Textual Amendments
F1Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.
Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, rule 3.24, Sch. 3
Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)
Prospective
28.4.(1)The party who seeks to execute a commission and diligence for recovery of a document obtained on an application made under rule 28.2(1)(a) shall—
(a)provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment; and
(b)instruct the clerk and any shorthand writer considered necessary by the commissioner or any party; and
(c)be responsible for the fees of the commissioner and his clerk, and of any shorthand writer.
(2)The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission.
(3)The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.
(4)A citation in Form G13 shall be served on the haver with a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments) [F2; and the party citing the haver shall lodge a certificate in Form G12].
(5)The parties and the haver shall be entitled to be represented by a solicitor or person having a right of audience before the sheriff at the execution of the commission.
(6)At the commission, the commissioner shall—
(a)administer the oath de fideli administratione to any [F3clerk and any] shorthand writer appointed for the commission; and
(b)administer to the haver the oath in Form G14, or, where the haver elects to affirm, the affirmation in Form G15.
(7)The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.
(8)Not later than the day after the date on which such a report, document and inventory, if any, are received by the sheriff clerk, he shall intimate to the parties that he has received them.
(9)No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (8).
(10)Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (8), the sheriff clerk shall intimate that failure to every other party.
(11)Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (10), the sheriff clerk shall return it to the haver.
(12)Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—
(a)intimate the return of the document to every other party; and
(b)if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.
Textual Amendments
F2Words in rule 28.4(4) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(a)
F3Words in rule 28.4(6)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(34)(b)