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40.12.—(1) Where a motion for grounds of appeal under rule 40.7(3) has been enrolled by an appellant, any other party may oppose the motion on the ground that the appeal is incompetent.
(2) Where a motion has been opposed under paragraph (1), the cause shall be put out for hearing in the Single Bills before a Division of the Inner House.
(3) At the hearing in the Single Bills arranged under paragraph (2), the court may–
(a)dispose of the objection to competency and, where it repels the objection, order grounds of appeal to be lodged;
(b)appoint the cause to the Summar Roll for a hearing on the objection;
(c)reserve the objection until grounds of appeal have been lodged and order such grounds to be lodged;
(d)reserve the objection for hearing with the merits and order grounds of appeal to be lodged.
(4) Where the Deputy Principal Clerk considers that an appeal may be incompetent, [F1he may, at any time] before the cause is brought before the Inner House, refer it to a single judge in accordance with paragraph (5).
(5) Any referral by the Deputy Principal Clerk under paragraph (4) shall be made to a judge nominated for that purpose by the Lord President.
(6) Where a referral is made under paragraph (4), the judge may–
(a)order any party to make representations to him in respect of the competency of the appeal;
(b)refuse the appeal on the ground that it is incompetent;
(c)direct that the appeal is to proceed as if the referral had not been made;
(d)make such order as to expenses or otherwise as he thinks fit.
(7) Any decision of a judge in respect of an appeal referred to him under paragraph (4) shall be final and not subject to review.
Textual Amendments
F1Words in Sch. 2 rule 40.12(4) substituted (5.8.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(6)
Commencement Information
I1Sch. 2 rule 40.12 in force at 5.9.1994, see para. 1(1)
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