Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007

““the Act of 2004” means the Vulnerable Witnesses (Scotland) Act 2004”.

“(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.”.

“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.”.

“(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.”.

“, except a vulnerable witness within the meaning of section 11(1) of the Act of 2004.”.

“(4)

At the Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

(a)

order such steps to be taken, make such order, if any, or order further procedure, as he thinks fit, and

(b)

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 Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

(a)

order such steps to be taken, make such order, if any, or order further procedure, as he thinks fit, and

(b)

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.”.

“(2)

The parties shall provide the sheriff with sufficient information to enable him to–

(a)

conduct the hearing as provided for in this Chapter,

(b)

consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

(c)

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.”.

“and

(c)

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, consider any child witness notice or vulnerable witness application that has been lodged where no order has been made and consider whether any order under section 12(1) of the Act of 2004 requires to be made.”.

“CHAPTER 45VULNERABLE WITNESSES (SCOTLAND) ACT 2004

Interpretation45.1.

In this Chapter–

“child witness notice” has the meaning given in section 12(2) of the Act of 2004;

“review application” means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the Act of 2004;

“vulnerable witness application” has the meaning given in section 12(6) of the Act of 2004.

Child Witness Notice45.2.

A child witness notice lodged in accordance with section 12(2) of the Act of 2004 shall be in Form G19.

Vulnerable Witness Application45.3.

A vulnerable witness application lodged in accordance with section 12(6) of the Act of 2004 shall be in Form G20.

Intimation45.4.

(1)

The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form G21 and shall be lodged with the child witness notice or vulnerable witness application.

Procedure on lodging child witness notice or vulnerable witness application45.5.

(1)

On receipt of a child witness notice or vulnerable witness application, the sheriff may–

(a)

make an order under section 12(1) or (6) of the Act of 2004 without holding a hearing;

(b)

require further information from any of the parties before making any further order;

(c)

fix a date for a hearing of the child witness notice or vulnerable witness application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Review of arrangements for vulnerable witnesses45.6.

(1)

A review application shall be in Form G22.

(2)

Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).

Intimation of review application45.7.

(1)

Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form G23 and shall be lodged together with the review application.

Procedure on lodging a review application45.8.

(1)

On receipt of a review application, the sheriff may–

(a)

if he is satisfied that he may properly do so, make an order under section 13(2) of the Act of 2004 without holding a hearing or, if he is not so satisfied, make such an order after giving the parties an opportunity to be heard;

(b)

require of any of the parties further information before making any further order;

(c)

fix a date for a hearing of the review application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a review application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Determination of special measures45.9.

When making an order under section 12(1) or (6) or 13(2) of the Act of 2004 the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.

Intimation of an order under section 12(1) or (6) or 13(2)45.10.

An order under section 12(1) or (6) or 13(2) of the Act of 2004 shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Taking of evidence by commissioner45.11.

(1)

An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.

(2)

At the commission the commissioner shall–

(a)

administer the oath de fideli administratione to any clerk appointed for the commission; and

(b)

administer to the witness the oath in Form G14, or where the witness elects to affirm, the affirmation in Form G15.

(3)

The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Commission on interrogatories45.12.

(1)

Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.

(2)

Any other party may lodge cross-interrogatories.

(3)

The interrogatories and 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 cited the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments), 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.

Commission without interrogatories45.13.

Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments) 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

(d)

be responsible in the first instance for the fees of the commissioner and his clerk.

Lodging of video record and documents45.14.

(1)

Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the Act of 2004 the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.

(2)

On the video record and any documents being lodged the sheriff clerk shall–

(a)

note–

(i)

the documents lodged;

(ii)

by whom they were lodged; and

(iii)

the date on which they were lodged, and

(b)

intimate what he has noted to all parties concerned.

Custody of video record and documents45.15.

(1)

The video record and documents referred to in rule 45.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.

(2)

Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 45.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–

(a)

to include the name of that witness in any list of witnesses; or

(b)

to include the record of his evidence in any list of productions.

Application for leave for party to be present at the commission45.16.

An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by motion.”.

““the 2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004;”.

“, except a vulnerable witness within the meaning of section 11(1) of the 2004 Act.”.

“Enquiry when fixing hearing2.33.

Where the sheriff fixes a hearing he shall make enquiry whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the 2004 Act who is to give evidence at any proof or hearing, consider any child witness notice or vulnerable witness application that has been lodged where no order has been made and consider whether any order under section 12(1) of the 2004 Act requires to be made.

Vulnerable witness procedure2.34.

Except where the sheriff otherwise directs, where a vulnerable witness is to give evidence in a hearing of a summary application any child witness notice or vulnerable application relating to the vulnerable witness shall be made in accordance with and regulated by Chapter 45 of the Ordinary Cause Rules.”.

““the 2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004;”.

“(e)

enquire whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the 2004 Act who is to give evidence at any proof or hearing, consider any child witness notice or vulnerable witness application that has been lodged where no order has been made and consider whether any order under section 12(1) of the 2004 Act requires to be made.”.

“and indicate whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the 2004 Act and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.”.

“CHAPTER 18AVULNERABLE WITNESSES (SCOTLAND) ACT 2004

Interpretation18A.1.

In this Chapter–

“child witness notice” has the meaning given in section 12(2) of the 2004 Act;

“review application” means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the 2004 Act;

“vulnerable witness application” has the meaning given in section 12(6) of the 2004 Act.

Child Witness Notice18A.2.

A child witness notice lodged in accordance with section 12(2) of the 2004 Act shall be in Form 26B.

Vulnerable Witness Application18A.3.

A vulnerable witness application lodged in accordance with section 12(6) of the 2004 Act shall be in Form 26C.

Intimation18A.4.

(1)

The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form 26D and shall be lodged with the child witness notice or vulnerable witness application.

Procedure on lodging child witness notice or vulnerable witness application18A.5.

(1)

On receipt of a child witness notice or vulnerable witness application, the sheriff may–

(a)

make an order under section 12(1) or (6) of the 2004 Act without holding a hearing;

(b)

require further information from any of the parties before making any further order;

(c)

fix a date for a hearing of the child witness notice or vulnerable witness application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Review of arrangements for vulnerable witnesses18A.6.

(1)

A review application shall be in Form 26E.

(2)

Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).

Intimation of review application18A.7.

(1)

Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form 26F and shall be lodged together with the review application.

Procedure on lodging a review application18A.8.

(1)

On receipt of a review application, the sheriff may–

(a)

if he is satisfied that he may properly do so, make an order under section 13(2) of the 2004 Act without holding a hearing or, if he is not so satisfied, make such an order after giving the parties an opportunity to be heard;

(b)

require of any of the parties further information before making any further order;

(c)

fix a date for a hearing of the review application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a review application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Determination of special measures18A.9.

When making an order under section 12(1) or (6) or 13(2) of the 2004 Act the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.

Intimation of an order under section 12(1) or (6) or 13(2)18A.10.

An order under section 12(1) or (6) or 13(2) of the 2004 Act shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Taking of evidence by commissioner18A.11.

(1)

An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.

(2)

At the commission the commissioner shall–

(a)

administer the oath de fideli administratione to any clerk appointed for the commission; and

(b)

administer to the witness the oath in Form 20, or where the witness elects to affirm, the affirmation in Form 21.

(3)

The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Commission on interrogatories18A.12.

(1)

Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.

(2)

Any other party may lodge cross-interrogatories.

(3)

The interrogatories and 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 cited the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments), 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.

Commission without interrogatories18A.13.

Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments) 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

(d)

be responsible in the first instance for the fees of the commissioner and his clerk.

Lodging of video record and documents18A.14.

(1)

Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the 2004 Act the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.

(2)

On the video record and any documents being lodged the sheriff clerk shall–

(a)

note–

(i)

the documents lodged;

(ii)

by whom they were lodged; and

(iii)

the date on which they were lodged, and

(b)

intimate what he has noted to all parties concerned.

Custody of video record and documents18A.15.

(1)

The video record and documents referred to in rule 18A.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.

(2)

Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 18A.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–

(a)

to include the name of that witness in any list of witnesses; or

(b)

to include the record of his evidence in any list of productions.

Application for leave for party to be present at the commission18A.16.

An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by incidental application.”.

“, except a vulnerable witness within the meaning of section 11(1) of the Act of 2004.”.

““the 2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004;”.

“(d)

enquire whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the 2004 Act who is to give evidence at any proof or hearing, consider any child witness notice or vulnerable witness application that has been lodged where no order has been made and consider whether any order under section 12(1) of the 2004 Act requires to be made.”.

“, except a vulnerable witness within the meaning of section 11(1) of the Act of 2004.”.

“CHAPTER 17AVULNERABLE WITNESSES (SCOTLAND) ACT 2004

Interpretation17A.1.

In this Chapter–

“child witness notice” has the meaning given in section 12(2) of the 2004 Act;

“review application” means an application for review of arrangements for vulnerable witnesses pursuant to section 13 of the 2004 Act;

“vulnerable witness application” has the meaning given in section 12(6) of the 2004 Act.

Child Witness Notice17A.2.

A child witness notice lodged in accordance with section 12(2) of the 2004 Act shall be in Form 16B.

Vulnerable Witness Application17A.3.

A vulnerable witness application lodged in accordance with section 12(6) of the 2004 Act shall be in Form 16C.

Intimation17A.4.

(1)

The party lodging a child witness notice or vulnerable witness application shall intimate a copy of the child witness notice or vulnerable witness application to all the other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form 16D and shall be lodged with the child witness notice or vulnerable witness application.

Procedure on lodging child witness notice or vulnerable witness application17A.5.

(1)

On receipt of a child witness notice or vulnerable witness application, the sheriff may–

(a)

make an order under section 12(1) or (6) of the 2004 Act without holding a hearing;

(b)

require further information from any of the parties before making any further order;

(c)

fix a date for a hearing of the child witness notice or vulnerable witness application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a child witness notice or vulnerable witness application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Review of arrangements for vulnerable witnesses17A.6.

(1)

A review application shall be in Form 16E.

(2)

Where the review application is made orally, the sheriff may dispense with the requirements of paragraph (1).

Intimation of review application17A.7.

(1)

Where a review application is lodged, the applicant shall intimate a copy of the review application to all other parties to the proceedings and complete a certificate of intimation.

(2)

A certificate of intimation referred to in paragraph (1) shall be in Form 16F and shall be lodged together with the review application.

Procedure on lodging a review application17A.8.

(1)

On receipt of a review application, the sheriff may–

(a)

if he is satisfied that he may properly do so, make an order under section 13(2) of the 2004 Act without holding a hearing or, if he is not so satisfied, make such an order after giving the parties an opportunity to be heard;

(b)

require of any of the parties further information before making any further order;

(c)

fix a date for a hearing of the review application.

(2)

The sheriff may, subject to any statutory time limits, make an order altering the date of the proof or other hearing at which the child or vulnerable witness is to give evidence and make such provision for intimation of such alteration to all parties concerned as he deems appropriate.

(3)

An order fixing a hearing for a review application shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Determination of special measures17A.9.

When making an order under section 12(1) or (6) or 13(2) of the 2004 Act the sheriff may, in light thereof, make such further orders as he deems appropriate in all the circumstances.

Intimation of an order under section 12(1) or (6) or 13(2)17A.10.

An order under section 12(1) or (6) or 13(2) of the 2004 Act shall be intimated by the sheriff clerk–

(a)

on the day the order is made; and

(b)

in such manner as may be prescribed by the sheriff,

to all parties to the proceedings and such other persons as are named in the order where such parties or persons are not present at the time the order is made.

Taking of evidence by commissioner17A.11.

(1)

An interlocutor authorising the special measure of taking evidence by a commissioner shall be sufficient authority for the citing the witness to appear before the commissioner.

(2)

At the commission the commissioner shall–

(a)

administer the oath de fideli administratione to any clerk appointed for the commission; and

(b)

administer to the witness the oath, or where the witness elects to affirm, the affirmation.

(3)

The commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Commission on interrogatories17A.12.

(1)

Where interrogatories have not been dispensed with, the party citing or intending to cite the vulnerable witness shall lodge draft interrogatories in process.

(2)

Any other party may lodge cross-interrogatories.

(3)

The interrogatories and 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 cited the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments), 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.

Commission without interrogatories17A.13.

Where interrogatories have been dispensed with, the party citing or intending to cite the vulnerable witness shall–

(a)

provide the commissioner with a copy of the pleadings (including any adjustments and amendments) 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

(d)

be responsible in the first instance for the fees of the commissioner and his clerk.

Lodging of video record and documents17A.14.

(1)

Where evidence is taken on commission pursuant to an order made under section 12(1) or (6) or 13(2) of the 2004 Act the commissioner shall lodge the video record of the commission and relevant documents with the sheriff clerk.

(2)

On the video record and any documents being lodged the sheriff clerk shall–

(a)

note–

(i)

the documents lodged;

(ii)

by whom they were lodged; and

(iii)

the date on which they were lodged, and

(b)

intimate what he has noted to all parties concerned.

Custody of video record and documents17A.15.

(1)

The video record and documents referred to in rule 17A.14 shall, subject to paragraph (2), be kept in the custody of the sheriff clerk.

(2)

Where the video record of the evidence of a witness is in the custody of the sheriff clerk under this rule and where intimation has been given to that effect under rule 17A.14(2), the name and address of that witness and the record of his evidence shall be treated as being in the knowledge of the parties; and no party shall be required, notwithstanding any enactment to the contrary–

(a)

to include the name of that witness in any list of witnesses; or

(b)

to include the record of his evidence in any list of productions.

Application for leave for party to be present at the commission17A.16.

An application for leave for a party to be present in the room where the commission proceedings are taking place shall be by incidental application.”.