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

CHAPTER 25 S COUNTERCLAIMS

Counterclaims S

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.

Commencement Information

I1 Sch. 2 rule 25.1 in force at 5.9.1994, see para. 1(1)

Warrants for diligence on counterclaims S

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 dependence or arrestment in 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(1); and such registration shall have the same effect as registration of a notice under that section.

Commencement Information

I2 Sch. 2 rule 25.2 in force at 5.9.1994, see para. 1(1)

Answers to counterclaims S

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.

Commencement Information

I3 Sch. 2 rule 25.3 in force at 5.9.1994, see para. 1(1)

Effect of abandonment of action S

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.

Commencement Information

I4 Sch. 2 rule 25.4 in force at 5.9.1994, see para. 1(1)

Proof or jury trial of counterclaims S

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.

Commencement Information

I5 Sch. 2 rule 25.5 in force at 5.9.1994, see para. 1(1)

Interlocutors in respect of counterclaims S

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.

Commencement Information

I6 Sch. 2 rule 25.6 in force at 5.9.1994, see para. 1(1)

(1)

1868 c. 101.