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

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Paragraph 2

SCHEDULE 2S THE RULES OF THE COURT OF SESSION 1994

PreliminaryS

CHAPTER 1S CITATION, APPLICATION, INTERPRETATION AND FORMS

CitationS

1.1.  These Rules may be cited as the Rules of the Court of Session 1994.

ApplicationS

1.2.  These Rules apply to any cause whether initiated before or after the coming into force of these Rules.

Interpretation etc.S

1.3.  –

(1) In these Rules, unless the context otherwise requires–

  • “the Act of 1988" means the Court of Session Act 1988 F1;

    “act" means an order of the court which is extractable, other than a decree;

    “agent", except in rule 16.2(2)(e) (service furth of United Kingdom by party’s authorised agent) and rule 16.14(1) (arrestment of cargo), means a solicitor or person having a right to conduct the litigation:

    “the Auditor" means the Auditor of the Court of Session;

    “cause" means any proceedings;

    “clerk of court" means the clerk of session acting as such;

    “clerk of session" means a depute clerk of session or an assistant clerk of session, as the case may be;

    “counsel" means a practising member of the Faculty of Advocates;

    “depute clerk of session" means a depute clerk of session and justiciary;

    “Deputy Principal Clerk" means the Deputy Principal Clerk of Session;

    “document" has the meaning assigned to it in scection 9 of the Civil Evidence (Scotland) Act 1988 F2;

    “the Extractor" means the Extractor of the Court of Session or the Extractor of the acts and decrees of the Teind Court, as the case may be;

    “Keeper of the Records" means the Keeper of the Records of Scotland;

    “Keeper of the Registers" means the Keeper of the Registers of Scotland;

    “other person having a right of audience" means a person having a right of audience before the court by virtue of Part II of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 F3 (legal services) in respect of the category and nature of the cause in question;

    “party" means a person who has entered appearance in an action or lodged a writ in the process of a cause (other than a minuter seeking leave to be sisted to a cause); and “parties" shall be construed accordingly;

    “period of notice" means–

    (a)

    in relation to service, or intimation on a warrant for intimation before calling, of a summons, the period determined in accordance with rule 13.4 (period of notice in summonses); and

    (b)

    in relation to service of any other writ, intimation of a writ other than intimation referred to in sub-paragraph (a), or the period for lodging answers to a writ, the period determined in accordance with rule 14.6 (period of notice for lodging answers);

  • “person having a right to conduct the litigation" means a person having a right to conduct litigation by virtue of Part II of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 in respect of the category and nature of the cause in question;

    “Principal Clerk" means the Principal Clerk of Session and Justiciary;

    “principal writ" means the writ by which a cause is initiated before the court;

    “proof" includes proof before answer;

    “rolls" means the lists of the business of the court issued from time to time by the Keeper of the Rolls;

    “send" includes deliver; and “sent" shall be construed accordingly;

    “step of process" means a document lodged in process other than a production;

    “summons" includes the condescendence and pleas-in-law annexed to it;

    “vacation judge" means a judge of the court sitting as such in vacation;

    “writ" means summons, petition, note, application, appeal, minute, defences, answers, counter-claim, issue or counter-issue, as the case may be.

(2) for the purpose of these Rules–

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

(b)an affidavit shall be sworn or affirmed before a notary public or any other competent authority.

(3) Where a power is conferred in these Rules on the Lord President to make directions, the power may be exercised in his absence by the Lord Justice-Clerk.

(4) Where a provision in these Rules imposes an obligation on a principal officer, the obligation may be performed by a clerk of session authorised by him or by another principal officer; and in this paragraph “principal officer" means the Principal Clerk, Deputy Principal Clerk, Deputy Principal Clerk (Administration), Keeper of the Rolls or Principal Extractor.

(5) Unless the context otherwise requires, where a provision in these Rules requires a party to intimate, give written intimation, or send a document, to another party, it shall be sufficient compliance with that provision if intimation is given or the document is sent, as the case may be, to the agent acting in the cause for that party.

(6) Unless the context otherwise requires, anything done or required to be done by a party under a provision in these Rules may be done by the agent for that party acting on his behalf.

(7) Where a provision in these Rules requires a document to be lodged in an office or department of the Office of Court within a specified period and the last day of that period is a day on which that office or department is closed, the period shall be extended to include the next day on which that office or department, as the case may be, is open or on such other day as may be specified in a notice published in the rolls.

(8) Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form is a reference to the Chapter, Part, rule, or the form in the appendix, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of the paragraph or that head of the sub-paragraph, in which the reference occurs.

FormsS

1.4.  Where there is a reference to the use of a form in these Rules, that form in the appendix to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

CHAPTER 2S RELIEF FROM COMPLIANCE WITH RULES

Relief for failure to comply with rulesS

2.1.  –

(1) The court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or other excusable cause on such conditions, if any, as the court thinks fit.

(2) Where the court relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), the court may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

General and administrationS

CHAPTER 3S OFFICES OF THE COURT

Office of CourtS

3.1.  –

(1) The Office of Court shall comprise–

(a)the General Department;

(b)the Petition Department;

(c)the Rolls Department;

(d)the Extracts Department; and

(e)the Teind Office;

but shall not include the office of the Accountant of Court or the Auditor.

(2) Each department of the Office of Court shall be under the charge of an officer who shall act under the dir ection of the Principal Clerk in consultation with the Lord President.

General DepartmentS

3.2.  –

(1) The General Department shall be under the charge of the Deputy Principal Clerk.

(2) There shall be lodged in the General Department all processes in–

(a)causes originating in the court and initiated by summons or simplified divorce application;

(b)appeals from inferior courts, remits from the sheriff court, appeals, including references, submissions and applications of the nature of appeals under statute, stated cases and special cases;

(c)causes transmitted from the sheriff court on contingency; and

(d)appeals to the Lands Valuation Appeal Court.

(3) All processes lodged in the General Department shall be classified as–

(a)ordinary actions;

(b)Admiralty and commercial actions;

(c)family (including consistorial) actions; or

(d)lands valuation causes.

Petition DepartmentS

3.3.  –

(1) The Petition Department shall be under the charge of the Deputy Principal Clerk.

(2) There shall be lodged in the Petition Department all processes in causes which are initiated by petition.

Rolls DepartmentS

3.4.  –

(1) The Rolls Department shall be under the charge of the Keeper of the Rolls, who shall be assisted by a clerk of session known as the Assistant Keeper of the Rolls.

(2) The Keeper of the Rolls shall be responsible for keeping the rolls of the court in consultation with the Lord President, the Lord Justice-Clerk and the Principal Clerk.

Extracts DepartmentS

3.5.  –

(1) The Extracts Department shall be under the charge of the Principal Extractor who shall be assisted by a clerk of session known as the Extractor.

(2) The Principal Extractor shall be responsible for extracting the acts and decrees of the court except those in teind causes.

(3) Subject to rule 3.6(3) (duties of the clerk of teinds), the Extractor shall be the Keeper of–

(a)the Register of Acts and Decrees;

(b)the Register of Edictal Citations and Executions of Diligence; and

(c)the Register of Decrees in Consistorial Causes.

(4) As Keeper of the Register of Edictal Citations and Executions of Diligence, the Extractor shall–

(a)record on the copy of the schedule of diligence received by him the date of its receipt at his office;

(b)record the details of that schedule and its receipt in the register;

(c)preserve that schedule and any citation for a period of three years from the date of receipt of the schedule or citation, as the case may be; and

(d)make the register and schedules of diligence and citations executed on him available for inspection at his office during its normal business hours.

Teind OfficeS

3.6.  –

(1) The Teind Office shall be under the charge of a clerk of session known as the clerk of teinds.

(2) There shall be lodged in the Teind Office all processes which are dealt with by the Teind Court or the Lord Ordinary in teind causes.

(3) The clerk of teinds shall–

(a)keep and index the records and processes in the Teind Office; and

(b)be the Keeper of the Teind Rolls and the Keeper of the Minute Book of the Teind Court.

The AuditorS

3.7.  The Auditor shall be responsible for the taxation of accounts of expenses in any cause.

CHAPTER 4S THE PROCESS

Form, size, etc., of documents forming the processS

4.1.  –

(1) In an action or petition, the principal summons or petition, as the case may be, shall be on a printed form approved by the court, completed in writing, typescript or print and backed with a printed backing approved by the court.

(2) A writ, other than a principal summons or petition, bringing a cause before the court shall be in writing, typescript or print, on paper of a texture and size approved by the court and backed with cartridge paper or paper of similar durability.

(3) A step of process lodged in a cause shall be in writing, typescript or print, on paper of a texture and size approved by the court and, except in the case of a motion, backed with cartridge paper or paper of similar durability.

(4) A step of process other than a motion shall be securely fastened, folded and backed lengthwise and shall bear, on the first page and on the backing, a delimited square for the cause reference number assigned to the principal writ on being lodged.

Signature of documentsS

4.2.  –

(1) Subject to paragraph (5), each page of a summons and the condescendence and pleas-in-law annexed to it shall be signed by an agent.

(2) Subject to paragraph (5), a letter passing the signet shall be signed by an agent.

(3) Subject to paragraphs (5) and (9), a petition, note, application or minute shall be signed by counsel or other person having a right of audience, except that–

(a)a petition for the sequestration of the estates of the petitioner, or for recall of his sequestration, may be signed by the petitioner or an agent;

(b)a petition for suspension, suspension and interdict or suspension and liberation may be signed by an agent;

(c)a simplified divorce application under rule 49.73 shall be signed by the applicant;

(d)an application for registration under Chapter 62 (recognition, registration and enforcement of foreign judgments etc.) may be signed by the petitioner or an agent; and

(e)a minute for variation of custody may be signed by a party litigant.

(4) Subject to paragraph (9), defences, answers and other writs (other than appeals) not referred to in paragraphs (1), (2) and (3), shall be signed by counsel or other person having a right of audience, or, in the case of a party litigant, the party litigant.

(5) Where a party litigant is unable to obtain the signature of counsel or other person having a right of audience or an agent on a document as required by paragraph (1), (2) or (3), he may request the Deputy Principal Clerk to place the document before the Lord Ordinary for leave to proceed without such signature; and the decision of the Lord Ordinary shall be final and not subject to review.

(6) Where the Lord Ordinary grants leave to proceed under paragraph (5), the interlocutor granting leave shall be written and signed on the face of the document and the party litigant shall sign the document.

(7) Where an agent signs a document under this rule, he shall append to his signature his business address–

(a)in the case of a summons, at the end of the first page and on the last page after the pleas-in-law; and

(b)in the case of any other document, at the end of the last page.

(8) Where counsel or other person having a right of audience has signed a writ, he shall be regarded as the drawer of it and answerable for what it contains.

(9) The following documents shall not require any signature:–

(a)a minute of amendment;

(b)answers to a minute of amendment;

(c)a minute of sist;

(d)a minute of transference;

(e)a minute of objection to a minute of transference;

(f)a note of objection.

Lodgings of processesS

4.3.  A process shall be lodged in every cause commenced by summons or petition when–

(a)in the case of a summons, the summons is presented for signeting; and

(b)in the case of a petition, the petition is presented to the Petition Department.

Steps of processS

4.4.  –

(1) A process shall include the following steps of process:–

(a)an inventory of process;

(b)the principal writ;

(c)an interlocutor sheet;

(d)a motion sheet; and

(e)a minute of proceedings.

(2) A step of process referred to in paragraph (1), other than the principal writ, shall contain at least two pages.

(3) A step of process shall be assigned a number of process which shall be marked on the backing with the cause reference number of the principal writ and recorded in the inventory of process.

ProductionsS

4.5.  –

(1) On each occasion a production is lodged in process–

(a)an inventory of productions shall be lodged in process; and

(b)a copy of the inventory of productions shall be sent to every other party.

(2) A production shall be–

(a)marked with a number of process with the cause reference number assigned to the principal writ; and

(b)if consisting of more than one sheet, securely fastened together.

Intimation of steps of processS

4.6.  –

(1) A party lodging a step of process shall–

(a)give written intimation of the lodgment of it to every other party; and

(b)subject to any other provision in these Rules, send a copy of the step of process lodged to every such party.

(2) A clerk of session shall not mark a step of process as received until a certificate of intimation has been endorsed on it.

Lodging of documents in Inner House causesS

4.7.  –

(1) A party, on lodging in a cause in the Inner House–

(a)a petition or note,

(b)an appeal, application for leave to appeal, stated case, special case, case, reference or submission,

(c)answers,

(d)a reclaiming print required under rule 38.6(2) or 38.7(3) (reclaiming prints for reclaiming motions),

(e)a print of the whole pleadings and other documents required under rule 39.1(4) (print of pleadings etc. for motion for new jury trial),

(f)an appeal print required under rule 40.7(2)(a)(ii) (appeal print in appeal from inferior court), or

(g)an appendix required under rule 38.19 (lodging of appendices in reclaiming motions), 39.5 (lodging of appendix in application for new trial) or 40.17 (lodging of appendices in appeals from inferior court),

shall lodge in process six copies of the document; and, unless otherwise agreed, send six copies of it to every other party.

(2) Where a party intends to refer to a document, other than one mentioned in paragraph (1) at a hearing before a Division of the Inner House, he shall lodge four copies of it in process by 12 noon on the second sederunt day before the hearing.

Copies of documents for use of courtS

4.8.  –

(1) A clerk of session shall refuse to accept a copy of a document for the use of the court which does not conform to a standard approved by the court in size, spacing, lettering, legibility, quality of paper or otherwise.

(2) A party tendering a document which is refused by a clerk of session shall have the right to apeal in writing to the Deputy Principal Clerk.

(3) Where the Deputy Principal Clerk refuses an appeal under paragraph (2), he may extend the time for lodging the document.

(4) A decision of the Deputy Principal Clerk under this rule shall be final and not subject to review.

Documents ordered or allowed to be lodgedS

4.9.  –

(1) Where the court pronounces an interlocutor ordering or allowing a document to be lodged in process, it shall specify a time within which the document shall be lodged.

(2) The time for lodging a document referred to in paragraph (1) may be prorogated by the court on an application by motion enrolled before the time for lodging has expired.

(3) A document lodged in process, in terms of an interlocutor ordering or allowing it to be lodged, shall have marked on it–

(a)the date of the interlocutor ordering or allowing it to be lodged;

(b)the date of any interlocutor prorogating the time originally allowed; and

(c)the time allowed for lodging it.

Receipt of documentsS

4.10.  –

(1) Subject to paragraph (2), a clerk of session shall mark the date of receipt on every document lodged in process other than a production.

(2) A clerk of session shall not accept, or mark as received, a document after the day on which it is due to be lodged.

Documents not to be borrowedS

4.11.  –

(1) Subject to paragraph (2), a writ shall remain in the Office of Court and shall not be borrowed from process, but may be inspected by any person having an interest.

(2) Paragraph (1) shall not apply to–

(a)a party borrowing his principal writ in order to do diligence for which a warrant mentioned in rule 13.6(c) has been obtained;

(b)a party borrowing his principal writ for the purposes of service or intimation; or

(c)a party borrowing his writ for the purpose of writing on it and authenticating an amendment which has been made.

(3) The following steps of process shall not be borrowed from process:–

(a)the inventory of process;

(b)the interlocutor sheet;

(c)the motion sheet;

(d)the minute of proceedings;

(e)any inventory of productions;

(f)the principal copy of a report ordered by the court and lodged in process;

(g)the principal or any copy of a bond of caution or a consignation receipt lodged in process; and

(h)the principal copy of any other document by which an order of the court to find caution or give security is satisfied and lodged in process until the order is recalled.

Borrowing and returning documentsS

4.12.  –

(1) A party borrowing a document which may be borrowed shall give a receipt for it, dated and signed, on the inventory of process.

(2) Subject to paragraph (3), before a clerk of session accepts a document for return to process, he shall–

(a)compare it with the inventory of process and receipt in the presence of the person returning it, delete the receipt and initial and date the deletion; or

(b)in the case of a partial return, mark on the inventory of process the document so returned and initial and date the entry.

(3) Where the document being returned is bulky so that it cannot be examined conveniently at the time–

(a)a clerk of session shall not accept the document without a separate slip accompanying it, dated and signed by the party returning it, specifying the number of process so returned; and

(b)the clerk of session receiving it shall examine it before the close of the following business day and give written intimation to the party returning it of any inaccuracy in the slip accompanying it.

(4) Where written intimation is not given under paragraph (3)(b), the accuracy of the slip shall be presumed and the party returning the document shall be exonered as if the receipt had been deleted under paragraph (2)(a) or marked under paragraph (2)(b), as the case may be.

(5) A party returning more than one document shall ensure that the documents returned are arranged in consecutive order according to the inventory of process; and a clerk of session may refuse to accept documents which are not so arranged.

(6) The court may, on the motion of a party, ordain any other party who has borrowed a document to return that document within such period as the court think's fit.

Finally extracted processes not to be borrowedS

4.13.  No step of process may be borrowed after a final extract has been issued.

Lost documentsS

4.14.  –

(1) Where–

(a)a principal writ,

(b)other pleadings, or

(c)an interlocutor sheet,

is lost or destroyed, a copy of it may be substituted which is proved in the cause to the satisfaction of the court and authenticated in such manner as the court thinks fit.

(2) A copy of a document substituted under paragraph (1) shall be equivalent to the original for the purposes of the cause and the process of which it forms a part, including the use of diligence.

Outer House interlocutorsS

4.15.  –

(1) This rule applies to interlocutors pronounced in the Outer House.

(2) Subject to paragraph (3), an interlocutor pronounced by the Lord Ordinary may be written by the clerk of court and shall be signed by the Lord Ordinary.

(3) Subject to any direction he may be given by the Lord Ordinary, a depute clerk of session may sign an interlocutor, other than a final interlocutor, in respect of a motion which is not starred; and that interlocutor shall be treated for all purposes as if it had been signed by the Lord Ordinary.

(4) An interlocutor may be signed during session or in vacation.

(5) An extract of an interlocutor which is not signed in accordance with the provisions of this rule shall be void and of no effect.

(6) An interlocutor may, on cause shown, be corrected or altered at any time before extract by–

(a)the Lord Ordinary who signed it or on whose behalf it was signed; or

(b)in the event of the death, disability or absence of the Lord Ordinary, any other judge of the court.

Inner House interlocutorsS

4.16.  –

(1) This rule applies to interlocutors pronounced in the Inner House.

(2) Subject to paragraph (3), an interlocutor of the Inner House may be written by the clerk of court and shall be adjusted and signed by–

(a)the judge who presided in the Division of the Inner House when the matter to be dealt with in the interlocutor was determined, or

(b)in the event of the death, disability or absence of that judge, the next senior judge who sat in that Division when the matter to be dealt with in the interlocutor was determined,

as soon as reasonably practicable and after such consultation as may be necessary with the other members of the Division who sat.

(3) An interlocutor of the Inner House in respect of a motion which is not starred shall be adjusted and signed by the judge presiding at the time when the motion was brought before the Division of the Inner House.

(4) An interlocutor may be signed during session or in vacation.

(5) The judge signing an interlocutor of the Inner House shall append the letters “I.P.D." to his signature as conclusive evidence that the requirements of the preceding paragraphs of this rule have been complied with.

(6) An extract of an interlocutor which is not signed in accordance with the provisions of this rule shall be void and of no effect.

(7) An interlocutor may, on cause shown, be corrected or altered at any time before extract by–

(a)the judge who signed it; or

(b)in the event of the death, disability or absence of that judge, the next senior judge of the same Division of the Inner House.

CHAPTER 5S CAVEATS

Orders against which caveats may be lodgedS

5.1.  A person may only lodge a caveat against–

(a)an interim interdict sought in an action before he has lodged defences;

(b)an interim order sought in an action before the expiry of the period within which he could enter appearance;

(c)an interim order (other than an order under section 1 of the Administration of Justice (Scotland) Act 1972 F4 (orders for inspection of documents and other property, etc.) sought in a petition before he has lodged answers;

(d)an order for intimation, service and advertisement of a petition to wind up, or to appoint an administrator to, a company in which he has an interest; and

(e)an order for intimation, service and advertisement of a petition for his sequestration.

Form, lodging and renewal of caveatsS

5.2.  –

(1) A caveat shall be in Form 5.2 and shall be lodged in the Petition Department.

(2) A caveat shall remain in force for a period of one year from the date on which it was lodged and may be renewed on its expiry for a further period of a year and yearly thereafter.

CHAPTER 6S THE ROLLS

Printing and publishing of rollsS

6.1.  The rolls shall be printed and published, and delivered to subscribers, under directions made from time to time by the Lord President.

Fixing and allocation of diets in Outer HouseS

6.2.  –

(1) This rule applies to the fixing and allocation of diets in the Outer House.

(2) The court shall not proceed to fix a diet where–

(a)a proof is allowed;

(b)issues are approved; or

(c)a cause is appointed to the Procedure Roll.

(3) Subject to paragraph (4), a cause appointed to the Procedure Roll may be put out for hearing by the Keeper of the Rolls in the course of any week where, unless the parties otherwise agree, the diet has been published in the rolls on Thursday of the preceding week.

(4) Where a hearing on the Procedure Roll is anticipated to be of some length or complexity, the parties may arrange a fixed diet with the Keeper of the Rolls.

(5) As soon as convenient after the allowance of a proof or the approval of issues, the Keeper of the Rolls shall publish in the rolls a list of causes in which diets for proof or jury trial are to be fixed or allocated.

(6) Within 28 days after the appearance of a cause on a list published under paragraph (5), each party shall ensure that Form 6.2 is completed and sent to the Keeper of the Rolls.

(7) The Keeper of the Rolls may allocate a diet of proof or jury trial having regard to the information provided in Form 6.2.

(8) If a party fails to comply with paragraph (6), the Keeper of the Rolls may put the cause out on the By Order Roll before the Lord Ordinary.

(9) At a hearing on the By Order Roll under paragraph (8), the Lord Ordinary shall–

(a)seek an explanation as to why Form 6.2 was not completed and sent timeously to the Keeper of the Rolls;

(b)ascertain the information sought in Form 6.2, if not already ascertained by the Keeper of the Rolls;

(c)require the production of a completed Form 6.2, if not already in the hands of the Keeper of the Rolls; and

(d)make such order as to expenses, if any, as he thinks fit.

(10) Where Form 6.2 is completed and sent to the Keeper of the Rolls before the hearing on the By Order Roll under paragraph (8), the Keeper of the Rolls may cancel that hearing.

(11) Where, at any time after Form 6.2 has been completed and sent to the Keeper of the Rolls, a party’s estimate of the likely length of the proof or jury trial alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(12) On the allocation of a diet of proof or jury trial, the Keeper of the Rolls shall–

(a)give written intimation of that diet to each party; and

(b)cause the date of th e diet to be inserted in the interlocutor which allowed the proof or jury trial.

(13) An application for the allocation of a special diet may be made to the Keeper of the Rolls–

(a)on cause shown;

(b)of consent of all parties; and

(c)before a diet has been allocated under a preceding paragraph of this rule.

(14) Where an application under paragraph (13) is refused, the parties may bring the application before the Lord President; and the Lord President, or a judge nominated by him, shall determine the application in chambers.

(15) Parties shall attend on the Keeper of the Rolls for the purpose of fixing a diet for–

(a)a proof or jury trial in a cause of exceptional length or complexity;

(b)an undefended proof;

(c)a continued proof;

(d)a continued hearing; or

(e)a hearing on evidence.

Fixing and allocation of diets in Inner HouseS

6.3.  –

(1) This rule applies to the fixing and allocation of diets in the Inner House.

(2) Within 28 days after a cause depending before the Inner House is appointed to the Summer Roll for hearing, each party shall ensure that Form 6.3 is completed and sent to the Keeper of the Rolls.

(3) The Keeper of the Rolls may fix or allocate a diet for a hearing on the Summar Roll, having regard to the information provided in Form 6.3.

(4) If a party fails to comply with paragraph (2), the Keeper of the Rolls may put the cause out on the By Order Roll before a Division of the Inner House.

(5) At a hearing on the By Order Roll under paragraph (4), the court shall–

(a)seek an explanation as to why Form 6.3 was not completed and sent timeously to the Keeper of the Rolls;

(b)ascertain the information sought in Form 6.3, if not already ascertained by the Keeper of the Rolls;

(c)require the production of a completed Form 6.3, if not already in the hands of the Keeper of the Rolls; and

(d)make such order as to expenses, if any, as it thinks fit.

(6) Where Form 6.3 is completed and sent to the Keeper of the Rolls before the hearing on the By Order Roll under paragraph (4), the Keeper of the Rolls may cancel that hearing.

(7) Where, at any time after Form 6.3 has been completed and sent to the Keeper of the Rolls, a party’s estimate of the likely length of the hearing alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(8) On the allocation of a diet under this rule, the Keeper of the Rolls shall give written intimation of the diet allocated to each party.

(9) Not less than 5 weeks before the hearing of a cause on the Summar Roll, the Keeper of the Rolls shall put the cause out on the By Order Roll before a Division of the Inner House.

(10) At a hearing on the By Order Roll under paragraph (9), parties shall–

(a)advise the court whether or not the hearing on the Summar Roll is to proceed; and

(b)where such a hearing is to proceed, provide the court with a re-assessment of the likely duration of the hearing.

Putting out causes for proof, jury trial or hearingS

6.4.  –

(1) The Keeper of the Rolls shall prepare and publish in the rolls from time to time lists of all causes in which diets have been fixed or allocated–

(a)in the Summar Roll, or

(b)for proof, jury trial or other hearing,

and put out such causes before such Division of the Inner House or Lord Ordinary, as the case may be, as may be convenient.

(2) Without prejudice to rule 6.2(3) (causes appointed to procedure roll put out for hearing), a cause published in the rolls for hearing on any roll or at any diet shall be published not later than the second day before the day on which the cause is to be heard.

CHAPTER 7S EXTRACTS AND OFFICIAL CERTIFIED COPY INTERLOCUTORS

Applications for extractsS

7.1.  –

(1) Subject to the provisions of this Chapter mentioned in paragraph (2), an application may be made for an extract of an act or a decree after the expiry of 7 days after the date of the act or decree, as the case may be.

(2) The provisions referred to in paragraph (1) are:–

  • paragraph (4) of this rule,

  • rule 7.2 (extracts of decrees in certain family actions),

  • rule 7.3 (amendments to principal writ),

  • rule 7.4 (return of steps of process and borrowing productions).

(3) An application under paragraph (1) shall be made by note to the Extractor in Form 7.1 lodged in the appropriate department of the Office of Court.

(4) The court may authorise immediate extract or supersede extract for such period as it thinks fit.

Extracts of decrees in certain family actionsS

7.2.  –

(1) Subject to paragraph (2), a decree–

(a)of divorce,

(b)of declarator of nullity of marriage, or

(c)in an action to which rule 49.28 (evidence in certain undefended family actions) applies,

shall be extracted automatically after the expiry of 21 days after the date of decree unless a reclaiming motion has been enrolled.

(2) A decree of divorce in a simplified divorce application shall be extracted immediately.

(3) An extract under paragraph (1) or (2) shall be issued by the Extractor to the pursuer and a copy of it sent by the Extractor by first class post to the defender where his address is known.

(4) Additional extracts under this rule may be obtained from the Extracts Department.

Amendments to principal writS

7.3.  An amendment which has been allowed to the instance or a conclusion of a summons, or to a petition, shall be written on the principal writ before the process is transmitted to the Extracts Department for an extract.

Return of steps of process and borrowing productionsS

7.4.  Before an application is made under rule 7.1 for a final extract–

(a)any step of process which has been borrowed shall be returned; and

(b)each party shall borrow the productions lodged by him.

Decrees for payment in foreign currencyS

7.5.  –

(1) Where an application is made under rule 7.1 for an extract of a decree for payment in a foreign currency, the applicant shall lodge with the note to the Extractor a certified statement of the rate of exchange prevailing at–

(a)the date of the decree sought to be extracted,

(b)the date on which the note to the Extractor is lodged, or

(c)a date within three days before the date on which the note to the Extractor is lodged,

and the sterling equivalent of the principal sum, interest and expenses decerned for.

(2) The certified statement required under paragraph (1) shall be by an official in the Bank of England or an institution authorised under the Banking Act 1987 F5.

Decrees of adjudicationS

7.6.  Where an application is made under rule 7.1 for an extract of a decree of adjudication for debt, the applicant shall lodge with the note to the Extractor a statement of the accumulated sum in Form 7.6.

InterestS

7.7.  Where interest is included in, or payable under, a decree, it shall be at the rate of 8 per cent a year unless otherwise stated.

Fees for extracts to be included in extractsS

7.8.  –

(1) Where the court pronounces an interlocutor awarding a sum of expenses, the interlocutor shall be deemed to include, in addition to such sum, the fees for any extract required to enforce the award.

(2) In an extract of an interlocutor containing an award of expenses, the Extractor shall include the amount of the fee for the extract.

Form of extractsS

7.9.  –

(1) Subjects to paragraphs (2) and (3), the extract of an act or a decree shall be in such form as the Extractor thinks fit.

(2) An extract shall be–

(a)partly or wholly written,

(b)typewritten,

(c)printed,

(d)lithographed, or

(e)photographed,

and subscribed on the last page by the Extractor and have each page impressed with the stamp of the Extractor.

(3) An alteration in an extract shall be authenticated by the initials of the Extractor.

(4) In this rule, a reference to the Extractor includes the Principal Extractor.

Warrants for executionS

7.10.  An extract of a decree on which execution may proceed shall include a warrant for all lawful execution in the following terms:– “and the Lords grant warrant for all lawful execution on this decree".

Official certified copy interlocutorsS

7.11.  –

(1) An application may be made to the appropriate department of the Office of Court for an official certified copy of an interlocutor in respect of–

(a)the appointment of a judicial factor;

(b)the approval of a scheme of arrangement in a petition for variation of a trust under section 1(1) of the Trusts (Scotland) Act 1961 F6;

(c)the approval of a cy pres scheme or a scheme for the variation or reorganisation of a public trust; or

(d)a decree for interim aliment.

(2) The Principal Clerk, the Deputy Principal Clerk, or a clerk of session authorised by either of them, may append to an official certified copy of an interlocutor granting decree for interim aliment a warrant for all lawful execution in the following terms:– “and the Lords grant warrant for all lawful execution on this decree for interim aliment".

CHAPTER 8S TAXES ON MONEY UNDER CONTROL OF THE COURT

Certificates by officer of Inland RevenueS

8.1.  –

(1) Subject to paragraph (2), no–

(a)decree or other interlocutor for payment to a person of any money consigned in the name of the Accountant of Court under the Court of Session Consignations (Scotland) Act 1895 F7,

(b)decree or other interlocutor for payment of consigned money, or for transfer or conveyance to a person of any heritable or moveable property, in a cause which seeks the distribution of the estate of a deceased person, or

(c)decree of exoneration and discharge of a judicial factor appointed by the court to administer and distribute an estate, unless appropriate steps have been taken for the continued administration of a lapsed trust, intestate estate, partnership estate or other estate, heritable or moveable,

shall be pronounced until there has been lodged with the clerk of court a certificate by an authorised officer of the Inland Revenue stating that all taxes or duties payable to the Commissioners of Inland Revenue have been paid or satisfied.

(2) In relation to paragraph (1)(b), in an action of multiplepoinding it shall not be necessary for the issue of such a certificate that all of the taxes or duties payable on the estate of a deceased claimant have been paid or satisfied.

CHAPTER 9S COURT RECORDS

Transmission of recordsS

9.1.  –

(1) The Register of Acts and Decrees for each year shall be transmitted by the Extractor to the Keeper of the Records for permanent custody within 6 months after the end of that year.

(2) Subject to paragraph (3), a process, other than a teind process, shall be transmitted to the Keeper of the Records after the expiry of 5 years after–

(a)the date of the last interlocutor pronounced in the cause; or

(b)where no interlocutor has been pronounced, the date of the calling of the summons or the presentation of the petition, as the case may be.

(3) No process of a petition for–

(a)appointment of a judicial factor, or

(b)the winding up of a company,

shall be transmitted under this rule unless the factor or liquidator, as the case may be, has been granted a final discharge by the court.

Retransmission of processes to Office of CourtS

9.2.—1(1) Where a person, having an interest in a process in the custody of the Keeper of the Records (other than a finally extracted process), requires that process to be transmitted back to the Office of Court–

(a)it shall be transmitted back on payment of such fee as may be due to the Keeper of the Records; and

(b)an entry shall be made in a book to be kept by the Keeper of the Records recording the retransmission, which shall be signed by the clerk of session who receives the process.

(2) No document in a process, may be borrowed by any person while the process remains in the custody of the Keeper of the Records except under the provisions of paragraph (1).

(3) A process transmitted back to the Office of Court under paragraph (1) shall be returned by the Office of Court to the Keeper of the Records as soon as possible after it has ceased to be required.

CHAPTER 10S SITTINGS OF THE COURT

Session and terms of courtS

10.1.  –

(1) The court shall be in session throughout the year except during such periods as the Lord President shall specify by direction as periods when the court shall be in vacation.

(2) There shall be three terms during session when the court shall sit to conduct the ordinary business of the court, namely:–

(a)a winter term,

(b)a spring term, and

(c)a summer term,

the dates of which shall be such as the Lord President shall direct annually.

(3) The Lord President may, if at any time he considers the business of the court so requires, direct that a term of the court shall be extended for such period as may be necessary.

Sederunt daysS

10.2.  –

(1) A day on which the court sits during session under rule 10.3(1) shall be a sederunt day.

(2) The Lord President may, by direction, provide that such days in vacation as he may specify in the direction shall be sederunt days.

Sittings during termS

10.3.  –

(1) Subject to the following paragraphs of this rule, the court shall sit on Tuesday, Wednesday, Thursday and Friday of each week during a term at such times as the Lord President may direct.

(2) The court shall not sit during a term–

(a)subject to paragraph (3), on such public holidays, or

(b)on such other days in exceptional circumstances,

as the Lord President may direct.

(3) A Division of the Inner House or the Lord Ordinary may sit–

(a)on a Monday where it is considered necessary to hear and determine a cause; or

(b)on a Saturday, Sunday or public holiday to hear and determine a matter of urgency.

Sittings during session outwith termsS

10.4.—(1) A Division of the Inner House or the Lord Ordinary may sit on any day when the court is in session after a term has ended to conclude a hearing which has commenced during a term.

(2) A Division of the Inner House may sit at any time when the co urt is in session outwith a term to hear and determine urgent Inner House business.

(3) At any time during session outwith a term, the Lord Ordinary shall–

(a)have the powers of the vacation judge in rule 11.1; and

(b)have such other powers to hear and determine a cause in the Outer House as the Lord President may from time to time direct.

Sittings during vacationS

10.5.—(1) During vacation, one or more of the judges of the court, other than the Lord President and the Lord Justice-Clerk, shall act from time to time as a vacation judge sitting in court or in chambers.

(2) The vacation judge shall deal with the business of the vacation judge under rule 11.1(1) on such days and at such times as may be necessary or convenient, subject to any direction of the Lord President.

(3) A Division of the Inner House or the Lord Ordinary may sit during vacation, whether or not on a sederunt day, to conclude a hearing commenced when the court was in session.

(4) A Division of the Inner House may sit during vacation, whether or not on a sederunt day, to hear and determine urgent Inner House business which cannot competently be heard and determined by the vacation judge.

Lord Ordinary in Exchequer CausesS

10.6.  The Lord Ordinary in Exchequer Causes may hear and determine an Exchequer cause when the court is in session or in vacation.

CHAPTER 11S VACATION JUDGE

Powers of vacation judgeS

11.1.—(1) Subject to any other provision in these Rules and paragraph (2) of this rule, the vacation judge may, during vacation, hear and determine–

(a)a motion which might be determined during session by the Lord Ordinary;

(b)an application which might be determined during session by the Lord Ordinary in chambers; and

(c)a motion which does not affect the merits, in a cause in dependence in the Inner House.

(2) The vacation judge shall not be bound to hear or determine any matter if, in his opinion, it would be more appropriate for the matter to be dealt with in the session of the court after the vacation.

CHAPTER 12S ASSESSORS

Summoning of assessorsS

12.1.—(1) Subject to the following provisions of this Chapter, the court may, at its own instance or on the motion of a party, summon to its assistance a qualified person to sit with the court to act as an assessor at a proof or hearing in any cause.

(2) Where the court considers summoning an assessor at its own instance, it shall hear the parties on the matter before making a decision.

(3) Where an interlocutor is pronounced summoning an assessor, the court shall remit to the Deputy Principal Clerk to arrange for the attendance of the assessor selected.

Consignation of money for fees of assessorsS

12.2.  An interlocutor summoning an assessor other than in a cause under the Patents Act 1977 F8 shall only be pronounced subject to the condition that there shall be consigned into court such sum as the court thinks fit to meet the fees and expenses of the assessor by–

(a)the party enrolling the motion; or

(b)where an assessor is summoned by the court at its own instance, the pursuer or petitioner, as the case may be, unless the court otherwise directs.

Motions to summon assessorsS

12.3.  A party seeking to summon an assessor shall–

(a)enrol a motion for that purpose not less than 28 days before the diet of the proof or hearing at which the presence of an assessor is sought; and

(b)give written intimation of the motion to every other party not less than 7 days before it is enrolled.

Copies of pleadings for use of assessorsS

12.4.—(1) Where an assessor is summoned by the court at its own instance, the pursuer or petitioner, as the case may be, shall lodge in process such copy of the closed record or other pleadings in the cause as the court directs for the use of the assessor.

(2) Where a motion under rule 12.3 (motions to summon assessors) has been granted, the party who enrolled the motion shall lodge in process a copy of the closed record or other pleadings in the cause for the use of the assessor.

Selection of assessorsS

12.5.—(1) Subject to paragraph (2), an assessor shall be selected by agreement between the parties, failing which, by the court on the motion of a party.

(2) A nautical assessor shall be selected from the list of persons–

(a)approved by the Lord President;

(b)kept by the Principal Clerk; and

(c)published as the Lord President shall direct.

(3) The list of nautical assessors published under paragraph (2) shall be in force for a period of 3 years; but a person on that list may be approved in any subsequent list.

Number of assessorsS

12.6.—(1) For a proof or hearing in the Outer House, only one assessor shall be summoned.

(2) In the case of–

(a)a proof or hearing ordered by a Division of the Inner House to be taken by one of the judges of the Inner House, or

(b)a hearing in the Inner House,

the number of assessors to be summoned shall be such number as the court thinks fit.

Skilled witnesses where assessors summonedS

12.7.—(1) In a cause arising out of a collision at sea where the court is assisted by a nautical assessor at a proof, no party may lead a skilled witness on nautical matters.

(2) In a cause other than one to which paragraph (1) applies, where the court is assisted by an assessor at a proof, a party may not lead evidence from more than one skilled witness on any matter within the special qualifications of the assessor.

(3) Where a question arises at a proof in relation to the application of paragraph (2), the decision of the Lord Ordinary shall be final and not subject to review.

(4) In a cause to which paragraph (2) applies, the court may, on the motion of a party–

(a)enrolled not less than 14 days before the diet of proof, and

(b)of which written intimation has been given to every other party not less than 7 days before the motion is enrolled,

on cause shown, allow evidence to be led from a greater number of skilled witnesses.

Note of questions submitted to assessorsS

12.8.  The judge who presides at a proof or hearing to which an assessor is summoned shall make a note of each question submitted to the assessor and of the answer; and the note shall be lodged in process.

Remuneration of assessorsS

12.9.  The remuneration to be paid to an assessor, other than in a cause under the Patents Act 1977, shall, unless the court otherwise directs, be treated as expenses in the cause.

Initiation and progress of proceedingsS

CHAPTER 13S SUMMONSES, NOTICE, WARRANTS AND CALLING

Initiation of causes by summonsS

13.1  Subject to any other provision in these Rules, all causes originating in the court shall be commenced in the Outer House by summons.

Form of summonsesS

13.2.—(1) Subject to any other provision in these Rules, a summons shall be in Form 13.2–A.

(2) A conclusion in a summons shall be stated in accordance with the appropriate style, if any, in Form 13.2–B.

(3) Subject to rule 46.6(3) (no condescendence or pleas-in-law in ship collision actions), there shall be annexed to a summons–

(a)a statement, in the form of numbered articles of the condescendence, of the averments of fact which form the grounds of the claim; and

(b)appropriate pleas-in law.

(4) A condescendence shall include averments stating–

(a)in an action to which the Civil Jurisdiction and Judgments Act 1982 F9 applies, the domicile of the defender (to be determined in accordance with the provisions of that Act) so far as known to the pursuer;

(b)the ground of jurisdiction of the court, unless jurisdiction would arise only if the defender prorogated the jurisdiction of the court without contesting jurisdiction;

(c)unless the court has exclusive jurisdiction, whether or not there is an agreement prorogating the jurisdiction of a court in another country; and

(d)whether or not there are proceedings involving the same cause of action in subsistence between the parties in a country to which the convention in Schedule 1 or 3C to the Civil Jurisdiction and Judgments Act 1982 F10 applies and the date any such proceedings commenced.

(5) A summons may include warrants for diligence and intimation in so far as permitted under these Rules.

F10Schedule 1 to the Act of 1982 was substituted by S.I. 1990/2591 and Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 1(3).

Address of defenderS

13.3.  In a summons, the pursuer shall–

(a)set out in the instance the known residence, registered office, other official address or place of business of the defender where he is to be served; or

(b)where that residence, office, address or place, as the case may be, is not known and cannot reasonably be ascertained, set out in the instance that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.

Period of notice in summonsesS

13.4.—(1) Subject to any other provision in these Rules, the period of notice in a summons shall be–

(a)in the case of service within Europe, 21 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrant for intimation;

(b)in the case of service furth of Europe under rule 16.2(2) (d) or (e) (service by anhuissier etc. or personally), 21 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrant for intimation;

(c)in the case of service furth of Europe other than under sub-paragraph (b), 42 days from whichever is the later of the date of execution of service or the giving of intimation before calling on a warrrant for intimation; and

(d)in the case of service by advertisement under rule 16.5 (service where address of person is not known), other than in an action to which rule 49.12 (notice of family actions by advertisement) applies, 6 months from the date of publication of the advertisement.

(2) An application may be made by motion to shorten or extend the period of notice in a summons.

(3) Where a motion under paragraph (2) is made after signeting of the summons but before service–

(a)the summons shall be produced to the court; and

(b)the decision of the Lord Ordinary on the motion shall be final and not subject to review.

SignetingS

13.5.—(1) A summons shall pass the signet.

(2) No summons shall bear any date but the date of signeting, which date shall be treated as the date of the summons.

(3) A summons shall be signeted and registered by a clerk of session acting under authority from the Principal Clerk (by virtue of a commission granted to him by the Keeper of the Signet).

(4) Subject to paragraph (5), a summons shall be presented to the General Department during its normal office hours for signeting and registration.

(5) In an emergency, a summons may be signeted and registered outwith the normal office hours.

Warrants in summonsesS

13.6.  When signeted, a summons shall be authority for–

(a)service on the defender designed in the instance;

(b)subject to any other provision in these Rules and the provisions of any other enactment or rule of law, arrestment to found jurisdiction where a warrant in the appropriate form in Form 13.2–A has been inserted in the summons;

(c)subject to any other provision in these Rules and the provisions of any other enactment or rule of law, diligence by–

(i)inhibition on the dependence of the action,

(ii)arrestment on the dependence of the action where there is a conclusion for the payment of money,

(iii)arrestmentin rem, or

(iv)dismantling a ship,

where a warrant in the appropriate form in Form 13.2–A has been inserted in the summons; and

(d)intimation of the summons on any person on whom intimation is required by these Rules where a warrant for that purpose has been inserted in the summons.

Service and intimation of summonsesS

13.7.—(1) Where a summons is to be executed, a copy of the summons which has passed the signet shall be–

(a)served on the defender with a citation in Form 13.7 attached to it; and

(b)intimated to any person named in a warrant for intimation.

(2) Where service of a summons is not executed within a year and a day after the date of signeting, the instance shall fall.

Warrants after signetingS

13.8.—(1) Where a warrant for diligence mentioned in rule 13.6(c) or for intimation referred to in rule 13.6(d) is not obtained when the summons is signeted, the pursuer may apply by motion for such a warrant at any stage of the action.

(2) Where a minute of amendment is lodged by a pursurer under rule 24.2 calling an additional or substitute defender, the pursuer may apply by motion for warrant to use any form of diligence which would have been permitted under rule 13.6(c) in a separate action.

(3) A certified copy of the interlocutor granting warrant for diligence applied for under this rule shall be sufficient authority for execution of the diligence.

Effect of warrants for inhibition on dependenceS

13.9.—(1) A warrant for inhibition on the dependence in a summons, or in a certified copy of an interlocutor granted on a motion under rule 13.8(3), shall have the same effect as letters of inhibition and may be executed at the same time as the summons is served or at any time thereafter.

(2) A summons, or a certified copy of the interlocutor, containing a warrant for inhibition on the dependence and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(3) A notice of the certified copy of the interlocutor containing a warrant for inhibition on the dependence may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868 F11; and such registration shall have the same effect as registration of a notice under that section.

Recall etc. of arrestment or inhibitionS

13.10.—(1) An application by any person having an interest–

(a)to loose, restrict or recall an arrestment, or

(b)to recall, in whole or in part, an inhibition,

mentioned in rule 13.6(c) shall be made by motion.

(2) Where the court grants a motion under paragraph (1), it may do so, on such conditions, if any, as to caution or other security and expenses as it thinks fit.

(3) Where a motion under paragraph (1) is enrolled before calling of the summons, the pursuer shall produce the principal summons, or a copy of it, with the certificate of execution of service of the arrestment or inhibition, as the case may be.

Movement of arrested propertyS

13.11.—(1) Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment mentioned in rule 13.6.

(2) Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

(3) A warrant granted on a motion under paragraph (1) shall be without prejudice to the validity and subsistence of the arrestment.

Intimation of actions relating to heritable propertyS

13.12.—(1) In an action relating to heritable property, it shall not be necessary to call a person as a defender by reason only of any interest he may have as the holder of a heritable security over the heritable property; but intimation of the summons shall be given to that person by notice of intimation in Form 13.12 attached to a copy of the summons.

(2) A warrant for intimation under paragraph (1) shall be inserted in the summons by the pursuer in the following terms:— “Warrant to intimate to (name and address) as a person who is believed to be a heritable creditor of the defender.".

(3) A person on whom intimation has been made under this rule may apply by motion for leave to be sisted as a party and to lodge defences.

CallingS

13.13.—(1) A summons shall not be called earlier than the day on which the period of notice expires.

(2) A summons shall be lodged for calling not later than 12.30 p.m. on the second day before that on which it is to be called.

(3) A summons may be called–

(a)during session, on a sederunt day; or

(b)in vacation, on a calling day of which notice has been given in the rolls.

(4) A summons lodged for calling shall be accompanied by a typewritten slip containing the instance, subject to the following provisions:–

(a)where there is more than one pursuer or defender, the slip shall contain only the name and designation of the first pursuer or defender, as the case may be, followed by the words “and Another [or Others,as the case may be]"; and

(b)in naming and designing a pursuer or defender who is a body of persons (such as a trust or a partnership), whether individual members are also parties or not, it shall be sufficient to use the collective name of that body.

(5) The calling of a summons shall be published in the rolls on the date on which the summons calls.

(6) Where a summons has not called within a year and a day after the expiry of the period of notice, the instance shall fall.

Protestation for not calling summonsS

13.14.—(1) Where the pursuer does not lodge the summons for calling within 7 days after the date on which the period of notice expires, the defender, on production of the service copy summons, may apply by motion for an order ordaining the pursuer to lodge the summons for calling within 7 days, or such other period as the court thinks fit, after the date of the order.

(2) Where the court pronounces an interlocutor under paragraph (1), the defender shall serve a certified copy of that interlocutor on the pursuer.

(3) Where the pursuer fails to lodge the summons within the period ordered by the court under paragraph (1), the defender may apply by motion–

(a)for declarator that the instance has fallen;

(b)for recall of any diligence mentioned in rule 13.6(c) which has been executed; and

(c)for payment to the defender of his expenses of process under this rule.

(4) An interlocutor granting a motion under paragraph (3) shall be final and not subject to review.

CHAPTER 14S PETITIONS

Application of this ChapterS

14.1.  Subject to any other provisions in these Rules, this Chapter applies to a petition presented to the court.

Applications by petition in the Outer HouseS

14.2.  Subject to any other provision in these Rules, the following applications to the court shall be made by petition presented in the Outer House:–

(a)an application for the appointment of a judicial factor, a factorloco absentis, a factor pending litigation or a curatorbonis;

(b)an application for the appointment of a judicial factor on the estate of a partnership or joint adventure;

(c)an application to thenobile officium of the court which relates to–

(i)the administration of a trust;

(ii)the office of trustee; or

(iii)a public trust;

(d)a petition and complaint for breach of interdict;

(e)an application to the supervisory jurisdiction of the court;

(f)an application for suspension, suspension and interdict, and suspension and liberation;

(g)an application to recall an arrestment or inhibition other than in a cause depending before the court; and

(h)a petition or other application under these Rules or any other enactment or rule of law.

Applications by petition in the Inner HouseS

14.3.  Any of the following applications shall be made by petition presented in the Inner House:–

(a)a petition and complaint other than for breach of interdict;

(b)an application under any enactment relating to solicitors or notaries public;

(c)an application which is, by virtue of these Rules or any other enactment, to be by petition and is incidental to a cause depending before the Inner House;

(d)an application to thenobile officium of the court other than an application mentioned in rule 14.2(c) (applications relating to the administration of a trust, the office of trustee or a public trust);

(e)a petition by trustees for directions under Part II of Chapter 63;

(f)an application under section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 F12 (assistance in obtaining evidence for civil proceedings in another jurisdiction);

(g)an application under section 1 of the Trusts (Scotland) Act 1961 F13 (variation or revocation of trusts);

(h)an application under section 49 of the Insurance Companies Act 1982 F14 (sanction for transfer of long term business);

(i)an application under section 136 (order for confirmation of reduction of share capital) or section 425 (order for meeting for compromise or arrangement) of the Companies Act 1985 F15;

(j)an application under section 17(6), 18(7), 20(7), 20(11)(b), 21(5), 21(7) or 21(10) of, or under paragraph 20 of Schedule 1 to, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 F16 (orders in relation to conveyancing or executry practitioners); and

(k)an application required to be made to the Inner House under any enactment.

Form of petitionsS

14.4.—(1) A petition shall be in Form 14.4.

(2) A petition shall include–

(a)a statement of facts in numbered paragraphs setting out the facts and circumstances on which the petition is founded; and

(b)a prayer setting out the orders sought.

(3) In a petitio n presented under an enactment, the statement of facts shall expressly refer to the relevant provision under the authority of which the petition is presented.

(4) Where a petition is one to which the Civil Jurisdiction and Judgments Act 1982 F17 applies, the statement of facts shall include averments stating–

(a)the ground of jurisdiction of the court, unless jurisdiction would arise only if the respondent prorogated the jurisdiction of the court without contesting jurisdiction;

(b)unless the court has exclusive jurisdiction, whether or not there is an agreement prorogating the jurisdiction of a court in another country; and

(c)whether or not there are proceedings involving the same cause of action in subsistence between the parties in a country to which the convention in Schedule 1 or 3C to that Act F18 applies and the date any such proceedings commenced.

(5) The prayer of a petition shall crave warrant for such intimation, service and advertisement as may be necessary having regard to the nature of the petition, or as the petitioner may seek; and the name, address and capacity of each person on whom service of the petition is sought shall be set out in a schedule annexed to, and referred to in, the prayer of the petition.

(6) Where it is sought in a petition–

(a)to dispense with intimation, service or advertisement, or

(b)to shorten or extend the period of notice,

the appropriate order shall be craved in the prayer, and the grounds on which the order is sought shall be set out in the statement of facts.

F18Schedule 1 to the Civil Jurisdiction and Judgments Act 1982 was substituted by S.I. 1990/2591 and Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 1(3).

First order in petitionsS

14.5.—(1) Subject to paragraph (2), a petition on being lodged shall, without a motion being enrolled–

(a)during term, appear in the rolls for the first available day after lodging, in the Motion Roll or Single Bills, as the case may be, for an order for such intimation, service and advertisement as may be necessary; or

(b)during session outwith a term, be brought before the Lord Ordinary for such an order; or

(c)during vaction, be brought before the vacation judge for such an order.

(2) Where a petitioner seeks–

(a)to dispense with intimation, service or advertisement on any person, or

(b)any interim order,

he shall apply by motion for such order as appears appropriate.

(3) On disposing of a motion under paragraph (2), the court shall make such order as it thinks fit.

Period of notice for lodging answersS

14.6.—(1) Subject to any other provision in these Rules, the period of notice for lodging answers to a petition shall be–

(a)in the case of service, intimation or advertisement within Europe, 21 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(b)in the case of service or intimation furth of Europe under rule 16.2(2)(d) or (e) (service by anhuissier etc. or personally), 21 days from whichever is the later of the date of execution of service or the giving of intimation;

(c)in the case of service or intimation furth of Europe other than under sub-paragraph (b), or advertisement furth of Europe, 42 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(d)in the case of service by advertisement under rule 16.5 (service where address of person is not known), 6 months from the date of publication of the advertisement.

(2) An application may be made by motion to shorten or extend the period of notice.

(3) Where a motion under paragraph (2) is made in a petition at the time that an order for intimation, service or advertisement is made under rule 14.5 (first order in petitions), the decision of the court on the motion shall be final and not subject to review.

Intimation and service of petitionsS

14.7.—(1) A petition shall be intimated–

(a)on the walls of the court; and

(b)in such other manner as the court thinks fit.

(2) A copy of the petition shall be served on every person, specified in the petition or by the court as a person on whom the petition is to be served, with a citation in Form 14.7 attached to it.

Procedure where answers lodgedS

14.8.  Where answers to a petition have been lodged, the petitioner shall, within 28 days after the expiry of the period of notice, apply by motion for such further procedure as he seeks, and the court shall make such order for further procedure as it thinks fit.

Unopposed petitionsS

14.9.—(1) Subject to paragraph (2), where the period of notice has expired without answers being lodged, the court shall, on the motion of the petitioner, after such further procedure and inquiry into the grounds of the petition, if any, as it thinks fit, dispose of the petition.

(2) Where–

(a)the prayer of the petition seeks an order directed against a person,

(b)service of the petition has been made on that person furth of the United Kingdom under rule 16.2, and

(c)such order has been granted without that person having lodged answers,

a certified copy of the interlocutor granting the order shall be served forthwith by the petitioner on that person.

(3) The court may, on the motion of a person to whom paragraph (2) applies, recall the interlocutor and allow answers to be lodged if–

(a)that person–

(i)without any fault on his part, did not have knowledge of the petition in suffieient time to lodge answers;

(ii)has disclosed aprima facie answer to the petition on the merits; and

(iii)has enrolled the motion for recall within a reasonable time after he had knowledge of the petition; and

(b)the motion is enrolled before the expiry of one year from the date of the interlocutor sought to be recalled.

(4) The recall of an interlocutor under paragraph (3) shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that interlocutor.

(5) The provisions of this rule are without prejudice to the power of the court to make any interim appointment or order at any stage of the cause.

CHAPTER 15S APPLICATIONS BY MINUTE OR NOTE

Applications by minuteS

15.1.—(1) Subject to paragraph (6) and to any other provision in these Rules, this rule applies to any application to the court by minute in a cause.

(2) A minute shall–

(a)include a crave, a statement of facts and appropriate pleas-in-law; and

(b)be lodged in the process of the cause to which it relates.

(3) On lodging a minute, the minuter shall enrol a motion, as appropriate–

(a)for a warrant for service of the minute on a person who has not entered the process of the cause;

(b)where the cause is not a depending cause, for service of the minute on parties to that cause;

(c)for intimation of the minute to any person;

(d)to dispense with service on, or intimation to, a person; and

(e)for an order for any answers to the minute to be lodged in process within the period of notice.

(4) A notice in Form 15.1 shall be attached to the minute to be served or intimated under paragraph (3).

(5) After the expiry of the period of notice, the court shall, on the motion of any party, after such further procedure, if any, as it thinks fit, determine the application.

(6) This rule shall not apply to–

(a)a minute of abandonment;

(b)a minute of amendment;

(c)a minute of sist;

(d)a minute of transference; or

(e)a minute of objection to a minute of transference.

Applications by noteS

15.2.—(1) Subject to paragraph (4) and to any other provision in these Rules, this rule applies to any application to the court by note in a cause.

(2) A note shall–

(a)include a statement of facts and a prayer; and

(b)be lodged in the process of the cause to which it relates.

(3) The following provisions of Chapter 14 (petitions) shall, with the necessary modifications and the modification mentioned below, apply to a note under this rule as they apply to a petition:–

  • rule 14.5 (first order in petitions),

  • rule 14.6 (period of notice for lodging answers),

  • rule 14.7 (intimation and service of petitions) with the substitution in paragraph (2) of that rule of the words “a notice in Form 15.2" for the words a “a citation in form 14.7",

  • rule 14.8 (procedure where answers lodged),

  • rule 14.9 (unopposed petitions).

(4) This rule shall not apply to–

(a)a note to the Extractor; or

(b)a note of objection.

CHAPTER 16S SERVICE, INTIMATION AND DILIGENCEPART ISERVICE AND INTIMATION

Methods and manner of serviceS

   

16.1.—(1) Subject to any other provision in these Rules or any other enactment, service of a document required under these Rules on a person shall be executed–S

(a)in the case of an individual–

(i)personally, by tendering the document and any citation or notice, as the case may be, to that individual;

(ii)by leaving the document and any citation or notice, as the case may be, in the hands of a person, or failing which, depositing it, in a dwelling place where the person executing service, after due enquiry, has reasonable grounds for believing that that individual resides but is not available;

(iii)by leaving the document and any citation or notice, as the case may be, in the hands of a person at, or depositing it in, a place of business where the person executing service, after due enquiry, has reasonable grounds for believing that that individual carries on business; or

(iv)by posting the document and any citation or notice, as the case may be, to the known dwelling place of that individual;

(b)in the case of any other person–

(i)by leaving the document and any citation or notice, as the case may be, in the hands of an individual at, or depositing it in, the registered office, other official address or a place of business, of that other person, in such a way that it is likely to come to the attention of that other person; or

(ii)by posting the document and any citation or notice, as the case may be, to the registered office, other official address or a place of business, of that other person.

(2) Service of a principal writ on a person whose known residence is the same as that of the party on whose behalf service is to be executed shall be executed personally.

(3) Subject to paragraph (4), where service has been executed, the party on whose behalf service has been executed shall attach to the document served and lodge in process–

(a)a certificate of service as required by these Rules;

(b)a copy of any notice or advertisement ordered to be published; and

(c)a copy of any interlocutor ordering service of that document.

(4) In relation to a petition or note, where service has been executed by a petitioner or noter, he shall attach the documents required by paragraph (3)(a) and (b) to a copy of the petition or note, as the case may be, marked “Execution Copy" and certified a true copy.

Service furth of United KingdomS

16.2.—(1) Subject to any other enactment, this rule applies to service of a document on a person on whom service is to be executed in a country furth of the United Kingdom.

(2) Service under this rule may be executed by any of the following methods of service, if, and in a manner, permitted under a convention providing for service in that country or by the laws of that country:–

(a)by post to the known residence, registered office or place of business, as the case may be, of the person on whom service is to be executed;

(b)through the central, or other appropriate, authority of that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(c)through a British consular office in that country, at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(d)by anhuissier, other judicial officer or competent official of that country, at the request of a messenger-at-arms, a party or his agent; or

(e)personally by the party executing service or his authorised agent tendering the document and the citation (if any) to the person on whom service is to be executed.

(3) Where service is to be executed through a central, or other appropriate, authority, or through a British consular officer, at the request of the Secretary of State for Foreign and Commonwealth Affairs, the party executing service shall–

(a)send a copy of the document, with a request for service by the method indicated in the request, to the Secretary of State for Foreign and Commonwealth Affairs; and

(b)lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4) Where service is to be executed by an huissier, other judicial officer or competent official at the request of a messenger-at-arms–

(a)the messenger-at-arms shall send a copy of the document with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b)the party on whose behalf service has been executed shall lodge in process a certificate of the official who executed service stating that it has been, and the manner in which it was, served.

(5) Where service has been executed personally by the party executing service or his authorised agent–

(a)the execution of service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address); and

(b)the person who executed service shall complete a certificate of service in Form 16.2.

(6) Where service is executed by a method mentioned in paragraph (2)(a) or (e), the party executing service shall lodge in process a certificate by a person qualified in the law of the country, or a duly accredited representative of the country, in which service was executed stating that the method of service used is permitted by the law of that country.

Service by messenger-at-armsS

16.3.—(1) Service by a method mentioned in rule 16.1(1)(a)(i), (ii) or (iii), or (b)(i), shall be executed by a messenger-at-arms who shall–

(a)explain the purpose of service to any person on whom he executes service;

(b)complete a citation or notice, as the case may be, and a certificate of service in Form 16.3; and

(c)send the certificate of service to the pursuer.

(2) Such service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address).

(3) Where service is executed by a method mentioned in rule 16.1(1)(a)(ii) or (iii), or (b)(i), and the document served is left in the hands of a person other than the person on whom service is to be executed, that document and the citation or notice of intimation, as the case may be, shall be placed in an envelope (bearing the notice specified in rule 16.4(2)) and sealed by the messenger-at-arms.

(4) A messenger-at-arms shall, when he executes service of a document, have in his possession–

(a)in the case of service of a copy of a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is, and

(b)where an interlocutor has been pronounced allowing service of the document, a certified copy of that interlocutor,

which he shall show, if required, to the person on whom he executes service.

(5) The certificate of service required under paragraph (1) shall include the full name and designation of any person in whose hands any document and the citation or notice, as the case may be, were left.

(6) In the application of this rule to service in a part of the United Kingdom furth of Scotland, reference to a messenger-at-arms shall be construed as a reference to a person entitled to serve Supreme Court writs in that part.

Service by postS

16.4.—(1) This rule applies to service of a document by post.

(2) Service by post shall be executed by–

(a)a messenger-at-arms, or

(b)an agent,

posting a copy of the document to be served with any citation or notice, as the case may be, by registered post or the first class recorded delivery service addressed to the person on whom service is to be executed and having on the face of the envelope a notice in the following terms:– “This envelope contains a citation to, or intimation from, the Court of Session. If delivery of the letter cannot be made it must be returned immediately to the Deputy Principal Clerk of Session, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ.".

(3) Where English is not an official language of the country in which service is to be executed, a translation in an official language of that country of the notice required under paragraph (2) shall appear on the face of the envelope.

(4) The person executing service of a document shall complete–

(a)a citation or notice, as the case may be; and

(b)a certificate of service in Form 16.4.

(5) A Post Office receipt of posting by registered post or a certificate of posting by the first class recorded delivery service, as the case may be, issued and stamped by the Post Office shall be attached to the certificate of service.

(6) The date of execution of service shall be deemed to be the day after the date of posting.

(7) Subject to rule 16.11 (no objection to regularity of service or intimation), the execution of service by post shall be valid unless the person on whom service was sought to have been made proves that the envelope and its contents were not tendered or left at his address.

Service where address of person is not knownS

16.5.—(1) Where the residence of the person to be served with a document is not known and cannot reasonably be ascertained or service on that person cannot be executed under rule 16.1 (methods and manner of service) or 16.2 (service furth of United Kingdom), the party who wishes to execute service may apply by motion–

(a)for an order for service by the publication of an advertisement in a specified newspaper circulating in the area of the last known residence of that person or elsewhere; or

(b)on special cause shown, for an order to dispense with service; and

(c)stating the last known residence of that person and what steps have been taken to ascertain his present whereabouts.

(2) On enrolling such a motion, a copy of the document to be served shall be lodged with the Deputy Principal Clerk who shall retain it for a period of three years and from whom it may be uplifted by the person for whom it is intended.

(3) Where an intelocutor has been pronounced ordering publication of an advertisement under this rule–

(a)the advertisement shall be in Form 16.5; and

(b)publication of the advertisement shall have effect as if service of the document had been executed on the date of publication.

(4) Where an interlocutor has been pronounced dispensing with service under this rule–

(a)service of the document shall be deemed to have been executed on the date of the interlocutor; and

(b)the period of notice shall be dispensed with.

(5) A motion under paragraph (1) made before calling shall be heard in chambers.

(6) Where publication of an advertisement has been made under this rule, there shall be lodged in process–

(a)a copy of the newspaper containing the advertisement; or

(b)a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

Translations of documents served or advertised abroadS

16.6.—(1) Where English is not an official language of the country in which a document is to be served, the document shall be accompanied by a translation in an official language of that country.

(2) An advertisement authorised under rule 16.5 (service where address of person is not known) to be published in a newspaper in a country in which English is not an official language of that country shall be in an official language of that country.

(3) With any certificate of service, or advertisement under rule 16.5, in a language other than English there shall be lodged a translation in English.

(4) A translation under this rule shall be certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Intimation of documentsS

16.7.—(1) Subject to rule 16.8 (intimation on a warrant to intimate), rule 16.9 (written intimation) and any other provision in these Rules, where intimation of a document is to be given under these Rules to any person, the intimation shall be given–

(a)personally, by tendering the document and the notice of intimation (if any) to that person; or

(b)by registered post or the first class recorded delivery service–

(i)in the case of an individual, addressed to the known, or last known, dwelling place or a place of business of that individual; or

(ii)in the case of any other person, addressed to the registered office, other official address or a place of business of that person.

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach to the principal writ or lodge in process, as the case may be–

(a)certificate of intimation in Form 16.7;

(b)a copy of any notice of intimation which was intimated; and

(c)a copy of any interlocutor ordering the intimation.

Intimation on a warrant to intimateS

16.8.—(1) Where intimation of a document is to be given to a person for whom a warrant to intimate has been obtained, the intimation shall be made in the same manner as service of a document; and the following rules shall, with the necessary modifications, apply to that intimation as they apply to service of a document:–

  • rule 16.1 (methods and manner of service),

  • rule 16.2 (service furth of United Kingdom),

  • rule 16.3 (service by messenger-at-arms),

  • rule 16.4 (service by post),

  • rule 16.5 (serv ice where address of person is not known),

  • rule 16.6 (translations of documents served or advertised abroad).

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach a copy of any notice of intimation to the certificate of intimation.

Written intimationS

16.9.  Where a provision in these Rules requires written intimation to be given to a person, that intimation may be made by first class post or other means of delivery to that person.

Acceptance of service or intimation and dispensing with period of noticeS

16.10.—(1) An agent may accept service or intimation of a document on behalf of the person on whom service is to be executed or to whom intimation is to be given and may dispense with any period of notice.

(2) A person on whom service of a document is executed or to whom intimation of a document is given may dispense with any period of notice as respects him in relation to that document.

(3) Where a period of notice is dispensed with under paragraph (1) or (2), it shall be deemed to expire on the day on which the party on whose behalf service is executed or intimation is given receives written intimation that the period of notice has been dispensed with.

No objection to regularity of service or intimationS

16.11.—(1) A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation.

(2) Nothing in paragraph (1) shall preclude a person from pleading that the court has no jurisdiction.

DILIGENCES
Execution of diligenceS

16.12.——(1) This rule applies to–

(a)the execution of any diligence on a warrant, act or decree of the court other than–

(i)an arrestment to which rule 16.13 (arrestment of ships and arrestmentin rem of cargo on board ship) applies; or

(ii)an arrestment to which rule 16.14(1) (arrestmentin rem of cargo landed or transhipped) applies; and

(b)diligence in execution of a writ registered for execution in the Books of Council and Session.

(2) Subject to the following paragraphs of this rule, the execution of any diligence by virtue of these Rules on a person shall be executed by a messenger-at-arms in the same manner as service of a document is permitted under rule 16.1(1)(a)(i), (ii) or (iii) or (b)(i) (methods and manner of service); and, where appropriate, the following provisions of Part I (service and intimation) shall, with the necessary modifications, apply to the execution of diligence as they apply to service of a document:–

  • rule 16.3(1) to (4) (service by messenger-at-arms),

  • rule 16.4(2)(a), (3), (6) and (7) (service by post).

(3) In the application under this rule, by virtue of paragraph (2), of–

(a)sub-paragraph (b) of paragraph (1) of rule 16.3 (completion of citation or notice and certificate of service) for the reference to Form 16.3 in that sub-paragraph there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15 (forms for diligence); and

(b)sub-paragraph (b) of paragraph (4) of rule 16.4 (completion of citation or notice and certificate of service), for the reference to Form 16.4 in that sub-paragraph, there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15.

(4) The execution of such diligence on–

(a)an individual who is resident furth of Scotland,

(b)a person who has no registered office, other official address or a place of business in Scotland,

(c)a person whose residence is not known and cannot reasonably be ascertained, or

(d)a person on whom service cannot be executed in a manner permitted under paragraph (2),

shall be executed edictally by a messenger-at-arms leaving or depositing the appropriate schedule mentioned in rule 16.15. at the office of the Extractor.

(5) Where the execution of diligence is made edictally under paragraph (4), a copy of the schedule left at the office of the Extractor shall be sent by a messenger-at-arms by registered post or the first class recorded delivery service to the place furth of Scotland where the person on whom diligence is executed edictally resides, has his registered office, official address or place of business, as the case may be, or such last known place.

(6) A messenger-at-arms executing diligence shall have in his possession–

(a)in the case of diligence on a warrant in a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is,

(b)in the case of diligence on a warrant in an interlocutor, a certified copy of that interlocutor, or

(c)in the case of diligence on an extract of an act or a decree, or a document registered in the Books of Council and Session, the extract,

which he shall show, if required, to any person on whom he executes diligence.

(7) The party on whose behalf diligence has been executed in a cause depending before the court shall attach the certificate of execution to the document containing the warrant for diligence.

Arrestment of ships and arrestmentin rem of cargo on board shipS

16.13.—(1) An arrestment of a shipin rem or on the dependence, or an arrestmentin rem of cargo on board ship, may be executed on any day by a messenger-at-arms who shall affix the schedule of arrestment–

(a)to the mainmast of the ship;

(b)to the single mast of the ship; or

(c)where there is no mast, to some prominent part of the ship.

(2) In the execution of an arrestment of a ship on the dependence, the messenger-at-arms shall, in addition to complying with paragraph (1), mark the initials “ER" above the place where the schedule of arrestment is fixed.

(3) On executing an arrestment under paragraph (1), the messenger-at-arms shall deliver a copy of the schedule of arrestment and a copy of the certificate of execution of it to the master of the ship, or other person on board in charge of the ship or cargo, as the case may be, as representing the owners of, or parties interested in, the ship or cargo, as the case may be.

(4) Where the schedule of arrestment and the copy of the certificate of execution of it cannot be delivered as required under paragraph (3)–

(a)the certificate of execution shall state that fact; and

(b)either–

(i)the arrestment shall be executed by serving it on the harbour master of the port where the ship lies; or

(ii)where there is no harbour master, or the ship is not in a harbour, the pursuer shall enrol a motion for such further order as to intimation and advertisement, if any, as may be necessary.

(5) A copy of the schedule of arrestment and a copy of the certificate of excution of it shall be delivered by the messenger-at-arms to the harbour master, if any, of any port where the ship lies.

(6) In this rule, “ship" has the meaning assigned in section 48(f) of the Administration of Justice Act 1956 F19.

Arrestment of cargoS

16.14.—(1) Where cargo has been, or is in the course of being, landed or transhipped, whether or not it has been delivered to its owner or his agent, any arrestmentin rem of the cargo shall be executed by a messenger-at-arms who shall serve the schedule of arrestment–

(a)on the custodian for the time being of such cargo; or

(b)where the cargo has been landed on the quay or into a shed of any port or harbour authority, to the harbour master.

(2) An arrestment, other than an arrestment to which paraghraph (1) applies, of cargo on board ship may be executed on any day by a messenger-at-arms who shall serve the schedule of arrestment on the owner of the cargo or other proper arrestee.

Forms for diligenceS

16.15.—(1) In the execution of diligence, the following forms shall be used:–

(a)in the case of an arrestment to found jurisdiction, a schedule in Form 16.15—A and a certificate of execution in Form 16.15–H;

(b)Subject to sub-paragraph (e), in the case of an arrestment on the dependence, a schedule in Form 16.15–B and a certificate of execution in Form 16.15–H;

(c)in the case of an arrestmentin rem of a ship or cargo to enforce a maritime hypothec or lien, a schedule in Form 16.15—C and a certificate of execution in Form 16.15–I;

(d)in the case of an arrestmentin rem of a ship to enforce a non-pecuniary claim, a schedule in Form 16.15–D and a certificate of execution in Form 16.15–I;

(e)in the case of an arrestment of a ship or cargo on board ship on the dependence, a schedule in Form 16.15–B and a certificate of execution in Form 16.15–J;

(f)subject to paragraph (g), in the case of an arrestment in execution, a schedule in Form 16.15–E and a certificate of execution in form 16.15–H;

(g)in the case of an earnings arrestment, or a current maintenance arrestment, within the meaning of Part III of the Debtors (Scotland) Act 1987 F20, a schedule in Form 30 (in respect of an earnings arrestment), or Form 34 (in respect of a current maintenance arrestment), and a certificate of execution in Form 60, in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988 F21;

(h)in the case of an inhibition, a schedule in Form 16.15–F and a certificate of execution in Form 16.15–H;

(i)in the case of the execution of a charge for payment of money, a charge in Form 16.15—G and a certificate of execution in Form 16.15.–K; and

(j)in the case of a poinding, a schedule in Form 5, and a certificate of execution in Form 60, in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988.

(2) Where two or more of the arrestments mentioned in paragraph (1)(a), (b), (c) and (d) are to be executed, they may be combined in one schedule of arrestment.

CHAPTER 17S APPEARANCE IN ACTIONS

Entering appearanceS

17.1.—(1) Appearance in an action shall be entered within 3 days after the date on which the summons has called by the defender requesting a clerk of session in the appropriate section of the General Department to mark on the summons–

(a)the names of the counsel, or other person having a right of audience, and the agent acting for him; or

(b)that he appears for himself.

(2) On entering appearance, the defender shall give written intimation to the pursuer that appearance has been entered.

(3) On entering appearance, the defender shall have the right to borrow any production which has been lodged in process.

Appearance not to imply acceptance of jurisdictionS

17.2.  The entering of appearance shall not imply acceptance of the jurisdiction of the court.

CHAPTER 18S DEFENCES AND ANSWERS

Form and lodging of defencesS

18.1.—(1) Defences to an action shall consist of–

(a)numbered answers corresponding to the articles of the condescendence annexed to the summons; and

(b)appropriate pleas-in-law.

(2) Subject to rule 46.6 (ship collisions and preliminary acts), defences to an action shall be lodged in process within 7 days after the date on which the summons has called, or, if the seventh day is in vacation, on the next day on which a summons may be called.

Contesting jurisdictionS

18.2.—(1) Where a defender seeks to contest the jurisdiction of the court, he may–

(a)lodge defences relating both to jurisdiction and the substantive issues of the action without submitting to the jurisdiction of the court; or

(b)lodge defences relating only to the question of jurisdiction in the first instance.

(2) Where a defender lodges defences under paragraph (1)(b) and is unsuccessful in contesting jurisdiction, the court shall allow the defender to amend his defences to defend on the substantive issues of the action within such period as the court thinks fit.

AnswersS

18.3.—(1) This rule applies to answers lodged to a petition, counterclaim, minute or note.

(2) Answers shall consist of–

(a)numbered answers corresponding to the paragraphs of the statement of facts in the writ to which they apply; and

(b)appropriate pleas-in-law.

(3) Answers may be lodged at any time within the period of notice specified in the interlocutor calling for answers.

CHAPTER 19S DECREES IN ABSENCE

Decrees in absenceS

19.1.—(1) This rule applies to any action other than an action in which the court may not grant decree without evidence.

(2) Where a defender–

(a)fails to enter appearance in accordance with rule 17.1(1), or

(b)having entered appearance, fails to lodge defences in accordance with rule 18.1(2),

the pursuer may apply by motion for decree in absence against him.

(3) A motion enrolled under paragraph (2) shall specify–

(a)the decree sought; and

(b)where appropriate, whether expenses are sought–

(i)as taxed by the Auditor; or

(ii)as elected by the pursuer under Part I of Chapter III of the Table of Fees in rule 42.16.

(4) Where a motion has been enrolled under paragraph (2), the court shall grant decree in absence in terms of all or any of the conclusions of the summons–

(a)subject to such restrictions, if any, as may be set out in a minute appended to the summons and signed by the pursuer;

(b)if satisfied that it has jurisdiction;

(c)if satisfied that the rules of service have been complied with; and

(d)where the summons was served on the defender furth of Scotland, if satisfied about service on the defender–

(i)in a case to which the Civil Jurisdiction and Judgments Act 1982 F22 applies, as required by Article 20(2) or (3) of the convention in Schedule 1, or 3C, or Article 20(2) of Schedule 4, to that Act F23, as the case may be;

(ii)in a case in which service has been executed on the defender under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dated 15th November 1965 F24, as required by Article 15 of that convention; or

(iii)in a case in which service has been executed on the defender under a convention between the United Kingdom and the country in which service was executed, as required by the provisions of that convention.

(5) In an undefended action in which a defender is designed as resident or carrying on business furth of the United Kingdom and has no known solicitor in Scotland, the court shall, in the interlocutor granting decree in absence against him, supersede extract of that decree for such period beyond 7 days as it thinks fit to allow for the number of days required in the ordinary course of post for the transmission of a letter from Edinburgh to the residence, registered office, other official address or place of business, as the case may be, of that defender and the transmission of an answer from there to Edinburgh.

(6) Where a copy of the summons has been served on the defender furth of the United Kingdom under rule 16.2 and decree in absence is pronounced against him as a result of his failure to enter appearance, a certified copy of the interlocutor granting decree shall be served on him forthwith by the pursuer.

(7) Where a decree in absence on which a charge may be made has been granted after personal service of a summons on the defender or after the defender has entered appearance, and–

(a)the decree has not been recalled,

(b)the decree has been extracted,

(c)a charge on the decree has not been brought under review by suspension, and

(d)60 days have elapsed since the expiry of the charge,

that decree shall have effect as a decreein foro contentioso

F23Schedule 1 to the Act of 1982 was substituted by S.I. 1990/2591 and Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 1(3).

F24Cmnd. 3986 (1969).

Recall of decrees in absenceS

19.2.—(1) A decree in absence may not be reclaimed against.

(2) A defender may, not later than–

(a)7 days after the date of a decree in absence against him, or

(b)the last day of the period for which extract of the decree has been superseded,

apply by motion for recall of the decree and to allow defences to be received.

(3) Where a defender enrols a motion under paragraph (2), he shall–

(a)at the same time lodge defences in process;

(b)have paid the sum of £25 to the pursuer; and

(c)lodge the receipt for that sum in process.

(4) On compliance by the defender with paragraphs (2) and (3), the court shall recall the decree against him and allow the defences to be received; and the action shall proceed as if the defences had been lodged timeously.

(5) Where a summons has been served on a defender furth of the United Kingdom under rule 16.2 and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the motion of that defender, recall the decree and allow defences to be received if–

(a)without fault on his part, he did not have knowledge of the summons in sufficient time to defend;

(b)he has disclosed aprima facie defence to the action on the merits; and

(c)the motion is enrolled within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of the decree;

and, where that decree is recalled, the action shall proceed as if the defences had been lodged timeously.

(6) On enrolling a motion under paragraph (5), the defender shall lodge defences in process.

(7) The recall of a decree under this rule shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that decree.

CHAPTER 20S DECREES BY DEFAULT

Decrees where party in defaultS

20.1.—(1) Without prejudice to the power of the court to grant decree by default in other circumstances, where a party fails to attend before the Lord Ordinary on the calling of a cause–

(a)on the By Order Roll,

(b)on the Procedure Roll,

(c)for a proof, or

(d)for jury trial,

that party shall be in default.

(2) Where a pursuer is in default under paragraph (1)(a), (c) or (d), the court may grant decree by default against him with expenses.

(3) Where a pursuer is in default under paragraph (1)(b), the court may grant decree of dismissal with expenses.

(4) Where a defender is in default under paragraph (1), the court may grant decree by default against him with expenses.

(5) Where a third party is in default under paragraph (1), the court may grant decree by default against him with expenses or make such finding or order as it thinks fit.

CHAPTER 21S SUMMARY DECREES

Application of this ChapterS

21.1.  This Chapter applies to any action other than–

(a)a family action within the meaning of rule 49.1(1);

(b)an action of multiplepoinding;

(c)an action of proving the tenor; or

(d)an action under the Presumption of Death (Scotland) Act 1977 F25.

Applications for summary decreeS

21.2.—(1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences while the action is depending before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences.

(2) In applying for summary decree, the pursuer may move the court–

(a)to grant decree in terms of all or any of the conclusions of the summons;

(b)to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(c)to dispose of the whole or a part of the subject-matter of the action.

(3) The pursuer shall–

(a)intimate a motion under paragraph (1) by registered post or the first class recorded delivery service to every other party not less than 14 days before the motion is enrolled; and

(b)on enrolling the motion, lodge in process–

(i)a copy of each letter of intimation; and

(ii)The Post Office receipt or certificate of posting in respect of each letter of intimation.

(4) On a motion under paragraph (1), the court may–

(a)if satisfied that there is no defence to the action disclosed or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or

(b)Ordain any party, or a partner, director, officer or office-bearer of, any party–

(i)to produce any relevent document or article; or

(ii)to lodge an affidavit in support of any assertion of fact made in the pleadings or at the Bar.

(5) Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change of circumstances.

Application of summary decree to counterclaims etc.S

21.3.—(1) Where a defender has lodged a counterclaim–

(a)he may apply by motion for summary decree against the pursuer on that counterclaim on the ground that there is no defence to the counterclaim, or a part of it, disclosed in the answers to it; and

(b)paragraphs (2) to (5) of rule 21.2 shall, with the necessary modifications, apply to a motion by a defender under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

(2) Where a defender or third party has made a claim against another defender or third party who has lodged defences or answers, as the case may be–

(a)he may apply by motion for summary decree against that other defender or third party on the ground that there is no defence to his claim, or a part of it, disclosed in the defences or answers, as the case may be; and

(b)paragraphs (2) to (5) of rule 21.2 shall, with the necessary mofifications, apply to a motion by a defender or third party under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

CHAPTER 22S MAKING UP AND CLOSING RECORDS

Making up open recordsS

22.1.—(1) Subject to any other provision in these Rules, where defences have been lodged, the pursuer in an action shall, within 14 days after the date on which the time for lodging defences expired or on which the defences were lodged, whichever is the earlier–

(a)send not less than four copies of an open record to every other party; and

(b)lodge two copies of the open record in process.

(2) Where in a cause a party is ordered by the court to make up an open record, he shall comply with sub-paragraphs (a) and (b) of paragraph (1) within the period specified by the court.

(3) Where the pursuer, petitioner, noter or minuter, as the case may be, fails to comply with a requirement of paragraph (1) or (2), the defender or other party may apply by motion for decree of dismissal.

(4) An open record shall consist of the pleadings of the parties and the interlocutors pronounced in the cause.

Adjustment RollS

22.2.—(1) A cause shall be put out on the Adjustment Roll as soon as possible after the lodging of the open record.

(2) On a cause first appearing on the Adjustment Roll, the court shall pronounce an interlocutor continuing the cause on that roll for 8 weeks.

(3) While a cause is on the Adjustment Roll, parties may adjust their respective pleadings and shall intimate their adjustments to each other.

(4) At any time while a cause is on the Adjustment Roll, the court may, on the motion of any party, pronounce an interlocutor–

(a)closing the record; or

(b)continuing the cause on that roll for such period as the court thinks fit.

(5) On enrolling a motion under paragraph (4), a party shall lodge in process a copy of the open record showing the adjustments, if any, at that date.

Closing recordsS

22.3.—(1) The court shall, on the day on which the period allowed for adjustment in a cause expires, pronounce an interlocutor closing the record.

(2) The pursuer shall, within 4 weeks after the date of the interlocutor closing the record–

(a)send not less than six copies of the closed record to every other party; and

(b)lodge three copies of the closed record in process.

(3) if the pursuer fails to comply with either of the requirements of paragraph (2), the court may, on the motion of any other party, grant decree of dismissal.

(4) A closed record shall consist of the pleadings of the parties and the interlocutors pronounced in the cause.

(5) The pursuer shall, on lodging the copies of the closed record as required by paragraph (2), enrol a motion craving the court–

(a)where parties have agreed on further procedure, of consent–

(i)to appoint the cause to the Procedure Roll for consideration of all the preliminary pleas of parties or such of the pleas as may be specified;

(ii)to allow to parties a preliminary proof on specified matters or in respect of specified pleas;

(iii)to allow to parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(iv)to allow a proof;

(v)to allow issues for jury trial; or

(vi)to make some other specified order; or

(b)where parties have been unable to agree on further procedure, to appoint the cause to the By Order (Adjustment) Roll.

(6) In a cause which is one of more than one cause arising out of the same cause of action, the court may, on or after pronouncing an interlocutor ordering further procedure under paragraph (5)–

(a)on the motion of a party to that cause, and

(b)after hearing parties to all those causes,

appoint that cause or any other of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(7) In this rule, “pursuer" includes petitioner, noter or minuter, as the case may be.

Orders for notes of argumentS

22.4.  Where a cause has been appointed to the Procedure Roll, the court may, at its own instance or on the motion of a party, ordain a party–

(a)to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that any preliminary plea should be sustained, and

(b)to send a copy of the note to every other party concerned,

within such period as the court thinks fit.

CHAPTER 23S MOTIONS

Interpretation of this ChapterS

23.1.  In this Chapter, unless the context otherwise requires, “party" includes any person entitled under these Rules to enrol a motion or to whom intimation of a motion is required to be made by these Rules or the court.

Enrolment of motionsS

23.2.—(1) A motion by a party may be–

(a)made orally at the Bar with leave of the court during any hearing of a cause; or

(b)enrolled in the process of the cause to which it relates in accordance with paragraph (2).

(2) A motion may be enrolled–

(a)by lodging it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, at the appropriate department of the Office of Court during its normal office hours;

(b)subject to paragraph (3), by posting it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court; or

(c)subject to paragraph (4), by sending it by facsimile transmission in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court.

(3) A motion may not be enrolled under paragraph (2)(b) where a fee is payable with that motion unless–

(a)the motion is enrolled by an agent who has a Court of Session account; or

(b)is accompanied by a cheque from the agent for the fee.

(4) A motion may not be enrolled under paragraph (2)(c) where–

(a)a document which requires to be lodged with, or which accompanies, the motion–

(i)is a step of process which requires to be or is signed;

(ii)is an open or closed record, reclaiming print, appeal print or appendix;

(iii)consists of more than four pages (including the backing sheet); or

(iv)does not fall within a class of documents prescribed by the Lord President by direction as a document which may be sent by facsimile transmission in support of a motion of a category, and on such conditions, prescribed by that direction;

(b)a fee is payable with that motion unless the motion is enrolled by an agent who has a Court of Session account; or

(c)it falls within a category of motions prescribed by the Lord President by direction as unsuitable for enrolment by facsimile transmission.

(5) On receipt of a motion lodged, sent by post or transmitted by facsimile under paragraph (2), a clerk of session shall attach the motion to the motion sheet.

(6) A motion sent by post or facsimile transmission under paragraph fi (2) shall be treated as enrolled when it is received in the appropriate department of the Office of Court.

(7) Where appearance for the party who enrolled the motion is required for a motion, the entry in the rolls in respect of that motion shall be starred.

Intimation of motionsS

23.3.—(1) Subject to paragraph (2) and any other provision in these Rules, the party enrolling a motion in a cause where–

(a)appearance has been entered by a defender under rule 17.1(1),

(b)defences, a minute or answers have been lodged by a party, or

(c)provision for intimation of a motion to a party is made in these Rules,

shall give written intimation of his intention to make such enrolment, and of the terms of the motion, to every such party.

(2) The requirement under paragraph (1) to give written intimation of a motion to a party shall not apply where that party–

(a)having entered appearance, fails to lodge defences within the period for lodging those defences;

(b)has not lodged answers within the period of notice for lodging those answers; or

(c)has withdrawn or is deemed to have withdrawn his defences, minute, note or answers, as the case may be.

(3) Such intimation shall be made so as to reach the other party not later than 12.30 p.m. on the day before enrolment, except where–

(a)the other party concerned in the motion consents to a shorter period of intimation;

(b)the period of intimation is otherwise provided in these Rules; or

(c)the court shortens or extends the period of intimation or dispenses with intimation.

(4) Where a motion is enrolled after the lapse of one year from the date of the last interlocutor in the cause, written intimation shall be given to every other party not less than 14 days before the date of enrolment.

(5) Where written intimation of a motion has been given, the party enrolling the motion shall state that this has been done on the motion in Form 23.2.

Opposition to motionsS

23.4.—(1) Where a party seeks to oppose a motion enrolled under rule 23.2, he shall–

(a)not later than the day and time as the Lord President shall prescribe by direction for the lodging of notices of opposition to motions, lodge a notice of his opposition in Form 23.4 at the appropriate department of the Office of Court during its normal office hours;

(b)post a notice of opposition in Form 23.4 to the appropriate department of the Office of Court; or

(c)send by facsimile transmission a notice of opposition in Form 23.4 to the appropriate department of the Office of Court.

(2) Opposition to a motion sent by post or facsimile transmission under paragraph (1)(b) or (c) shall be treated as lodged when the notice of opposition is received in the appropriate department of the Office of Court.

(3) On receipt of a notice of opposition lodged, sent by post or facsimile transmission under paragraph (1), a clerk of session shall attach the notice to the motion sheet.

(4) A party who opposes a motion shall give written intimation of his opposition to every other party so as to reach such other party not later than 12.30 p.m. on the day on which the opposition is lodged or treated as lodged.

(5) Where written intimation of opposition to a motion has been given, the party who has given such intimation shall state that this has been done on the notice of opposition in Form 23.4.

(6) Where a motion is opposed, the entry in the rolls in respect of that motion shall be starred.

Consent to motionsS

23.5.  Where a party seeks to consent to a motion, he may–

(a)endorse the motion with his consent;

(b)post a notice of consent in Form 23.5 to the appropriate department of the Office of Court; or

(c)send by facsimile transmission a notice of consent in Form 23.5 to the appropriate department of the Office of Court.

Hearing of motionsS

23.6.—(1) Subject to the rules mentioned in paragraph (2), the day of publication on the walls of the court and of the hearing of a motion enrolled on any day shall be determined in accordance with such provisions as the Lord President shall prescribe by direction.

(2) The rules referred to in paragraph (1) are:–

  • rule 23.7 (motions in session outwith a term or in vacation),

  • rule 23.8 (motions by pursuer before calling or petitioner before first order),

  • rule 23.9 (motions where caveat lodged),

  • rule 23.10 (motions by defender or other person before calling).

(3) A motion enrolled in a cause in the Outer House shall be heard by the Lord Ordinary.

(4) A motion enrolled in a cause in the Inner House shall be heard in the Single Bills by a Division of the Inner House.

Motions in session outwith a term or in vacationS

23.7.—(1) A motion which is to be heard by the Lord Ordinary in session outwith a term, or in vacation by the vacation judge, shall not appear in the rolls.

(2) A party enrolling such a motion shall be informed at the time of enrolment whether or not any appearance is required.

(3) Any such motion which is opposed in accordance with rule 23.4 shall require appearance for the party whose motion it is.

(4) On the afternoon of the day preceding each sitting of the lord Ordinary in session outwith a term or of the vacation judge there shall be published on the walls of the court a list of unopposed motions for which appearance is required followed by a list of opposed motions, each in alphabetic order.

(5) Motions before the Lord Ordinary in session outwith a term or the vacation judge shall be called for hearing in the order in which they appear in the list published under paragraph (4).

Motions by pursuer before calling or petitioner before first orderS

23.8.—(1) A motion enrolled by a pursuer in an action before the calling of the summons or by a petitioner before an order under rule 14.5(1)(a) (order for intimation, service and advertisement in petitions) has been made–

(a)shall, subject to any other provision in these Rules, be brought as soon as reasonably practicable by the Keeper of the Rolls, or a clerk of session instructed by him, before the Lord Ordinary sitting in court or in chambers; and

(b)shall not require to be published in the rolls.

(2) On enrolling such a motion, the pursuer or petitioner, as the case may be, shall be informed whether or not appearance is required.

Motions where caveat lodgedS

23.9.  Where a motion in respect of which a caveat has been lodged is enrolled, the Keeper of the Rolls shall–

(a)fix a hearing of the motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b)inform the parties concerned of the date and time of the hearing.

Motions by defender or other person before callingS

23.10.—(1) A motion enrolled in an action before the calling of the summons by a person other than the pursuer shall be intimated forthwith by the Deputy Principal Clark to the pursuer.

(2) The Keeper of the Rolls shall–

(a)fix a hearing of such a motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b)inform the parties concerned of the date and time of the hearing.

Statutory applications by motionS

23.11.  Unless otherwise provided in these Rules or any other enactment, an application to the court under any other enactment in fi a cause depending before the court shall be made by motion.

Expenses of motionsS

23.12.  Where a motion is called for hearing in the Motion Roll or Single Bills and is dropped, the Auditor shall, in taxing any expenses found due to the party on whose behalf the motion was enrolled, disallow the expenses occasioned by the motion unless he is satisfied that the motion was properly enrolled and properly dropped.

Conditions attached to granting of motionsS

23.13.  Where the court grants a motion in whole or in part, it may do so subject to such conditions, if any, as to expenses or otherwise as it thinks fit.

Appearance by solicitor for certain motionsS

23.14.—(1) A solicitor shall have a right of audience before the court in respect of a motion which is heard in chambers under any of the following rules:–

  • rule 23.8 (motions by pursuer before calling or petitioner before first order),

  • rule 23.9 (motions where caveat lodged),

  • rule 23.10 (motions by defender or other person before calling).

(2) A solicitor shall have a right of audience before the Lord Ordinary sitting during session outwith a term in respect of any motion.

CHAPTER 24S AMENDMENT OF PLEADINGS

Powers of courtS

24.1.—(1) In any cause the court may, at any time before final judgment, allow an amendment mentioned in paragraph (2).

(2) Paragraph (1) applies to the following amendments:–

(a)an amendment of a principal writ which may be necessary for the purpose of determining the real question in controversy between the parties, notwithstanding that in consequence of such amendment–

(i)the sum sued for in a summons is increased or restricted; or

(ii)a different remedy from that originally concluded for or craved is sought;

(b)an amendment which may be necessary–

(i)to correct or supplement the designation of a party to the cause;

(ii)to enable a party who has sued or has been sued in his own right to sue or be sued in a representative capacity;

(iii)to enable a party who has sued or has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity;

(iv)to add the name of an additional pursuer, a petitioner or person whose concurrence is necessary;

(v)where the cause has been commenced or presented in the name of the wrong person, or it is doubtful whether it has been commenced or presented in the name of the right person, to allow any other person to be sisted in substitution for, or in addition to, the original person; or

(vi)to direct conclusions against a third party brought into an action under Chapter 26 (third party procedure);

(c)an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties; and

(d)where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting in the instance of the principal writ an additional or substitute party and directing existing or additional conclusions or craves, averments and pleas-in-law against that party.

Applications to amendS

24.2.—(1) Subject to paragraph (2), a party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, enrol a motion–

(a)to allow the minute of amendment to be received; and

(b)to allow–

(i)amendment in terms of the minute of amendment and, where appropriate, to grant an order under rule 24.3(1) or (2) (service of amended pleadings); or

(ii)in any other case, where the minute of amendment may require to be answered, any other party to lodge answers within a specified period or such period as the court thinks fit.

(2) Where the amendment proposed is of a minor and formal nature, the party seeking to amend may enrol a motion to allow amendment in the terms set out in the motion.

(3) Where the court has pronounced an interlocutor allowing a minute of amendment to be received and answered, then–

(a)where answers have been lodged, parties may adjust the minute of amendment and answers within 4 weeks after the date on which answers were lodged or, where more than one set of answers have been lodged, the latest date on which answers were lodged;

(b)the party who has lodged the minute of amendment shall–

(i)where answers have been lodged, within 14 days after the expiry of the period for adjustment of the minute of amendment and answers or any continuation of it, or

(ii)where no answers have been lodged, within 14 days after the expiry of the period for lodging answers or any prorogation of it,

enrol a motion to amend the writ or other pleadings in terms of the minute of amendment and answers (if any) or for other further procedure, as the case may be.

(4) Where a party fails to enrol a motion under paragraph (3)(b), the court shall appoint the cause to be put out on the By Order Roll and, having heard parties on that roll, may–

(a)if moved to do so, allow the amendment;

(b)make such order as to further procedure as it thinks fit; and

(c)in any event, make such order in respect of expenses as it thinks fit.

(5) Where a party to a cause before the Inner House enrols a motion to amend a record in terms of a minute of amendment and answers (if any), he shall at the same time enrol for an order for further procedure.

Service of amended pleadingsS

24.3.—(1) In an undefended action where no appearance has been entered or in an unopposed petition or note, unless the amendment is formal in character, the court shall–

(a)order that a copy of the principal writ as amended be served on a specified person; and

(b)allow that person to lodge defences or answers, as the case may be, within such period as the court thinks fit.

(2) Where an amendment under rule 24.1(2)(d) (all parties not, or wrong person, called) has been made–

(a)the court shall order that a copy of the pleadings as so amended be served by the party who made the amendment on that additional or substitute party with a notice in Form 24.3 specifying the date by which defences or answers, as the case may be, must be lodged; and

(b)the party who made the amendment shall lodge in process–

(i)a copy of the pleadings as amended;

(ii)a copy of the notice mentioned in sub-paragraph (a);

(iii)a copy of the interlocutor ordering service; and

(iv)a certificate of service.

(3) When paragraph (2) has been complied with, the cause as so amended shall proceed in every respect as if that party had originally been made a party to the cause.

Expenses and conditions of amendmentS

24.4.  The court shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as it thinks fit.

Effect of amendment on diligenceS

24.5.  Where an amendment has been allowed, the amendment shall–

(a)not validate diligence used on the dependence of a cause so as to prejudice the rights of creditors, of the party against whom the diligence has been executed, who are interested in defeating such diligence; and

(b)preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

CHAPTER 25S COUNTERCLAIMS

CounterclaimsS

25.1.—(1) In any action other than a family action within the meaning of rule 49.1(1) or an action of multiplepoinding, a defender may lodge a counterclaim against a pursuer–

(a)where the counterclaim might have been made in a separate action in which it would not have been necessary to call as a defender any person other than the pursuer; and

(b)in respect of any matter–

(i)forming part, or arising out of the grounds, of the action by the pursuer;

(ii)the decision of which is necessary for the determination of the question in controversy between the parties; or

(iii)which, if the pursuer had been a person not otherwise subject to the jurisdiction of the court, might have been the subject-matter of an action against that pursuer in which jurisdiction would have arisen by reconvention.

(2) A counterclaim may be lodged in process–

(a)at any time before the record is closed; or

(b)at any later stage, with leave of the court and subject to such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) A counterclaim shall be headed “Counterclaim for the defender" and shall contain–

(a)conclusions, stated in accordance with the appropriate short style, if any, in Form 13.2–B which, if the counterclaim had been made in a separate action, would have been appropriate in the summons in that separate action;

(b)a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences; and

(c)appropriate pleas-in-law.

Warrants for diligence on counterclaimsS

25.2.—(1) A defender who lodges a counterclaim may apply for a warrant to use any form of diligence which would have been permitted under rule 13.6(c) (warrants for diligence in summonses) had the warrant been sought in a summons in a separate action.

(2) An application for a warrant under paragraph (1) shall be made–

(a)at the time of lodging the counterclaim, by inserting before the conclusions of the counterclaim the words “Warrant for arrestment [and inhibition] on the dependence [or inhibition on the dependenceor arrestmentin rem of (details of ship or cargo)or to dismantle (details of ship),as the case may be] applied for."; or

(b)after the counterclaim has been lodged, by motion.

(3) An application for a warrant under paragraph (2)(a) may be granted by the clerk of session who receives the counterclaim by writing the words “Warrant granted as craved." after the warrant sought, and adding his signature and the date below those words.

(4) A warrant granted under paragraph (3) shall have the same effect as if the warrant had been in a signeted summons.

(5) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) (b) shall be sufficient authority for execution of the diligence.

(6) A counterclaim, or a certified copy of the interlocutor, containing a warrant for inhibition granted under this rule and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(7) A notice of a warrant in a counterclaim, or a notice of the certified copy of the interlocutor containing a warrant, for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868 F26; and such registration shall have the same effect as registration of a notice under that section.

Answers to counterclaimsS

25.3.—(1) Answers to a counterclaim may be lodged by a pursuer–

(a)where the counterclaim is lodged before the record is closed, within 14 days after the date on which the counterclaim is lodged; or

(b)in any other case, within the period appointed by the interlocutor allowing the counterclaim to be received.

(2) Where answers to a counterclaim have been lodged, the court may, on the motion of the pursuer or defender, allow such period for adjustment as it thinks fit.

Effect of abandonment of actionS

25.4.—(1) The right of a pursuer to abandon his action under rule 29.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition, or in consequence, of such abandonment shall not include the expenses of the counterclaim.

(2) Notwithstanding abandonment by the pursuer, a defender may insist in his counterclaim; and the proceedings in the counterclaim shall continue in dependence as if the counterclaim were a separate action.

Proof or jury trial of counterclaimsS

25.5.—(1) Where a proof or jury trial is allowed between parties to an action, the court may allow any counterclaim to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action as it thinks fit.

(2) Where evidence is led in a counterclaim separately from the evidence in the action, the evidence in one cause shall, so far as competent and relevant, be evidence in the other cause.

Interlocutors in respect of counterclaimsS

25.6.  A decree or other interlocutor which could have been pronounced in a separate action brought to enforce the conclusions stated in a counterclaim may be pronounced in respect of the counterclaim.

CHAPTER 26S THIRD PARTY PROCEDURE

Applications for third party noticeS

26.1.—(1) Where, in an action, a defender claims that–

(a)he has in respect of the subject-matter of the action a right of contribution, relief or indemnity against any person who is not a party to the action, or

(b)a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such person is–

(i)solely liable, or jointly or jointly and severally liable with the defender, to the pursuer in respect of the subject-matter of the action, or

(ii)liable to the defender in respect of a claim arising from or in connection with the liability, if any, of the defender to the pursuer,

he may apply by motion for an order for service of a third party notice on that other person in Form 26.1–A for the purpose of convening that other person as a third party to the action.

(2) Where–

(a)a pursuer against whom a counterclaim has been made, or

(b)a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form 26.1–B (notice by pursuer) or Form 26.1–C (notice by third party), as the case may be, in the same manner as a defender under that paragraph; and rules 26.2 to 26.7 shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

Averments where order for service of third party notice soughtS

26.2.—(1) Where a defender intends to apply by motion for an order for service of a third party notice before the closing of the record, he shall, before enrolling the motion, set out in his defences, by adjustment to those defences, or in a separate statement of facts annexed to those defences–

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action; and

(b)appropriate pleas-in-law.

(2) Where a defender applies by motion for an order for service of a third party notice after the closing of the record, he shall, on enrolling the motion, lodge a minute of amendment containing–

(a)averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action, and

(b)appropriate pleas-in-law,

unless those grounds and pleas-in-law have been set out in the defences in the closed record.

Warrants for diligence on third party noticeS

26.3.—(1) A defender who applies for an order for service of a third part@ y notice may apply for a warrant to use any form of diligence which would have been permitted under rule 13.6 (b) or (c) (warrants for diligence in summonses) had the warrant been sought in a summons in a separate action.

(2) An application for a warrant under paragraph (1) shall be made by motion–

(a)at the time of applying for the third party notice; or

(b)if not applied for at that time, at any stage of the cause thereafter.

(3) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) shall be sufficient authority for execution of the diligence.

(4) A certified copy of the interlocutor containing a warrant for inhibition granted under this rule and a certificate of execution of it may be registered in the Register of Inhibitions and Adjudications.

(5) A notice of the certified copy of the interlocutor containing a warrant for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868; and such registration shall have the same effect as registration of a notice under that section.

Service on third partyS

26.4.—(1) A third party notice shall be served on the third party within such period as the court shall specify in the interlocutor allowing service of that notice.

(2) Where service of a third party notice has not been made within the period specified by virtue of paragraph (1), the order for service of it shall cease to have effect; and no service of the notice may be made unless a further order for service of it has been applied for and granted.

(3) There shall be served with a third party notice–

(a)a copy of the pleadings (including any adjustments and amendments); and

(b)a copy of the interlocutor allowing service of the notice.

(4) The defender who served the third party notice shall lodge in process–

(a)a copy of the third party notice;

(b)a copy of the interlocutor allowing service of it; and

(c)a certificate of service.

Answers to third party noticeS

26.5.—(1) An order for service of a third party notice shall specify 28 days, or such other period as the court on cause shown may specify, as the period within which the third party may lodge answers.

(2) Answers for a third party shall include–

(a)answers to the averments of the defender against him in the form of numbered paragraphs corresponding to the numbered articles of the condescendence annexed to the summons and incorporating, if the third party so wishes, answers to the averments of the pursuer; or

(b)where a separate statement of facts has been lodged by the defender under rule 26.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

(c)appropriate pleas-in-law.

Consequences of failure to lodge answersS

26.6.—(1) Where a third party fails to lodge answers, the defender may apply by motion for such finding, order or decree against the third party as may be appropriate to give effect to the claim in the third party notice.

(2) Where such a finding, order or decree is pronounced by the court, rule 19.2 (recall of decrees in absence) shall, with the necessary modifications, apply to that finding, order or decree as it applies to recall of a decree in absence by a defender.

Procedure following answersS

26.7.—(1) Within 14 days after the date on which answers are lodged by the third party, the defender who has served the third party notice shall–

(a)make up an open record incorporating the pleadings of all parties;

(b)deliver four copies of that record to every other party; and

(c)lodge two copies of that record in process.

(2) When an open record is lodged in process under paragraph (1), the action shall be put out on the Adjustment Roll and the court shall pronounce an interlocutor continuing the action on that roll for 6 weeks.

(3) Where a proof or jury trial is necessary between parties to the action, the court may allow the action so far as directed against the third party to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action between the pursuer and the defender as the court thinks fit.

(4) Where a third party challenges the case pled by the pursuer, he may appear at the proof or jury trial of the pursuer’s case and lead evidence as if he were a defender; and such evidence, so far as competent and relevant, shall be evidence for or against the pursuer or for or against the defender, as the case may be, and shall be available to all the parties in the action.

(5) Subject to the preceding provisions of this Chapter and unless the context otherwise requires, the other provisions of these Rules in relation to actions shall, with the necessary modifications, apply as between the defender and a third party or the pursuer and a third party, as the case may be, as they apply to the action between the pursuer and defender.

CHAPTER 27S DOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS

Lodging of documents founded on or adoptedS

27.1.—(1) Any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him–

(a)when founded on or adopted in a summons, at the time of lodging the summons for calling;

(b)when founded on or adopted in a petition, note, application, minute, defences, counterclaim or answers, at the time of lodging that writ; and

(c)when founded on or adopted in an adjustment to any pleadings, at the time when such adjustment is intimated to any other party.

(2) Paragraph (1) shall be without prejudice to any power of the court to order the production of any document or to grant a commission and diligence for recovery of it.

Consequences of failure to lodge documents founded on or adoptedS

27.2.  Where a party fails to lodge a document in accordance with rule 27.1(1), he may be found liable in the expenses of any order for the production or recovery of it obtained by any other party.

CHAPTER 28S PROCEDURE ROLL

Hearings on procedure rollS

28.1.—(1) When a cause calls on the Procedure Roll and no counsel, other person having a right of audience or party attends, the Lord Ordinary may pronounce an interlocutor dismissing or refusing the cause, as the case may be, and finding no expenses due to or by any party.

(2) An interlocutor pronounced under paragraph (1) may, if reclaimed, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) The court, after hearing parties on the Procedure Roll, may dispose of all or any of the preliminary pleas and may–

(a)allow parties a preliminary proof on specified matters or in respect of specified pleas;

(b)allow parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(c)allow a proof;

(d)allow issues for jury trial; or

(e)make such other order as it thinks fit.

(4) Where a cause has been appointed to the Procedure Roll, parties may, of consent, apply by motion to withdraw the cause from that roll and for any order which might have been pronounced at the hearing of the cause on that roll.

CHAPTER 29S ABANDONMENT

Abandonment of actionsS

29.1.—(1) A pursuer may abandon an action by lodging a minute of abandonment in process and–

(a)consenting to decree of absolvitor; or

(b)seeking decree of dismissal.

(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless–

(a)full judicial expenses have been paid to the defender, and to any third party against whom he has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

(b)where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

(3) If the pursuer fails to pay the expenses referred to in sub-paragraph (a) of paragraph (2) to the party to whom they are due within the period specified in that sub-paragraph, that party shall be entitled to decree of absolvitor with expenses.

Application of abandonment of actions to counterclaimsS

29.2.  Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.

Abandonment of petitions, minutes and notesS

29.3.—(1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be–

(a)enrolling a motion for abandonment of the cause; and

(b)intimating the motion to every person who lodged answers.

(2) The court may grant a motion under paragraph (1) subject to such conditions as to expenses or otherwise, if any, as it thinks fit.

CHAPTER 30S WITHDRAWAL OF AGENTS

Intimation of withdrawal of agent to courtS

30.1.—(1) Where an agent withdraws from acting on behalf of a party, he shall intimate his withdrawal by letter to the Deputy Principal Clerk and to every other party.

(2) The Deputy Principal Clerk shall cause such letter to be lodged in process.

Intimation to party whose agent has withdrawnS

30.2.—(1) The court shall, on the motion of any other party, pronounce an interlocutor ordaining the party whose agent has withdrawn from acting to intimate to the Deputy Principal Clerk within 14 days (or such other period as the court, on cause shown, thinks fit) after service of the interlocutor as required by paragraph (2) whether or not he intends to proceed, under certification that if he fails to intimate whether or not he intends to proceed, the court may grant such decree or make such order or finding as it thinks fit.

(2) The party who enrolled a motion under paragraph (1) shall forthwith serve a notice in Form 30.2 with a copy of the interlocutor pronounced under paragraph (1) to the party whose agent has withdrawn from acting.

Consequences of failure to intimate intention to proceedS

30.3.  Where a party on whom a notice and interlocutor has been served under rule 30.2(2) fails to intimate to the Deputy Principal Clerk within the period specified in the interlocutor that he intends to proceed, the court shall, on the motion of any other party where a certificate of service of the interlocutor has been lodged in process, grant such decree, order or finding as it thinks fit.

CHAPTER 31S MINUTES OF SIST AND TRANSFERENCE

Minutes of sistS

31.1.—(1) Where a party dies or comes under legal incapacity while a cause is in dependence, any person claiming to represent that party or his estate may apply to the court by minute to be sisted as a party to the cause.

(2) Intimation of such an application shall be made to each party.

Minutes of transferenceS

31.2.—(1) Where a party dies or comes under legal incapacity while a cause is depending before the court and the provisions of rule 31.1 (minutes of sist) are not invoked, any other party may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

(2) Where a minute of transference has been lodged in process, the court shall pronounce an interlocutor–

(a)granting warrant for service of a copy of the minute of transference, a copy of the pleadings (including any adjustments and amendments) and a copy of that interlocutor on such person; and

(b)allowing such person to lodge a minute of objection to the minute of transference within such period as the court thinks fit.

CHAPTER 32S TRANSMISSION AND REMIT OF CAUSES

Remits to sheriff courtS

32.1.—(1) An application by a party under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 F27 (remit from court to sheriff) shall be made by motion.

(2) Where an action is remitted to a sheriff under section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, the Deputy Principal Clerk shall, within 4 days after the interlocutor remitting the cause has been pronounced, transmit the process to the sheriff clerk of the sheriff court specified in the interlocutor.

(3) When transmitting a process under paragraph (2), the Deputy Principal Clerk shall–

(a)give written intimation of the transmission to the parties; and

(b)certify on the interlocutor sheet that such written intimation has been given.

(4) Failure by the Deputy Principal Clerk to comply with paragraph (3) shall not affect the validity of a remit made under paragraph (1).

Transmissions on contingencyS

32.2.—(1) An application under section 33 of the Act of 1988 F28 (transmission from sheriff on ground of contingency) shall be made–

(a)by motion at the instance of a party to the cause depending before the court; or

(b)by minute at the instance of any other person having an interest (including a party to the cause depending before the sheriff).

(2) A copy of the pleadings and the interlocutors in the cause depending before the sheriff, certified by the sheriff clerk, shall be lodged with any motion enrolled or any minute lodged under paragraph (1).

(3) A decision made on an application under paragraph (1) may not be reclaimed; but where an application has been refused, a subsequent application may be made where there has been a change of circumstances.

Intimation of receipt of process transmitted from sheriff courtS

32.3.  On receipt of a process transmitted by a sheriff clerk by virtue of an order made under any enactment to remit a cause to the court, the Deputy Principal Clerk shall–

(a)write the date of receipt on the interlocutor sheet of the sheriff court process; and

(b)give written intimation of that date to each party.

Lodging of process and motion for further procedureS

32.4.—(1) Within 14 days after the date of receipt of a process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court)–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

shall make up and lodge in the General Department a process incorporating the sheriff court process.

(2) On lodging a process under paragraph (1), the party lodging it shall apply by motion for an order for such further procedure as he desires; and the cause shall proceed as if it had been an action in the court initiated by a summons.

(3) A motion under paragraph (2) shall be disposed of by the Lord Ordinary.

Reponing against failure to comply with rule 32.4(1) or (2)S

32.5.—(1) Where–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

fails to comply with the requirements of rule 32.4(1) or (2) (lodging of process and motion for further procedure), he may, within 7 days after the expiry of the period specified in rule 32.4(1), apply by motion to be reponed.

(2) The party enrolling a motion under paragraph (1), where the failure is a failure to lodge a process under rule 32.4(1), shall on enrolling the motion, lodge such a process and shall apply by motion for an order for such further procedure as he desires.

(3) A motion under paragraph (1) shall be granted only on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Insistence in remit by another partyS

32.6.  Where–

(a)the party on whose motion the remit was made, or

(b)in a cause remitted by the sheriff at his own instance, the pursuer or first pursuer,

has failed to comply with the requirements of paragraphs (1) or (2) of rule 32.4 (lodging of process and motion for further procedure), any other party to the cause may, within 7 days after the expiry of the period specified in rule 32.4(1) comply with the requirements of those paragraphs himself and insist in the remit.

Re-transmission to sheriff clerkS

32.7.  Where, on the expiry of 21 days after the date of receipt of the process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court), no motion has been enrolled under rule 32.5(1) (reponing against failure to comply with rule 32.4(1) or (2)) and no motion has been enrolled under rule 32.6 (insistence in remit by another party), the remit shall be deemed to be abandoned and the Deputy Principal Clerk shall–

(a)write on the interlocutor sheet the words “Re-ransmitted in respect that the remit has been abandoned.";

(b)add his signature and the date; and

(c)transmit the process to the sheriff clerk.

CHAPTER 33S CAUTION AND SECURITY

Application of this ChapterS

33.1.  Subject to any other provisions in these Rules, this Chapter applies to–

(a)any cause in which the court has power to order a person to find caution or give other security; and

(b)security for expenses ordered to be given under section 136 of the Representation of the People Act 1983 F29 in an election petition.

Form of applicationsS

33.2.—(1) An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion.

(2) The grounds on which such an application is made shall be set out in the motion.

Orders to find caution or other securityS

33.3.  Subject to section 726(2) of the Companies Act 1985 F30 (order on company to find caution), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

Methods of finding caution or giving securityS

33.4.—(1) A person ordered–

(a)to find caution, shall do so by obtaining a bond of caution; or

(b)to consign a sum of money into court, shall do so by consignation under the Court of Session Consignations (Scotland) Act 1895 F31 in the name of the Accountant of Court.

(2) The court may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security.

(3) Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process.

(4) Where the court approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process.

(5) A bond of caution or consignation receipt lodged in process shall be accompanied by a copy of it.

Cautioners and guarantorsS

33.5.  A bond of caution or other security obtained from an insurance company shall be given only by a company authorised under section 3 or 4 of the Insurance Companies Act 1982 F32 to carry on insurance business of class 15 in Schedule 2 to that Act.

Form of bonds of caution and other securitiesS

33.6.—(1) A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validly and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged.

(2) A bond of caution or other security document given by an insurance company shall state whether the company is authorised under section 3 or 4 of the Insurance Companies Act 1982 to carry on insurance business of class 15 in Schedule 2 to that Act.

Sufficiency of caution or security and objectionsS

33.7.—(1) The Deputy Principal Clerk shall satisfy himself that any bond of caution or other document, lodged in process under rule 33.4(3), is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 33.10 (failure to find caution or give security).

Juratory cautionS

33.8.—(1) Where a pursuer in an action with a conclusion for suspension is ordered to find caution or give other security, he may offer to do so by juratory caution.

(2) Such an offer shall be made–

(a)at the time the order for caution or other security is made; or

(b)by enrolling a motion within the period allowed for finding caution or giving other security, as the case may be, or any prorogation of it, for the appointment of a commissioner.

(3) Where such an offer is made, the court shall–

(a)appoint a commissioner to take the deposition of the pursuer at a time and place to be fixed by the commissioner;

(b)ordain the pursuer to give notice of at least 7 days of the time and place so fixed by the commissioner to every other party to the action; and

(c)where the offer has been made by motion under paragraph (2)(b), prorogate the time for finding caution or giving other security, as the case may be, by such period as it thinks fit.

(4) At the time and place fixed by the commissioner in accordance with paragraph (3)(a), the pursuer shall be examined as to the nature and extent of his whole estate wheresoever situated and the other parties to the action shall be entitled to cross-examine him.

(5) After his examination, the pursuer shall send to the Deputy Principal Clerk–

(a)a bond of caution;

(b)a full inventory of his whole estate;

(c)a declaration attached to the inventory, stating that he will not dilapidate or dispose of any of his property or uplift any of the debts due to him, without the authority of the court (under pain of imprisonment or being otherwise punished as being guilty of fraud) or the consent of the party entitled to the benefit of the caution until the interlocutor disposing of the subject-matter of the action has become final and, where he has been found liable to pay any sum, including expenses, 12 weeks (and any further period that the court, on the motion of any party, may grant) have passed since the interlocutor became final;

(d)the vouchers of any debts due to the pursuer;

(e)the title deeds of any heritable property belonging to the pursuer, so far as in his possession or under his control; and

(f)where required by the party entitled to the benefit of the caution–

(i)a standard security in favour of such party over any heritable property belonging to the pursuer, and

(ii)as assignation of all debts or other rights due to the pursuer,

prepared at the expense of the pursuer.

(6) Subject to rule 33.12(1) (bond of caution or consignation receipt transmitted to Accountant of Court), the Deputy Principal Clerk shall retain any documents lodged under paragraph (5) of this rule until further order of the court.

Insolvency or death of cautioner or guarantorS

33.9.  Where caution has been found by bond of caution or security has been given by guarantee and the cautioner or guarantor, as the case may be–

(a)becomes apparently insolvent within the meaning assigned by section 7 of the Bankruptcy (Scotland) Act 1985 F33 (constitution of apparent insolvency),

(b)calls a meeting of his creditors to consider the state of his affairs,

(c)dies unrepresented, or

(d)is a company and–

(i)an administration or winding up order has been made, or a resolution for a voluntary winding up has been passed, with respect to it,

(ii)a receiver of all or any part of its undertaking has been appointed, or

(iii)a voluntary arrangement (within the meaning assigned by section 1(1) of the Insolvency Act 1986 F34) has been approved under Part I of that Act,

the party entitled to benefit from the caution or guarantee may apply by motion for a new security or further security to be given.

Failure to find caution or give securityS

33.10.  Where a party fails to find caution or give other security (such a party being in this rule referred to as “the party in default"), any other party may apply by motion–

(a)where the party in default is a pursuer, for decree of absolvitor; or

(b)where the party in default is a defender or a third party, for decree by default or for such other finding or order as the court thinks fit.

Interlocutors authorising uplifting of consignation receiptsS

33.11.  An interlocutor authorising a party to uplift a consignation receipt from the Accountant of Court shall state the name of the person entitled to any interest which has accrued on the sum consigned.

Accountant of CourtS

33.12.—(1) A bond of caution or a consignation receipt lodged in any process shall be transmitted by the party lodging it, after the Deputy Principal Clerk has complied with rule 33.7(1), to the Accountant of Court.

(2) A bond of caution may be uplifted from the Accountant of Court on exhibition to him of the interlocutor granting discharge.

(3) A consignation receipt may be uplifted from the Accountant of Court on exhibition to him of a certified copy of the interlocutor authorising it.

(4) The form of book to be kept by the Accountant of Court under section 4 of the Court of Session Consignations (Scotland) Act 1895 (consignations to be entered in books kept by Accountant of Court) shall be in Form 33.12.

CHAPTER 34S REPORTS TO INNER HOUSE

Report by Lord Ordinary to Inner HouseS

34.1.—(1) The Lord Ordinary may, at any stage of a cause on intimation to the parties, report the cause or any incidental matter which arises in the course of it, to the Inner House for a ruling.

(2) The Lord Ordinary shall give effect to the ruling of a Division of the Inner House on a report to the Inner House unless the Division decides the cause or incidental matter itself or remits to the Lord Ordinary with directions to proceed in a particular way.

Fixing hearings for reportsS

34.2.—(1) Where the Lord Ordinary reports a cause, or any incidental matter in a cause, under rule 34.1(1) to the Inner House, each party shall, within 7 days after the date on which the report of the Lord Ordinary is issued, inform the Keeper of the Rolls of the estimate of counsel or other person having a right of audience of the duration of the hearing before the Inner House.

(2) If a party fails to comply with paragraph (1), the Keeper of the Rolls may put the cause out on the By Order Roll before a Division of the Inner House.

(3) Where, at any time after an estimate has been given to the Keeper of the Rolls under paragraph (1), a party’s estimate of the likely length of the hearing alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(4) On the basis of the information provided to him under this rule, the Keeper of the Rolls shall–

(a)put the cause out for hearing before a Division of the Inner House in the Single Bills or on the Summar Roll as he thinks fit; and

(b)give written intimation of the date of the hearing to each party.

Disposal of reportsS

34.3.—(1) On considering the report of the Lord Ordinary and hearing parties, the Inner House may–

(a)dispose of the cause or matter reported to it; or

(b)remit to the Lord Ordinary with such directions as it thinks fit.

(2) The decision of the Inner House on a report to it under rule 34.1(1) shall be final.

(3) The Inner House may determine any question of expenses in respect of the matter reported to it or may reserve any such question.

(4) An interlocutor pronounced by the Lord Ordinary in obedience to directions given under paragraph (1) shall be deemed to be an interlocutor of the Inner House.

CHAPTER 35S RECOVERY OF EVIDENCE

Application and interpretation of this ChapterS

35.1.—(1) This Chapter applies to the recovery of any evidence in a cause depending before the court.

(2) In this Chapter, “the Act of 1972" means the Administration of Justice (Scotland) Act 1972 F35.

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972S

35.2.—(1) An application by a party for–

(a)a commission and diligence for the recovery of a document, or

(b)an order under section 1 of the Act of 1972 F36,

shall be made by motion.

(2) At the time of enrolling a motion under paragraph (1), a specification of–

(a)the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b)the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

(3) A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a)every other party;

(b)in respect of an application for an order under section 1(1) of the Act of 1972, any third party haver; and

(c)where necessary, the Lord Advocate.

(4) Where the Lord Ordinary grants a motion made under paragraph (1), in whole or in part, in an action before calling of the summons, he may order the applicant to find such caution or give such other security as he thinks fit.

(5) The decision of the Lord Ordinary on a motion under paragraph (1) in an action before calling of the summons shall be final and not subject to review.

(6) The Lord Advocate may appear at the hearing of any motion under paragraph (1).

F36Section 1 of the Administration of Justice (Scotland) Act 1972 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section 19 and Schedule 2, paragraph 15.

Optional procedure before executing commission and diligenceS

35.3.—(1) The party who has obtained a commission and diligence for the recovery of a document on an application made under rule 35.2(1)(a) may, at any time before executing it against a haver, serve on the haver an order in Form 35.3 (in this rule referred to as “the order").

(2) The order and a copy of the specification referred to in rule 35.2(2), as approved by the court, shall be served on the haver or his known agent and shall be complied with by the haver in the manner and within the period specified in the order.

(3) Not later than the day after the date on which the order, and any document recovered is received from a haver by the Deputy Principal Clerk, he shall give written intimation of that fact to each party.

(4) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (3).

(5) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (3), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(6) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (5), the Deputy Principal Clerk shall return it to the haver who delivered it to him.

(7) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a)give written intimation of the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days after the date of intimation, return it to the haver.

(8) If the party who served the order is not satisfied–

(a)that full compliance has been made with the order, or

(b)that adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 35.4.

(9) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the court may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(10) Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (9), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(11) The court may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

Execution of commission and diligence for recovery of documentsS

35.4.—(1) The party who seeks to execute a commission and diligence for recovery of a document obtained on an application under rule 35.2(1)(a) shall–

(a)provide the commissioner with a copy of the specification, 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 every other party;

(c)instruct the clerk and any shorthand writer; and

(d)be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(3) A haver shall be cited to appear at a commission for the recovery of documents by service on him of a citation in Form 35.4–A–

(a)by registered post or the first class recorded delivery service; or

(b)personally, by messenger-at-arms.

(4) A certificate of citation of a haver–

(a)under paragraph (3)(a) shall be in Form 35.4-B; and

(b)under paragraph (3)(b) shall be in Form 35.4–C.

(5) There shall be served on the haver with the citation a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

(6) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a haver cited to appear at a commission for that party.

(7) The parties and the haver shall be entitled to be represented by counsel or other person having a right of audience, or an agent, at the execution of the commission.

(8) At the commission, the commissioner shall–

(a)administer the oathde fideli administratione to the clerk and shorthand writer appointed for the commission; and

(b)administer to the haver the oath in Form 35.4-D, or, where the haver elects to affirm, the affirmation in Form 35.4-E.

(9) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(10) Not later than the day after the date on which such a report, any document recovered and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to the parties that he has received them.

(11) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (10).

(12) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (11), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(13) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (12), the Deputy Principal Clerk shall return it to the haver.

(14) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a)give written intimation of the return of the document to every other party; and

(b)if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972S

35.5.—(1) An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or r⅔ ecovery of that document or other property.

(2) Rule 35.3 (optional procedure before executing commission and diligence) and rule 35.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972S

35.6.—(1) An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment with or on, any such document or other property, as the case may be, subject to such conditions, if any, as the court thinks fit.

(2) A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3) When such an order is executed, the party who obtained the order shall serve on the haver a certified copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972S

35.7.—(1) An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property shall grant a commission and diligence for the detention and custody of that document or other property.

(2) The party who has obtained an order under paragraph (1) shall–

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