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

[F1 CHAPTER 25A S DEVOLUTION ISSUES

Textual Amendments

F1 Sch. 2 Ch. 25A inserted (6.5.1999) by Act of Sederunt (Devolution Issues Rules) 1999 (S.I. 1999/1345), paras. 1(1), 2(2)

Interpretation of this Chapter S

25A.1.   In this Chapter–

“Advocate General” means the Advocate General for Scotland;

“devolution issue” means a devolution issue within the meaning of–

(a)

Schedule 6 to the Scotland Act 1998;

(b)

Schedule 10 to the Northern Ireland Act 1998; or

(c)

[F2 Schedule 9 to the Government of Wales Act 2006,]

and any reference to Schedule 6, Schedule 10 or [F3 Schedule 9] is a reference to that Schedule to, respectively, the Scotland Act 1998, the Northern Ireland Act 1998 and the [F3 Government of Wales Act 2006];

F4 ...

“relevant authority” means the Advocate General and–

(a)

in the case of a devolution issue within the meaning of Schedule 6, the Lord Advocate;

(b)

in the case of a devolution issue within the meaning of Schedule 10, the Attorney General for Northern Ireland, and the First Minister and deputy First Minister acting jointly;

(c)

in the case of a devolution issue within the meaning of [F5 Schedule 9, the Counsel General to the Welsh Assembly Government].

Textual Amendments

F2 Words in Sch. 2 rule 25A.1 substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(2)(a)

F3 Words in Sch. 2 rule 25A.1 substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(2)(b)

F4 Words in Sch. 2 rule 25A.1 omitted (1.10.2009) by virtue of Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(2)

F5 Words in Sch. 2 rule 25A.1 substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(2)(c)

Proceedings where devolution issue raised in principal writ S

25A.2.   Where any summons, petition or other principal writ contains an averment or conclusion which raises a devolution issue, the principal writ shall be served on the relevant authority, unless he has initiated the proceedings.

Time for raising devolution issue S

25A.3.— (1) It shall not be competent for a party to any proceedings to raise a devolution issue otherwise than in the pleadings before any evidence is led, unless the court, on cause shown, otherwise determines.

(2) Where the court determines that a devolution issue may be raised as mentioned in paragraph (1) it shall make such orders as to the procedure to be followed as appear to it to be appropriate and, in particular, it shall make such orders–

(a) as are necessary to ensure that intimation of the devolution issue is given in writing to the relevant authority for the purposes of paragraph 5 of Schedule 6, or as the case may be, paragraph 23 of Schedule 10 or paragraph 14(1) of [F6 Schedule 9]; and

(b) as to the time in which any step is to be taken by any party in the proceedings.

Textual Amendments

F6 Words in Sch. 2 rule 25A.3(2)(a) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(3)

Specification of devolution issue S

25A.4.— (1) Any party raising a devolution issue shall specify–

(a) where he initiates the action, in the principal writ;

(b) where a counterclaim is lodged, in the counterclaim;

(c) in any other case, in the defences or answers,

the facts and circumstances and contentions of law on the basis of which it is alleged that the devolution issue arises in sufficient detail to enable the court to determine, for the purposes of paragraph 2 of Schedule 6 or, as the case may be, of Schedule 10 or [F7 Schedule 9], whether a devolution issue arises in the proceedings.

(2) Where a party wishes to raise a devolution issue after the lodging of any writ mentioned in paragraph (1), he shall do so either by adjustment or amendment so as to specify in his pleadings the matters mentioned in that paragraph.

Textual Amendments

F7 Words in Sch. 2 rule 25A.4(1) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(4)

Intimation of devolution issue S

25A.5.— (1) Intimation of a devolution issue in pursuance of paragraph 5 of Schedule 6 or, as the case may be, paragraph 23 of Schedule 10 or paragraph 14(1) of [F8 Schedule 9] shall be given to the relevant authority (unless he is a party to the proceedings or has been served with the principal writ in pursuance of Rule 25A.2) in accordance with this Rule.

(2) Where the devolution issue is raised in the principal writ, service of the principal writ on the relevant authority shall be treated as such intimation.

(3) In any other case, the party raising the devolution issue shall, as soon as practicable, enrol a motion craving a warrant to intimate the devolution issue to the relevant authority and on hearing the motion, where it appears to the court that a devolution issue arises, the court shall order such intimation in Form 25A.5.

(4) The intimation of a devolution issue shall specify 14 days, or such other period as the court on cause shown may specify, as the period within which a relevant authority may give notice to the Deputy Principal Clerk of his intention to take part as a party in the proceedings as mentioned in paragraph 6 of Schedule 6 or, as the case may be, paragraph 24 of Schedule 10 or paragraph 14(2) of [F9 Schedule 9].

Textual Amendments

F8 Words in Sch. 2 rule 25A.5(1) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(5)

F9 Words in Sch. 2 rule 25A.5(4) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(5)

[F10 25A.5A.   —Where, after determination at first instance of any proceedings in which a devolution issue has been raised, a party to those proceedings–

(a) marks a reclaiming motion under rule 38.6; or

(b) makes an application to the nobile officium of the court under rule 14.3,

that party shall, unless the relevant authority is already party to the proceedings, at the same time intimate the motion to, or seek leave to serve the petition on, the relevant authority together with a notice in Form 25A.5A]

Textual Amendments

F10 Sch. 2 rule 25A.5A inserted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(6)

Response to intimation S

25A.6.— (1) Where a relevant authority gives notice as mentioned in Rule 25A.5(4), he shall, not later than 7 days after the date of such notice, lodge a minute of his written submissions in respect of the devolution issue together with conclusions and pleas in law as appropriate.

[F11 (1A) Where a relevant authority does not take part as a party in the proceedings at first instance the court may allow him to take part as a party in any subsequent appeal, reclaiming motion or reference to a higher court.]

(2) The minute lodged in accordance with paragraph (1) shall be intimated to all other parties in the proceedings.

Textual Amendments

F11 Sch. 2 rule 25A.6(1A) inserted (7.4.2000) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2000 (S.S.I. 2000/66), paras. 1(1), 2(3)

Reference of devolution issue to Inner House S

25A.7.— [F12 (1)] Where a devolution issue arises in any proceedings before the Lord Ordinary, any reference of the devolution issue to the Inner House as mentioned in paragraph 7 of Schedule 6 or, as the case may be, paragraph 25 of Schedule 10 or paragraph 15 of [F13 Schedule 9] shall be by means of a Report in accordance with Chapter 34 of these Rules.

[F14 (2) Where, in any proceedings before the Lord Ordinary, reference of a devolution issue is made to the Inner House, the Deputy Principal Clerk shall, unless the relevant authority is already party to the proceedings, not later than seven days after the reference has been made, give notice of the reference in Form 25A.7 to the relevant authority.]

Textual Amendments

F12 Sch. 2 rule 25A.7 renumbered as Sch. 2 rule 25A.7(1) (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(7)(b)

F13 Words in Sch. 2 rule 25A.7 substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(7)(a)

F14 Sch. 2 rule 25A.7(2) inserted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(7)(b)

[F15 Reference of devolution issue to Supreme Court] S

25A.8.— (1) Where the court–

(a) decides in accordance with paragraph 10 of Schedule 6 or, as the case may be, paragraph 28 of Schedule 10 or paragraph 18 of [F16 Schedule 9]; or

(b) is required as mentioned in paragraph 33 of Schedule 6 or, as the case may be, paragraph 33 of Schedule 10 or [F17 paragraph 29(1) of Schedule 9],

to refer a devolution issue to the [F18 Supreme Court], it shall pronounce an interlocutor giving directions to the parties about the manner and time in which the reference is to be drafted and adjusted.

(2) When the reference has been drafted at the sight of the court, the court shall make and sign the reference.

(3) The reference shall include such matter as may be required by [F19 Practice Direction 10 of the Supreme Court], and shall have annexed to it the interlocutor making the reference.

(4) Service of the reference in [F20 accordance with Practice Direction 10 of the Supreme Court] may be effected by the Deputy Principal Clerk by first class recorded delivery post.

Textual Amendments

F15 Sch. 2 rule 25A.8 heading substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(4)

F16 Words in Sch. 2 rule 25A.8(1)(a) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(8)(a)

F17 Words in Sch. 2 rule 25A.8(1)(b) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(8)(b)

F18 Words in Sch. 2 rule 25A.8(1) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(3)(a)

F19 Words in Sch. 2 rule 25A.8(3) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(3)(b)

F20 Words in Sch. 2 rule 25A.8(4) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(3)(c)

[F21 Sist of cause on reference to Supreme Court] S

25A.9.— (1) Subject to paragraph (2), on a reference being made to the [F22 Supreme Court] as mentioned in Rule 25A.8, the cause shall, unless the court when making the reference otherwise orders, be sisted until the [F22 Supreme Court] has determined the devolution issue.

(2) The court may recall a sist made under paragraph (1) for the purpose of making any interim order which a due regard to the interests of the parties may require.

Textual Amendments

F21 Sch. 2 rule 25A.9 heading substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(6)

F22 Words in Sch. 2 rule 25A.9(1) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(5)

Transmission of reference S

25A.10.— (1) The reference shall be transmitted by the Deputy Principal Clerk to the Registrar of the [F23 Supreme Court] .

(2) Unless the court otherwise directs, the reference shall not be sent to the Registrar of the [F24 Supreme Court] where a reclaiming motion or an appeal against the making of the reference is pending.

(3) For the purpose of paragraph (2), a reclaiming motion or an appeal shall be treated as pending–

(a) until the expiry of the time for marking the reclaiming motion or appeal; or

(b) where a reclaiming motion or an appeal has been made, until it has been determined.

Textual Amendments

F23 Words in Sch. 2 rule 25A.10(1) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(7)(a)

F24 Words in Sch. 2 rule 25A.10(2) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(7)(b)

[F25 Appeals to the Supreme Court] S

25A.11.— (1) Where an appeal to the [F26 Supreme Court] is made–

(a) under paragraph 12 of Schedule 6 or, as the case may be, paragraph 30 of Schedule 10 or paragraph 20 of [F27 Schedule 9]; or

(b) with leave or special leave, under paragraph 13(b) of Schedule 6 or, as the case may be, paragraph 31(b) of Schedule 10 or paragraph 21(b) of [F28 Schedule 9],

the court from whose determination the appeal is made may make such orders as it thinks fit, having regard to the interests of the parties to the cause, for the purpose of regulating the proceedings pending the determination of the appeal by the [F26 Supreme Court], including orders relating to interim possession, execution and expenses already incurred.

(2) Where the determination of an appeal by the [F29 Supreme Court] does not dispose of the whole cause, the court against whose determination the appeal was made shall order such further procedure as is necessary to enable it to dispose of the whole cause.

Textual Amendments

F25 Sch. 2 rule 25A.11 heading substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(9)

F26 Words in Sch. 2 rule 25A.11(1) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(8)(a)

F27 Words in Sch. 2 rule 25A.11(1)(a) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(9)

F28 Words in Sch. 2 rule 25A.11(1)(b) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(9)

F29 Words in Sch. 2 rule 25A.11(2) substituted (1.10.2009) by Act of Sederunt (Devolution Issues) (Appeals and References to the Supreme Court) 2009 (S.S.I. 2009/323), paras. 1(1), 2(8)(b)

Orders mitigating the effect of certain decisions S

25A.12.— (1) In any proceedings where the Court is considering making an order under–

(a) section 102 of the Scotland Act 1998;

(b) section 81 of the Northern Ireland Act 1998; or

[F30 (c) section 153 of the Government of Wales Act 2006,]

(power of the court to vary or suspend the effect of certain decisions), the Court shall order intimation of the fact to be made by the Deputy Principal Clerk to every person to whom intimation is required to be given by that section.

(2) Intimation as mentioned in paragraph (1) shall–

(a) be made forthwith in Form 25A. 12 by first class recorded delivery post; and

(b) specify 7 days, or such other period as the court thinks fit, as the period within which a person may give notice of his intention to take part in the proceedings.]

Textual Amendments

F30 Sch. 2 rule 25A.12(1)(c) substituted (10.8.2007) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Devolution Issues) 2007 (S.S.I. 2007/360), paras. 1(1), 2(10)