SCHEDULE 2 THE RULES OF THE COURT OF SESSION 1994

Special provisions in relation to particular proceedings

CHAPTER 47 COMMERCIAL ACTIONS

47.1 Application and interpretation of this Chapter
(1) This Chapter applies to a commercial action.
(2) In this Chapter, “commercial action” means an action–
(a) relating to–
(i) the construction of a commercial or mercantile document,
(ii) the sale or hire purchase of goods,
(iii) the export or import of merchandise,
(iv) the carriage of goods by land, air or sea (other than an Admiralty action within the meaning of rule 46.1),
(v) insurance,
(vi) banking,
(vii) the provision of financial services,
(viii) mercantile agency,
(ix) mercantile usage or a custom of trade,
(x) a building, engineering or construction contract,
(xi) a commercial lease, or
(b) not falling within sub-paragraph (a) but relating to a dispute of a business or commercial nature,
in which an election has been made under rule 47.3 or which has been transferred under rule 47.7.

47.2 Proceedings before commercial judge
All proceedings in the Outer House in a commercial action shall be brought before a judge of the court nominated by the Lord President as a commercial judge or, where a commercial judge is not available, any other judge of the court (including the vacation judge); and “commercial judge” shall be construed accordingly.

47.3 Election of procedure for commercial actions
The pursuer may elect to adopt the procedure in this Chapter by bringing an action in which there are inserted the words “Commercial Action” immediately below the words “IN THE COURT OF SESSION” where they occur above the instance, and on the backing, of the summons and any copy of it.

47.4 Disapplication of requirement for open record
An open record shall not be made up in, and Chapter 22 (making up and closing records) shall not apply to, the action unless otherwise ordered by the court.

47.5 Commercial Roll
(1) A commercial action shall appear on the Commercial Roll for a hearing on a specified date within 14 days after defences have been lodged.
(2) The appearance of a commercial action on the Commercial Roll for a hearing on a specified date shall not affect the right of any party to apply by motion at any time under these Rules.
(3) Where a commercial action appears on the Commercial Roll, a motion which requires the attendance of counsel or other person having a right of audience, or a motion mentioned in paragraph (4)(b), shall be heard on the Commercial Roll.
(4) At any hearing on the Commercial Roll, the court may–
(a) make such further order as it considers necessary for the speedy determination of the question in dispute between the parties;
(b) without prejudice to the foregoing generality–
(i) allow a specified period of adjustment;
(ii) allow an amendment;
(iii) ordain a party to give further specification of his case in his pleadings;
(iv) allow a counterclaim to be lodged;
(v) grant warrant for service of a third party notice; or
(vi) remit to a man of skill.
(5) At any hearing on the Commercial Roll, where adjustment has not been allowed or the period of adjustment has expired, the court shall–
(a) where necessary, continue the action on the Commercial Roll;
(b) appoint the action to the Procedure Roll;
(c) allow a proof or a proof before answer, in respect of the whole or such part of the action as it thinks fit; or
(d) make such other order as it considers necessary for the further progress of the action.
(6) Where the court makes an order under paragraph (5)(b), it may ordain a party–
(a) to lodge in process a note of argument consisting of concise 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 it to every other party concerned,
within such period as the court thinks fit.
(7) Where the court makes an order under paragraph (5)(b) or (c), it may ordain the pursuer to make up a record.
(8) Where the court orders a record to be made up under paragraph (7), rule 22.3(2) and (3) (lodging etc. of closed records) shall apply to the action.

47.6 Withdrawal of action from procedure in this Chapter
(1) The court may, at its own instance or on the motion of any party, where it thinks fit, withdraw a commercial action from the procedure under this chapter.
(2) Where the court pronounces an interlocutor under paragraph (1), the action shall proceed as an ordinary action.
(3) An interlocutor of a commercial judge withdrawing or refusing to withdraw an action from the procedure in this Chapter shall be final and not subject to review.

47.7 Transfer of action to procedure in this Chapter
(1) In an action in which the pursuer has not elected to adopt the procedure in this Chapter, any party may apply by motion at any time to have the action appointed to be a commercial action.
(2) A motion enrolled under paragraph (1) shall be heard by a commercial judge.
(3) An interlocutor appointing or refusing to appoint an action to be a commercial action shall be final and not subject to review.

47.8 Inspection and recovery of documents in commercial actions
(1) Within 28 days after an interlocutor allowing a proof or proof before answer, each party to a commercial action shall–
(a) give written intimation to every other party of a list of the documents which are, or to the best of his knowledge have been, in his possession or control relating to the matters at issue between them;
(b) where such documents have been in his possession or control, state in that list the place where and the person whith whom, to the best of his knowledge, those documents may be found; and
(c) lodge a copy of that list in process.
(2) A party who has received a list of documents under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list within 28 days after the receipt of the list at a time and place which is reasonable to both parties.
(3) A party inspecting documents under paragraph (2) shall have the right to obtain a copy or copies of any such document on payment of a copying fee of not more than that prescribed in Chapter I of the Table of Fees in rule 42.16.
(4) Nothing in this rule shall affect–
(a) the law relating to, or the right of a party to object to the inspection of a document on the ground of, privilege or confidentiality; or
(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972.
1972 c. 59; section 1 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 9 and Schedule 2, paragraph 15.

47.9 Exchange of lists of witnesses in commercial actions
(1) Within 28 days after an interlocutor allowing a proof or proof before answer, each party to a commercial action shall–
(a) give written intimation to every other party of a list containing the names and addresses of the persons whom he intends to call as witnesses; and
(b) lodge a copy of that list in process.
(2) A party who seeks to call as a witness a person not on his list intimated under paragraph (1) shall, if any other party objects to such a witness being called, seek leave of the court to call that person as a witness; and such leave may be granted on such conditions, if any, as the court thinks fit.

47.10 Evidence generally in commercial actions
Where possible, the parties shall agree any statement or document not in dispute.

47.11 Customs of trade
(1) This rule applies to a commercial action in which a custom of trade or commercial usage is pled.
(2) Where objection is taken, at any hearing on the Commercial Roll, to the legality or validity of a custom or usage pled, the court shall appoint a hearing on such an objection.
(3) At a hearing under paragraph (2), the court–
(a) may sustain, repel or reserve the objection;
(b) where the objection is repelled or reserved, may make a remit under paragraph (5) and, in any case in which disputed facts require to be ascertained for determining the legality of an alleged custom or usage, may include the determination of such disputed facts in the remit; and
(c) shall make such other order as it considers necessary for the further progress of the action.
(4) Where no objection is taken, at any hearing on the Commercial Roll, to the legality or validity of the custom or usage pled, the court–
(a) may make a remit under paragraph (5); and
(b) shall, where it makes such a remit, make such other order as it considers necessary for the further progress of the action.
(5) A remit under this paragraph shall be made to one or more persons engaged in the particular trade in question to report on the existence and scope of the custom or usage, on which matters the report shall be conclusive.
(6) Where a remit is made under paragraph (5), the party who pleads the custom or usage shall instruct the reporter within 14 days after the date of the remit and be responsible, in the first instance, for payment of his fee.
(7) On completion of a report following a remit under paragraph (5), the reporter shall send the report and a copy for each party to the Deputy Principal Clerk.
(8) On receipt of such a report, the Deputy Principal Clerk shall–
(a) give written intimation to each party of receipt of the report;
(b) request the party responsible for payment of the fee under paragraph (6) to show to him a discharge in respect of that fee; and
(c) after sight of such discharge–
(i) lodge the report in process; and
(ii) give written intimation to each party that this has been done and that he may uplift a copy of the report from process.