Sheriff Courts (Scotland) Act 1907

CHAPTER 35 S ACTIONS OF MULTIPLEPOINDING

Application of this Chapter S

35.1. This Chapter applies to an action of multiplepoinding.

Application of Chapters 9 and 10 S

35.2. Chapter 10 (additional procedure) and the following rules in Chapter 9 (standard procedure in defended causes) shall not apply to an action of multiplepoinding:—

• rule9.1 (notice of intention to defend),

• rule9.2 (fixing date for Options Hearing),

• rule9.4 (lodging of pleadings before Options Hearing),

• rule9.8 (adjustment of pleadings),

• rule9.9 (effect of sist on adjustment),

• rule9.10 (open record),

• rule9.11 (record for Option Hearing),

• rule9.12 (Option Hearing),

• rule9.15 (applications for time to pay directions).

Parties S

35.3. (1) An action of multiplepoinding may be brought by any person holding, or having an interest in, or claim on, the fund in medio in his own name.

(2) The pursuer shall call as defenders to such an action—

(a) all persons so far as known to him as having an interest in the fund in medio; and

(b) where he is not the holder of the fund, the holder of that fund.

Condescendence of fund in medio S

35.4. (1) Where the pursuer is the holder of the fund in medio, he shall include a detailed statement of the fund in the condescendence in the initial writ.

(2) Where the pursuer is not the holder of the fund in medio, the holder shall, before the expiry of the period of notice—

(a) lodge in process—

(i) a condescendence of the fund in medio, stating any claim or lien which he may profess to have on that fund;

(ii) a list of all persons known to him as having an interest in the fund; and

(b) intimate a copy of the condescendence and list to any other party.

Warrant of citation in multiplepoindings S

35.5. The warrant of citation of the initial writ in an action of multiplepoinding shall be in Form M1.

Citation S

35.6. (1) Subject to rule 5.6 (service where address of person is not known), citation of any person in an action of multiplepoinding shall be in Form M2 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of appearance in Form M4.

(2) The certificate of citation shall be in Form M3 and shall be attached to the initial writ.

Advertisement S

35.7. The sheriff may make an order for advertisement of the action in such newspapers as he thinks fit.

Lodging of notice of appearance S

35.8. Where a party intends to lodge—

(a) defences to challenge the jurisdiction of the court or the competency of the action,

(b) objections to the condescendence of the fund in medio, or

(c) a claim on the fund,

he shall, before the expiry of the period of notice, lodge a notice of appearance in Form M4.

Fixing date of first hearing S

35.9. Where a notice of appearance, or a condescendence on the fund in medio and a list under rule 35.4(2)(a) has been lodged, the sheriff clerk shall—

(a) fix a date and time for the first hearing, which date shall be the first suitable court day occurring not sooner than four weeks after the expiry of the period of notice;

(b) on fixing the date for the first hearing forthwith intimate that date in Form M5 to each party; and

(c) prepare and sign an interlocutor recording the date of the first hearing.

Hearings S

35.10. (1) The sheriff shall conduct the first, and any subsequent hearing, with a view to securing the expeditious progress of the cause by ascertaining from the parties the matters in dispute.

[F1 (2) The parties shall provide the sheriff with sufficient information to enable him to–

(a) conduct the hearing as provided for in this Chapter,

(b) consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

(c) ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.]

(3) At the first, or any subsequent hearing, the sheriff shall fix a period within which defences, objections or claims shall be lodged, and appoint a date for a second hearing.

(4) Where the list lodged under rule 35.4(2)(a) contains any person who is not a party to the action, the sheriff shall order—

(a) the initial writ to be amended to add that person as a defender;

(b) service of the pleadings so amended to be made on that person, with a citation in Form M6; and

(c) intimation to that person of any condescendence of the fund in medio lodged by a holder of the fund who is not the pursuer.

(5) Where a person to whom service has been made under paragraph (4) lodges a notice of appearance under rule 35.8, the sheriff clerk shall intimate to him in Form M5 the date of the next hearing fixed in the action.

Textual Amendments

F1 Sch. 1 rule 35.10(2) substituted (1.11.2007) by Act of Sederunt (Ordinary Cause, Summary Application, Summary Cause and Small Claim Rules) Amendment (Vulnerable Witnesses (Scotland) Act 2004) 2007 (S.S.I. 2007/463), {art. 2(11)}

Lodging defences, objections and claims S

35.11. (1) Defences, objections and claims by a party shall be lodged with the sheriff clerk in a single document under separate headings.

(2) Each claimant shall lodge with his claim any documents founded on in his claim, so far as they are within his custody or power.

Disposal of defences S

35.12. (1) Where defences have been lodged, the sheriff may order the initial writ and defences to be adjusted and thereafter close the record and regulate further procedure.

(2) Unless the sheriff otherwise directs, defences shall be disposed of before any further procedure in the action.

Objections to fund in medio S

35.13. (1) Where objections to the fund in medio have been lodged, the sheriff may, after disposal of any defences, order the condescendence of the fund and objections to be adjusted; and thereafter close the record and regulate further procedure.

(2) If no objections to the fund in medio have been lodged, or if objections have been lodged and disposed of, the sheriff may, on the motion of the holder of the fund, and without ordering intimation to any party approve the condescendence of the fund and find the holder liable only in one single payment.

Preliminary pleas in multiplepoindings S

35.14. (1) A party intending to insist on a preliminary plea shall, not later than 3 days before any hearing to determine further procedure following the lodging of defences, objections or claims, lodge with the sheriff clerk a note of the basis of the plea.

(2) Where a party fails to comply with the provisions of paragraph (1), he shall be deemed to be no longer insisting on the plea and the plea shall be repelled by the sheriff at the hearing referred to in paragraph (1).

(3) If satisfied that there is a preliminary matter of law which justifies a debate, the sheriff shall, after having heard parties and considered the note lodged under this rule, appoint the action to debate.

Consignation of the fund and discharge of holder S

35.15. (1) At any time after the condescendence of the fund in medio has been approved, the sheriff may order the whole or any part of the fund to be sold and the proceeds of the sale consigned into court.

(2) After such consignation the holder of the fund in medio may apply for his exoneration and discharge.

(3) The sheriff may allow the holder of the fund in medio, on his exoneration and discharge, his expenses out of the fund as a first charge on the fund.

Further service or advertisement S

35.16. The sheriff may at any time, of his own motion or on the motion of any party, order further service on any person or advertisement.

Ranking of claims S

35.17. (1) After disposal of any defences, and approval of the condescendence of the fund in medio, the sheriff may, where there is no competition on the fund, rank and prefer the claimants and grant decree in terms of that ranking.

(2) Where there is competition on the fund, the sheriff may order claims to be adjusted and thereafter close the record and regulate further procedure.

Remit to reporter S

35.18. (1) Where several claims have been lodged, the sheriff may remit to a reporter to prepare a scheme of division and report.

(2) The expenses of such remit, when approved by the sheriff, shall be made a charge on the fund, to be deducted before division.