Courts Reform (Scotland) Act 2014

PART 3 S CIVIL PROCEDURE

CHAPTER 1 S SHERIFF COURT

Civil jury trials S

63 Civil jury trials in an all-Scotland sheriff court S

(1) This section applies in relation to relevant proceedings in an all-Scotland sheriff court.

(2) If the proceedings are remitted to probation, they must be tried by jury unless—

(a) the parties agree otherwise, or

(b) special cause is shown.

(3) Facts or circumstances constitute special cause for the purposes of subsection (2)(b) only if they would constitute special cause for the purpose of section 9(b) of the Court of Session Act 1988 (allowing of proof by Lord Ordinary).

(4) The questions to be put to the jury are to be—

(a) approved by the sheriff, and

(b) specified by the sheriff in an interlocutor.

(5) The jury is to consist of 12 jurors.

(6) Proceedings which are to be tried by jury under this section are referred to in this Chapter as “jury proceedings”.

(7) In this section, “relevant proceedings” means proceedings—

(a) of a type specified in an order under section 41(1), and

(b) which would be a jury action within the meaning of section 11 of the Court of Session Act 1988 if the same proceedings were (disregarding section 39)—

(i) taken by an action in the Court of Session, and

(ii) remitted to probation there.

Commencement Information

I1 S. 63 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

64 Selection of the jury S

(1) The jurors for the trial in jury proceedings are to be selected in open court by ballot.

(2) Each party to the proceedings may challenge the selection of any juror whose name is drawn in the ballot.

(3) A party may, under subsection (2), at any time during the selection of jurors—

(a) challenge the selection of up to 4 jurors without having to give a reason, and

(b) challenge the selection of any other juror, provided a reason for the challenge is stated.

Commencement Information

I2 S. 64 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

65 Application to allow the jury to view property S

(1) A party to jury proceedings may apply to the sheriff to allow the jury to view any heritable or moveable property relevant to the proceedings.

(2) Where an application is made under subsection (1), the sheriff may grant the application if the sheriff considers it proper and necessary for the jury to view the property.

Commencement Information

I3 S. 65 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

66 Discharge or death of juror during trial S

(1) In jury proceedings, the sheriff may, in the course of the trial, discharge a member of the jury from further service on the jury if satisfied that the juror—

(a) is, by reason of illness, unable to continue to serve on the jury, or

(b) should, for any other reason, be discharged from further service on the jury.

(2) Subsections (3) and (4) apply where a member of the jury—

(a) is discharged under subsection (1), or

(b) dies.

(3) So long as there remain at least 10 members of the jury—

(a) the remaining members of the jury are in all respects deemed to constitute the jury for the purpose of the trial, and

(b) any verdict returned by the remaining members of the jury, whether unanimous or by majority, is to have the same force and effect as if it were a unanimous or, as the case may be, majority verdict of the whole number of the jury.

(4) If there remain fewer than 10 members of the jury, the sheriff must—

(a) discharge the jury, and

(b) order the proceedings to be tried by another jury.

Commencement Information

I4 S. 66 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

67 Trial to proceed despite objection to opinion and direction of the sheriff S

In jury proceedings, despite any objection being taken in the course of the trial to the opinion and direction of the sheriff—

(a) the trial is to proceed, and

(b) the jury are to return their verdict and, where necessary, assess damages.

Commencement Information

I5 S. 67 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

68 Return of verdict S

(1) In jury proceedings, the sheriff must, at the end of the sheriff's charge to the jury, direct the jury to select one of their members to speak for them when returning their verdict.

(2) The jury may at any time return a verdict by a simple majority of their members.

(3) Subsection (4) applies if the jury—

(a) have been enclosed for at least 3 hours, and

(b) at the end of that time are unable to agree a verdict or to return a verdict by majority.

(4) The sheriff may—

(a) discharge the jury without their having returned a verdict, and

(b) order the proceedings to be tried by another jury.

(5) When the verdict is returned, it is to be—

(a) declared orally in open court by the juror selected under subsection (1), and

(b) taken down in writing by the sheriff clerk before the jury is discharged.

(6) In jury proceedings containing a claim for damages, where the jury return a verdict for the pursuer, the jury must also assess the amount of damages.

(7) The verdict of the jury is final so far as relating to the facts found by the jury.

(8) Subsection (7) is subject to sections 69 and 71.

Commencement Information

I6 S. 68 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

69 Application for new trial S

(1) After the jury have returned their verdict in jury proceedings, any party to the proceedings may, on any ground specified in subsection (2), apply to the Sheriff Appeal Court for a new trial.

(2) The grounds are—

(a) the sheriff misdirected the jury,

(b) undue admission or rejection of evidence,

(c) the verdict is contrary to the evidence,

(d) damages awarded are excessive or inadequate,

(e) new evidence or information has come to light since the trial,

(f) any other ground essential to the justice of the case.

(3) On an application under subsection (1), the Sheriff Appeal Court may grant or refuse a new trial.

(4) Subsection (3) is subject to section 70.

(5) Where the Court grants a new trial—

(a) the verdict of the jury is set aside, and

(b) the proceedings are to be tried by another jury.

(6) Subsection (7) applies where—

(a) an application is made under subsection (1) on the ground that the verdict is contrary to the evidence, and

(b) after hearing the parties, the Sheriff Appeal Court is of the opinion that—

(i) the ground is established, and

(ii) it has before it all the relevant evidence that could reasonably be expected to be obtained in relation to the proceedings.

(7) The Court may, instead of granting a new trial—

(a) set aside the verdict of the jury, and

(b) enter judgment for the party unsuccessful at the trial.

(8) In a case where the Court is constituted by more than one Appeal Sheriff, the opinion referred to in subsection (6)(b) must be the opinion of all of them.

Modifications etc. (not altering text)

C1 S. 69 amendment to earlier commencing S.S.I. 2015/247, art. 8(1) (1.1.2016) by The Courts Reform (Scotland) Act 2014 (Commencement No. 5, Transitional and Saving Provisions) Order 2015 (S.S.I. 2015/378), arts. 1(1), 5

Commencement Information

I7 S. 69 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 8)

70 Restrictions on granting a new trial S

(1) Subsection (2) applies where—

(a) an application is made under section 69(1) on the ground of undue admission of evidence, and

(b) the Sheriff Appeal Court is of the opinion that exclusion of the evidence in question could not have led to a different verdict from the one actually returned.

(2) The Court must refuse to grant a new trial.

(3) Subsection (4) applies where—

(a) an application is made under section 69(1) on the ground of undue rejection of documentary evidence, and

(b) the Sheriff Appeal Court is of the opinion that the documents in question would not have affected the jury's verdict.

(4) The Court must refuse to grant a new trial.

(5) Subsection (6) applies where—

(a) an application is made under section 69(1), and

(b) the Sheriff Appeal Court is of the opinion that—

(i) the only ground for granting a new trial is that damages awarded are excessive or inadequate, and

(ii) a new trial is essential to the justice of the case.

(6) The Court may grant a new trial restricted to the question of the amount of damages only.

(7) On an application under section 69(1), where the Sheriff Appeal Court is constituted by more than one Appeal Sheriff—

(a) the Court may not grant a new trial except in conformity with the opinion of a majority of the Appeal Sheriffs hearing the application, and

(b) in the case of equal division, the Court must refuse to grant a new trial.

Modifications etc. (not altering text)

C2 S. 70 amendment to earlier commencing S.S.I. 2015/247, art. 8(1) (1.1.2016) by The Courts Reform (Scotland) Act 2014 (Commencement No. 5, Transitional and Saving Provisions) Order 2015 (S.S.I. 2015/378), arts. 1(1), 5

Commencement Information

I8 S. 70 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 8)

71 Verdict subject to opinion of the Sheriff Appeal Court S

(1) This section applies in relation to any jury proceedings in which the sheriff has directed the jury on any matter.

(2) A party against whom the verdict of the jury is returned may apply to the Sheriff Appeal Court for the verdict instead to be entered in the party's favour.

(3) On an application under subsection (2), the Court may—

(a) set aside the verdict and exercise either of the powers in subsections (4) and (6), or

(b) refuse the application.

(4) Where the Court is of the opinion—

(a) that the sheriff's direction was erroneous, and

(b) that the party making the application was entitled to the verdict in whole or in part,

it may direct the verdict to be entered in that party's favour.

(5) The Court may direct the verdict to be so entered—

(a) either in whole or in part, and

(b) either absolutely or on such terms as the Court thinks fit.

(6) Where the Court is of the opinion that it is necessary to do so, it may order the proceedings to be tried by another jury.

Modifications etc. (not altering text)

C3 S. 71 amendment to earlier commencing S.S.I. 2015/247, art. 8(1) (1.1.2016) by The Courts Reform (Scotland) Act 2014 (Commencement No. 5, Transitional and Saving Provisions) Order 2015 (S.S.I. 2015/378), arts. 1(1), 5

Commencement Information

I9 S. 71 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 8)

Simple procedure S

72 Simple procedure S

(1) For the purposes of the procedure and practice in civil proceedings in the sheriff court, there is to be a form of procedure to be known as “simple procedure”.

(2) Subject to the provisions of this Part, further provision about simple procedure is to be made by act of sederunt under section 104(1).

(3) The following types of proceedings may only be brought subject to simple procedure (and no other types of proceedings may be so brought)—

(a) proceedings for payment of a sum of money not exceeding £5,000,

(b) actions of multiplepoinding where the value of the fund or property that is the subject of the action does not exceed £5,000,

(c) actions of furthcoming where the value of the arrested fund or subject does not exceed £5,000,

(d) actions ad factum praestandum, other than actions in which there is claimed, in addition or as an alternative to a decree ad factum praestandum, a decree for payment of a sum of money exceeding £5,000,

(e) proceedings for the recovery of possession of heritable property or moveable property, other than proceedings in which there is claimed, in addition or as an alternative to a decree for such recovery, a decree for payment of a sum of money exceeding £5,000.

(4) Subsection (3) is subject to sections 78 (transfer of cases to simple procedure), 80 (transfer of cases from simple procedure) and 83 (transitional provision: summary cause).

(5) Subsection (3)(a) is subject to sections 73 and 74.

(6) The calculation of a sum for the time being mentioned in subsection (3) is to be determined in accordance with provision made by the Court of Session by act of sederunt.

(7) An act of sederunt under subsection (6) may make different provision for different purposes.

(8) An act of sederunt under section 104(1) may make provision for the purposes of this Act for determining whether proceedings are of a type mentioned in subsection (3).

(9) Proceedings that—

(a) are subject to simple procedure under subsection (3) or by virtue of any other enactment,

(b) are brought subject to simple procedure under section 74, or

(c) are continued subject to simple procedure by virtue of section 78 or 79,

are referred to in this Part as a “simple procedure case”.

(10) Subsection (9) is subject to section 80.

(11) References in subsection (3) to a sum of money is to that amount exclusive of interest and expenses.

(12) The Scottish Ministers may by order substitute for any sum for the time being specified in this section a different sum.

Commencement Information

I10 S. 72 in force at 1.4.2015 for specified purposes by S.S.I. 2015/77, art. 2(2)(3), Sch.

Yn ddilys o 28/11/2016

73 Proceedings in an all-Scotland sheriff court S

(1) Section 72(3), so far as requiring any relevant proceedings to be brought subject to simple procedure, does not apply to any such proceedings in an all-Scotland sheriff court, and no such proceedings may be brought or continued in such a court subject to simple procedure.

(2) Subsection (1) does not affect the application of section 72(3) in relation to any relevant proceedings brought in any other sheriff court.

(3) In this section, “relevant proceedings” means proceedings of a type mentioned in section 72(3)(a) so far as they are also of a type specified in an order under section 41(1).

Prospective

74 Proceedings for aliment of small amounts under simple procedure S

(1) Subsection (2) applies to a claim for aliment only (whether or not expenses are also sought) under section 2 of the Family Law (Scotland) Act 1985 (actions for aliment).

(2) The claim may be brought subject to simple procedure if the aliment claimed does not exceed—

(a) in respect of a child under the age of 18 years, the sum of £100 per week, and

(b) in any other case, the sum of £200 per week.

(3) A provision such as is mentioned in subsection (4) does not apply in relation to a claim brought subject to simple procedure under subsection (2).

(4) The provision referred to in subsection (3) is provision in any enactment—

(a) limiting the jurisdiction of a sheriff in a simple procedure case by reference to any amount, or

(b) limiting the period for which a decree granted by a sheriff is to have effect.

(5) The Scottish Ministers may by order substitute for any sum for the time being mentioned in subsection (2) a different sum.

75 Rule-making: matters to be taken into consideration S

The power to make provision relating to simple procedure by act of sederunt under section 104(1) is to be exercised so far as possible with a view to ensuring that the sheriff before whom a simple procedure case is conducted—

(a) is able to identify the issues in dispute,

(b) may facilitate negotiation between or among the parties with a view to securing a settlement,

(c) may otherwise assist the parties in reaching a settlement,

(d) can adopt a procedure that is appropriate to and takes account of the particular circumstances of the case.

Commencement Information

I11 S. 75 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

76 Service of documents S

(1) An act of sederunt under section 104(1) may permit a party to a simple procedure case, in such circumstances as may be specified in the act, to require the sheriff clerk to effect service of any document relating to the case on behalf of the party.

(2) In subsection (1)—

(a) the reference to a party to a simple procedure case includes a reference to a description of such a party as may be specified in an act of sederunt mentioned in that subsection,

(b) the reference to any document relating to the case includes a reference to a description of any such document as may be so specified.

Commencement Information

I12 S. 76 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

Yn ddilys o 28/11/2016

77 Evidence in simple procedure cases S

(1) Any enactment or rule of law that prevents evidence being led on grounds of admissibility before a court of law does not apply in simple procedure cases.

(2) The evidence, if any, given in simple procedure cases is not to be recorded.

Yn ddilys o 28/11/2016

78 Transfer of cases to simple procedure S

(1) This section applies to any civil proceedings in the sheriff court that are being conducted otherwise than as a simple procedure case.

(2) The parties to the proceedings may, at any stage, make a joint application for the proceedings to continue subject to simple procedure if the proceedings are of a type that, if brought at the time when the application is made—

(a) would or could be brought subject to simple procedure by virtue of any enactment, or

(b) would or could be so brought but for the fact that a financial limit specified in section 72(3) or 74(2) is exceeded.

(3) Where such a joint application is made, the sheriff must direct that the proceedings are to continue subject to simple procedure for all purposes (including appeal).

79 Proceedings in an all-Scotland sheriff court: transfer to simple procedure S

(1) This section applies to any relevant proceedings in an all-Scotland sheriff court.

(2) A party to the proceedings may, at any stage, make an application for the proceedings to continue subject to simple procedure in another sheriff court.

(3) Where such an application is made, the sheriff may, on special cause shown—

(a) direct that the proceedings are to continue subject to simple procedure for all purposes (including appeal), and

(b) make an order transferring the proceedings to another sheriff court having jurisdiction in relation to the proceedings.

(4) Where a sheriff makes a direction under section 78(3) in relation to proceedings to which this section applies, the sheriff must make an order transferring the proceedings to another sheriff court having jurisdiction in relation to the proceedings.

(5) In this section, “relevant proceedings” has the same meaning as in section 73.

Commencement Information

I13 S. 79 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 10 (as amended (28.11.2016) by S.S.I. 2016/387, art. 1, sch. 1 para. 8)

Yn ddilys o 28/11/2016

80 Transfer of cases from simple procedure S

(1) A party to a simple procedure case may, at any stage, make an application for the case not to proceed subject to simple procedure.

(2) Where such an application is made, the sheriff may direct that the proceedings are no longer subject to simple procedure.

(3) Where a direction is made under subsection (2), the proceedings are to continue for all purposes (including appeal) subject to such procedure as would have been applicable to them had they not been subject to simple procedure.

81 Expenses in simple procedure cases S

(1) The Scottish Ministers may by order provide that—

(a) in such category of simple procedure cases as may be prescribed in the order, no award of expenses may be made,

(b) in such other category of simple procedure cases as may be so prescribed, any expenses awarded may not exceed such sum as may be so prescribed.

(2) The categories of simple procedure cases mentioned in subsection (1) may be prescribed by reference to—

(a) the value of the claim in the cases,

(b) the subject matter of the claim in the cases.

(3) Categories may be prescribed subject to specified exceptions.

(4) An order under subsection (1) does not apply—

(a) to simple procedure cases such as those mentioned in subsection (5),

(b) in relation to an appeal to the Sheriff Appeal Court from any decision in a simple procedure case, or

(c) to a simple procedure case in respect of which a direction under subsection (7) is made.

(5) The simple procedure cases referred to in subsection (4)(a) are those in which—

(a) the defender—

(i) has not stated a defence,

(ii) having stated a defence, has not proceeded with it, or

(iii) having stated and proceeded with a defence, has not acted in good faith as to its merits, or

(b) a party to the case has behaved unreasonably in relation to the case.

(6) Subsection (7) applies where the sheriff in a simple procedure case is of the opinion that a difficult question of law, or a question of fact of exceptional complexity, is involved.

(7) The sheriff may, at any stage, on the application of any party to the case, direct that an order under subsection (1) is not to apply in relation to the case.

Commencement Information

I14 S. 81 in force at 1.4.2015 for specified purposes by S.S.I. 2015/77, art. 2(2)(3), Sch.

Yn ddilys o 28/11/2016

82 Appeals from simple procedure cases S

(1) An appeal may be taken to the Sheriff Appeal Court under section 110 on a point of law only against a decision of the sheriff constituting final judgment in a simple procedure case.

(2) Any other decision of the sheriff in such a case is not subject to review.

Prospective

83 Transitional provision: summary causes S

(1) Any reference, however expressed, in a pre-commencement enactment to proceedings being subject to summary cause procedure is, on and after the coming into force of this section, to be construed as a reference to proceedings being subject to simple procedure.

(2) Accordingly, any reference to proceedings being taken by way of summary cause is to be construed as a reference to proceedings being subject to simple procedure.

(3) In subsection (1), “pre-commencement enactment” means any enactment passed or made before this section comes into force.

Interdicts and other orders: effect outside sheriffdom S

Yn ddilys o 28/11/2016

84 Interdicts having effect in more than one sheriffdom S

(1) A sheriff has competence to grant an interdict having effect in relation to conduct at places outside the sheriff's sheriffdom as well as at places within the sheriff's sheriffdom.

(2) In this section, “interdict” includes “interim interdict”.

Yn ddilys o 28/11/2016

85 Proceedings for breach of an extended interdict S

(1) In this section, “extended interdict” means an interdict granted by a sheriff, by virtue of section 84(1), having effect in relation to conduct at places outside the sheriff's sheriffdom.

(2) Proceedings for breach of an extended interdict may be brought before a sheriff of the sheriffdom—

(a) in which the defender is domiciled,

(b) in which the interdict was granted,

(c) in which the alleged breach occurred.

(3) A sheriff before whom proceedings for breach of an extended interdict are brought may make an order transferring the proceedings to a sheriff of another sheriffdom (whether or not one mentioned in subsection (2)) if satisfied that it would be more appropriate for the proceedings to be dealt with by a sheriff of the other sheriffdom.

(4) A sheriff may make an order under subsection (3)—

(a) on the application of a party to the proceedings, or

(b) on the sheriff's own initiative.

(5) Where an order is made under subsection (3), a sheriff of the sheriffdom to whom the proceedings are to be transferred has jurisdiction and competence to consider and determine the proceedings.

(6) This section does not affect any power that a sheriff has to decline jurisdiction in any case.

86 Power to enable sheriff to make orders having effect outside sheriffdom S

(1) In this section, “relevant order” means an order—

(a) which a sheriff has competence and jurisdiction to make in civil proceedings, but

(b) which, apart from this section, the sheriff could make only so as to have effect or be enforceable within the sheriff's sheriffdom.

(2) The Scottish Ministers may by order provide for a sheriff to have competence to make relevant orders having effect (and being capable of being enforced) outside the sheriff's sheriffdom as well as within that sheriffdom (referred to in this section as “extended competence”).

(3) An order under subsection (2) may—

(a) make provision in relation to all relevant orders or in relation only to specified categories or descriptions of relevant order,

(b) make different provision in relation to different categories or descriptions of relevant order,

(c) provide for a sheriff to have extended competence only—

(i) in such circumstances,

(ii) in relation to such civil proceedings, or

(iii) subject to such conditions,

as are specified in the order,

(d) make provision about jurisdiction in relation to proceedings for relevant orders,

(e) make provision for the transfer of proceedings for relevant orders between different sheriffdoms,

(f) make provision about the enforcement of orders made in the exercise of extended competence (including provision about jurisdiction in relation to enforcement proceedings).

(4) Subsection (3) does not affect the generality of section 133(1).

(5) In subsection (1), “order”—

(a) includes “interim order”, but

(b) does not include an interdict or an interim interdict.

Commencement Information

I15 S. 86 in force at 1.4.2015 for specified purposes by S.S.I. 2015/77, art. 2(2)(3), Sch.

Execution of deeds relating to heritage S

87 Power of sheriff to order sheriff clerk to execute deed relating to heritage S

(1) This section applies where—

(a) an action relating to heritable property is before a sheriff, or

(b) it appears to a sheriff that an order under this section is necessary to implement a decree of a sheriff relating to heritable property.

(2) The sheriff may make an order such as is mentioned in subsection (4)—

(a) on an application by the grantee of any deed relating to the heritable property, and

(b) if satisfied as to the matters mentioned in subsection (3).

(3) The matters are that the grantor of any deed relating to the heritable property—

(a) cannot be found,

(b) refuses to execute the deed,

(c) is unable, or otherwise fails, to execute the deed.

(4) The order is one—

(a) dispensing with the execution of the deed by the grantor, and

(b) directing the sheriff clerk to execute the deed.

(5) A deed executed by the sheriff clerk in accordance with a direction in an order under this section has the same force and effect as if it had been executed by the grantor.

(6) In this section—

• “grantor”, in relation to a deed relating to the heritable property, means a person who is under an obligation to execute the deed,

• “grantee” means the person to whom that obligation is owed.

Commencement Information

I16 S. 87 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

Interim orders S

88 Interim orders S

(1) A sheriff may, on the application of a party to any civil proceedings before the sheriff, make—

(a) such interim order as the sheriff thinks fit in relation to—

(i) the possession of any heritable or movable property to which the proceedings relate,

(ii) the subject matter of the proceedings,

(b) an interim order ad factum praestandum.

(2) Subsection (1) does not apply in relation to proceedings under the Children's Hearings (Scotland) Act 2011.

Commencement Information

I17 S. 88 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

CHAPTER 2 S COURT OF SESSION

89 Judicial review S

After section 27 of the Court of Session Act 1988, insert—

“Applications to the supervisory jurisdiction of the Court S

27A Time limits

(1) An application to the supervisory jurisdiction of the Court must be made before the end of—

(a) the period of 3 months beginning with the date on which the grounds giving rise to the application first arise, or

(b) such longer period as the Court considers equitable having regard to all the circumstances.

(2) Subsection (1) does not apply to an application to the supervisory jurisdiction of the Court which, by virtue of any enactment, is to be made before the end of a period ending before the period of 3 months mentioned in that subsection (however that first-ending period may be expressed).

27B Requirement for permission

(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.

(2) Subject to subsection (3), the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject matter of the application, and

(b) the application has a real prospect of success.

(3) Where the application relates to a decision of the Upper Tribunal for Scotland in an appeal from the First-tier Tribunal for Scotland under section 46 of the Tribunals (Scotland) Act 2014, the Court may grant permission under subsection (1) for the application to proceed only if it is satisfied that—

(a) the applicant can demonstrate a sufficient interest in the subject matter of the application,

(b) the application has a real prospect of success, and

(c) either—

(i) the application would raise an important point of principle or practice, or

(ii) there is some other compelling reason for allowing the application to proceed.

(4) The Court may grant permission under subsection (1) for an application to proceed—

(a) subject to such conditions as the Court thinks fit,

(b) only on such of the grounds specified in the application as the Court thinks fit.

(5) The Court may decide whether or not to grant permission without an oral hearing having been held.

27C Oral hearings where permission refused, etc.

(1) Subsection (2) applies where, in relation to an application to the supervisory jurisdiction of the Court—

(a) the Court—

(i) refuses permission under subsection 27B(1) for the application to proceed, or

(ii) grants permission for the application to proceed subject to conditions or only on particular grounds, and

(b) the Court decides to refuse permission, or grant permission as mentioned in paragraph (a)(ii), without an oral hearing having been held.

(2) The person making the application may, within the period of 7 days beginning with the day on which that decision is made, request a review of the decision at an oral hearing.

(3) A request under subsection (2) must be considered by a different Lord Ordinary from the one who refused permission or granted permission as mentioned in subsection (1)(a)(ii).

(4) Where a request under subsection (2) is granted, the oral hearing must be conducted before a different Lord Ordinary from the one who refused or so granted permission.

(5) At a review following a request under subsection (2), the Court must consider whether to grant permission for the application to proceed; and subsections (2), (3) and (4) of section 27B apply for that purpose.

(6) Section 28 does not apply—

(a) where subsection (2) applies, or

(b) in relation to the refusal of a request made under subsection (2).

27D Appeals following oral hearings

(1) Subsection (2) applies where, after an oral hearing to determine whether or not to grant permission for an application to the supervisory jurisdiction of the Court to proceed, the Court—

(a) refuses permission for the application to proceed, or

(b) grants permission for the application to proceed subject to conditions or only on particular grounds.

(2) The person making the application may, within the period of 7 days beginning with the day on which the Court makes its decision, appeal under this section to the Inner House (but may not appeal under any other provision of this Act).

(3) In an appeal under subsection (2), the Inner House must consider whether to grant permission for the application to proceed; and subsections (2), (3) and (4) of section 27B apply for that purpose.

(4) In subsection (1), the reference to an oral hearing is to an oral hearing whether following a request under section 27C(2) or otherwise.”.

Commencement Information

I18 S. 89 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 4)

90 Interim orders S

In section 47 of the Court of Session Act 1988 (interim interdict and other interim orders), after subsection (2) insert—

“(2A) The power under subsection (2) to make an order includes, in particular, power to make an order ad factum praestandum (including an interim order).”.

Commencement Information

I19 S. 90 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

91 Warrants for ejection S

After section 47 of the Court of Session Act 1988, insert—

“47A Power to grant warrant for ejection

In any proceedings where the Court has competence to grant a decree of removing, it also has competence to grant a warrant for ejection.”.

Commencement Information

I20 S. 91 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

CHAPTER 3 S REMIT OF CASES BETWEEN COURTS

92 Remit of cases to the Court of Session S

(1) Subsection (2) applies to any civil proceedings before a sheriff that are—

(a) proceedings that the Court of Session also has competence and jurisdiction to deal with,

(b) not proceedings to which section 39 applies, and

(c) not subject to simple procedure.

(2) On the application of any of the parties to the proceedings, the sheriff may, at any stage, remit the proceedings to the Court of Session if the sheriff considers that the importance or difficulty of the proceedings makes it appropriate to do so.

(3) Subsection (4) applies to any civil proceedings before a sheriff that are—

(a) proceedings to which section 39 applies,

(b) proceedings that the Court of Session would (but for that section) also have competence and jurisdiction to deal with, and

(c) not subject to simple procedure.

(4) On the application of any of the parties to the proceedings, the sheriff may, at any stage, request the Court of Session to allow the proceedings to be remitted to that Court if the sheriff considers that the importance or difficulty of the proceedings makes it appropriate to do so.

(5) On receiving a request under subsection (4), the Court of Session may, on cause shown, allow the proceedings to be remitted to the Court.

(6) If the Court of Session allows the proceedings to be remitted to that Court, the sheriff is to remit the proceedings to that Court.

(7) Where the proceedings are remitted to the Court of Session under subsection (6), the proceedings may be dealt with and disposed of by that Court despite section 39(2).

Commencement Information

I21 S. 92 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 11)

93 Remit of cases from the Court of Session S

(1) Subsection (2) applies to any proceedings in the Court of Session if—

(a) they are proceedings that a sheriff also has competence and jurisdiction to deal with,

(b) they would be proceedings to which section 39 applies but for the fact that subsection (1)(b)(ii) of that section is not satisfied, and

(c) the Court considers, at any stage, that it is unlikely that the aggregate total value of all the orders of value granted in the proceedings, exclusive of interest and expenses, will be greater than the sum specified in that subsection.

(2) The Court must remit the proceedings to an appropriate sheriff, unless the Court considers, on cause shown, that the proceedings should remain in the Court of Session.

(3) In considering the matter in subsection (1)(c), the Court is to assume—

(a) that liability for the order sought is established, and

(b) that there will, where appropriate, be no deduction for contributory negligence.

(4) Subsection (5) applies to any proceedings in the Court of Session if—

(a) they are proceedings that a sheriff also has competence and jurisdiction to deal with, but

(b) are not proceedings to which paragraph (b) or (c) of subsection (1) applies.

(5) The Court may, at any stage, remit the proceedings to an appropriate sheriff if the Court considers that the nature of the proceedings makes it appropriate to do so.

(6) The Court may remit proceedings under subsection (2) or (5)—

(a) on the application of any party to the proceedings, or

(b) on its own initiative.

(7) In this section, “an appropriate sheriff” means, in relation to proceedings remitted from the Court of Session under this section, a sheriff having competence and jurisdiction to deal with the proceedings sitting at such sheriff court as the Court may, at the time of the remit, specify.

Commencement Information

I22 S. 93 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch. (with art. 3(4))

94 Remit of cases to the Scottish Land Court S

(1) Subsection (2) applies to any proceedings before a sheriff where the matter to which the proceedings relate could competently be determined by the Scottish Land Court under—

(a) the Agricultural Holdings (Scotland) Act 1991, or

(b) the Agricultural Holdings (Scotland) Act 2003.

(2) The sheriff may, at any stage, remit the proceedings to the Scottish Land Court if the sheriff considers that it is appropriate to do so.

(3) The sheriff may remit proceedings under subsection (2)—

(a) on the application of any party to the proceedings, or

(b) on the sheriff's own initiative.

(4) A decision of the sheriff to remit, or not to remit, the proceedings under subsection (2) is final and no appeal may be taken against it.

Commencement Information

I23 S. 94 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

CHAPTER 4 S LAY REPRESENTATION FOR NON-NATURAL PERSONS

Yn ddilys o 28/11/2016

95 Key defined terms S

(1) This section applies for the purposes of the interpretation of this Chapter.

(2) “Non-natural person” means—

(a) a company (whether incorporated in the United Kingdom or elsewhere),

(b) a limited liability partnership,

(c) any other partnership,

(d) an unincorporated association of persons.

(3) “Lay representative” means an individual who is not a legal representative.

(4) “Legal representative” means—

(a) a solicitor,

(b) an advocate, or

(c) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

(5) An individual holds a relevant position with a non-natural person if the individual—

(a) in the case of a company, is a director or secretary of the company,

(b) in the case of a limited liability partnership, is a member of the partnership,

(c) in the case of any other partnership, is a partner in the partnership,

(d) in the case of an unincorporated association, is a member or office holder of the association.

(6) For the purposes of section 96, an individual also holds a relevant position with a non-natural person if the individual is an employee of the non-natural person.

(7) References to conducting proceedings are references to exercising, in relation to the proceedings, a function or right (including a right of audience) that a legal representative could exercise in the proceedings.

Yn ddilys o 28/11/2016

96 Lay representation in simple procedure cases S

(1) This section applies in any simple procedure case to which a non-natural person is a party.

(2) A lay representative may conduct proceedings in the case on behalf of the non-natural person if—

(a) the lay representative holds a relevant position with the non-natural person,

(b) the responsibilities of the lay representative in that position do not consist wholly or mainly of conducting legal proceedings on behalf of the non-natural person or another person,

(c) the lay representative is authorised by the non-natural person to conduct the proceedings,

(d) the lay representative does not have a personal interest in the subject matter of the proceedings, and

(e) the lay representative is not the subject of an order such as is mentioned in section 98(2)(f).

(3) In subsection (2)(d), “personal interest” means an interest other than one that anyone holding the position that the lay representative holds with the non-natural person would have.

(4) Subsection (2) is subject to provision made by an act of sederunt under section 98.

Yn ddilys o 28/11/2016

97 Lay representation in other proceedings S

(1) This section applies in civil proceedings (other than a simple procedure case) to which a non-natural person is a party.

(2) A lay representative may, if the court grants permission, conduct the proceedings on behalf of the non-natural person.

(3) The court may grant permission if satisfied that—

(a) the non-natural person is unable to pay for the services of a legal representative to conduct the proceedings,

(b) the lay representative is a suitable person to conduct the proceedings, and

(c) it is in the interests of justice to grant permission.

(4) For the purposes of subsection (3)(b), a lay representative is a suitable person to conduct the proceedings if—

(a) the lay representative holds a relevant position with the non-natural person,

(b) the responsibilities of the lay representative in that position do not consist wholly or mainly of conducting legal proceedings on behalf of the non-natural person or another person,

(c) the lay representative is authorised by the non-natural person to conduct the proceedings,

(d) the lay representative does not have a personal interest in the subject matter of the proceedings, and

(e) the lay representative is not the subject of an order such as is mentioned in section 98(2)(f).

(5) In subsection (4)(d), “personal interest” means an interest other than one that anyone holding the position that the lay representative holds with the non-natural person would have.

(6) For the purposes of subsection (3)(c), in deciding whether it is in the interests of justice to grant permission, the court must have regard, in particular, to—

(a) the non-natural person's prospects of success in the proceedings, and

(b) the likely complexity of the proceedings.

(7) Subsection (2) is subject to provision made by an act of sederunt under section 98.

(8) In this section—

• “civil proceedings” means civil proceedings in—

  (a)

  the Court of Session,

  (b)

  the Sheriff Appeal Court, or

  (c)

  the sheriff court,

• “the court”, in the case of proceedings in the sheriff court, means the sheriff.

98 Lay representation: supplementary provision S

(1) The Court of Session may, by act of sederunt, make further provision about—

(a) the granting of permission under section 97, and

(b) the conduct of proceedings by lay representatives by virtue of this Chapter.

(2) Provision under subsection (1) may include, in particular, provision—

(a) about the procedure to be followed in considering applications for permission under section 97 (including provision for applications to be considered in chambers and without hearing the parties),

(b) regulating the conduct of lay representatives in exercising a function or right by virtue of this Chapter,

(c) about the authorisation of lay representatives for the purposes of this Chapter,

(d) imposing conditions on the exercise by lay representatives of a function or right by virtue of this Chapter or enabling the court to impose such conditions in particular cases,

(e) enabling the court, in particular cases, to withdraw a lay representative's right to exercise a function or right by virtue of this Chapter if the representative contravenes provision made by virtue of the act of sederunt,

(f) enabling the court to make an order preventing a lay representative from conducting any proceedings before any court on behalf of non-natural persons,

(g) enabling the court, in awarding expenses against a non-natural person in any case, to find a lay representative jointly and severally liable for the expenses.

(3) An act of sederunt under subsection (1) may make different provision for different purposes.

(4) In this section, “the court”, in the case of proceedings in the sheriff court, means the sheriff.

Commencement Information

I24 S. 98 in force at 1.4.2015 by S.S.I. 2015/77, art. 2(2)(3), Sch.

CHAPTER 5 S JURY SERVICE

99 Jury service S

(1) The Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 is amended in accordance with this section.

(2) In section 1 (qualification of jurors)—

(a) in subsection (1)—

(i) the words “to subsections (2) and (3) below and” are repealed, and

(ii) for paragraph (b) substitute—

“(b) is not less than 18 years of age;”,

(b) subsections (1A), (2) and (3) are repealed,

(c) in subsection (5), the words “under subsection (2) or (3) above or” are repealed.

(3) In section 1A (excusal of jurors in relation to criminal proceedings)—

(a) in each of subsections (1), (2) and (3), the words “in relation to criminal proceedings” are repealed,

(b) in subsection (3), for “(a)(iii)” substitute “ (ab) ”,

(c) the title of the section becomes “ Excusal of jurors as of right ”.

(4) In Part III of Schedule 1 (persons excusable from jury service as of right), in Group F, for paragraphs (a) and (aa) substitute—

“(a) persons who have served as a juror in the period of 5 years ending with the date on which the person is cited first to attend;

(aa) persons who have attended for jury service, but have not served as a juror, in the period of 2 years ending with the date on which the person is cited first to attend;

(ab) persons who have attained the age of 71;”.

Commencement Information

I25 S. 99 in force at 22.9.2015 by S.S.I. 2015/247, art. 2, Sch.

CHAPTER 6 S VEXATIOUS PROCEEDINGS

Yn ddilys o 28/11/2016

100 Vexatious litigation orders S

(1) The Inner House may, on the application of the Lord Advocate, make a vexatious litigation order in relation to a person (a “vexatious litigant”).

(2) A vexatious litigation order is an order which has either or both of the following effects—

(a) the vexatious litigant may institute civil proceedings only with the permission of a judge of the Outer House,

(b) the vexatious litigant may take a specified step in specified ongoing civil proceedings only with such permission.

(3) In subsection (2)(b)—

(a) “specified ongoing civil proceedings” means civil proceedings which—

(i) were instituted by the vexatious litigant before the order was made, and

(ii) are specified in the order,

(b) “specified step” means a step specified in the order.

(4) A vexatious litigation order has effect—

(a) during such period as is specified in the order, or

(b) if no period is so specified, indefinitely.

(5) In this section and section 101—

(a) “the Inner House” means the Inner House of the Court of Session,

(b) “the Outer House” means the Outer House of the Court of Session,

(c) “vexatious litigant” means, in relation to a vexatious litigation order, the person to whom the order relates,

(d) “vexatious litigation order” means an order made under subsection (1).

Yn ddilys o 28/11/2016

101 Vexatious litigation orders: further provision S

(1) The Inner House may make a vexatious litigation order in relation to a person only if satisfied that the person has habitually and persistently, without any reasonable ground for doing so—

(a) instituted vexatious civil proceedings, or

(b) made vexatious applications to the court in the course of civil proceedings (whether or not instituted by the person).

(2) For the purpose of subsection (1), it does not matter whether the proceedings—

(a) were instituted in Scotland or elsewhere,

(b) involved the same parties or different parties.

(3) A copy of a vexatious litigation order must be published in the Edinburgh Gazette.

(4) A judge of the Outer House may grant permission to a vexatious litigant to institute civil proceedings or, as the case may be, to take a step in such proceedings only if satisfied that there is a reasonable ground for the proceedings or the taking of the step.

(5) The decision of the judge to refuse to grant permission under subsection (4) is final.

(6) Subsection (7) applies in relation to civil proceedings instituted in any court by a vexatious litigant before the Inner House makes a vexatious litigation order in relation to the vexatious litigant.

(7) The court may make such order as it sees fit in consequence of the vexatious litigation order.

(8) In subsection (7), “the court” means—

(a) the court which is dealing with the proceedings,

(b) in the case of proceedings in the sheriff court, the sheriff.

102 Power to make orders in relation to vexatious behaviour S

(1) The Scottish Ministers may by regulations confer on the Court of Session, a sheriff or the Sheriff Appeal Court the power to make an order of a kind mentioned in subsection (2) in relation to a person who has behaved in a vexatious manner in civil proceedings before the Court of Session, sheriff or, as the case may be, Sheriff Appeal Court.

(2) The order referred to in subsection (1) is an order that the person may do any of the following only with the permission of a court or a judge of any court—

(a) take such a step in those proceedings as is specified in the order,

(b) take such a step as is so specified in such other civil proceedings (whether or not those proceedings are before the Court of Session, sheriff or, as the case may be, Sheriff Appeal Court) as are so specified,

(c) institute civil proceedings in such a court as is so specified.

(3) For the purpose of subsection (1), a person behaves in a vexatious manner in civil proceedings if the person—

(a) institutes the proceedings and they are vexatious, or

(b) makes a vexatious application in the course of the proceedings (whether or not they were instituted by the person).

(4) Regulations under subsection (1) may include provision for—

(a) an order to be made on the application of a party to the proceedings or on the Court's or, as the case may be, sheriff's own initiative,

(b) circumstances in which the Court or sheriff may make an order, and the requirements as to permission which may be imposed in an order in those circumstances,

(c) the factors which the Court or sheriff may take into account in deciding whether to make an order (including the person's behaviour in other civil proceedings, whether in Scotland or elsewhere),

(d) the courts in relation to which an order may have effect,

(e) the maximum period for which an order may have effect,

(f) the effect of an order in any other respects.

(5) The Scottish Ministers must consult the Lord President of the Court of Session before making regulations under subsection (1).

(6) Regulations under subsection (1)—

(a) are subject to the negative procedure,

(b) may make different provision for different purposes,

(c) may make incidental, supplemental, consequential, transitional, transitory or saving provision.

Commencement Information

I26 S. 102 in force at 1.4.2015 for specified purposes by S.S.I. 2015/77, art. 2(2)(3), Sch.