Act of Sederunt (Sheriff Appeal Court Rules) 2021

CHAPTER 19 S CAUTION AND SECURITY

Application of this Chapter S

19.1.  This Chapter applies to any appeal in which the Court has power to order a person to find caution or give other security.

Commencement Information

I1 Para. 19.1 in force at 6.1.2022, see para. 1.1(2)

Form of application to find caution or give security S

19.2.  An application—

(a) for an order for caution or other security;

(b) to vary or recall such an order,

is to be made by motion.

Commencement Information

I2 Para. 19.2 in force at 6.1.2022, see para. 1.1(2)

Orders for caution or other security: time for compliance S

19.3.  Where the Court makes an order for caution or to give other security, the order must specify the period within which caution is to be found or security given.

Commencement Information

I3 Para. 19.3 in force at 6.1.2022, see para. 1.1(2)

Methods of finding caution or giving security S

19.4.—(1) A person who is ordered to find caution must do so by obtaining a bond of caution.

(2) A person who is ordered to consign a sum of money into court must do so by consignation under the Sheriff Courts Consignations (Scotland) Act 1893(1) in the name of the Clerk.

(3) The Court may order a person to give security by—

(a) a method other than those mentioned in paragraphs (1) and (2);

(b) a combination of two or more methods of security.

(4) Any document by which an order to find caution or give security is satisfied must be lodged in process.

(5) A document lodged under paragraph (4) may not be borrowed from process.

Commencement Information

I4 Para. 19.4 in force at 6.1.2022, see para. 1.1(2)

Cautioners and other guarantors S

19.5.  A bond of caution or other security may only be given by a person who is an authorised person within the meaning of section 31 of the Financial Services and Markets Act 2000 (authorised persons)(2).

Commencement Information

I5 Para. 19.5 in force at 6.1.2022, see para. 1.1(2)

Form of bond of caution S

19.6.—(1) A bond of caution must oblige the cautioner to make payment of the sums as validly and in the same manner as the party is obliged.

(2) In this rule—

“cautioner” includes the cautioner’s heirs and executors;

“party” means the person to whom the cautioner is bound, and that person’s heirs and successors;

“the sums” are the sums for which the cautioner is bound to the party.

Commencement Information

I6 Para. 19.6 in force at 6.1.2022, see para. 1.1(2)

Caution or other security: sufficiency and objections S

19.7.—(1) The Clerk must be satisfied that any document lodged in process under rule 19.4(4) is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of any document lodged in process under rule 19.4(4) may apply to the Court by motion for an order under rule 19.9(1).

Commencement Information

I7 Para. 19.7 in force at 6.1.2022, see para. 1.1(2)

Insolvency or death of cautioner or guarantor S

19.8.—(1) This rule applies where caution has been found by bond of caution or security has been given by guarantee.

(2) Where one of the events specified in paragraph (3) occurs, the party entitled to benefit from the caution or guarantee may apply to the Court by motion for further caution to be found or further security to be given.

(3) The events are that the cautioner or guarantor—

(a) becomes apparently insolvent within the meaning of section 16 of the Bankruptcy (Scotland) Act 2016 (meaning of “apparent insolvency”)(3);

(b) calls a meeting of the cautioner or guarantor’s creditors to consider the state of that person’s affairs;

(c) dies unrepresented; or

(d) is a company and—

(i) an administration, bank administration or building society special administration order has been made in respect of it;

(ii) a winding up, bank insolvency or building society insolvency order has been made in respect of it;

(iii) a resolution for its voluntary winding up has been passed;

(iv) a receiver of all or any part of its undertaking has been appointed;

(v) a voluntary arrangement within the meaning of section 1(1) of the Insolvency Act 1986 (those who may propose an arrangement)(4) has been approved under Part I of that Act.

Commencement Information

I8 Para. 19.8 in force at 6.1.2022, see para. 1.1(2)

Failure to find caution or give security S

19.9.—(1) Where a person who has been ordered to find caution or give security fails to do so, any other party may apply to the Court by motion for a finding that the person is in default.

(2) Despite rule 3.1, a person who fails to find caution or give security is only in default if the Court grants a motion under paragraph (1) and makes a finding that the person is in default.

Commencement Information

I9 Para. 19.9 in force at 6.1.2022, see para. 1.1(2)

(1)

1893 c.44, amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (c.42), section 6(2); the Sheriff Courts (Scotland) Act 1971 (c.58), section 4 and Schedule 1, paragraph 1; the Statute Law (Repeals) Act 1986 (c.12), Schedule 1, Part 1, Group 4 and Schedule 2, paragraph 1; S.I. 1974/1274 and S.S.I. 2015/402.

(2)

2000 c.8. Section 31 was amended by the Financial Services Act 2012 (c.21), section 11(1) and S.I. 2018/1149.

(3)

2016 asp 21. Section 16 was amended by S.S.I. 2019/94.

(4)

1986 c.45. Section 1(1) was amended by the Enterprise Act 2002 (c.40), Schedule 17, paragraph 10.