence in a cause depending before the sheriff.

(2)In this Chapter, “the Act of 1972” means the M30Administration of Justice (Scotland) Act 1972.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Marginal Citations

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972S

28.2.(1)An application by a party for—

(a)a commission and diligence for the recovery of a document, or

(b)an order under M31section 1 of the Act of 1972,

shall be made by motion.

(2)At the time of lodging a motion under paragraph (1), a specification of—

(a)the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b)the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

[F250(3)A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a)every other party;

(b)in respect of an application under section 1(1) of the M32Act of 1972, any third party haver; and

[F251(c)where necessary–

(i)the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

(ii)the Lord Advocate (in any other case),

and, if there is any doubt, both.]]

(4)Where the sheriff grants a motion made under paragraph (1) in whole or in part, he may order the applicant to find such caution or give such other security as he thinks fit.

[F252(5)The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F250Rule 28.2(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(32)

Marginal Citations

M31Section 1 of the Administration of Justice (Scotland) Act 1972 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section 19 and Schedule 2, paragraph 15.

Optional procedure before executing commission and diligenceS

28.3.(1)The party who has obtained a commission and diligence for the recovery of a document on an application made under rule 28.2(1)(a), may at any time before executing it against a haver, serve on the haver an order in Form G11 (in this rule referred to as “the order”); and if so, the provisions of this rule shall apply.

(2)The order [F253and a copy of the specification referred to in rule 28.2(2) as approved by the court]shall be served on the haver or his known solicitor and shall be complied with by the haver in the manner and within the period specified in the order.

(3)Not later than the day after the date on which the order, [F254the certificate appended to Form G11] and any document is received by the sheriff clerk from a haver, he shall intimate that fact to each party.

(4)No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (3).

(5)Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (3), the sheriff clerk shall intimate that failure to every other party.

(6)Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (5), the sheriff clerk shall return it to the haver who delivered it to him.

(7)Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—

(a)intimate the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days after the date of intimation, return it to the haver.

(8)If the party who served the order is not satisfied—

(a)that full compliance has been made with the order, or

(b)that adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 28.4.

(9)Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the sheriff may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(10)Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (9), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(11)The sheriff may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract [F255from that book].

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F253Words in rule 28.3(2) inserted (1.11.1996) by S.I. 1996/2445, para. 3(33)(a)

F254Words in rule 28.3(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(33)(b)

F255Words in rule 28.3(11) inserted (1.11.1996) by S.I. 1996/2445, para. 3(33)(c)

Execution of commission and diligence for recovery of documentsS

28.4.(1)The party who seeks to execute a commission and diligence for recovery of a document obtained on an application made under rule 28.2(1)(a) shall—

(a)provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment; and

(b)instruct the clerk and any shorthand writer considered necessary by the commissioner or any party; and

(c)be responsible for the fees of the commissioner and his clerk, and of any shorthand writer.

(2)The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission.

(3)The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(4)A citation in Form G13 shall be served on the haver with a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments) [F256; and the party citing the haver shall lodge a certificate in Form G12].

(5)The parties and the haver shall be entitled to be represented by a solicitor or person having a right of audience before the sheriff at the execution of the commission.

(6)At the commission, the commissioner shall—

(a)administer the oath de fideli administratione to any [F257clerk and any] shorthand writer appointed for the commission; and

(b)administer to the haver the oath in Form G14, or, where the haver elects to affirm, the affirmation in Form G15.

(7)The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(8)Not later than the day after the date on which such a report, document and inventory, if any, are received by the sheriff clerk, he shall intimate to the parties that he has received them.

(9)No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (8).

(10)Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (8), the sheriff clerk shall intimate that failure to every other party.

(11)Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (10), the sheriff clerk shall return it to the haver.

(12)Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—

(a)intimate the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F256Words in rule 28.4(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(a)

F257Words in rule 28.4(6)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(b)

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972S

28.5.(1)An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or recovery of that document or other property.

(2)Rules 28.3 (optional procedure before executing commission and diligence) and 28.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972S

28.6.(1)An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment on or with any such document or other property, as the case may be, subject to such conditions, if any, as the sheriff thinks fit.

(2)A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3)When such an order is executed, the party who obtained the order shall serve on the haver a copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972S

28.7.(1)An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property F258. . . shall grant a commission and diligence for the detention and custody of that document or other property.

(2)The party who has obtained an order under paragraph (1) shall—

(a)provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b)be responsible for the fees of the commissioner and his clerk; and

(c)serve a copy of the order on the haver.

(3)The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the sheriff clerk for the further order of the sheriff.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F258Words in rule 28.7(1) omitted (1.11.1996) by S.I. 1996/2445, para. 3(35)

ConfidentialityS

28.8.(1)Where confidentiality is claimed for any evidence sought to be recovered under any of the following rules, such evidence shall [F259,where practicable,] be enclosed in a sealed packet:—

28.3(optional procedure before executing commission and diligence),

28.4(execution of commission and diligence for recovery of documents),

28.5(execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

28.7(execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972).

(2)A motion to have such a sealed packet opened up [F260or such recovery allowed] may be lodged by—

(a)the party who obtained the commission and diligence; or

(b)any other party after the date of intimation by the sheriff clerk under rule 28.3(5) or 28.4(10) (intimation of failure to uplift documents).

(3)In addition to complying with rule 15.2 (intimation of motions), the party lodging such a motion shall intimate the terms of the motion to the haver by post by the first class recorded delivery service.

(4)The person claiming confidentiality may oppose a motion made under paragraph (2).

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F259Words in rule 28.8(1) inserted (1.11.1996) by S.I. 1996/2445, para. 3(36)(a)

F260Words in rule 28.8(2) inserted (1.11.1996) by S.I. 1996/2445, para. 3(36)(b)

Warrants for production of original documents from public recordsS

28.9.(1)Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the sheriff by motion.

(2)Intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 7 days before the motion is lodged.

(3)In relation to a public record kept by the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland, where it appears to the sheriff that it is necessary for the ends of justice that a motion under this rule should be granted, he shall pronounce an interlocutor containing a certificate to that effect; and the party applying for production may apply by letter (enclosing a copy of the interlocutor duly certified by the sheriff clerk), addressed to the Deputy Principal Clerk of Session, for an order from the Court of Session authorising the Keeper of the Registers or the Keeper of the Records, as the case may be, to exhibit the original of any register or deed to the sheriff.

(4)The Deputy Principal Clerk of Session shall submit the application sent to him under paragraph (3) to the Lord Ordinary in chambers who, if satisfied, shall grant a warrant for production or exhibition of the original register or deed sought.

(5)A certified copy of the warrant granted under paragraph (4) shall be served on the keeper of the public record concerned.

(6)The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

Commissions for examination of witnessesS

28.10.(1)This rule applies to a commission—

(a)to take the evidence of a witness who—

(i)is resident beyond the jurisdiction of the court;

(ii)although resident within the jurisdiction of the court, resides at some place remote from that court; or

(iii)by reason of age, infirmity or sickness, is unable to attend the diet of proof; F261. . .

(b)in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis [F262; or]

[F263(c)on special cause shown, to take evidence of a witness on a ground other than one mentioned in sub-paragraph (a) or (b)]

(2)An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the sheriff.

[F264(2A)A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder:]

(3)The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

(4)At the commission, the commissioner shall—

(a)administer the oath de fideli administratione to any [F265clerk and any] shorthand writer appointed for the commis sion; and

(b)administer to the witness the oath in Form G14, or where the witness elects to affirm, the affirmation in Form G15.

(5)Where a commission is granted for the examination of a witness, the commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F261Word in rule 28.10(1)(a)(iii) omitted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(i)

F262Rule 28.10(1)(b): “;or” substituted for the full-stop (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(ii)

F263Rule 28.10(1)(c) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(iii)

F265Words in rule 28.10(4)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(b)

Commissions on interrogatoriesS

28.11.(1)Where interrogatories have not been dispensed with, the party who obtained the commis sion to examine a witness under rule 28.10 shall lodge draft interrogatories in process.

(2)Any other party may lodge cross-interrogatories.

(3)The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.

(4)The party who has obtained the commission shall—

(a)provide the commissioner with a copy of the pleadings (including any adjustments and amend ments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

(b)instruct the clerk; and

(c)be responsible, in the first instance, for the fee of the commissioner and his clerk.

(5)The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

(6)The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(7)Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the sheriff clerk, he shall intimate to each party that he has received them.

(8)The party who obtained the commission to examine the witness shall lodge in process—

(a)the report of the commission; and

(b)the executed interrogatories and any cross-interrogatories.

Commissions without interrogatoriesS

28.12.(1)Where interrogatories have been dispensed with, the party who has obtained a commis sion to examine a witness under rule 28.10 shall—

(a)provide the commissioner with a copy of the pleadings (including any adjustments and amend ments) and a certified copy of the interlocutor of his appointment;

(b)fix a diet for the execution of the commission in consultation with the commissioner and every other party;

(c)instruct the clerk and any shorthand writer; and

(d)be responsible [F266in the first instance] for the fees of the commissioner, his clerk and any shorthand writer.

(2)All parties shall be entitled to be present and represented at the execution of the commission.

(3)The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

(4)Not later than the day after the date on which such a report, any document and an inventory of that document are received by the sheriff clerk, he shall intimate to each party that he has received them.

(5)The party who obtained the commission to examine the witness shall lodge the report in process.

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F266Words in Sch. 1 rule 28.12(1)(d) inserted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(7)}

Evidence taken on commissionS

28.13.(1)Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 28.11 or 28.12 may be used as evidence at any proof of the cause.

(2)Any party may object to the use of such evidence at a proof; and the objection shall be determined by the sheriff.

(3)Such evidence shall not be used at a proof if the witness becomes available to attend the diet of proof.

(4)A party may use such evidence in accordance with the preceding paragraphs of this rule not withstanding that it was obtained at the instance of another party.

Letters of requestS

28.14.(1)[F267Subject to paragraph (7), this] rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the sheriff.

(2)An application to which paragraph (1) applies may be made in relation to a request—

(a)for the examination of a witness [F268,]

(b)for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be [F269,]

[F270(c)for the medical examination of any person,

(d)for the taking and testing of samples of blood from any person, or

(e)for any other order for obtaining evidence,

for which an order could be obtained from the sheriff.]

(3)Such an application shall be made by minute in Form G16 together with a proposed letter of request in Form G17.

(4)It shall be a condition of granting a letter of request that any solicitor for the applicant [F271, or a party litigant, as the case may be, shall be personally liable, in the first instance,] for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the sheriff thinks fit.

(5)Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory—

(a)where English is an official language, or

(b)in relation to which the sheriff clerk certifies that no translation is required,

then the applicant shall, before the issue of the letter of request, lodge in process a translation of that letter and any interrogatories and cross-interrogatories into the official language of that court or tribunal.

(6)The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 28.11 and the translations (if any), shall be forwarded by the sheriff clerk to the Foreign and Commonwealth Office or to such person and in such manner as the sheriff may direct.

[F272(7)This rule does not apply to any request for the taking of evidence under Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F268Rule 28.14(2)(a): a comma is substituted for the semi-colon at the end (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(i)

F269Rule 28.14(2)(b): a comma is substituted for the full-stop at the end (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(ii)

F270Rule 28.14(2)(c)-(e) inserted (1.11.1996) by S.I. 1996/2445, para. 3(38)(a)(iii)

F271Words in rule 28.14(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(38)(b)

Taking of evidence in the European CommunityS

[F27328.14A.(1)This rule applies to any request–

(a)for the competent court of another Member State to take evidence under Article 1.1(a) of the Council Regulation; or

(b)that the court shall take evidence directly in another Member State under Article 1.1(b) of the Council Regulation.

(2)An application for a request under paragraph (1) shall be made by minute in Form G16, together with the proposed request in form A or I (as the case may be) in the Annex to the Council Regulation.

(3)In this rule, “the Council Regulation” means Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.]]

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Citation of witnesses and haversS

28.15.The following rules shall apply to the citation of a witness or haver to a commission under this Chapter as they apply to the citation of a witness for a proof:—

  • rule 29.7 (citation of witnesses), except paragraph (4),

  • rule 29.9 (second diligence against a witness),

  • rule 29.10 (failure of witness to attend).

[F274CHAPTER 28ASPRE-PROOF HEARING

Annotations: Help about Annotation
Close

Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Pre-proof hearingS

28A.1.(1)On the appointment of a cause to a proof or proof before answer or thereafter on the motion of any party or of his own motion, the sheriff may appoint the cause to a pre-proof hearing.

(2)It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

(3)At a pre-proof hearing the sheriff shall ascertain, so far as is reasonably practicable, whether the cause is likely to proceed to proof on the date fixed for that purpose and, in particular–

(a)the state of preparation of the parties; and

(b)the extent to which the parties have complied with their duties under rules 9A.2, 9A.3, 29.11 and 29.15 and any orders made by the sheriff under rules [F2759.12(3)(a),(b),(d) or (e)] or 10.6(3)(a) or (b). [F276; and

(c)consider any child witness no