PART 6INCIDENTAL PROCEDURE: SPECIAL PROCEDURES
F2CHAPTER 22COMPATIBILITY QUESTIONS AND DEVOLUTION ISSUES
Interpretation22.1
In this Chapter—
“the 2024 Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024;
“compatibility question” has the meaning given by section 31(1) of the 2024 Act;
“devolution issue” means a devolution issue under—
- a
Schedule 6 of the Scotland Act 1998;
- b
Schedule 10 of the Northern Ireland Act 1998;
- c
Schedule 9 of the Government of Wales Act 2006,
- a
and any reference to Schedule 6, Schedule 10 or Schedule 9 is a reference to that Schedule in that Act;
“relevant authority” means—
- a
in respect of a compatibility question, the Commissioner for Children and Young People in Scotland, the Lord Advocate and the Scottish Commission for Human Rights;
- b
in any other case, the Advocate General for Scotland and—
- i
in the case of a devolution issue within the meaning of Schedule 6, the Lord Advocate;
- ii
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;
- iii
in the case of a devolution issue within the meaning of Schedule 9, the Counsel General to the Welsh Government.
- i
- a
Raising a compatibility question or devolution issue22.2
1
A compatibility question or devolution issue is raised by specifying a compatibility question or devolution issue in Form 22.2.
2
A compatibility question or devolution issue in Form 22.2 is to be lodged—
a
by an appellant, when the note of appeal is lodged;
b
by a respondent, when answers to the note of appeal are lodged,
unless the Court allows an appellant or a respondent to raise a compatibility question or devolution issue at a later stage in proceedings.
3
An application to allow a compatibility question or devolution issue to be raised after the note of appeal has been lodged or answers to the note of appeal have been lodged, as the case may be, is to be made by motion.
4
The party raising a compatibility question or devolution issue must specify, in sufficient detail to enable the Court to determine whether a compatibility question or devolution issue arises—
a
the facts and circumstances;
b
the contentions of law,
on the basis of which it is alleged that the compatibility question or devolution issue arises in the appeal.
5
The Court may not determine a compatibility question or devolution issue unless permission has been given for the compatibility question or devolution issue to proceed.
Intimation and service22.3
1
This rule applies to the intimation of—
a
a compatibility question on a relevant authority under section 34(1) of the 2024 Act;
b
a devolution issue on a relevant authority under—
i
paragraph 5 of Schedule 6;
ii
paragraph 23 of Schedule 10;
iii
paragraph 14(1) of Schedule 9.
2
When a compatibility question or devolution issue is raised, the party raising it must intimate it to the relevant authority unless the relevant authority is a party to the appeal.
3
Within 14 days after intimation, the relevant authority may give notice to the Clerk that it intends to take part in the appeal as a party, as the case may be, under—
a
section 34(2) of the 2024 Act;
b
paragraph 6 of Schedule 6;
c
paragraph 24 of Schedule 10;
d
paragraph 14(2) of Schedule 9.
Permission to proceed22.4
1
When a compatibility question or devolution issue is raised, the Clerk must fix a hearing and intimate the date and time of that hearing to the parties.
2
Within 14 days after the Clerk intimates the date and time of the hearing, each party must lodge a note of argument.
3
That note of argument must summarise the submissions the party intends to make on the question of whether a compatibility question or, as the case may be, devolution issue arises in the appeal.
4
At the hearing, the procedural Appeal Sheriff must determine whether a compatibility question or, as the case may be, devolution issue arises in the appeal.
5
Where the procedural Appeal Sheriff determines that a compatibility question or devolution issue arises, the procedural Appeal Sheriff must grant permission for the compatibility question or devolution issue to proceed.
6
Where the procedural Appeal Sheriff determines that no compatibility question or devolution issue arises, the procedural Appeal Sheriff must refuse permission for the compatibility question or devolution issue to proceed.
7
At the hearing the procedural Appeal Sheriff may make any order, including an order concerning expenses.
8
In this rule, “party” includes a relevant authority that has given notice to the Clerk that it intends to take part in the appeal as a party, and “parties” is construed accordingly.
Participation by the relevant authority22.5
1
Paragraph (2) applies where a relevant authority has given notice to the Clerk that it intends to take part in the appeal as a party.
2
Within 7 days after permission to proceed is given, the relevant authority must lodge a minute containing the relevant authority’s written submissions in respect of the compatibility question or devolution issue.
Reference to the Inner House or Supreme Court22.6
1
This rule applies—
a
to the reference of a compatibility question to the Inner House of the Court of Session for determination under section 35(1) of the 2024 Act;
b
where the Court has been required by the Lord Advocate to refer a compatibility question to the Supreme Court under section 36 of the 2024 Act;
c
to the reference of a devolution issue to the Inner House of the Court of Session for determination under—
i
paragraph 7 of Schedule 6;
ii
paragraph 25 of Schedule 10;
iii
paragraph 15 of Schedule 9;
d
where the Court has been required by a relevant authority to refer a devolution issue to the Supreme Court under—
i
paragraph 33 of Schedule 6;
ii
paragraph 33 of Schedule 10;
iii
paragraph 29 of Schedule 9.
2
The Court is to make an order concerning the drafting and adjustment of the reference.
3
The reference must specify—
a
the questions for the Inner House or the Supreme Court;
b
the addresses of the parties;
c
a concise statement of the background to the matter, including—
i
the facts of the case, including any relevant findings of fact;
ii
the main issues in the case and contentions of the parties with regard to them;
d
the relevant law including the relevant provisions of the 2024 Act or, as the case may be, the Scotland Act 1998, the Northern Ireland Act 1998 or the Government of Wales Act 2006;
e
the reasons why an answer to the questions is considered necessary for the purpose of disposing of the proceedings.
4
The reference must have annexed to it—
a
a copy of all orders made in the appeal;
b
a copy of any judgments in the proceedings.
5
When the reference has been drafted and adjusted, the Court is to make and sign the reference.
6
The Clerk must—
a
send a copy of the reference to the parties to the proceedings;
b
certify on the back of the principal reference that sub-paragraph (a) has been complied with.
Reference to the Inner House or Supreme Court: further procedure22.7
1
On a reference being made, the appeal must, unless the Court orders otherwise, be sisted until the compatibility question or devolution issue has been determined.
2
Despite a reference being made, the Court continues to have the power to make any interim order required in the interests of the parties.
3
The Court may recall a sist for the purpose of making such interim orders.
4
On a reference being made the Clerk must send the principal copy of the reference to either (as the case may be)—
a
the Deputy Principal Clerk of the Court of Session; or
b
the Registrar of the Supreme Court (together with 7 copies).
5
Unless the Court orders otherwise, the Clerk must not send the principal copy of the reference where an appeal against the making of the reference is pending.
6
An appeal is to be treated as pending either—
a
until the expiry of the time for making that appeal; or
b
where an appeal has been made, until that appeal has been determined.
Reference to the Inner House or Supreme Court: procedure following determination22.8
1
This rule applies where either the Inner House of the Court of Session or the Supreme Court has determined a compatibility question or devolution issue.
2
Upon receipt of the determination, the Clerk must place a copy of the determination before the Court.
3
The Court may, on the motion of any party or otherwise, order such further procedure as may be required.
4
Where the Court makes an order other than on the motion of a party, the Clerk must intimate a copy of the order on all parties to the appeal.
CHAPTER 23PRELIMINARY REFERENCES TO THE CJEU – CITIZENS’ RIGHTS
Interpretation of this ChapterI1723.1
In this Chapter, “reference” means a reference to the European Court for a preliminary ruling under Article 158 of the Agreement between the European Union and the European Atomic Energy Community and the United Kingdom of Great Britain and Northern Ireland on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community28.
Applications for a referenceI523.2
1
An application for a reference by a party is to be made by motion.
2
The Court may make a reference of its own accord.
Preparation of referenceI323.3
1
Where the Court decides that a reference is to be made, it must make an order specifying—
a
by whom the reference is to be drafted and adjusted;
b
the periods within which the reference is to be drafted and adjusted.
2
A reference is to be drafted in Form 23.3 unless the Court directs otherwise when it makes an order under paragraph (1).
3
In drafting and adjusting the reference, parties are to have regard to the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings issued by the European Court29.
4
When the reference has been drafted and any adjustments required by the Court have been made, the Court must make and sign the reference.
5
When the reference is made, the Clerk must notify the parties.
Transmission of reference to European CourtI3023.4
A copy of the reference is to be certified by the Clerk and sent to the Registrar of the European Court.
Sist of appealI2123.5
1
When a reference is made, the Court is to sist the appeal until the European Court determines the reference, unless the Court orders otherwise.
2
Where an appeal is sisted under paragraph (1), the Court may recall the sist for the purposes of making an interim order.
CHAPTER 24INTERVENTIONS BY CEHR AND SCHR
Application and interpretation of this ChapterI2024.1
1
This Chapter applies to—
a
interventions in legal proceedings by the CEHR under section 30(1) of the Equality Act 2006 (judicial review and other legal proceedings)30;
b
interventions in civil proceedings (other than children’s hearing proceedings) by the SCHR under section 14(2) of the Scottish Commission for Human Rights Act 2006 (power to intervene)31.
2
In this Chapter—
“the CEHR” means the Commission for Equality and Human Rights;
“the SCHR” means the Scottish Commission for Human Rights.
Applications to interveneI224.2
1
An application for leave to intervene is to be made in Form 24.2.
2
Such an application must be lodged in the process of the appeal to which it relates.
3
When an application is lodged, rule 5.2(1) applies as if the applicant were a party.
4
The parties may request a hearing on the application within 14 days after the application is lodged.
5
Where a hearing is requested—
a
the Court must appoint a date and time for a hearing;
b
the Clerk must notify the date and time of the hearing to the parties and the applicant.
6
Where no hearing is requested, the Court may appoint a date and time for a hearing of its own accord and the Clerk must notify the date and time of the hearing to the parties and the applicant.
Applications to intervene: determinationI2724.3
1
The Court may determine an application for leave to intervene without a hearing, unless a hearing is fixed under rule 24.2(5) or (6).
2
In an application for leave to intervene under section 30(1) of the Equality Act 2006, the Court may grant leave only if it is satisfied that the proposed submissions are likely to assist the Court.
3
Where the Court grants leave to intervene, it may impose any conditions that it considers desirable in the interests of justice.
4
In particular, the Court may make provision about any additional expenses incurred by the parties as a result of the intervention.
5
When an application is determined, the Clerk must notify the parties and the applicant of the outcome.
Invitations to interveneI424.4
1
An invitation to intervene under section 14(2)(b) of the Scottish Commission for Human Rights Act 2006 is to be in Form 24.4.
2
The Clerk must send a copy of Form 24.4 to the parties to the proceedings and to the SCHR.
3
When the Clerk sends a copy of Form 24.4 to the SCHR, the Clerk must also send—
a
a copy of the note of appeal and any answers to it;
b
the appeal print, if it is available;
c
any other documents relating to the appeal that the Court thinks are relevant.
4
Where the Court invites the SCHR to intervene, it may impose any conditions that it considers desirable in the interests of justice.
5
In particular, the Court may make provision about any additional expenses incurred by the parties as a result of the intervention.
Form of interventionI624.5
1
An intervention is to be by way of written submission.
2
A written submission (including any appendices) must not exceed 5,000 words.
3
The intervener must lodge the written submission within such time as the Court may direct.
4
In exceptional circumstances, the Court may allow—
a
a written submission exceeding 5,000 words to be made;
b
an oral submission to be made.
5
Where the Court allows an oral submission to be made, it must appoint a date and time for the submission to be made.
6
The Clerk must notify that date and time to the parties and the intervener.
CHAPTER 25PROOF
Taking proof in the course of an appealI1425.1
1
If it is considered necessary, proof or additional proof may be ordered—
a
by the procedural Appeal Sheriff at a procedural hearing;
b
by the Court in the course of an appeal hearing.
2
Where the procedural Appeal Sheriff orders that proof or additional proof is to be taken—
a
the procedural Appeal Sheriff must appoint a date and time for a hearing for that to be done;
b
so far as reasonably practicable, the hearing is to be before the procedural Appeal Sheriff who made the order.
3
Where the Court orders that proof or additional proof is to be taken, the Court must—
a
remit the proof to be taken before any Appeal Sheriff;
b
appoint a date and time for a hearing for that to be done;
c
continue the appeal hearing until the Appeal Sheriff reports the proof to the Court.
4
Where a hearing is fixed under this rule, the Clerk must notify the date and time of the hearing to the parties.
Preparation for proofI1025.2
1
Where a proof or additional proof is ordered, the Appeal Sheriff before whom it is to be taken must make an order specifying—
a
the witnesses whose evidence is to be taken;
b
how those witnesses are to be cited to the hearing.
2
An order under paragraph (1) may include provision as to liability for the fees and expenses of a witness.
Conduct of proofI925.3
A proof is to be taken continuously so far as possible, but the Appeal Sheriff may adjourn the hearing from time to time.
Administration of oath or affirmation to witnessesI2425.4
1
The Appeal Sheriff is to administer the oath to a witness in Form 25.4-A unless the witness elects to affirm.
2
Where a witness elects to affirm, the Appeal Sheriff must administer the affirmation in Form 25.4-B.
Recording of evidenceI2325.5
1
The evidence given at a hearing is to be recorded, unless the parties agree to dispense with the recording of evidence and the Appeal Sheriff considers that it is appropriate to do so.
2
The evidence must be recorded by—
a
a shorthand writer to whom the oath de fideli administratione has been administered in connection with the Court; or
b
by tape recording or other mechanical means approved by the Court.
3
In the first instance, the solicitors for the parties are personally liable to pay, in equal shares—
a
the fees of a shorthand writer; or
b
the fee payable for recording evidence by tape recording or other mechanical means.
4
The record of evidence is to include—
a
any objection taken to a question or to the line of evidence;
b
any submission made in relation to such an objection;
c
the ruling of the Appeal Sheriff in relation to the objection and submission.
Transcripts of evidenceI3225.6
1
A transcript of the record of the evidence is to be made only where the Appeal Sheriff orders it to be made.
2
In the first instance, the solicitors for the parties are personally liable, in equal shares, for the cost of making the transcript.
3
The transcript provided for the use of the Court must be certified as a faithful record of the evidence by—
a
the shorthand writer who recorded the evidence; or
b
where the evidence was recorded by tape recording or other mechanical means, by the person who transcribed the record.
4
The Appeal Sheriff may alter the transcript where the Appeal Sheriff considers it necessary to do so, but only after hearing parties on the proposed alterations.
5
Where the Appeal Sheriff alters the transcript, the Appeal Sheriff must authenticate the alterations.
6
The transcript may only be borrowed from process on cause shown.
7
Where a transcript is required for the purpose of an appeal but the Appeal Sheriff has not directed that it be made—
a
the appellant may request a transcript from the shorthand writer or the person in whose possession the recording of the evidence is;
b
in the first instance, the solicitor for the appellant is liable for the cost of the transcript;
c
the appellant must lodge the transcript in process; and
d
any party may obtain a copy by paying the fee of the person who made the transcript.
Recording objections where recording of evidence dispensed withI2225.7
Where the recording of evidence has been dispensed with under rule 25.5(1), a party may request that the Appeal Sheriff record in the report of the proof—
a
any objection taken to a question or to the line of evidence;
b
any submission made in relation to such an objection; and
c
the ruling of the Appeal Sheriff in relation to the objection and submission.
CHAPTER 26VULNERABLE WITNESSES
Application and interpretation of this ChapterI2926.1
1
This Chapter applies where a proof or an additional proof is ordered to be taken under rule 25.1(1).
2
In this Chapter—
“the 2004 Act” means the Vulnerable Witnesses (Scotland) Act 200432;
“child witness notice” has the meaning given by section 12(2) of the 2004 Act (orders authorising the use of special measures for vulnerable witnesses);
“review application” means an application under section 13(1)(a) of the 2004 Act (review of arrangements for vulnerable witnesses);
“vulnerable witness application” has the meaning given by section 12(6) of the 2004 Act (orders authorising the use of special measures for vulnerable witnesses).
Form of notices and applicationsI1126.2
1
A child witness notice is to be made in Form 26.2–A.
2
A vulnerable witness application is to be made in Form 26.2–B.
3
A review application is to be made—
a
in Form 26.2–C; or
b
orally, if the Court grants leave.
Determination of notices and applicationsI3326.3
1
When a notice or application under this Chapter is lodged, the Court may require any of the parties to provide further information before determining the notice or application.
2
The Court may—
a
determine the notice or application by making an order under section 12(1) or (6) or 13(2) of the 2004 Act without holding a hearing;
b
fix a hearing at which parties are to be heard on the notice or application before determining it.
3
The Court may make an order altering the date of the proof in order that the notice or application may be determined.
Determination of notices and applications: supplementary ordersI3126.4
Where the Court determines a notice or application under this Chapter and makes an order under section 12(1) or (6) or 13(2) of the 2004 Act, the Court may make further orders to secure the expeditious disposal of the appeal.
Intimation of ordersI2826.5
1
Where the Court makes an order—
a
fixing a hearing under rule 26.3(2)(b);
b
altering the date of a proof or other hearing under rule 26.3(3); or
c
under section 12(1) or (6) or 13(2) of the 2004 Act,
the Clerk must intimate the order in accordance with this rule.
2
Intimation must be given to—
a
every party to the proceedings;
b
any other person named in the order.
3
Intimation must be made—
a
on the day that the hearing is fixed or the order is made;
b
in the manner ordered by the Court.
Taking of evidence by commissioner: preparatory stepsI1826.6
1
This rule applies where the Court authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act (taking of evidence by a commissioner).
2
The commission is to proceed without interrogatories unless the Court otherwise orders.
3
The order of the Court authorising the special measure is sufficient authority for citing the vulnerable witness to appear before the commissioner.
4
The party who cited the vulnerable witness—
a
must give the commissioner—
i
a certified copy of the order of the Court appointing the commissioner;
ii
a copy of the appeal documents;
iii
where rule 26.7 applies, the approved interrogatories and cross-interrogatories;
b
must instruct the clerk to the commission;
c
is responsible in the first instance for the fee of the commissioner and the clerk.
5
The commissioner is to fix a hearing at which the commission will be carried out.
6
The commissioner must consult the parties before fixing the hearing.
7
An application by a party for leave to be present in the room where the commission is carried out is to be made by motion.
8
In this rule, “appeal documents” means any of the following documents that have been lodged in process by the time the use of the special measure is authorised—
a
the note of appeal and answers;
b
where there is a cross-appeal, the grounds of appeal and answers;
c
the appeal print and appendices;
d
the notes of argument.
Taking of evidence by commissioner: interrogatoriesI2526.7
1
This rule applies where the Court—
a
authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act; and
b
orders that interrogatories are to be prepared.
2
The party who cited the vulnerable witness must lodge draft interrogatories in process.
3
Any other party may lodge cross-interrogatories.
4
The parties may adjust their interrogatories and cross-interrogatories.
5
At the expiry of the adjustment period, the parties must lodge the interrogatories and cross-interrogatories as adjusted in process.
6
The Court is to resolve any dispute as to the content of the interrogatories and cross-interrogatories, and approve them.
7
When the Court makes an order for interrogatories to be prepared, it is to specify the periods within which parties must comply with the steps in this rule.
Taking of evidence by commissioner: conduct of commissionI826.8
1
The commissioner must administer the oath de fideli administratione to the clerk.
2
The commissioner is to administer the oath to the vulnerable witness in Form 25.4-A unless the witness elects to affirm.
3
Where the witness elects to affirm, the commissioner must administer the affirmation in Form 25.4-B.
Taking of evidence by commissioner: lodging and custody of video record and documentsI1526.9
1
The commissioner must lodge the video record of the commission and any relevant documents with the Clerk.
2
When the video record and any relevant document are lodged, the Clerk must notify every party—
a
that the video record has been lodged;
b
whether any relevant documents have been lodged;
c
of the date on which they were lodged.
3
The video record and any relevant documents must be kept by the Clerk.
4
Where the video record has been lodged—
a
the name and address of the vulnerable witness and the record of the witness’s evidence are to be treated as being in the knowledge of the parties;
b
the parties need not include—
i
the name of the witness in any list of witnesses; or
ii
the record of evidence in any list of productions.
CHAPTER 27USE OF LIVE LINKS
InterpretationI1327.1
In this Chapter—
“evidence” means the evidence of—
- a
the party; or
- b
a person who has been or may be cited to appear before the court as a witness;
- a
“live link” means—
- a
a live television link; or
- b
where the Court gives permission in accordance with rule 27.2(4), an alternative arrangement;
- a
“submission” means any oral submission which would otherwise be made to the Court by a party or that party’s representative, including an oral submission in support of a motion.
Application for use of live linkI1227.2
1
A party may apply to the Court to use a live link to make a submission or to give evidence.
2
An application to use a live link is to be made by motion.
3
Where a party seeks to use a live link other than a live television link, the motion must specify the proposed arrangement.
4
The Court must not grant a motion to use a live link other than a live television link unless the proposed arrangement meets the requirements in paragraph (5).
5
The requirements are that the person using the live link is able to—
a
be seen and heard, or heard without being seen, in the courtroom; and
b
see and hear, or hear without seeing, the proceedings in the courtroom.
CHAPTER 28REPORTING RESTRICTIONS
Application and interpretation of this ChapterI2628.1
1
This Chapter applies to orders which restrict the reporting of proceedings.
2
In this Chapter “interested person” means a person—
a
who has asked to see any order made by the Court which restricts the reporting of proceedings, including an interim order; and
b
whose name is included on a list kept by the Lord President for the purposes of this Chapter.
F1Application for an order28.1A
1
A party to the proceedings may apply to the court for an order under this Chapter to restrict the reporting of the proceedings.
2
An application for an order under this Chapter must be made by motion and be accompanied by Form 28.1A.
Interim ordersI1928.2
1
Where the Court is considering making an order, the Court must first make an interim order.
2
The Clerk must immediately send a copy of the interim order to any interested person.
3
The Court must specify in the interim order why the Court is considering making an order.
RepresentationsI728.3
1
An interested person who would be directly affected by the making of an order must be given an opportunity to make representations to the Court before the order is made.
2
Representations must—
a
be made in Form 28.3;
b
include reasons why an urgent hearing is necessary, if an urgent hearing is sought;
c
be lodged no later than 2 days after the interim order is sent to interested persons in accordance with rule 28.2(2).
3
If representations are made—
a
the Court must appoint a date and time for a hearing—
i
on the first suitable court day; or
ii
where the Court considers that an urgent hearing is necessary, at an earlier date and time;
b
the Clerk must—
i
notify the date and time of the hearing to the parties to the proceedings and any person who has made representations;
ii
send a copy of the representations to the parties.
4
Where no interested person makes representations in accordance with paragraph (3), the Clerk must put the interim order before the Court in chambers in order that the Court may resume consideration of whether to make an order.
5
Where the Court, having resumed consideration, makes no order, it must recall the interim order.
6
Where the Court recalls an interim order, the Clerk must immediately notify any interested person.
Notification of reporting restrictionsI1628.4
Where the Court makes an order, the Clerk must immediately—
a
send a copy of the order to any interested person;
b
arrange for the publication of the making of the order on the Scottish Courts and Tribunals Service website.
Applications for variation or revocationI128.5
1
A person aggrieved by an order may apply to the Court for its variation or revocation.
2
An application is to be made in Form 28.5.
3
When an application is made—
a
the Court must appoint a date and time for a hearing;
b
the Clerk must—
i
notify the date and time of the hearing to the parties to the proceedings and the applicant;
ii
send a copy of the application to the parties.
4
The hearing is, so far as reasonably practicable, to be before the Appeal Sheriff or Appeal Sheriffs who made the order.
Ch. 22 substituted (16.7.2024) by Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Appeal Court Rules 2021 Amendment) (United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) 2024 (S.S.I. 2024/195), paras. 1(2), 3(2)