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

CHAPTER 41 S APPEALS UNDER STATUTE

PART I S GENERAL PROVISIONS

Application and interpretation of this Chapter S

41.1.—(1) This Chapter applies to an appeal to the court from a decision of a tribunal other than a decision in the Outer House or a court to which Chapter 40 (appeals from inferior courts) applies.

(2) In this Chapter, unless the context otherwise requires–

• “appeal” includes stated case, case, special case (other than a special case under section 27 of the Act of 1988(1)), reference or submission;

• “case” means stated case, special case (other than a special case under section 27 of the Court of Session Act 1988), reference or submission;

• “decision” includes determination or assessment;

• “party” means the person appearing before the tribunal against the decision of which appeal is taken;

• “tribunal” means court, Secretary of State, Minister, Department, statutory tribunal, referee, authority or arbiter, as the case may be, against whose decision the appeal is taken.

Commencement Information

I1 Sch. 2 rule 41.1 in force at 5.9.1994, see para. 1(1)

Applications for leave to appeal S

41.2.—(1) Where leave to appeal is required, an application for such leave shall be made, in the first instance, to the tribunal which made the decision sought to be appealed against unless the enactment allowing the appeal requires the application to be made to the court.

(2) Where–

(a) the tribunal has refused leave to appeal and such refusal is not final, or

(b) leave to appeal is required from the court and not the tribunal,

any application to the court for leave to appeal shall be made in Form 40.2 to the Inner House.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department–

(a) within the period prescribed by the enactment by virtue of which it is made; or

(b) where no such period is prescribed, within 14 days after the date specified in paragraph (4).

(4) The date referred to in paragraph (3)(b) is–

(a) the date on which the decision of the tribunal refusing leave to appeal was intimated to the appellant; or

(b) where the application for leave to appeal is required to be made to the court and not the tribunal–

(i) the date on which the decision of the tribunal complained of was intimated to the appellant; or

(ii) where the tribunal issued a statement of its reasons for its decision later than the decision, the date of intimation of the statement of reasons to the appellant.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)–

(a) a process in accordance with rule 4.4 (steps of process);

(b) where applicable–

(i) evidence that leave to appeal has been refused by the tribunal;

(ii) a copy of the grounds of appeal submitted to the tribunal; and

(iii) any note by the tribunal setting out the reasons for its refusal;

(c) a copy of the document issued by the tribunal setting out the decision complained of and any reasons for that decision; and

(d) where the tribunal itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Commencement Information

I2 Sch. 2 rule 41.2 in force at 5.9.1994, see para. 1(1)

Determination of applications for leave to appeal S

41.3.—(1) On lodging an application for leave to appeal under rule 41.2, the applicant shall apply by motion to the Inner House for an order for intimation and service.

(2) On expiry of the period within which answers may be lodged, the applicant may apply by motion to the Inner House for the application to be granted.

(3) In an appeal by stated case, where an application for leave to appeal has been granted–

(a) the Deputy Principal Clerk shall send a certified copy of the interlocutor granting the application to the tribunal; and

(b) within 14 days after the date on which the certified copy of the interlocutor was sent to it, the tribunal shall state a case in accordance with rule 41.9 (preparation and issue of case).

Commencement Information

I3 Sch. 2 rule 41.3 in force at 5.9.1994, see para. 1(1)

PART II S APPEALS BY STATED CASE ETC.

Application and interpretation of this Part S

41.4.  Subject to the provisions of the enactment providing for appeal and to Parts III to X, this Part shall regulate the procedure in–

(a) an appeal by stated case, special case, case, reference or submission against the decision of a tribunal;

(b) a case stated by an arbiter;

(c) all statutory proceedings for obtaining the opinion of the court on a question before the issue of a decision by a tribunal or by appeal against such a decision; and

(d) a case required to be stated by a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(2).

Commencement Information

I4 Sch. 2 rule 41.4 in force at 5.9.1994, see para. 1(1)

Applications for case S

41.5.—(1) An application for a case for the opinion of the court on any questions shall be made by minute setting out the question on which the case is applied for.

(2) A minute under paragraph (1) shall be sent to the clerk of the tribunal–

(a) where the application must be made before the issue of the decision of the tribunal, at any time before the issue of the decision; or

(b) where the application may be made–

(i) after the issue of the decision of the tribunal, or

(ii) in a cause in which a statement of the reasons for the decision was given later than the issue of the decision, after the issue of that statement,

within 14 days after the issue of the decision or statement of reasons, as the case may be.

Commencement Information

I5 Sch. 2 rule 41.5 in force at 5.9.1994, see para. 1(1)

Additional questions by other parties S

41.6.—(1) On receipt of an application under rule 41.5 (applications for case), the clerk of the tribunal shall send a copy of the minute to every other party.

(2) Within 14 days after the date on which the clerk of the tribunal complied with paragraph (1), any other party may lodge with the clerk a minute setting out any additional question he proposes for the case; and on so doing he shall send a copy of it to every other party.

Commencement Information

I6 Sch. 2 rule 41.6 in force at 5.9.1994, see para. 1(1)

Consideration of application by tribunal S

41.7.—(1) Within 21 days after the expiry of the period allowed for lodging a minute under rule 41.6(2) (additional questions by other parties), the tribunal shall–

(a) decide to state a case on the basis of the questions set out in the application for a case under rule 41.5(1) and any minute under rule 41.6(2);

(b) where it is of the opinion that the proposed question–

(i) does not arise,

(ii) does not require to be decided for the purposes of the appeal, or

(iii) is frivolous,

refuse to state a case on that question; or

(c) where the application under rule 41.5(1) is made before the facts have been ascertained and the tribunal is of the opinion that it is necessary or expedient that the facts should be ascertained before the application is disposed of, defer further consideration of the application until the facts have been ascertained by it.

(2) Where the tribunal has deferred a decision under paragraph (1)(c), it shall, within 14 days after it has ascertained the facts, decide whether to state or refuse to state a case.

(3) Where the tribunal makes a decision under paragraph (1) or (2). the clerk of the tribunal shall intimate that decision to each party.

(4) Where the tribunal has refused to state a case on any question, there shall be sent to the applicant with the intimation under paragraph (3)–

(a) a certificate specifying–

(i) the date of the decision of the tribunal; and

(ii) the reasons for refusal; and

(b) where the refusal has been made after the facts have been ascertained, a note of the proposed findings-in-fact on which the tribunal proposes to base its decision; or

(c) where the refusal has been made before the facts have been ascertained, a note of, or sufficient reference to, the averments of the parties in the appeal on which the refusal is based.

Commencement Information

I7 Sch. 2 rule 41.7 in force at 5.9.1994, see para. 1(1)

Procedure for ordaining tribunal to state a case S

41.8.—(1) Where the tribunal has refused to state a case on any question, the party whose application has been refused may, within 14 days after the date on which intimation of such refusal was made under rule 41.7(3), lodge in the General Department–

(a) an application by note to the Inner House for an order to require the other party to show cause why a case should not be stated;

(b) the certificate and any note issued under rule 41.7(4); and

(c) a process in accordance with rule 4.4 (steps of process).

(2) A note under paragraph (1)(a) shall–

(a) state briefly the grounds on which the application is made; and

(b) specify the order and any incidental order sought.

(3) An application under paragraph (1) shall be put out in the Single Bills before the Inner House on the first available day after the date on which the note under paragraph (1)(a) was lodged for an order for service of the note on–

(a) the tribunal; and

(b) every other party.

(4) After the period for lodging answers has expired, the Inner House shall, on a motion by the noter, without hearing parties–

(a) appoint the note to the Summar Roll for hearing; or

(b) direct that the note be heard in the Single Bills.

(5) The noter shall intimate the decision of the Inner House on the note to the tribunal.

Commencement Information

I8 Sch. 2 rule 41.8 in force at 5.9.1994, see para. 1(1)

Preparation and issue of the case S

41.9.—(1) Where the tribunal has decided, or is ordered under rule 41.8, to state a case, the tribunal shall, within 14 days after the date of intimation of its decision to the parties, cause the case to be prepared in Form 41.9 and copies of it to be submitted in draft to each party.

(2) The case shall–

(a) specify the relevant provision of the enactment under which it is prepared;

(b) state in numbered paragraphs the facts and circumstances out of which the case arises, as agreed or found, or as the case may be, the decision of the tribunal and the reasons for the decision; and

(c) set out the question for answer by the court.

(3) Within 21 days after the date on which the draft case is submitted under paragraph (1), each party shall–

(a) return a copy of it to the clerk of the tribunal with a note of any amendments which he seeks to have made; and

(b) intimate such amendments to every other party.

(4) Within 28 days after the expiry of the period for return of the case under paragraph (3), the tribunal–

(a) shall adjust and settle the case; and

(b) may, when so doing, add such further or additional findings-in-fact and such additional questions as it thinks necessary for the disposal of the subject-matter of the case.

(5) Where the tribunal does not accept any amendment sought by a party, it shall append to the case a note of–

(a) the terms of the amendment proposed by the party and any statement by that party in support of the proposal; and

(b) its reasons for rejecting the proposed amendment.

(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall send it to the party, or first party, who applied for it.

Commencement Information

I9 Sch. 2 rule 41.9 in force at 5.9.1994, see para. 1(1)

Intimation of intention to proceed S

41.10.—(1) The party to whom the case has been sent under rule 41.9(6) or paragraph (3) of this rule shall, within 14 days after the date of receipt of it–

(a) intimate to every other party a notice stating whether or not he intends to proceed with the case; and

(b) send a copy of the case to every other party.

(2) Where the party to whom the case has been sent under rule 41.9(6) does not intend to proceed with it, he shall, on intimating that fact to every other party under paragraph (1), send the case back to the clerk of the tribunal.

(3) On receipt of the case sent back under paragraph (1), the clerk of the tribunal shall send it to any other party who had applied for a case.

Commencement Information

I10 Sch. 2 rule 41.10 in force at 5.9.1994, see para. 1(1)

Lodging of case in court S

41.11.—(1) The party who applied for the case shall, within the period mentioned in paragraph (2)–

(a) lodge in the General Department–

(i) the case; and

(ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b) on giving written intimation to every other party of the lodging of the case, send four copies of the case to every other party; and

(c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.

(2) The period referred to in paragraph (1) shall be–

(a) the period prescribed by the enactment under or by virtue of which the appeal is brought; or

(b) where no such period is prescribed, within 28 days after the date on which the case was received by him from the clerk of the tribunal by virtue of rule 41.9(6) or 41.10(3), as the case may be.

Commencement Information

I11 Sch. 2 rule 41.11 in force at 5.9.1994, see para. 1(1)

Abandonment of appeal S

41.12.—(1) If a party–

(a) fails to comply with a requirement of rule 41.11(1) (lodging of case in court), and

(b) does not apply to be reponed under rule 41.13 (reponing against deemed abandonment),

he shall be deemed to have abandoned his appeal.

(2) Where a party is deemed to have abandoned his appeal under paragraph (1) and another party has also applied for a case and has had no opportunity of proceeding with his appeal, the party deemed to have abandoned his appeal shall–

(a) intimate to that other party that his appeal is abandoned, and

(b) send the case to that other party;

and that other party shall be entitled to proceed in accordance with rule 41.11.

(3) In the application of rule 41.11 to a party entitled to proceed by virtue of paragraph (2) of this rule, for the words “on which the case” to “rule 41.9(6) or 41.10(3), as the case may be” in paragraph (2)(b) of that rule, there shall be substituted the words “of intimation of abandonment under rule 41.12 (2)”.

Commencement Information

I12 Sch. 2 rule 41.12 in force at 5.9.1994, see para. 1(1)

Reponing against deemed abandonment S

41.13.  A party may apply by motion to the Inner House within 7 days after the expiry of the period specified in rule 41.11(2) (period for lodging of case in court), to be reponed against a failure to comply with a requirement of rule 41.11(1).

Commencement Information

I13 Sch. 2 rule 41.13 in force at 5.9.1994, see para. 1(1)

Procedure on abandonment S

41.14.—(1) On the abandonment of the appeal by all parties entitled to proceed, the case shall be sent to the Deputy Principal Clerk.

(2) On receiving a case sent to him under paragraph (1), the Deputy Principal Clerk shall–

(a) endorse the case with a certificate in Form 41.14; and

(b) transmit the case to the clerk of the tribunal.

(3) Where a case has been transmitted under paragraph (2), the tribunal shall, on a motion being made to it to that effect–

(a) dispose of the cause; and

(b) where one party only has applied for a stated case, find him liable for payment to the other party in the appeal of the expenses of the abandoned appeal as taxed by the Auditor of the Court of Session.

Commencement Information

I14 Sch. 2 rule 41.14 in force at 5.9.1994, see para. 1(1)

Motions for hearing of appeals S

41.15.—(1) On lodging a case under rule 41.11 (lodging of case in court), the party lodging it shall apply by motion to the Inner House for an order for a hearing.

(2) The Inner House shall, on a motion under paragraph (1), without hearing parties–

(a) appoint the cause to the Summar Roll for hearing; or

(b) direct that the cause be heard in the Single Bills.

Commencement Information

I15 Sch. 2 rule 41.15 in force at 5.9.1994, see para. 1(1)

Amendment or re-statement of case S

41.16.  The Inner House may, at any time before the final determination of the case–

(a) allow the case to be amended with the consent of the parties; or

(b) remit the case for restatement, or further statement, in whole or in part by the tribunal.

Commencement Information

I16 Sch. 2 rule 41.16 in force at 5.9.1994, see para. 1(1)

Remit to reporter S

41.17.—(1) Where, in order to determine the case, any inquiry into matters of fact may be made, the Inner House may remit to a reporter, the Lord Ordinary or one of its own number to take evidence and to report to the court.

(2) On completion of a report made under paragraph (1), the reporter shall send his report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.

(3) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) [F1 give] written intimation to each party that this has been done and that he may uplift a copy of the report from the process.

(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.

Textual Amendments

F1 Word in Sch. 2 rule 41.17(3)(b) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(a)

Commencement Information

I17 Sch. 2 rule 41.17 in force at 5.9.1994, see para. 1(1)

PART III S APPEALS IN FORM 41.19

Application of this Part S

41.18.  Subject to the provisions of the enactment providing for appeal, this Part applies to an appeal against a decision of a tribunal other than an appeal to which Part II (appeals by stated case etc.) applies.

Commencement Information

I18 Sch. 2 rule 41.18 in force at 5.9.1994, see para. 1(1)

Form of appeal S

41.19.—(1) An appeal to which this Part applies shall be made in Form 41.19 presented to the Inner House.

(2) An appeal referred to in paragraph (1) shall–

(a) specify the relevant provision of the enactment under the authority of which the appeal is brought;

(b) specify the decision complained of, the date on which the decision was made and on which it was intimated to the appellant, and any other necessary particulars;

(c) where the appeal is against only a part of such a decision, specify or distinguish that part;

(d) set out the decision appealed against or refer to the decision (a copy of which shall be appended to the appeal);

(e) fi state, in brief numbered propositions, the grounds of appeal; and

(f) set out in a schedule the names and addresses of the respondents in the appeal and the name and address, so far as known to the appellant, of any other person who may have an interest in the appeal.

Commencement Information

I19 Sch. 2 rule 41.19 in force at 5.9.1994, see para. 1(1)

Lodging of appeal in court S

41.20.—(1) Subject to paragraph (2), the appeal shall be lodged in the General Department–

(a) within the period prescribed by the enactment under which it is brought; or

(b) where no such period is prescribed, within 42 days after–

(i) the date on which the decision appealed against was intimated to the appellant;

(ii) where the tribunal issued a statement of reasons for its decision later than the decision, the date of intimation of that statement of reasons to the appellant; or

(iii) where leave to appeal was granted by the tribunal or application for leave to appeal was made to the court under rule 41.2(2), the date on which leave was granted by the tribunal or the court, as the case may be.

(2) There shall be lodged with the appeal under paragraph (1)–

(a) a process in accordance with rule 4.4 (steps of process), unless an application has already been made to the court for leave to appeal;

(b) where appropriate, evidence that leave to appeal has been granted by the tribunal;

(c) the documents mentioned in rule 41.2(6)(c) and (d) (copies of decisions of tribunal) unless already lodged; and

(d) such other documents founded on by the appellant so far as in his possession or within his control.

Commencement Information

I20 Sch. 2 rule 41.20 in force at 5.9.1994, see para. 1(1)

Orders for service and answers S

41.21.—(1) The appeal shall, without a motion being enrolled–

(a) during session, appear in the Single Bills on the first available day after being lodged for an order for–

(i) service of the appeal on the respondent and such other person as the court thinks fit; and

(ii) any person on whom the appeal has been served, to lodge answers, if so advised, within the period of notice; and

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

(2) In the application of paragraph (1) to an appeal under section 9(5) of the Transport Act 1985(3) (appeal from decision of the Secretary of State), the order for service under that paragraph shall include a requirement to serve the appeal on–

(a) the Secretary of State; and

(b) [F2 every person] who had, or if aggrieved would have had, a right to appeal to the Secretary of State, whether or not he has exercised that right.

(3) In the application of paragraph (1) to an appeal under section 24(1) of the Social Security Administration Act 1992(4) (appeal from Social Security Commissioner), the order for service under that paragraph shall include a requirement to serve the appeal on–

(a) the Secretary of State for Social Services; and

(b) if it appears to the court that a person has been appointed by the Secretary of State to pursue a claim for benefit to which the appeal relates, that person.

(4) In the application of paragraph (1) to an appeal from a tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(5), the order for service pronounced under that paragraph shall include a requirement to serve the appeal on every other party to the proceedings before the tribunal and on the clerk of the tribunal.

(5) In the application of paragraph (1) to an appeal to which subsection (6), as modified by subsection (7), of section 11 of the Tribunal and Inquiries Act 1992 (which relates to an appeal from a decision under section 41 of the Consumer Credit Act 1974(6)) applies–

(a) the order for service under that paragraph shall include a requirement to serve the appeal on–

(i) the Secretary of State; and

(ii) where the appeal is by a licencee under a group licence against compulsory variation, suspension or revocation of that licence, the original applicant, if any; and

(b) the court may remit to the Secretary of State for him to provide the court with such further information as the court may require.

Textual Amendments

F2 Words in Sch. 2 rule 41.21(2)(b) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(b)

Commencement Information

I21 Sch. 2 rule 41.21 in force at 5.9.1994, see para. 1(1)

Motion for further procedure S

41.22—(1) Within 14 days after the expiry of the period allowed for lodging answers to an appeal, whether or not answers have been lodged, the appellant shall apply by motion to the Inner House for–

(a) such order for further procedure as is sought; or

(b) an order for a hearing.

(2) The Inner House shall, on a motion under paragraph (1)–

(a) in relation to a motion under paragraph (1)(a), make such order as it thinks fit; or

(b) in relation to a motion under paragraph (1)(b), without hearing parties–

(i) appoint the cause to the Summar roll for hearing; or

(ii) direct that the cause be heard in the Single Bills.

Commencement Information

I22 Sch. 2 rule 41.22 in force at 5.9.1994, see para. 1(1)

PART IV S EXCHEQUER APPEALS

[F3 Revenue appeals by stated case S

41.23.— (1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under any of the following provisions:–

(a) section 13(1) of the Stamp Act 1981 (appeal from Commissioners of Inland Revenue);

(b) section 705A of the Income and Corporation Taxes Act 1891 (case for opinion of court from tribunal); and

(c) regulation 20(1) of the General Commissioners (Jurisdiction and Procedure) Regulations 1994.

(2) Subject to paragraph (3), Part II (appeals by stated case etc.) shall apply to an appeal to which paragraph (1) applies.

(3) The following provisions of Part II shall not apply to an appeal to which this rule applies:–

rule 41.5	(applications for case),
rule 41.6	(additional questions by other parties),
rule 41.7	(consideration of application by tribunal),
rule 41.8	(procedure for ordaining tribunal to state a case),
rule 41.9	(preparation and issue of the case),
rule 41.10	(intimation of intention to proceed).

Textual Amendments

F3 Sch. 2 rules 41.23-41.25 substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(c)

Revenue appeals from Special Commissioners S

41.24.— (1) This rule applies to an appeal to the court under any of the following provisions:–

(a) section 56A of the Taxes Management Act 1970;

(b) section 225 of the Inheritance Tax Act 1984; and

(c) regulation 10(1) of the Stamp Duty Reserve Tax Regulations 1986.

(2) Part III (appeals in Form 41.19) shall apply to an appeal to which paragraph (1) applies.

Textual Amendments

F3 Sch. 2 rules 41.23-41.25 substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(c)

Appeals relating to penalties S

41.25.— (1) This rule applies to an appeal to the court as the Court of Exchequer in Scotland under any of the following provisions:–

(a) section 53(1) or 100C(4) of the Taxes Management Act 1970 (appeals from General or Special Commissioners in relation to penalties);

(b) an appeal against the amount of a penalty under section 100B(3) of the Taxes Management Act 1970;

(c) section 249(3) or 251(2) of the Inheritance Tax Act 1984 (appeals from Special Commissioners in relation to penalties); and

(d) paragraph 10(3) of Schedule 12 to the Value Added Tax Act 1994 (appeal from VAT tribunal in relation to penalty).

(2) Part III (appeals in Form 41.19) shall apply to an appeal to which paragraph (1)(a), (c) or (d) applies.

(3) In relation to paragraph (1)(b)–

(a) Part II (appeals by stated case etc.) shall apply to an appeal from the General Commissioners; and

(b) Part III shall apply to an appeal from the Special Commissioners.

(4) Within 30 days after service on them of an appeal in Form 41.19, the Special Commissioners or the VAT Tribunal, as the case may be, shall–

(a) send six copies of a note of their findings and of the reasons for their decision to the Deputy Principal Clerk; and

(b) send a copy of that note to every party to the appeal.]

Textual Amendments

F3 Sch. 2 rules 41.23-41.25 substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(c)

Commencement Information

I23 Sch. 2 rule 41.25 in force at 5.9.1994, see para. 1(1)

Appeals relating to certain determinations of the Commissioners of Inland Revenue S

41.26.—(1) This rule applies to an appeal against a determination of the Commissioners of Inland Revenue specified in a notice to the appellant under section 221 of the Inheritance Tax Act 1984(7) or regulation 6 of the Stamp Duty Reserve Tax Regulations 1986(8).

(2) Where the Inner House grants leave to appeal under rule 41.3(2) in an application to it under section 222(3) of the said Act or regulation 8(3) of the said Regulations, as the case may be, or it is agreed between the appellant and the Commissioners of Inland Revenue that the appeal is to be to the court, the appellant shall, within 30 days after the date on which leave to appeal is granted, or, as the case may be, after the date on which the Board intimates its agreement to the appellant–

(a) lodge a statement of facts and grounds of appeal in Form 41.19, and a process unless a process has already been lodged under rule 41.2(6) (lodging process in applications for leave to appeal), in which case the statement of facts and grounds of appeal shall be lodged in that process; and

(b) on so doing, apply by motion for an order for service in accordance with rule 41.21 (orders for service and answers).

(3) The appellant shall–

(a) following the lodging of answers or on the expiry of any period of adjustment allowed, or

(b) where no answers have been lodged, on the expiry of the period allowed for lodging answers,

apply by motion to the Inner House for an order for a hearing.

(4) A motion under paragraph (3) shall be intimated to the solicitor [F4 in Scotland] to the Commissioners of Inland Revenue whether or not answers have been lodged by the Commissioners.

(5) Rule 41.22(2)(b) shall apply to a motion under paragraph (3) of this rule as it applies to a motion under paragraph (1)(b) of that rule.

(6) If an appellant fails to comply with any time-limit imposed by this rule, he shall be deemed to have abandoned his appeal.

(7) Where it appears to the Inner House in an appeal under this rule that any question as to the value of land in the United Kingdom requires to be determined, the court shall remit the cause–

(a) where the land is in Scotland, to the Lands Tribunal for Scotland,

(b) where the land is in England and Wales, to the Lands Tribunal,

(c) where the land is in Northern Ireland, to the Lands Tribunal for Northern Ireland,

to determine that question and remit back to the Inner House for further procedure.

Textual Amendments

F4 Words in Sch. 2 rule 41.26(4) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(11)(d)

Commencement Information

I24 Sch. 2 rule 41.26 in force at 5.9.1994, see para. 1(1)

PART V S APPEALS UNDER THE PENSIONS APPEAL TRIBUNAL ACT 1943

Form of appeal under the Act of 1943 S

41.27  An appeal from a Pensions Appeal Tribunal under section 6(2) of the Pensions Appeal Tribunal Act 1943(9) shall be by a case, stated by the chairman of the tribunal, to which Part II (appeals by stated case etc.) shall apply.

Commencement Information

I25 Sch. 2 rule 41.27 in force at 5.9.1994, see para. 1(1)

PART VI S APPEALS UNDER SECTION 50 OF THE SOCIAL WORK (SCOTLAND) ACT1968

Application of Part II to this Part S

41.28  Part II (appeals by stated case etc.) shall apply to an appeal to the court by stated case under section 50(1) of the Act of 1968 (appeal against decision of sheriff) subject to the following provisions of this Part.

Commencement Information

I26 Sch. 2 rule 41.28 in force at 5.9.1994, see para. 1(1)

Interpretation of this Part S

41.29.  In this Part–

“the Act of 1968” means the Social Work (Scotland) Act 1968(10);

“reporter” means the reporter to the children’s panel.

Commencement Information

I27 Sch. 2 rule 41.29 in force at 5.9.1994, see para. 1(1)

Lodging of reports and statements with sheriff S

41.30.—(1) Where, on an application being made to the sheriff to state a case for the opinion of the court–

(a) it appears to the sheriff that any report or statement lodged under section 49(2) or (3) of the Act of 1968 in the appeal to him is relevant to any issue which is likely to arise in the stated case, and

(b) the report or statement has been returned to the reporter,

the sheriff may require the reporter to lodge the report or statement with the sheriff clerk.

(2) On the stated case being sent to the party who applied for it, the sheriff clerk shall return any report or statement required by the sheriff under paragraph (1) to the reporter.

Commencement Information

I28 Sch. 2 rule 41.30 in force at 5.9.1994, see para. 1(1)

Lodging etc. of reports and statements in court S

41.31.—(1) Within 7 days after the date on which the case is lodged under rule 41.11(1) (lodging of case in court), the reporter shall send to the Deputy Principal Clerk the principal and three copies of every report or statement which he was required by the sheriff to lodge under rule 41.30(1).

(2) Neither the principal nor any copy of any such report or statement lodged by the reporter shall be made available to any of the other parties unless the court otherwise orders.

(3) Subject to any order made by the court, any report or statement, and any copies, sent to the -Deputy Principal Clerk under paragraph (1) shall remain in his custody until the appeal has been -determined or abandoned.

(4) On the determination or abandonment of the appeal, the Deputy Principal Clerk shall return all such documents to the reporter.

Commencement Information

I29 Sch. 2 rule 41.31 in force at 5.9.1994, see para. 1(1)

Hearing in private S

41.32.  The court may direct that all or any part of the appeal shall be heard in private.

Commencement Information

I30 Sch. 2 rule 41.32 in force at 5.9.1994, see para. 1(1)

Expenses S

41.33.—(1) No expenses shall be awarded to or against any party in respect of the appeal.

(2) Rule 41.14(3)(b) (award of expenses in abandoned appeal) shall not apply to an appeal to which this Part applies.

Commencement Information

I31 Sch. 2 rule 41.33 in force at 5.9.1994, see para. 1(1)

PART VII S APPEALS UNDER THE REPRESENTATION OF THE PEOPLE ACT 1983

Application of this Part S

41.34.  This part applies to an appeal under section 56, as applied by section 57, of the Representation of the People Act 1983(11) (registration appeals).

Commencement Information

I32 Sch. 2 rule 41.34 in force at 5.9.1994, see para. 1(1)

Form of appeal under this Part S

41.35.  An appeal to which this Part applies shall be made by stated case to which Part II (appeals by stated case etc.) shall apply subject to the following provisions of this Part.

Commencement Information

I33 Sch. 2 rule 41.35 in force at 5.9.1994, see para. 1(1)

Consolidated appeals S

41.36.—(1) Where several persons have applied for a stated case and it appears to the sheriff that such applications, or any two or more of them, raise the same question of law, he may consolidate the appeals into one stated case and, where he does so, he shall–

(a) state in the case the reasons why he has consolidated the appeals; and

(b) name one of the appellants as the appellant.

(2) Where appeals have been consolidated under paragraph (1), the appellant named under paragraph (1)(b), on receiving the stated case from the sheriff clerk, shall send a copy of it to every other appellant on request.

Commencement Information

I34 Sch. 2 rule 41.36 in force at 5.9.1994, see para. 1(1)

Hearing before Registration Appeal Court S

41.37.—(1) On the stated case being lodged in accordance with rule 41.11, the appeal shall be put out for hearing before the Registration Appeal Court on the earliest available day.

(2) Rule 41.15 (motions for hearing of appeals) shall not apply to an appeal to which this Part applies.

Commencement Information

I35 Sch. 2 rule 41.37 in force at 5.9.1994, see para. 1(1)

Decision of Registration Appeal Court S

41.38.—(1) The Registration Appeal Court shall, in its decision, specify any alteration or correction to be made on the register in pursuance of such decision.

(2) The Deputy Principal Clerk shall send a copy of the decision of the Registration Appeal Court to the registration officer within 4 days after the date of the decision.

Commencement Information

I36 Sch. 2 rule 41.38 in force at 5.9.1994, see para. 1(1)

PART VIII S STATED CASES UNDER SECTION 11(3) OF THE TRIBUNALS AND INQUIRIES ACT 1992

Case stated by tribunal at its own instance S

41.39.—(1) A tribunal referred to in subsection (1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992(12) may, at its own instance, state a case for the opinion of the court on any question arising in the course of proceedings before it.

(2) Part II (appeals by stated case etc.) shall apply to a case stated under paragraph (1) subject to the following provisions of this Part.

Commencement Information

I37 Sch. 2 rule 41.39 in force at 5.9.1994, see para. 1(1)

Modifications of Part II to appeals under this Part S

41.40.—(1) The following rules shall apply to a case to which this Part applies subject to the following provisions of this rule:–

• rule 41.9 (preparation and issue of the case),

• rule 41.11 (lodging of case in court),

• rule 41.15 (motions for hearing of appeals).

(2) For paragraph (1) of rule 41.9 there shall be substituted the following paragraph:–

“(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.”.

(3) For paragraph (6) of rule 41.9 there shall be substituted the following paragraphs:–

“(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall–

(a) send a copy of the case to each party; and

(b) transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him certifying that sub-paragraph (a) has been complied with.

(7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.”.

(4) For rule 41.11 there shall be substituted the following rule:–

“41.11.   Not earlier than 7 days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall–

(a) lodge in the General Department–

(i) the case, and

(ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b) on giving written intimation to every other party of the lodging of the case, send five copies of the ca se to every such party; and

(c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.”.

(5) Rule 41.15 shall apply to the clerk of the tribunal in a cause to which this Part applies as it applies to the party lodging a case under rule 41.11.

Commencement Information

I38 Sch. 2 rule 41.40 in force at 5.9.1994, see para. 1(1)

PART IX S APPEALS UNDER SOCIAL SECURITY ACTS

Form of appeal under certain Social Security Acts S

41.41.  A reference or appeal under any of the following provisions shall be made by stated case to which Part II (appeals by stated case etc.) shall apply:–

(a) a reference by the Secretary of State under section 18(1), or under regulations made by virtue of section 58(8), of the Social Security Administration Act 1992(13);

(b) an appeal by an aggrieved person under section 18(3), or under regulations made by virtue of section 58(8), of the Social Security Administration Act 1992;

(c) a reference by the Pensions Ombudsman under section 150(7), or the Occupational Pensions Board under section 173(1), of the Pension Schemes Act 1993(14); and

(d) an appeal under section 151(4), or section 173(3), of the Pension Schemes Act 1993.

Commencement Information

I39 Sch. 2 rule 41.41 in force at 5.9.1994, see para. 1(1)

Modifications of Part II to appeals under this Part S

41.42.—(1) The following rules shall apply to a cause to which this Part applies subject to the following provisions of this rule:–

• rule 41.9 (preparation and issue of the case),

• rule 41.11(lodging of case in court),

• rule 41.15(motions for hearing of appeals).

(2) For paragraph (1) of rule 41.9 there shall be substituted the following paragraph:–

“(1) Where the tribunal decides to state a case at its own instance, it shall intimate that decision to each party.”.

(3) For paragraph (6) of rule 41.9 there shall be substituted the following paragraphs:–

“(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall–

(a) send a copy of the case to each party; and

(b) transmit to the Deputy Principal Clerk the case with a certificate endorsed on it and signed by him certifying that sub-paragraph (a) has been complied with.

(7) The Deputy Principal Clerk shall endorse the case with the date on which he received it from the clerk of the tribunal and return it to the clerk.”

(4) For rule 41.11 there shall be substituted the following rule:–

“41.11.   Not earlier than 7 days and not later than 14 days after the date on which the case was received by the Deputy Principal Clerk, the clerk of the tribunal shall–

(a) lodge in the General Department–

(i) the case; and

(ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;

(b) on giving written intimation to every other party of the lodging of the case, send five copies of the case to every such party; and

(c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.”.

(5) Rule 41.15 shall apply to the clerk of the tribunal in a cause to which this Part applies as it applies to the party lodging a case under rule 41.11.

Commencement Information

I40 Sch. 2 rule 41.42 in force at 5.9.1994, see para. 1(1)

PART X S APPEALS TO LORD ORDINARY

Application of Parts II and III to this Part S

41.43.  Unless otherwise provided in these Rules, in an appeal to the court which is directed by these Rules or any other enactment to be made to a single judge of the court, the Outer House or the Lord Ordinary, Part II (appeals by stated case etc.) or Part III (appeals in Form 41.19), as the case may be, shall apply to that appeal subject to the following modifications:–

(a) for references to the Inner House there shall be substituted references to the Lord Ordinary;

(b) for references to the Single Bills there shall be substituted references to the Motion Roll; and

(c) for references to the Summar Roll there shall be substituted references to a hearing.

Commencement Information

I41 Sch. 2 rule 41.43 in force at 5.9.1994, see para. 1(1)

(1)

1988 c. 36.

(2)

1992 c. 53; section 11 was amended by the Sea Fish (Convention) Act 1992 (c. 60), section 9.

(3)

1985 c. 67.

(4)

1992 c. 5.

(5)

1992 c. 53; section 11 was amended by the Sea Fish (Convention) Act 1992 (c. 60), section 9.

(6)

1974 c. 39.

(7)

1984 c. 51; citation of the Act amended by the Finance Act 1986 (c. 41), section 100(1)(a).

(8)

S.I. 1986/1711.

(9)

1943 c. 39.

(10)

1968 c. 49.

(11)

1983 c. 2; section 56 was amended by the Representation of the People Act 1985 (c. 50), Schedule 2, paragraph 1, Schedule 4, paragraph 16 and Schedule 5.

(12)

1992 c. 53.

(13)

1992 c. 5.

(14)

1993 c. 48.