Sheriff Courts (Scotland) Act 1907

ProoF S

S evidence

Evidence to liein retentis S

70 Evidence in danger of being lost may be taken to liein retentis and, if satisfied that it is desirable so to do, the sheriff may, upon the motion of any party at any time, either take such evidence himself, or grant authority to a commissioner to take it.

Evidence taken on commission S

71 The evidence of any witness or haver resident beyond the jurisdiction of the court, or who although resident within the jurisdiction resides at some place remote from the court, or who is by reason of illness, age or infirmity, or other sufficient cause, unable to attend the diet of proof may be taken by commission in like manner as evidence to liein retentis.

Affidavit evidence S

72 [F1 (1) The provisions of this rule—

(a) apply to all parts of actions of [F2 divorce, of separation and of declarator of parentage, non-parentage, legitimacy, legitimation or illegitimacy] which proceed as undefended and to opposed interim orders under the M1 Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(b) do not apply to any action of [F2 divorce, of separation or of declarator of parentage, non-parentage, legitimacy, legitimation or illegitimacy] where it appears to the sheriff that [F3 a] defender is a person who is suffering from a mental disorder within the meaning of the M2 Mental Health (Scotland) Act [F4 1984] except where the curatorad litem for the defender has lodged a minute intimating that he does not intend to defend the action.]

(2) Evidence submitted in the form of affidavits shall, subject to the provisions of this rule, be admissible in place of parole evidence.

(3) For the purpose of this rule—

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

(b) an affidavit shall be treated as admissible if it is duly emitted before a notary public or any other competent authority.

(4) Evidence submitted in the form of a written statement bearing to be that of a duly qualified medical practitioner, which has been signed by him and lodged in process, shall be admissible in place of parole evidence.

(5) Where it is intended to submit evidence only by means of affidavits the sheriff, at any time after the expiry of the period within which a notice of intention to defend or a minute under rule 34 must be lodged, the pursuer having lodged the necessary evidence on affidavit and having endorsed a minute [F5 in accordance with Form X] on the initial writ, may grant decree or other order in terms of that minute, without requiring the attendance of the pursuer in court.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F6

Textual Amendments

F1 Rule 72(1) substituted by S.I. 1984/255, para. 3(15)(a)

F2 Words substituted by virtue of S.I. 1986/1230, para. 3(15)(a) and S.I. 1986/1966, para. 2(7)

F3 Word substituted by S.I. 1986/1966, para. 2(7)(b)(ii)

F4 “1984” substituted by S.I. 1986/1230, para. 3(15)(b)

F5 Words inserted by S.I. 1984/255, para. 3(15)(b)

F6 Rule 72(6) repealed by S.I. 1984/255, para. 3(15)(c)

Marginal Citations

M1 1981 c.59(49:6).

M2 1984 c.36(85).

Conditions for receiving written statements in evidence without being spoken to by a witness S

[F7 72A (1) Any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the M3 Civil Evidence (Scotland) Act 1988 may be received in evidence in any ordinary cause without being spoken to by a witness subject to the provisions of this rule.

(2) The following provisions of this rule do not apply to any such written statement or report in respect of which express provision is made in these rules for its admissibility in evidence in relation to a particular category of ordinary cause.

(3) Application to the sheriff to receive any such written statement or report in evidence without being spoken to by a witness shall be made by way of motion.

(4) Subject to paragraph (5), on enrolling any such motion, the applicant shall lodge—

(a) the written statement or report as a production;

(b) in any case where the other party or parties have not agreed to the written statement or report in question being received in evidence without being spoken to by a witness, an affidavit or affidavits in support of the motion stating—

(i) the name, designation, and qualifications (if any) of the author of the statement or report in question;

(ii) the circumstances in which it was written; and

(iii) the reasons for the application.

(5) Paragraph (4) does not apply to an application made in respect of a written statement or report in the form of an affidavit which includes the information specified in sub-paragraph (b) of paragraph (4).

(6) On the hearing of any such motion, the sheriff may grant the motion, with or without conditions, or may refuse it, or may continue the motion to enable such further information to be obtained as he may require for the purpose of determining the application.

(7) For the purpose of this rule—

(a) expressions used in this rule and in the M4 Civil Evidence (Scotland) Act 1988 shall have the meaning they have in that Act;

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

(c) an affidavit shall be treated as admissible if it is duly emitted before a notary public or any other competent authority.]

Textual Amendments

F7 Rule 72A inserted by S.I. 1989/436, para. 2

Marginal Citations

M3 1988 c.32(47).

M4 1988 c.32 (47).

Recording of evidence S

73 (1) In every defended cause the evidence shall be recorded by a shorthand writer, approved by the sheriff, unless the parties shall by agreement and with the consent of the sheriff dispense with the recording of such evidence. The responsibility for instructing a shorthand writer for a proof shall lie with the pursuer.

(2) Evidence adduced before a commissioner may be recorded by a shorthand writer or clerk approved by the commissioner. The responsibility for instructing a shorthand writer shall lie with the party moving for the commission.

(3) Where evidence is recorded by a shorthand writer or clerk the sheriff or commissioner shall administer the oathde fideli administratione to the shorthand writer or clerk who shall record the evidence by question and answer. The extended notes of evidence certified by such shorthand writer shall be the notes of the oral evidence in the case.

(4) It shall be unnecessary to record evidence in an undefended proof.

(5) If the correctness of the notes of evidence or of a deposition is questioned, the sheriff may satisfy himself in regard thereto by the examination of witnesses or otherwise, and may amend the record of evidence or a deposition.

(6) When a shorthand writer is so employed to record evidence, he shall in the first instance be paid, as regards commissions by the party moving for the commission, and as regards proofs by the parties equally. The solicitors of parties shall be personally liable for the shorthand writer’s fees and the sheriff may make an order directing payment to be made.

S Witnesses and havers

Citation S

74 (1) A copy of an interlocutor certified by the sheriff clerk allowing a proof or fixing a diet for the trial of any cause or for the examination of witnesses or havers shall be sufficient warrant for citation of witnesses or havers.

(2) If any witness or haver duly cited on a period of notice of at least 7 days and after having been paid his travelling expenses if the same shall have been demanded, fails to attend a diet, either before the sheriff or before his commissioner, such witness or haver may be ordained by the sheriff to forfeit and pay a penalty not exceeding £250, unless a reasonable excuse be offered and sustained, and the sheriff may grant decree for said penalty in favour of the party on whose behalf said witness or haver was cited.

Form of citation S

75 (1) Witnesses and havers may be cited as nearly as may be in terms of Form I as set out in the Appendix to this Schedule and the certificate of citation shall be as nearly as may be in terms of Form J as set out in the Appendix to this Schedule.

(2) A solicitor who cites a witness or haver shall be personally liable for his fees and expenses.

(3) In the event of a solicitor who has cited a witness or haver intimating to him that his citation is cancelled, the solicitor shall advise him that said cancellation is not to affect any other citation which he may have received from another party in that cause.

Second diligence against witness S

76 (1) The sheriff may grant second diligence to compel the attendance of a witness or haver under pain of arrest and imprisonment until caution can be found as the sheriff may require for his due attendance.

(2) The warrant for a second diligence shall be effective in any sheriffdom without endorsation and the expenses thereof may be decerned for against the witness or haver.

Warrant to arrest S

77 Where any witness or haver fails to answer a citation after having been duly cited the sheriff may, upon production of a relevant certificate of citation, grant warrant for the apprehension of the witness or haver and for bringing him to the court, and the expenses thereof may be decerned for against the witness or haver.

S productions

Production and recovery of documents S

78 (1) Each party shall, along with his pleadings, or at latest before the closing of the record, if required by any other party in the cause or by the sheriff, lodge any documents founded upon in the pleadings, so far as the same are within his custody or power.

(2) Where such documents are not produced by any party to the cause or are in the hands of third parties, the sheriff may, on the motion of any party, grant commission and diligence for their recovery and may on that account delay closing the record.

(3) At any time after tabling, the sheriff, on the motion of either party, may grant commission and diligence for the recovery of such documents contained in a specification as he shall deem relevant to the cause.

Lodging productions for proofs S

79 In all causes in which a proof has been allowed, all documents, plans, maps, models and other productions which are intended to be used or put in evidence at the proof, shall be lodged along with an inventory with the sheriff clerk on or before the fourteenth day prior to the day appointed for the proof, and notice of the lodging thereof shall at the same time be sent to the other party or parties; and no other production shall be used or put in evidence at the proof unless by consent of parties or by permission of the sheriff presiding thereat, on cause shown to his satisfaction, and on such terms as to expenses or otherwise as seems just.

Ordering of production of documents by sheriff S

80 The sheriff may order production of documents at any state of the cause, and the sheriff may allow a party, at any time before judgment, to produce any document which he has failed to produce timeously, on such conditions as to payment of expenses and allowing further proof as to the sheriff shall seem just.

Optional procedure before executing commission and diligence S

81 (1) Any party who has obtained a commission and diligence for the recovery of documents may, at any time, before executing the same against another party or other parties to the cause, or against any haver, serve upon such party, or parties, or haver, an order with certificate attached in terms of Form K as set out in the Appendix to this Schedule.

(2) Such order shall be served by registered or recorded delivery letter, and may be addressed to the care of the known solicitor or solicitors for the party or parties, or for the haver, from whom the documents are sought to be recovered.

(3) Such order shall be obtempered by such party, or parties, or by such haver, in the manner and within the time specified therein.

(4) When the order, certificate in terms thereof and inventoried documents (if any) are received by the sheriff clerk, official intimation shall be given by him forthwith to the solicitor or solicitors of the party or parties to the cause that the order has been served and obtempered; and it shall not be competent for any party, other than the party who served the order, to borrow any of the documents until after the expiry of 7 days from the date of such official intimation.

(5) If the party who served the order is not satisfied that full production has been made under the specification, or that adequate reasons for non-production have been given, he may execute the commission and diligence in normal form, notwithstanding his adoption in the first instance of the foregoing procedure by order.

(6) In the event of the production under such order as aforesaid of extracts from books whether such extracts are certified or not, the sheriff may, on cause shown, order that the party who served the order shall be at liberty to inspect and take copies of any entries in any books falling under the specification, subject, in the event of any question of confidentiality arising, to the inspection being made, and the copies being taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence; and the sheriff may, on cause shown, order the production of any books (not being bankers’ books or books of public record) falling under a specification, notwithstanding the production of certified extracts therefrom.

Confidentiality S

82 In any cause in which, either under the optional procedure provided in rule 81 or in the execution of a commission and diligence in normal form, confidentiality is claimed for any of the documents produced, such documents shall be enclosed in a separate sealed packet, which shall not be opened or put in process except by authority of the sheriff obtained on the application of the party serving the order, or executing the commission and diligence, after opportunity has been given to the party, parties or haver, making production, to be heard.

Warrant for production of original documents from public records S

83 (1) Where any party to a cause desires to obtain from the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland production of the originals of any register or deed under his custody, he shall apply by motion to the sheriff before whom the cause depends, after 7 days’ notice of such application given in writing to the Keeper in charge of the originals.

(2) Upon such application the sheriff may by interlocutor, certify that it is necessary for the ends of justice that the application should be granted, and the party may make application by letter (enclosing a copy of the interlocutor duly certified by the sheriff clerk or one of his deputes) addressed to the principal clerk of session, for an order from the Lords of Council and Session authorising the Keeper to exhibit the original of any register or deeds to the sheriff, and that in the hands of an officer to be selected by the said Keeper.

(3) The principal clerk of session shall submit the same to a Lord Ordinary in Chambers, who, if satisfied, shall grant a warrant on behalf of the Lords of Council and Session. A certified copy of said warrant shall be served upon the Keeper.

(4) The expense attending the transmission and exhibition of such original registers or deeds shall be defrayed in the first instance by the party or parties on whose application they are exhibited.

Orders for inspection S

84 (1) Any application to the sheriff for an order for the inspection, photographing, preservation, custody or detention of documents or other property (including, where appropriate, land) or for the production, recovery or the taking of samples thereof or the carrying out of any experiment thereon or therewith made in any civil proceedings which have been commenced before that sheriff shall be made by minute craving that the sheriff should grant such an order and specifying the order sought.

(2) Upon such minute being lodged, the sheriff shall forthwith appoint—

(a) the application to be heard at a diet to be fixed by him, and

(b) appoint intimation to other parties to the proceedings and to such other persons as appear to him to have an interest relevant to the application.

(3) After hearing parties, the sheriff may either grant or refuse the order sought, in whole or in part, or as amended, and may order the applicant to find such caution for any loss, damage or expenses which may be incurred as a result of the application as to the sheriff seems just.

(4) Any application to the sheriff for such an order as is referred to in paragraph (1), made where proceedings have not been commenced, by any person who appears to the sheriff to be likely to be a party to or minuter in proceedings which are likely to be brought, shall be made by initial writ served upon all persons who are likely to be parties to such proceedings when commenced; and such application shall be and shall be dealt with as a summary application, provided that the sheriff may make an order for such intimation to such other persons as appear to him to have an interest relevant to the application, and may order the applicant to find such caution for any loss, damage or expense which may be incurred as a result of the application as to the sheriff seems just.

(5) Any party who has obtained an order under this rule shall serve by registered or recorded delivery letter a certified copy of the interlocutor granting such order upon—

(a) (i) in the case of an order made under paragraph (3), any other party or parties to the cause;

(ii) in the case of an order made under paragraph (4), any person upon whom service has been made; and

(b) such other persons to whom the sheriff has appointed intimation of the application to be made;

but it shall not be necessary to serve such certified copy on any person who was present or represented when the application was heard; and such order shall be obtempered by the party or parties to whom it is directed in the manner and within the time specified therein.

Orders to disclose identity of persons S

[F8 84A (1) An application for an order under section 1(1A) of the M5 Administration of Justice (Scotland) Act 1972 requiring a person to disclose such information as he has as to the identity of any person who might be a witness in a cause in dependence before that sheriff court shall be made by minute in the process of that cause craving such an order and specifying the order sought.

(2) On a minute being lodged under paragraph (1), the sheriff shall appoint forthwith—

(a) the application to be heard at a diet to be fixed by him; and

(b) intimation to be made to any other party to the cause and to such other person as appears to him to have an interest in the application.

(3) After hearing parties, the sheriff may either grant or refuse the order sought in whole or in part, or as amended, and subject to such conditions, including caution, as he thinks fit.

(4) An application for an order under section 1(1A) of the M6 Administration of Justice (Scotland) Act 1972 requiring a person to disclose such information as he has as to the identity of any person who might be a witness or defender in any civil proceedings which are likely to be brought, shall be made by summary application.

(5) A summary application under paragraph (4) shall crave the order which is sought and shall specify the nature of the proposed proceedings and the information required.

(6) On presentation of a summary application under paragraph (4), the sheriff may make an order for intimation to such persons as appear to him to have an interest in the application.

(7) After the hearing of the summary application, the sheriff may grant the order sought in whole or in part, or as amended, subject to such conditions, including caution, as he thinks fit.

(8) Subject to paragraph (9), a certified copy interlocutor granting an order made under this rule shall—

(a) be served upon the person to whom it is directed; and

(b) be intimated to any other person to whom intimation of the minute or application, as the case may be, has been made,

by the party in whose favour it has been granted.

(9) An interlocutor granting an order under this rule shall not be served upon, or intimated to, a person who was present or represented when the application under this rule was determined.

(10) An interlocutor of the court under this rule shall be obtempered by the person to whom it is directed in the manner and within the time specified.]

Textual Amendments

F8 Rule 84A inserted by S.I. 1986/1966, para. 2(8)

Marginal Citations

M5 1972 c.59(36:1).

M6 1972 c.59(36:1).

S procedure at proof

Proof to be taken continuously S

85 The proof shall be taken so far as possible continuously, but the sheriff may adjourn the diet from time to time.

Objections S

86 (1) All objections to the admissibility of oral or documentary evidence or to the production of documents, the submissions of parties in relation thereto and the decision of the sheriff or commissioner thereon shall be recorded by the shorthand writer and be extended with the notes of evidence; provided that the sheriff or commissioner may also, if he considers it necessary or desirable to do so, dictate to the shorthand writer a short note of the objection and decision.

(2) The sheriff or commissioner if he considers an objection of sufficient importance may direct that the evidence to which the objection relates should be recorded separately from the remainder of the evidence or report of proceedings.

(3) Where the recording of evidence has been dispensed with in terms of rule 73, the sheriff, if called upon to do so, shall—

(i) in the case of objections to the admissibility of evidence on the ground of confidentiality or to producing a document on any ground, record in a note the terms of such objections and his decision thereon; and

(ii) in all other cases record, in the note to his interlocutor disposing of the merits of the cause the terms of any objections and his decision thereon.

Incidental appeal against rulings on confidentiality of evidence and production of documents S

87 (1) Where a party to the cause or other person objects to the admissibility of oral or documentary evidence on the ground of confidentiality or to producing a document on any ground, any party or person may, if dissatisfied with the ruling of the sheriff respecting the objection, express immediately his formal dissatisfaction and, with leave of the sheriff, appeal to the sheriff principal, who shall dispose of the appeal with the least possible delay; but otherwise it shall not be competent during a proof to submit to review any decision of the sheriff as to the admissibility of evidence or the production of documents.

(2) The incidental appeal referred to in paragraph (1) shall not remove the cause from the sheriff who may proceed with the cause as regards points not necessarily dependent upon the ruling appealed against.

Parties to be heard at close of proof S

88 At the close of the proof, or at an adjourned diet if for any reason the sheriff shall have seen fit to postpone the hearing, the sheriff shall hear parties and thereafter shall pronounce judgment with the least possible delay.