Textual Amendments
F1Sch. 1 (with appendix) substituted by S.I. 1983/747, art. 3
Modifications etc. (not altering text)
C1Sch. 1: certain rules and forms applied by S.I. 1976/476, para. 3, S.I. 1988/1976, para. 2(1), Sch. rule 2, Appendix 2 and S.I. 1990/661, para. 3
C2Sch. 1 applied by Bankruptcy Act 1985 (c. 66, SIF 66), s. 47(4) (as amended by S.I. 1986/517, para. 5)
62(1)When the pleadings have been adjusted the sheriff shall close the record and make such further order as he thinks fit.
(2)Not later than 14 days after the closing of the record the pursuer shall lodge in process a certified copy of the closed record.
33If a defender intends [F2to challenge the jurisdiction of the court or] to state a defence he shall before the expiry of the appropriate period of notice exhibit to the sheriff clerk the service copy of the initial writ and lodge with him a notice of intention to defend as nearly as may be in terms of Form F as set out in the Appendix to this Schedule [F3and shall at the same time intimate the lodging of that notice to the pursuer]. [F2The lodging of such notice of intention to defend shall not imply acceptance of the jurisdiction of the court.]
Textual Amendments
F2Words inserted by S.I. 1986/1946, para. 2(6)
F3S. 33: words inserted (4. 5. 1992) by S.I. 1992/249, para. 2(5)
[F434(1)In an action of separation, affiliation and aliment or for custody of a child, a defender who intends only to dispute the amount of aliment may, in place of lodging a notice of intention to defend, lodge a minute to that effect condescending on the relevant facts.
(2)In action of divorce, a defender who intends only to dispute liability for, or the amount of, or raise other matters relating to, aliment, periodical allowance, capital payment or transfer of property may, in place of lodging a notice of intention to defend, lodge a minute condescending on the relevant facts.
(3)In an action of divorce or of separation, a defender may, without lodging a notice of intention to defend, apply to the court by minute craving an order for aliment, periodical allowance, capital payment or transfer of property and such minute shall crave the order which he claims the sheriff should make, and condescend on the relevant facts.
(4)On the lodging of a minute under paragraph (1), (2) or (3)—
(a)the sheriff clerk shall enrol the cause for a hearing, and the defender shall send a copy of the minute and intimate the date of the hearing to the pursuer; and
(b)the pursuer shall return the initial writ to the sheriff clerk at or before the hearing, but shall not, unless the sheriff otherwise directs, require to lodge a process.
(5)At the hearing, the sheriff may resolve the matter or continue the cause for such further procedure as he considers appropriate.
(6)In an action referred to in this rule, the sheriff may grant decree in terms of a joint minute dealing with aliment, periodical allowance, capital payment or transfer of property whether or not these have been craved in the initial writ or minute.]
Textual Amendments
F4Rule 34 substituted by S.I. 1986/1230, para. 3(11)
35(1)Where a notice of intention to defend has been lodged, the sheriff clerk shall enrol the cause for tabling on the first court day occurring after the expiry of the appropriate period of notice.
(2)A cause which has not been tabled, and in which protestation has not been craved, shall drop from the roll, but within three months the sheriff may direct it to be again enrolled for tabling under such conditions as to notice, or re-service, or expenses, or otherwise as seem just.
(3)At tabling, the sheriff may, on the motion of either party, continue the cause without ordering defences to be lodged.
36(1)On any occasion on which the cause is enrolled for tabling and not tabled, the defender or his agent, upon producing the service copy of the writ, may crave protestation for not insisting, which the sheriff may grant, and shall fix the amount of protestation money payable to the defender.
(2)Protestation shall not be extracted before the expiry of seven clear days from the date of its granting, except where arrestments have been used, in which case it may be extracted after the expiry of 48 hours from that date.
(3)Upon protestation being extracted, the instance shall fall.
(4)Before extract, protestation may be recalled, and the sheriff may allow the pursuer to proceed with the cause upon making payment to the defender of the amount of protestation money, and upon such other conditions as the sheriff thinks fit.
37In a cause in which a notice of intention to defend has been lodged, the pursuer shall at or before tabling lodge with the sheriff clerk the principal initial writ and a copy initial writ with warrant thereon certified by the pursuer, principal and duplicate interlocutor sheets, and principal and borrowing inventory of process, and the sheriff clerk shall endorse on all documents lodged in process the date of lodging.
38(1)The principal initial writ, the principal interlocutor sheets and borrowing inventory of process shall remain in the custody of the sheriff clerk.
(2)The sheriff may make a special order to the contrary in respect of the principal initial writ.
39(1)A process may be borrowed only by a solicitor or by his authorised clerk for whom he shall be responsible.
(2)All remedies competent to enforce the return of a borrowed process may proceed on the warrant of the court from whose custody the process was obtained, whether the borrower is or is not within its jurisdiction.
(3)A party litigant shall not borrow a process except by leave of the sheriff and subject to such conditions as the sheriff may impose but may inspect a process and obtain copies, where practicable, from the sheriff clerk.
(4)All numbers of process borrowed shall be returned to the sheriff clerk not later than two days before the date of the proof.
40(1)When a solicitor or party litigant has borrowed a process, or any part of a process, and fails to return it for any diet at which it is required, the sheriff may impose upon such solicitor or party litigant a fine not exceeding £50, which shall be payable to the sheriff clerk; but an order imposing a fine may, on cause shown, be recalled by the sheriff who granted it.
(2)Orders made under this rule shall not be subject to appeal.
41When any part of process is lost or destroyed, a copy thereof, authenticated in such manner as the sheriff may require, may be substituted and shall, for the purposes of the action to which the process relates, be treated as having the same force and effect as the original.
42(1)The certified copy initial writ with warrant thereon may be borrowed by any party to the action and shall be sufficient warrant to arrest on the dependence if it is otherwise competent to do so.
(2)Separate precepts of arrestment may be issued by the sheriff clerk on production to him of an initial writ, containing claims for payment of money, on which a warrant of citation has been granted, or of a liquid document of debt.
43(1)Where defences have not been lodged at tabling, the sheriff, in the interlocutor pronounced at tabling or otherwise, shall appoint a period within which defences shall be lodged.
(2)On lodging defences the defender shall send a copy to the pursuer.
44Defences shall be in the form of answers in paragraphs corresponding to the paragraphs of the condescendence, and shall have appended a note of the defender’s pleas-in-law.
45Every statement of fact made by one party shall be answered by the other party, and if a statement made by one party of a fact within the knowledge of the other party is not denied by that other party, the latter shall be held as admitting the fact so stated.
46Subject to the provisions of rules 47 and 48 all adjustments of the pleadings shall be made by parties only on the certified copy of the initial writ, the defences or answers, as the case may be, and shall be immediately intimated in writing to all other parties.
47(1)The sheriff may at any time before the closing of the record, on the application of a party to the action orex proprio motu, order the pursuer to lodge in process a record of the pleadings as adjusted to the date of the order and to intimate a copy to all other parties.
(2)Any adjustments made after that date shall be made on that record and intimated to all other parties.
48(1)In a cause in which all other parties have lodged defences or answers the pursuer may, prior to the closing of the record and without leave of the sheriff, alter any sum sued for by amending the crave of the initial writ, the certified copy of the initial writ and any record.
(2)The pursuer shall immediately intimate any such amendment in writing to all other parties.
49(1)In the interlocutor pronounced at tabling or otherwise the sheriff shall appoint the date on which the cause shall appear on the adjustment roll.
(2)No continuation of the adjustment after the first shall be allowed except on cause shown.
(3)Cause shall not be shown under paragraph (2) by reason only that parties agree to a continuation.
(4)In considering whether cause has been shown under paragraph (2) the sheriff shall take into account any additional time which may have been available for adjustment owing to a court vacation occurring (in whole or in part) after the lodging of defences.
50(1)Where in any cause, a defender claims that he has any right of contribution, relief, or indemnity against any person who is not already a party to the cause, or that a person whom the pursuer is not bound to call as a defender should be made a party to the cause along with the defender in respect that such person is either solely liable or jointly and severally liable with the defender to the pursuer in respect of the subject matter of the cause, the defender may set forth in his defences or in a separate statement of facts the grounds upon which he maintains that any such person (hereinafter called a third party) is liable to him by way of contribution, relief, or indemnity, or should be made a party to the cause and the defences or statement of facts shall also contain appropriate pleas-in-law directed against such third party.
(2)Thereafter the defender may lodge a motion for the purpose of obtaining an order for the service of a third party notice upon such third party upon such period of notice as is referred to in rule 7, and if the motion is granted, the third party shall be a party to the cause and may lodge answers on or before a date appointed by the sheriff for the regulation of further procedure.
(3)Averments directed against a third party shall be made prior to the closing of the record, or, at the discretion of the sheriff and subject to such conditions as to the sheriff seem just, at a later stage, but in no event later than the commencement of the hearing of the cause on its merits.
(4)A third party notice shall be as nearly as may be in terms of Form G as set out in the Appendix to this Schedule and the answers by a third party shall be headed “Answers for E.F. Third Party in the action at the instance of A.B. Pursuer against C.D. Defender”; and the following provisions of this rule shall apply to the procedure under the notice.
(5)A third party notice shall be served on the third party in any manner and on such period of notice in which an initial writ may competently be served on a defender and shall be accompanied by a copy of the initial writ and defences, or the record, if any.
(6)A copy of the third party notice with a certificate of execution thereon shall be lodged in process.
(7)The order granting leave to serve a third party notice may contain a warrant for arrestment to found jurisdiction, or for arrestment on the dependence.
(8)Averments to justify the granting of a warrant for arrestment to found jurisdiction shall be included in the defences or the separate statement of facts referred to in paragraph (1) of this rule.
(9)On the date appointed by the sheriff for the regulation of further procedure or at any time thereafter the sheriff may grant such decree, interlocutor or order as seems just.
(10)Any decree, interlocutor, or order against the third party shall take effect and be extractable in the same way as a decree, interlocutor or order against the defender.
(11)This rule also applies to a claim—
(a)by a third party; or
(b)by a pursuer in respect of a counter-claim by a defender, as it applies to a claim by a defender.
51The defender may make a counter-claim against the pursuer by lodging in process a separate document headed “Counter-claim for the Defender” a copy of which shall be sent to the pursuer.
52The counter-claim shall contain a crave or craves in a form which if the counter-claim had been enforced by way of a separate cause would have been appropriate in that cause; it shall also contain a statement of facts setting out in numbered paragraphs the facts on which the counter-claim is founded and shall have appended a note of the pleas-in-law which are necessary to support the counter-claim.
53(1)The defender may apply for warrant to use any form of diligence by way of arrestment which could be used on the dependence of a separate cause brought to enforce the matter of the counter-claim.
(2)Such application shall be made by appending to the crave of the counter-claim the words “warrant for arrestment on the dependence applied for”, and shall be granted by the sheriff clerk who receives the counter-claim adding the words “Grants warrant as craved”, and adhibiting his signature together with the date below those words.
(3)Any such warrant shall have the like effect as it would have in an initial writ.
54The sheriff may—
(a)deal with the counter-claim as if it had been stated in a substantive cause;
(b)regulate procedure as he thinks fit; and
(c)grant decree for the counter-claim in whole or in part, or for the difference between it and the sum claimed.
55(1)A pursuer shall not be prevented from abandoning a cause by reason only of a counter-claim by the defender.
(2)The abandoning of any cause by the pursuer shall not effect a counter-claim made in respect of that cause; and the counter-claim shall continue as a separate cause.
(3)Any expenses payable by the pursuer as a condition of, or in consequence of abandoning the cause shall not include the expenses of the counter-claim.
(4)A defender who has counter-claimed may abandon his counter-claim by lodging in process a minute to that effect, and thereafter the sheriff may, on payment by the defender of the expenses incurred by the pursuer in connection with the counter-claim, dismiss the counter-claim.
(5)If the defender fails, within 14 days of the date of taxation, to pay those expenses, the pursuer shall be entitled to decree of absolvitor with expenses in the counter-claim.
56[F6(1)]In any cause in which custody of, access to, or maintenance for, a child is sought [F7or could competently be sought] the defender may make [F8any claim relating to such matters of a kind] which a pursuer may make in such a cause; and rules 51 to 55 shall apply to any such claim as they apply to a counter-claim.
[F9(2)Where a defender makes a counter-claim under paragraph (1), he may, where it would otherwise be competent, incorporate a crave for an order for aliment, periodical allowance, capital payment or transfer of property rather than proceed by way of separate minute under rule 34.
(3)In a cause referred to in this rule, the sheriff may grant decree in terms of a joint minute dealing with custody of, access to, or maintenance for, a child, aliment, periodical allowance, capital payment or transfer of property whether or not those have been craved in the initial writ or counter-claim.]
Textual Amendments
F5Words repealed by S.I. 1984/255, para. 3(12)(a)
F6 “—(1)” inserted by S.I. 1986/1230, para. 3(12)(a)
F7Words inserted by S.I. 1984/255, para. 3(12)(b)
F8Words substituted by S.I. 1986/1230, para. 3(12)(b)
F9Rule 56(2)(3) inserted by S.I. 1986/1230, para. 3(12)(c)
57Any motion endorsed as unopposed may be granted by the sheriff in chambers without hearing the parties.
[F1057AIn any undefended cause in which it is competent to do so, the sheriff may, on a motion by the defender at any time before decree is granted, grant a time to pay direction and, where appropriate, an order recalling or restricting an arrestment.]
Textual Amendments
F10Rule 57A inserted by S.I. 1988/1978, para. 11
58(1)A pursuer may at any stage of a cause before an interlocutor granting absolvitor or dismissing the cause has been pronounced offer to abandon the cause by lodging in process a minute to that effect and thereafter the sheriff may, on payment to the defender of his expenses, dismiss the cause.
(2)If the pursuer fails, within 14 days of the date of taxation, to pay the defender’s expenses, the defender shall be entitled to decree of absolvitor, with expenses.
59[F11(1)In a defended cause other than an action of divorce or of separation . . . F12 if any production or step of process has not been lodged or an order has not been implemented within the time required by any enactment or order of the sheriff, or if one party fails to appear or be represented at a diet, the sheriff may grant decree as craved or decree ofabsolvitor, or may dismiss the cause, with expenses,]
(2)If none of the parties appears the sheriff may dismiss the cause.
[F13(3)In any action the sheriff may, on cause shown, prorogate the time for lodging any production or step of process or for implementing any order.]
Textual Amendments
F11Rule 59(1) substituted by S.I. 1984/255, para. 3(13)(a)
F12Words repealed by S.I. 1986/1230, para. 3(13)
F13Rule 59(3) inserted by S.I. 1984/255, para. 3(13)(b)
[59A(1)This rule applies to any cause other than—
(a)a consistorial action;
(b)an action of multiplepoinding; or
(c)an action under the Presumption of Death (Scotland) Act 1977 F15.
(2)A pursuer may, at any time after the defender has lodged defences, apply by written motion to the court—
(a)to grant decree in terms of all or any of the craves of the initial writ;
(b)to pronounce an interlocutor sustaining or repelling a plea-in-law; or
(c)to dispose of the whole or part of the subject matter of the action,
on the ground that there is no defence to the action or a part of it disclosed in the defences.
(3)A motion under this rule shall be intimated to all other parties to the cause on a period of notice of 14 days.
(4)After hearing a motion under this rule, the sheriff may, if he is satisfied that there is no defence to the action or to any part of it to which the motion relates—
(a)grant summary decree against the defender in terms of the motion in whole or in part; or
(b)order any party or a partner, director, officer or office bearer of any party—
(i)to produce any document or article; or
(ii)to lodge an affidavit or affidavits in support of any averment of fact made in the pleadings or at the hearing of the motion.
(5)Notwithstanding the grant or refusal of a motion under this rule a further motion under this rule may be made by the pursuer on cause shown by reason of a change of circumstances.
(6)Where—
(a)a defender has lodged a counter-claim; or
(b)a defender or third party has made a claim against another defender or against a third party, who has lodged defences or answers,
he may apply by motion in accordance with this rule for summary decree on that counterclaim or claim or part of it, on the ground that the other party has no defence to it; and the terms of paragraphs (1) to (5) of this rule shall apply to a motion by a defender or third party as they apply to a motion by a pursuer.]
Editorial Information
X1Rule 59A (as inserted by S.I. 1984/255, para. 3(14) and substituted by S.I. 1986/1230, para. 3(14)) renumbered as rule 59B and a new rule 59A inserted after rule 59 by S.I. 1992/249, para. 2(7)(8).
Textual Amendments
F14Rule 59A inserted in Sch. 1 (4.5.1992) by S.I. 1992/249, para. 2(7).
[F16[X2F1759B](1)The sheriff may make an order, with or without conditions, allowing a defender in an action of divorce or of separation who has not lodged a notice of intention to defend or defences—
(a)to appear and be heard at a diet of proof;
(b)to lodge defences and to lead evidence at any time before decree of divorce or of separation has been pronounced; or
(c)to appeal within 14 days of the decree of divorce or of separation.
(2)Where an order is made under paragraph (1)(a), a defender may not lead evidence without the consent of the pursuer.
(3)Where an order is made under paragraph (1)(b), the pursuer may lead further evidence, by recalling witnesses already examined or otherwise, whether or not he closed his proof before the order was made.]
Editorial Information
X2Rule 59A (as inserted by S.I.1984/255, para. 3(14) and substituted by S.I. 1986/1230, para. 3(14)) renumbered as rule 59B and a new rule 59A inserted after rule 59 (4.5.1992) by S.I. 1992/249, para. 2(7)(8)
Textual Amendments
F16Rule 59A inserted by S.I. 1984/255, para. 3(14) and substituted by S.I. 1986/1230, para. 3(14)
F17Rule 59A renumbered as rule 59B (4.5.1992) by S.I. 1992/249, para. 2(8)
60(1)Where any depending cause cannot proceed owing to the death of any party and that party’s representatives do not sist themselves in his place, any other party may lodge a minute craving transfer of the cause against those representatives.
(2)The sheriff may on the lodging of any such minute, grant warrant for serving a copy of the initial writ upon those representatives, and if he does so, shall at the same time allow them to lodge a minute of objections to such transference within such time as may be specified in the interlocutor, and shall order intimation of his interlocutor to be made to any other parties to the cause.
(3)The sheriff may, after considering any objections to the minute, pronounce an interlocutor transferring the cause against their representatives.
61A cause shall not be held to have fallen asleep by reason only that no interlocutor has been pronounced therein within a year and a day of the date of the last interlocutor.
62(1)When the pleadings have been adjusted the sheriff shall close the record and make such further order as he thinks fit.
(2)Not later than 14 days after the closing of the record the pursuer shall lodge in process a certified copy of the closed record.
63(1)At the time of the closing of the record the parties shall state the preliminary pleas, if any, on which they insist and the sheriff shall fix a date for a debate on any such plea that is insisted in except where, upon a motion by the parties to reserve their pleas, he allows a proof before answer.
(2)The sheriff shall repel any such plea that is not insisted in.
64(1)In any defended cause the sheriff may at any time before final judgment—
(a)allow any amendment of the initial writ or other writ which may be necessary for the purpose of determining in the existing cause the real question in controversy between the parties, notwithstanding that in consequence of such amendment a different remedy from the originally craved is thereby sought, or, after the closing of the record, that the sum sued for is increased or restricted;
(b)allow any amendment which may be necessary to correct or supplement the designation of any party to the cause, or to enable any party who has sued or has been sued in his own right to sue or be sued in a representative capacity, or to enable any party who has sued or who has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity, or to add the name of an additional pursuer or of a person whose concurrence is necessary, or where the cause has been commenced in the name of the wrong person as pursuer or where it is doubtful whether it has been commenced in the name of the right person, to allow any other person to be sisted as pursuer in substitution for, or in addition to, the original pursuer;
(c)in any case in which it appears that all parties having an interest have not been called, or that the cause has been directed against the wrong person, allow any amendment inserting in the initial writ or writ an additional or substitute defender and containing averments directed against said defender and to order the record as so amended to be served on such additional or substitute defender along with a notice in terms of Form H as set out in the Appendix to this Schedule specifying the date by which defences or answers must be lodged [F18; provided that in any case in which a time to pay direction under the Debtors (Scotland) Act M1 1987 may be applied for by the defender a notice in terms of form HH as set out in the Appendix to this Schedule together with form B5 shall be served on such additional or substitute defender in place of Form H]; and thereafter a copy of the said notice shall be lodged in process with a certificate of execution thereon and the cause as so amended shall proceed in every respect as if such defender had originally been made a party to the cause;
(d)allow any amendment of the condescendence, defences, answer or pleas-in-law which may be necessary for determining in the existing cause the real question in controversy between the parties.
(2)In allowing an amendment under paragraph (1), the sheriff may attach such conditions as seem just, and shall find the party making the amendment liable in the expenses thereby occasioned unless it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with.
(3)No amendment allowed under paragraph (1) shall prejudice the rights of creditors of the defender by giving validity to diligence used on the dependence of the cause; but no objections to such diligence shall have effect when stated by the defender himself or by any person representing him by a title, or in right of a debt contracted by him, subsequent to the execution of such diligence.
65If at any time on or after closing the record the parties wish to renounce probation they may do so by lodging with the sheriff clerk a joint minute to that effect with or without a statement of admitted facts and productions, and on the lodging of the joint minute the sheriff may order the cause to be debated.
66If proof is necessary, the sheriff shall fix a date for taking the proof, and may limit the mode of proof.
67(1)Where any party desires to refer any matter to his opponent’s oath he shall lodge with the sheriff clerk a minute to that effect.
(2)If the party to whose oath reference has been made fails to appear at the diet for taking his deposition the sheriff may hold him as confessed and grant decree accordingly.
68(1)When a deed or writing is founded on by any party in a cause, all objections to the deed or writing may be stated and maintained by way of exception, without reducing it.
(2)The sheriff may, where an objection is stated under paragraph (1) and where an action of reduction would be competent, order the objector to find caution, or to make consignation as he shall direct.
69(1)Where all compearing parties to the cause concur the sheriff may remit to any person of skill or other person to report on any matter of fact and the report of such person shall be final and conclusive with respect to the matter of the remit.
(2)Before the sheriff so remits, the parties shall lodge in process a joint minute setting out the matters which are to be the subject of the remit.
(3)The expense of the execution of the remit shall in the first instance be paid by the parties equally unless the sheriff otherwise directs.
(4)In undefended causes the sheriff may on the motion of the pursuer remit to a man of skill or other person.