Scottish Statutory Instruments
2011 No. 385  
Court Of Session
Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2011
Made 2nd November 2011
Laid before the Scottish Parliament 4th November 2011
Coming into force in accordance with paragraph 1(1) and (2)

The Lords of Council and Session, under and by virtue of the powers conferred by section 5 of the Court of Session Act 1988 and of all other powers enabling them in that behalf, do hereby enact and declare:
1988 c.36; section 5 was amended by the Civil Evidence (Scotland) Act 1988 (c.32), section 2(3); the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule 9; the Children (Scotland) Act 1995 (c.36), Schedule 4, paragraph 45; the Vulnerable Witnesses (Scotland) Act 2004 (asp 3), section 14(1); and the Judiciary and Courts (Scotland) Act 2008, (asp 6), section 46(3).

Citation, commencement etc.
1. (1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Miscellaneous) 2011 and, subject to subparagraph (2), comes into force on 28th November 2011.
(2) Paragraph 3 comes into force on 14th November 2011.
(3) A certified copy of this Act of Sederunt is to be inserted in the Books of Sederunt.
(4) In this Act of Sederunt, “the Rules” means the Rules of the Court of Session 1994.
S.I. 1994/1443, last amended by S.S.I. 2011/303.

Election petitions
2. (1) The Rules are amended in accordance with the following subparagraphs.
(2) In rule 69.1 (interpretation of Chapter 69)—
Rule 69.1 was amended by S.I. 1999/787, 2007/937 and 2010/2999.
(a) after the definition of “the Act of 1983” insert —

““the 2004 Regulations” means the European Parliamentary Elections Regulations 2004”

;
S.I. 2004/293, last amended by S.I. 2011/2085.
(b) for the definition of “election petition” substitute—

““election petition” means a petition presented under—
(a) section 121 of the Act of 1983 (whether or not the petition also includes any application under section 167 of the Act of 1983);
(b) section 121 of the Act of 1983 as applied and modified by article 84 of, and Schedule 6 to, the Scottish Parliament (Elections etc.) Order 2010 (whether or not the petition also includes any application under section 167 of the Act of 1983, as so applied and modified); or
S.I. 2010/2999.
(c) regulation 89 of the European Parliamentary Elections Regulations 2004 (whether or not the petition also includes any application under regulation 108 of those Regulations).
Regulation 89 was amended by S.I. 2009/186.”.

(3) In rule 69.2(2) (form of election petitions)—
(a) in subparagraph (a)(ii), after “the Act of 1983” insert “or regulation 89(2) of the 2004 Regulations, as the case may be”; and
(b) in subparagraph (b)(i), after “the Act of 1983” insert “or regulation 89(1) of the 2004 Regulations”.
(4) In rule 69.4 (security for expenses)—
(a) in paragraph (1)(b), after “the Act of 1983” insert “or regulation 94(4) of the 2004 Regulations”; and
(b) in paragraph (3), after “the Act of 1983” insert “or regulation 94 of the 2004 Regulations”.
(5) In rule 69.5 (service and intimation of election petition)—
Rule 69.5 was amended by S.I. 1999/1386 and S.S.I. 2009/450.
(a) in paragraphs (1) and (2), after “the Act of 1983” insert “or regulation 94(3) of the 2004 Regulations”; and
(b) in paragraph (3), after “the Act of 1983” insert “or regulation 94 of the 2004 Regulations”.
(6) In rule 69.6 (objections to form of security)—
(a) in paragraph (1), after “the Act of 1983” insert “or regulation 94(4) of the 2004 Regulations”; and
(b) in paragraph (3), after “the Act of 1983” insert “or regulation 94(6) of the 2004 Regulations”.
(7) In rule 69.12(1) (evidence under section 139(5) of the Act of 1983), after “the Act of 1983” insert “or regulation 96(4) of the 2004 Regulations”.
Rule 69.12 was amended by S.I. 1999/1386.
(8) In rule 69.17 (expenses of witnesses), in paragraphs (1), (2) and (3), after “the Act of 1983” insert “or regulation 99(1) of the 2004 Regulations”.
(9) In rule 69.18 (applications for special case), after “the Act of 1983” insert “or regulation 101(1) of the 2004 Regulations”.
(10) In rule 69.19 (applications for leave to withdraw election petitions), after “the Act of 1983” insert “or regulation 102(2) of the 2004 Regulations”.
Rule 69.19 was amended by S.I. 1999/787 and 1999/1386.
(11) In rule 69.28 (expenses in election petitions), after “the Act of 1983” insert “or the 2004 Regulations”.
(12) In the Appendix—
(a) for Form 69.2 (form of Parliamentary, European Parliamentary or Scottish Parliamentary election petition) substitute the Form set out in Schedule 1 to this Act of Sederunt;
(b) in the headings to Form 69.4 (form of bond of caution in election petition), Form 69.15 (form of warrant to cite witnesses in election petition), Form 69.19-A (form of notice of intention to withdraw election petition) and Form 69.19-B (form of application for leave to withdraw election petition), after “Representation of the People Act 1983” insert “[or the European Parliamentary Elections Regulations 2004]”;
(c) in Form 69.4, after “section 136 of the Representation of the People Act 1983” insert “[or regulation 94 of the European Parliamentary Elections Regulations 2004]”; and
(d) for Form 69.5 (form of notice of the presentation of an election petition and of the nature of the proposed security) substitute the Form set out in Schedule 2 to this Act of Sederunt.

Investment Bank Special Administration procedure
3. (1) The Rules are amended in accordance with the following subparagraphs.
(2) In rule 74.1 (application and interpretation of Chapter 74), in paragraph (2), after the definition of “the Insolvency Rules” insert—

““the Investment Bank Regulations” means the Investment Bank Special Administration Regulations 2011;
S.I. 2011/245.
“the Investment Bank Rules” means the Investment Bank Special Administration (Scotland) Rules 2011;
S.I. 2011/2262.”.

(3) In Chapter 74, after Part X (building society insolvency procedure) insert—

“PART XI INVESTMENT BANK SPECIAL ADMINISTRATION PROCEDURE

Interpretation and application of other rules
74.53. (1) Unless the context otherwise requires, words and expressions used in this Part which are also used in the Investment Bank Rules have the same meaning as in those Rules.
(2) The following rules shall, with the necessary modifications, apply in relation to an application mentioned in rule 74.54 as they apply in relation to bank insolvency procedure or bank administration procedure—
rule 5.1A (further restriction as to caveats),
rule 33.9 (insolvency or death of cautioner or grantor),
rule 74.1 (application and interpretation of Chapter 74),
rule 74.2 (proceedings before insolvency judge),
rule 74.3 (notices and reports, etc., sent to the court),
rule 74.9 (form of other applications).

Application for special administration order, special administration (bank insolvency) order and special administration (bank administration) order
74.54. (1) An application for any of the following orders shall be made by petition—
(a) a special administration order under regulation 5 of the Investment Bank Regulations;
(b) a special administration (bank insolvency) order under section 95 of the Act of 2009, as applied by Schedule 1 to the Investment Bank Regulations;
(c) a special administration (bank administration) order under section 142 of the Act of 2009, as applied by Schedule 2 to the Investment Bank Regulations.
(2) A petition referred to in paragraph (1) shall include averments on the following matters—
(a) the name and address of the person whom it is proposed should be appointed as administrator and his or her qualification to act;
(b) the grounds upon which the petition is made, and the reasons why the petitioner considers that those grounds are satisfied;
(c) in the case of an application for a special administration (bank administration) order, confirmation that the conditions for applying for such an order, as set out in section 143 of the Act of 2009, as applied by paragraph 6 of Schedule 2 to the Investment Bank Regulations) are met in respect of the investment bank;
(d) to the best of the petitioner’s knowledge and belief, the investment bank’s current financial position, including actual, contingent and prospective assets and liabilities;
(e) any security known or believed to be held by the creditors of the investment bank;
(f) in the case of an application for a special administration (bank administration) order, details of the property transfer instrument which the Bank of England has made or intends to make in respect of the investment bank;
(g) in the case of an application for a special administration (bank administration) order, where the property transfer instrument has not yet been made, an explanation of what effect the instrument is likely to have on the investment bank’s financial position;
(h) to the best of the petitioner’s knowledge and belief, the amount of any client assets held by the investment bank;
(i) how functions are to be apportioned where more than one person is to be appointed as administrator and, in particular, whether functions are to be exercised jointly or by any or all the persons appointed;
(j) any other matters which the petitioner considers will assist the court in deciding whether to make a special administration order, a special administration (bank administration) order or a special administration (bank insolvency) order; and
(k) any insolvency proceedings which have been instituted in respect of the investment bank, including any process notified to the Financial Services Authority under section 120 of the Act of 2009, as applied by paragraph 7 of Schedule 1 to the Investment Bank Regulations.
(3) Averments referred to in paragraph (2)(b) shall refer to one or more of the grounds set out in regulation 6 of the Investment Bank Regulations or section 96 or section 143 of the Act of 2009, as the case may be.
Section 96 of the Act of 2009 is applied by paragraph 6 of Schedule 1 to the Investment Bank Regulations.
Section 143 of the Act of 2009 is applied by paragraph 6 of Schedule 2 to the Investment Bank Regulations.

Intimation, service and advertisement under this Part
74.55. (1) Unless the court otherwise directs, the order under rule 14.5 (first order in petitions) for intimation, service and advertisement of the petition shall include a requirement—
(a) where the investment bank is not the petitioner or one of the petitioners, to serve the petition on the investment bank;
(b) to advertise the petition immediately—
(i) once in the Edinburgh Gazette; and
(ii) once in one or more such newspapers as the court shall direct.
(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to the petition shall be eight days.
(3) An advertisement under paragraph (1) shall include—
(a) the name and address of the petitioner and, where the petitioner is the investment bank, its registered office;
(b) the name and address of the agent for the petitioner;
(c) the date on which the petition was presented;
(d) the nature of the order sought;
(e) where a person has been appointed by the court under section 135 of the Act of 1986, as applied by paragraph 8 of Schedule 1 or paragraph 6 of Schedule 2 to the Investment Bank Regulations, his or her name and address and the date of his or her appointment;
(f) the period of notice for lodging answers;
(g) a statement that any person who intends to appear in the petition must lodge answers within the period of notice.

Person appointed under section 135 of the Act of 1986, as applied
74.56. (1) An application to appoint a person under section 135 of the Act of 1986, as applied by paragraph 8 of Schedule 1 or paragraph 6 of Schedule 2 to the Investment Bank Regulations, may be made in the prayer of the petition referred to in rule 74.54 or, if made after the petition has been presented, by note.
(2) The application mentioned in paragraph (1) shall include averments on the following matters—
(a) the grounds upon which it is proposed that the person should be appointed;
(b) the name and address of the person whom it is proposed should be appointed;
(c) confirmation that the person whom it is proposed should be appointed has consented to that appointment;
(d) confirmation that the person whom it is proposed should be appointed is qualified to act as a person under section 135 of the Act of 1986, as relevantly applied;
(e) whether to the applicant’s knowledge there has been proposed or is in force for the investment bank a company voluntary arrangement under Part 1 of the Act of 1986;
(f) the applicant’s estimate of the value of the assets in respect of which the person is to be appointed;
(g) the functions the applicant wishes to be carried out by the person to be appointed in relation to the investment bank’s affairs.
(3) An order appointing any person as referred to in paragraph (1) shall specify the functions to be carried out in relation to the investment bank’s affairs and how those functions are to be apportioned where more than one person is to be so appointed and, in particular, shall specify whether functions are to be exercised jointly or by any or all the persons appointed.
(4) Where the court decides to appoint a person as referred to in paragraph (1)—
(a) it shall pronounce an interlocutor making the appointment and specifying the functions to be carried out by the appointed person in relation to the affairs of the investment bank; and
(b) it shall forthwith send a copy of the interlocutor to the person appointed.
(5) On receiving a certified copy of an interlocutor pronounced under paragraph (4)(a), the person appointed shall intimate his appointment forthwith—
(a) once in the Edinburgh Gazette; and
(b) once in one or more such newspapers as the court has directed.
(6) An application for the discharge of a person appointed in accordance with this rule shall be made by note.

Report of administrator’s proposals: Schedule B1 to the Act of 1986
74.57. (1) Paragraph (2) shall apply where a report under paragraphs 53(2) or 54(6) of Schedule B1 to the Act of 1986 (report at conclusion of creditors’ meeting), as those provisions are applied and modified by regulation 15 of, or paragraphs 10(4) or 11(8) of Schedule 2 to, the Investment Bank Regulations, discloses a failure to approve, or to approve a revision of, an administrator’s proposals.
(2) The Deputy Principal Clerk shall fix a hearing for determination by the insolvency judge of any order that may be made under paragraph 55(2) of Schedule B1 to the Act of 1986, as that provision is applied and modified by regulation 15 of the Investment Bank Regulations or by section 145 of the Act of 2009 and paragraph 6 of Schedule 2 to the Investment Bank Regulations.

Time and date of lodging in special administration etc.
74.58. (1) The time and date of lodging of a notice or document relating to a special administration, special administration (bank insolvency) or special administration (bank administration) shall be noted by the Deputy Principal Clerk upon the notice or document.
(2) Subject to any provision in the Investment Bank Rules—
(a) where the time of lodging of a notice or document cannot be ascertained by the Deputy Principal Clerk, the notice or document shall be deemed to have been lodged at 10 a.m. on the date of lodging;
(b) where a notice or document under paragraph (1) is delivered on any day other than a business day but is not lodged on that day, the date of lodging shall be the first business day after such delivery.

Appeals against adjudication of claims
74.59. (1) An appeal under section 49(6) of the Bankruptcy (Scotland) Act 1985, as applied by rule 127 of the Investment Bank Rules (appeal by a creditor or contributory of the investment bank against a decision of the administrator) shall be made by note.
1985 c.66.
(2) A note under paragraph (1) shall be served on the administrator.
(3) On such a note being served on the administrator, the administrator shall send the claim in question, and a copy of his or her adjudication, forthwith to the Deputy Principal Clerk who shall cause them to be lodged in process.
(4) After the note has been disposed of, the Deputy Principal Clerk shall return the claim and the adjudication to the administrator with a copy of the interlocutor disposing of the note.

Applications under section 176A of the Act of 1986
74.60. (1) An application by an administrator under section 176A of the Act of 1986 (share of assets for unsecured creditors), as applied by Table 2 in regulation 15 of, or paragraph 6 of Schedule 2 to, the Investment Bank Regulations, shall be made by note in the existing special administration process.
(2) The Deputy Principal Clerk shall—
(a) after the lodging of any note fix a hearing for the insolvency judge to consider an application under paragraph (1); and
(b) give notice of the hearing fixed under paragraph (2)(a) to the noter.
(3) The noter shall not be required to give notice to any person of the hearing fixed under paragraph (2)(a), unless the insolvency judge directs otherwise.

Applications during a special administration etc.
74.61. (1) An application or appeal under any provision of the Act 1986 as applied by the Act of 2009, the Investment Bank Regulations or the Investment Bank Rules during a special administration, special administration (bank insolvency) or special administration (bank administration) shall be made—
(a) where no previous application or appeal has been made, by petition; or
(b) where a petition for an order in respect of a special administration, special administration (bank insolvency) or special administration (bank administration) has been lodged, by note in the process of that petition.”.

Part X of Chapter 74 was inserted by S.S.I. 2010/417.

Reporting restrictions
4. (1) The Rules are amended in accordance with the following subparagraph.
(2) After Chapter 101 (terrorist asset-freezing), insert—

“CHAPTER 102 REPORTING RESTRICTIONS UNDER THE CONTEMPT OF COURT ACT 1981

Interpretation and application of this Chapter
102.1. In this Chapter, “the 1981 Act” means the Contempt of Court Act 1981.
1981 c.49.

Notification of reporting restrictions etc.
102.2. (1) Paragraph (2) applies where the court makes an order under section 4(2) of the 1981 Act (order postponing publication of report of legal proceedings).
(2) The clerk of court shall immediately arrange—
(a) for a copy of the order to be sent to those persons who have asked to see any such order made by the court and whose names are on the list kept by the Lord President for that purpose;
(b) for the publication of the making of the order on the website used to provide official information about the Scottish courts.

Applications for variation or revocation
102.3. (1) A person aggrieved by the terms of an order made under section 4(2) of the 1981 Act may apply to the court for its variation or revocation.
(2) An application shall be made by note in process.
(3) On an application being made the court shall—
(a) appoint the application for a hearing;
(b) provide written intimation of the date and time of the hearing, together with a copy of the application, to the parties to the proceedings.
(4) The hearing shall—
(a) unless there are exceptional circumstances or a later date is requested by the applicant, take place within 48 hours of the application being lodged;
(b) so far as reasonably practicable, be before the judge or judges who made the order.
(5) The decision of the court is final.”.

Chapter 101 was inserted by S.S.I. 2010/459.

Forced marriage
5. (1) The Rules are amended in accordance with the following subparagraph.
(2) After Chapter 102 (reporting restrictions under the Contempt of Court Act 1981), insert—

“CHAPTER 103 FORCED MARRIAGE

Interpretation of this Chapter
103.1. In this Chapter, “the 2011 Act” means the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011.
2011 asp 15.

Applications for a forced marriage protection order
103.2. (1) An application for a forced marriage protection order under the 2011 Act shall be made by petition.
(2) Where leave of the court is required under section 3(2) of the 2011 Act to make an application for a forced marriage protection order, the person seeking such an order shall apply by motion for leave to make the application at the time when the petition is presented to the Petition Department.
(3) A motion under paragraph (2) shall be heard in chambers.
(4) Where such leave is granted, a copy of the interlocutor allowing leave shall be attached to the copy of the petition served on the respondent.

Applications for variation, recall or extension of a forced marriage protection order
103.3. (1) An application for variation, recall or extension of a forced marriage protection order under the 2011 Act shall be made by note.
(2) Where leave of the court is required under section 7(1)(d) or 8(3)(d) of the 2011 Act before an application for variation, or recall or extension of a forced marriage protection order may be made, the applicant must lodge along with the note a motion stating the grounds upon which leave is sought.
(3) A motion under paragraph (2) shall not be served or intimated unless the court otherwise directs.
(4) The court may hear the applicant on the motion and may grant or refuse it or make such other order in relation to it as it considers appropriate prior to the determination.
(5) Where such a motion is granted, a copy of the interlocutor shall be intimated along with the note of application.”.

Chapter 102 is inserted by paragraph 4 of this Act of Sederunt.

References to appeals under statute
6. (1) The Rules are amended in accordance with the following subparagraphs.
(2) In rule 55.14 (appeals and references from Comptroller)—
Rule 55.14 was amended by S.I. 1994/2901 and 1999/1785.
(a) in paragraph (2)—
(i) for “49.19” substitute “41.25”; and
(ii) for “41.43” substitute “41.51”; and
(b) in paragraph (6), for “41.21” substitute “41.27”.
(3) In rule 55.19 (appeals and references under the Trade Marks Act 1994)—
Rule 55.19 was amended by S.I. 1994/2901 and 1999/1785.
(a) in paragraph (2)—
(i) for “41.19” substitute “41.25”; and
(ii) for “41.43” substitute “41.51”; and
(b) in paragraph (6), for “41.21” substitute “41.27”.
(4) In rule 89.5 (appeals relating to non-derogating orders), in paragraph (1)—
Rule 89.5 was inserted by S.S.I. 2005/153 and amended by S.S.I. 2005/193.
(a) for “41.43” substitute “41.51”; and
(b) for “Part X” substitute “Part IX”.
(5) In rule 100.8 (appeals against arbitral awards on ground of legal error), for “41.3A” substitute “41.5”.
Rule 100.8 was inserted by S.S.I. 2010/205.
(6) In rule 101.3 (appeal in relation to designations) in paragraph (6), for “41.20(1)” substitute “41.26(1)”.
Rule 101.3 was inserted S.S.I. 2010/459.
(7) This paragraph does not apply in relation to an appeal under Chapter 41 where the appeal was lodged before 27th September 2011; and the Rules as they applied immediately before that date continue to have effect for such purposes.
A.C. HAMILTON
Lord President
I.P.D.
Edinburgh
2nd November 2011
SCHEDULE 1
Paragraph 2(12)(a)
SCHEDULE 2
Paragraph 2(12)(d)

EXPLANATORY NOTE
(This note is not part of the Act of Sederunt)
This Act of Sederunt makes amendments to the Rules of the Court of Session 1994.
Paragraph 2 makes a number of amendments to the rules in Chapter 69 in relation to election petitions. In particular, it amends the rules so as to include within their scope the provisions of the European Parliamentary Elections Regulations 2004. It also amends the definition of election petition with the effect that any stand-alone petition under section 167 of the Representation of the People Act 1983 or regulation 108 of the 2004 Regulations is to be dealt with under Chapter 14 petition procedure rather than under Chapter 69.
Paragraph 3 makes amendments to the Rules in consequence of the establishment of three new special administration procedures relating to investment banks under the Investment Bank Special Administration Regulations 2011 (S.I. 2011/245). It inserts a new Part XI into Chapter 74 of the Rules.
Paragraph 4 inserts a new Chapter 102 into the Rules. Rule 102.2 sets out a procedure in relation to the notification of orders made by the court which impose reporting restrictions under section 4(2) of the Contempt of Court (Scotland) Act 1981. Rule 102.3 establishes a procedure under which variation or revocation of such an order can be sought.
Paragraph 5 inserts a new Chapter 103 into the Rules, in consequence of the coming into force of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011. Rule 103.2 makes provision in relation to applications for a forced marriage protection order (including applications for leave to make such an application). Rule 103.3 makes provision in relation to applications for variation, recall or extension of such an order.
Paragraph 6 makes amendments to certain rules which refer to provisions in Chapter 41, relating to appeals under statute.