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

CHAPTER 23 S MOTIONS

Interpretation of this Chapter S

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.

Commencement Information

I1 Sch. 2 rule 23.1 in force at 5.9.1994, see para. 1(1)

Enrolment of motions S

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.

Commencement Information

I2 Sch. 2 rule 23.2 in force at 5.9.1994, see para. 1(1)

Intimation of motions S

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.

Commencement Information

I3 Sch. 2 rule 23.3 in force at 5.9.1994, see para. 1(1)

Opposition to motions S

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.

Commencement Information

I4 Sch. 2 rule 23.4 in force at 5.9.1994, see para. 1(1)

Consent to motions S

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.

Commencement Information

I5 Sch. 2 rule 23.5 in force at 5.9.1994, see para. 1(1)

Hearing of motions S

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.

Commencement Information

I6 Sch. 2 rule 23.6 in force at 5.9.1994, see para. 1(1)

Motions in session outwith a term or in vacation S

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).

Commencement Information

I7 Sch. 2 rule 23.7 in force at 5.9.1994, see para. 1(1)

Motions by pursuer before calling or petitioner before first order S

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.

Commencement Information

I8 Sch. 2 rule 23.8 in force at 5.9.1994, see para. 1(1)

Motions where caveat lodged S

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.

Commencement Information

I9 Sch. 2 rule 23.9 in force at 5.9.1994, see para. 1(1)

Motions by defender or other person before calling S

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 [F1 Clerk] 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.

Textual Amendments

F1 Word in Sch. 2 rule 23.10 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(5)

Commencement Information

I10 Sch. 2 rule 23.10 in force at 5.9.1994, see para. 1(1)

Statutory applications by motion S

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.

Commencement Information

I11 Sch. 2 rule 23.11 in force at 5.9.1994, see para. 1(1)

Expenses of motions S

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.

Commencement Information

I12 Sch. 2 rule 23.12 in force at 5.9.1994, see para. 1(1)

Conditions attached to granting of motions S

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.

Commencement Information

I13 Sch. 2 rule 23.13 in force at 5.9.1994, see para. 1(1)

Appearance by solicitor for certain motions S

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.

Commencement Information

I14 Sch. 2 rule 23.14 in force at 5.9.1994, see para. 1(1)