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

Appeals deemed abandoned

40.9.—(1) If an appellant fails–

(a) to apply by motion in accordance with rule 40.5(2) (leave to appeal out of time), or

(b) to comply with the requirements of rule 40.7(2) (lodging process etc.),

he shall be deemed to have abandoned his appeal on the expiry of the period for marking an appeal or for complying with the requirements of rule 40.7(2), as the case may be.

(2) Where an appeal has been deemed to be abandoned by reason of paragraph (1)(b), a respondent may, within 7 days after the date on which the appeal is deemed to be abandoned, comply with the requirements of rule 40.7(2) (lodging process etc.) and thereafter insist in the appeal as if it had been marked by him; and the following provisions of this Chapter applying to an appellant shall, with the necessary modifications, apply to an appeal by a respondent under this paragraph.

(3) Where a respondent insists in an appeal under paragraph (2), the appellant shall be entitled to insist in the appeal notwithstanding that his appeal has been deemed to be abandoned.

(4) If, on the expiry of 7 days after the date on which an appeal is deemed to be abandoned by virtue of paragraph (1)–

(a) the appellant has not been reponed under rule 40.10, and

(b) the respondent does not insist in the appeal under paragraph (2) of this rule,

the decision appealed against shall be treated in all respects as if no appeal had been marked, and the Deputy Principal Clerk shall transmit the appeal process to the clerk of the inferior court in accordance with paragraph (5) of this rule.

(5) Where an appeal process falls to be transmitted to the inferior court under paragraph (4), the Deputy Principal Clerk shall–

(a) write on the interlocutor sheet, minute of court or other record containing the decision appealed against or on the separate note of appeal, as the case may be, a certificate in Form 40.9;

(b) send the appeal process to the clerk of the inferior court; and

(c) give written intimation to each party to the appeal of the date on which the appeal process was transmitted.

(6) Where an appeal–

(a) is deemed to be abandoned under paragraph (1) and has been transmitted to an inferior court under paragraph (5), the respondent in the appeal may apply by motion to that court for an award of the expenses of the abandoned appeal; and

(b) the inferior court shall on such motion grant decree for payment to that respondent of those expenses as taxed by the Auditor of the Court of Session.