Act of Sederunt (Rules of the Court of Session 1994) 1994

Special provisions in relation to particular proceedings S

[F1 CHAPTER 43 S ACTIONS OF DAMAGES

Textual Amendments

F1 Sch. 2 Ch. 43 substituted (1.4.2003) by Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Personal Injuries Actions) 2002 (S.S.I. 2002/570), paras. 1(1), 2(1) (with para. 3)

Application and interpretation of this chapter S

43.1— (1) This Chapter applies to a personal injuries action.

(2) In this Chapter–

“connected person” means a person, not being a party to the action, who has title to sue the defender in respect of the personal injuries from which a deceased died or in respect of his death;

“personal injuries” includes any disease or impairment, whether physical or mental;

“personal injuries action” means an action of damages for, or arising from, personal injuries or death of a person from personal injuries; and

“relative” has the meaning assigned to it in Schedule 1 to the Damages (Scotland) Act 1976.

(3) The following rules shall not apply to an action to which this Chapter applies:–

(a) rule 4.9(2) (prorogation of time for lodging document);

(b) rule 6.2 (fixing and allocation of diets in the Outer House);

(c) rule 13.2 (form of summons);

(d) rule 13.6(b) (arrestment to found jurisdiction);

(e) rule 13.7 (service and intimation of summons);

(f) rule 13.13(6) (calling);

(g) rule 22.1 (open records);

(h) rule 22.2 (time for adjustments on Adjustment Roll);

(j) rule 22.3 (closing of record);

(k) rule 36.3 (lodging of productions).

Form of summons S

43.2— (1) The summons shall be in Form 43.2-A and there shall be annexed to it a brief statement containing–

(a) averments in numbered paragraphs relating only to those facts necessary to establish the claim; and

(b) the names of every medical practitioner from whom, and every hospital or other institution in which, the pursuer or, in an action in respect of the death of a person, the deceased received treatment for the personal injuries.

(2) An application for an order under section 12(2)(a) of the Administration of Justice Act 1982 (provisional damages for personal injuries) shall be made by including in the summons a conclusion for provisional damages; and, where such an application is made, averments as to the matters referred to in paragraphs (a) and (b) of section 12(1) of that Act shall be included in the statement made under paragraph (1)(a).

(3) In paragraph (2) above “provisional damages” means the damages referred to in section 12(4)(a) of the Administration of Justice Act 1982.

(4) A summons may include–

(a) warrants for intimation in so far as permitted under these Rules; and

(b) a specification of documents in Form 43.2-B.

(5) In relation to an action to which this Chapter applies, any references to the condescendence of a summons and to articles of the condescendence shall be construed as a reference to the statement required under paragraph (1) above and numbered paragraphs of that statement.

Service and calling of summons S

43.3— (1) Where a summons in an action to which this Chapter applies is to be executed, a copy of the summons which has passed the signet shall be–

(a) served on the defender with a citation in Form 43.3 attached to it; and

(b) intimated to any person named in a warrant for intimation.

(2) Where a summons has not called within three months and a day after the date of signeting, the instance shall fall.

(3) Where a summons cannot be served within the period of notice determined in accordance with rule 13.4 and called before the expiry of the period mentioned in paragraph (2), the Court may–

(i) on the application of the pursuer by motion; and

(ii) on cause shown,

extend that period.

(4) An application under paragraph (3) shall be made before the expiry of the period mentioned in paragraph (2).

Inspection and recovery of documents S

43.4— (1) This rule applies where the summons contains a specification of documents by virtue of rule 43.2(4)(b).

(2) Upon signet an order granting commission and diligence for the production and recovery of the documents mentioned in the specification shall be granted and the Deputy Principal Clerk of Session shall certify Form 43.2-B to that effect.

(3) An order under paragraph (2) shall be treated for all purposes as an interlocutor of the court granting commission and diligence signed by the Lord Ordinary.

(4) The pursuer may serve an order under paragraph (2) and the provisions of rule 35.2 shall thereafter apply, subject to any necessary modifications, as if the order were an order obtained on an application made under rule 35.2(1)(a).

(5) Nothing in this rule shall affect the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or for an order under section 1 of the Administration of Justice (Scotland) Act 1972 in respect of any document or other property not mentioned in the specification annexed to the summons.

Motions to dispense with timetable S

43.5— (1) Any party to an action may, within 28 days of the lodging of defences, by motion apply to have the action withdrawn from the procedure in this Chapter and to be appointed to proceed as an ordinary action.

(2) No motion under paragraph (1) shall be granted unless the court is satisfied that there are exceptional reasons for not following the procedure in this Chapter.

(3) In determining whether there are exceptional reasons justifying the granting of a motion made under paragraph (1), the Lord Ordinary shall have regard to–

(a) the likely need for detailed pleadings;

(b) the length of time required for preparation of the action; and

(c) any other relevant circumstances.

(4) Where the court appoints the cause to proceed as an ordinary action under paragraph (1)–

(a) the pursuer shall, within seven days, lodge an open record in terms of rule 22.1; and

(b) rules 43.11, 43.12 and 43.13 shall apply to the action.

Allocation of diets and timetables S

43.6— (1) The Keeper of the Rolls shall, on the lodging of defences or, where there is more than one defender the first lodging of defences–

(a) allocate a diet for proof of the action;

(b) issue a timetable stating the date mentioned in sub-paragraph (a) and calculated by reference to periods specified from time to time by the Lord President, in accordance with which–

(i) an application for a third party notice under rule 26.1 may be made;

(ii) the pursuer may execute a commission for recovery of documents under rule 43.4;

(iii) parties may adjust their pleadings;

(iv) the pursuer shall lodge a statement of valuation of claim in process;

(v) the pursuer shall lodge a record;

(vi) the defender (and any third party to the action) shall lodge a statement of valuation of claim in process;

(vii) the parties shall each lodge in process a list of witnesses together with any productions upon which they wish to rely; and

(viii) the pursuer shall lodge in process the minute of the pre-trial meeting.

(2) A timetable issued under paragraph (1) shall be in Form 43.6 and shall be treated for all purposes as an interlocutor of the court signed by the Lord Ordinary; and so far as the timetable order is inconsistent with any provision in these rules which relates to a matter to which the timetable relates, the timetable shall prevail.

(3) Where a party fails to comply with any requirement of a timetable other than that referred to in paragraph (7), the Keeper of the Rolls may put the cause out to be heard on the By Order roll.

(4) The pursuer shall lodge two copies of the record, which shall consist of the pleadings of the parties, in process by the date specified in the timetable and shall at the same time send one copy to the defender and any other parties.

(5) The pursuer shall, on lodging the copies of the record as required by paragraph (4), enrol a motion craving the court–

(a) to allow to parties a preliminary proof on specified matters;

(b) to allow a proof;

(c) to allow issues for jury trial; or

(d) to make some other specified order.

(6) In the event that any party proposes to ask the court to make any order other than one of those specified in sub-paragraphs (b) or (c) of paragraph (5), that party shall, on enrolling or opposing (as the case may be) the pursuer’s motion, specify the order to be sought and give full notice in the motion or notice of opposition, of the grounds thereof.

(7) Where a pursuer fails to lodge a record by the date specified in a timetable issued under paragraph (1), the Keeper of the Rolls shall put the case out to be heard on the By Order roll.

(8) A production which is not lodged in accordance with paragraph (1)(b)(vii) shall not be used or put in evidence at a proof unless–

(a) by consent of parties; or

(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

(9) In a cause which is one of more than one cause arising out of the same cause of action, the court may–

(a) on the motion of a party to that cause; and

(b) after hearing parties to all those causes,

appoint that cause or any other of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(10) In this rule, “pursuer ” includes additional pursuer, noter or minuter, as the case may be.

Hearings on the By Order roll S

43.7   •

(1) Where the Keeper of the Rolls puts a case out to be heard on the By Order roll under paragraphs (3) or (7) of rule 43.6 or paragraph (3) of rule 43.10 he shall–

(a) put the cause out to be heard not less than seven days after the date of the notice referred to in sub-paragraph (b) on the By Order roll; and

(b) give notice to the parties to the action–

(i) of the date of the hearing of the cause on the By Order roll; and

(ii) requiring the party in default to lodge in process a written explanation as to why the timetable has not been complied with and to intimate a copy to all other parties, not less than two clear working days before the date of the hearing.

(2) At a hearing on the By Order roll under any of the provisions mentioned in the foregoing paragraph, the Lord Ordinary–

(a) shall consider any explanation provided by the party in default;

(b) may award expenses against that party; and

(c) may make any other appropriate order, including decree of dismissal.

(3) Expenses awarded under paragraph (2)(b) shall not exceed the expenses of the process before the date of the hearing on the By Order roll.

Applications for sist or for variation of timetable order S

43.8— (1) The action may be sisted or the timetable issued under rule 43.6 may be varied by the court on an application by any party to the action by motion.

(2) An application under paragraph (1)–

(a) shall be placed before the Lord Ordinary; and

(b) shall be granted only on special cause shown.

(3) Any sist of an action shall be for a specific period.

(4) Where a timetable issued under rule 43.6 is varied under this rule, the Keeper of the Rolls shall issue a revised timetable in Form 43.6.

(5) A revised timetable issued under paragraph (4) shall have effect as if it were a timetable issued under rule 43.6 and any reference in this Chapter to any action being taken in accordance with the timetable shall be construed as a reference to its being taken in accordance with the timetable as varied under this rule.

Statements of valuation of claim S

43.9— (1) Each party to an action shall make a statement of valuation of claim in Form 43.9.

(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process.

(3) Each party shall, on lodging a statement of valuation of claim, give written intimation to every other party of the list of documents included in the statement of valuation of claim.

(4) A party who has received intimation of a list of documents from another party under paragraph (3) may on written request made within 14 days after the receipt of the list, inspect those documents which–

(a) have not been lodged in process; and

(b) are in the possession or control of the party intimating the list.

(5) A party inspecting documents under paragraph (4) shall have the right to obtain a copy or copies of any such document on payment of a copying fee of not more than that prescribed in Chapter I of the Table of Fees in rule 42.16.

(6) Nothing in paragraphs (3) to (5) shall affect–

(a) the law relating to, or the right of a party to object to the inspection of a document on the ground of, privilege or confidentiality; or

(b) the right of a party to apply under rule 35.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972.

(7) Without prejudice to paragraph (2) of rule 43.7 (hearings on the By Order roll), where a party has failed to lodge a statement of valuation of claim in accordance with a timetable issued under paragraph (2) of rule 43.6 (allocation of diets and timetables) the court may at a hearing of the cause on the By Order roll under paragraph (3) of that rule–

(a) where the party in default is the pursuer, dismiss the action; or

(b) where the party in default is the defender, grant decree against the defender for an amount not exceeding the amount of the pursuer’s valuation.

Pre-trial meetings S

43.10— (1) For the purposes of this rule, a pre-trial meeting is a meeting between the parties, which shall be held not later than four weeks before the date assigned for the proof or trial to discuss–

(a) settlement of the action; and

(b) to agree, so far as is possible, the matters which are not in dispute between them.

(2) A joint minute of a pre-trial meeting, made in Form 43.10, shall be lodged in process by the pursuer not less than three weeks before the date assigned for the proof or trial.

(3) Where a joint minute in Form 43.10 has not been lodged in accordance with paragraph (2) and by the date specified in the timetable order the Keeper of the Rolls shall put the case out to be heard on the By Order roll.

(4) During the pre-trial meeting, the representative of each party to the action shall have access to the party or another person who has authority to commit the party in the settlement of the action.

Applications for interim payments of damages S

43.11— (1) A pursuer may, at any time after defences have been lodged, apply by motion for an order for interim payment of damages to him by the defender or, where there are two or more of them, by any one or more of them.

(2) The pursuer shall give written intimation of a motion under paragraph (1) to every other party not less than 14 days before the date on which the motion is enrolled.

(3) On a motion under paragraph (1), the court may, if satisfied that–

(a) the defender or, where there are two or more of them, any one or more of them, has admitted liability to the pursuer in the action; or

(b) if the action proceeded to proof, the pursuer would succeed in the action on the question of liability without any substantial finding of contributory negligence on his part, or on the part of any person in respect of whose injury or death the claim of the pursuer arises, and would obtain decree for damages against any defender,

ordain that defender to make an interim payment to the pursuer of such amount as it thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the court, are likely to be recovered by the pursuer.

(4) Any such payment may be ordered to be made in one lump sum or otherwise as the court thinks fit.

(5) No order shall be made against a defender under this rule unless it appears to the court that the defender is–

(a) a person who is insured in respect of the claim of the pursuer;

(b) a public authority; or

(c) a person whose means and resources are such as to enable him to make the interim payment.

(6) Notwithstanding the grant or refusal of a motion for an interim payment, a subsequent motion may be made where there has been a change of circumstances.

(7) Subject to Part IV (management of money payable to children), any interim payment shall be made to the pursuer unless the court otherwise directs.

(8) This rule shall, with the necessary modifications, apply to a counterclaim for damages for personal injuries made by a defender.

(9) In this rule “defender” includes a third party against whom the pursuer has a conclusion for damages.

Adjustment on final decree S

43.12   Where a defender has made an interim payment order under rule 43.11(3), the court may make such order, when final decree is pronounced, with respect to the interim payment as it thinks fit to give effect to the final liability of that defender to the pursuer; and in particular may order–

(a) repayment by the pursuer of any sum by which the interim payment exceeds the amount which that defender is liable to pay the pursuer; or

(b) payment by any other defender or a third party of any part of the interim payment which the defender who made it is entitled to recover from him by way of contribution or indemnity or in respect of any remedy or relief relating to, or connected with, the claim of the pursuer.

Applications for further damages S

43.13— (1) An application for further damages by a pursuer in respect of whom an order under section 12(2)(b) of the Administration of Justice Act 1982 has been made shall be made by minute and shall include–

(a) a conclusion in Form 43.13-A; and

(b) averments in the statement of facts supporting that conclusion.

(2) On lodging such a minute in process, the pursuer shall apply by motion for warrant to serve the minute on–

(a) every other party; and

(b) where such other party is insured or otherwise indemnified, his insurer or indemnifier, if known to the pursuer.

(3) A notice of intimation in Form 43.13-B shall be attached to the copy of the minute served on a warrant granted on a motion under paragraph (2).

(4) Any such party, insurer or indemnifier may lodge answers to such a minute in process within 28 days after the date of service on him.

Actions by connected persons S

43.14— (1) In an action of damages in which, following the death of any person from personal injuries, damages are claimed–

(a) by the executor of the deceased, in respect of the injuries from which the deceased died; or

(b) by any relative of the deceased, in respect of the death of the deceased,

the pursuer shall make the averments specified in paragraph (2).

(2) The pursuer in an action to which paragraph (1) applies shall aver in the condescendence, as the case may be–

(a) that there are no connected persons;

(b) that there are connected persons, being persons specified in the warrant for intimation; or

(c) that there are connected persons in respect of whom intimation should be dispensed with on the ground that–

(i) the names or whereabouts of such persons are not known to, and cannot reasonably be ascertained by, the pursuer; or

(ii) such persons are unlikely to be awarded more than the sum of £200 each.

Warrants for intimation in actions by connected persons S

43.15— (1) Where the pursuer makes averments under rule 43.14(2)(b) (existence of connected persons), he shall insert a warrant for intimation in the summons in the following terms:–

• “Warrant to intimate to (name and address) as a person who is believed to have title to sue the defender in an action in respect of the personal injuries from which the late (name and last place of residence) died [or the death of the late (name and last place of residence)]”.

(2) A notice of intimation in Form 43.15 shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (1).

Applications to dispense with intimation in actions by connected persons S

43.16— (1) Where the pursuer makes averments under rule 43.14(2)(c) (dispensing with intimation to connected persons), he shall apply by motion for an order to dispense with intimation.

(2) In determining a motion under paragraph (1), the court shall have regard to–

(a) the desirability of avoiding multiplicity of actions; and

(b) the expense, inconvenience or difficulty likely to be involved in taking steps to ascertain the name or whereabouts of the connected person.

(3) Where the court is not satisfied that intimation to a connected person should be dispensed with, it may–

(a) order intimation to a connected person whose name and whereabouts are known;

(b) order the pursuer to take such further steps as it may specify in the interlocutor to ascertain the name or whereabouts of any connected person; and

(c) order that such advertisement be made in such manner, in such place and at such times as it may specify in the interlocutor.

Subsequent disclosure of connected persons S

43.17   Where the name or whereabouts of a person, in respect of whom the court has dispensed with intimation on a ground specified in rule 43.14(2)(c) (dispensing with intimation to connected persons), subsequently becomes known to the pursuer while the action is depending before the court, the pursuer shall apply by motion under rule 13.8(1) (warrants after signeting) for a warrant for intimation to such a person; and such intimation shall be made in accordance with rule 43.15(2).

Connected persons entering the process S

43.18— (1) A connected person may apply to the court by minute in the process of the action craving leave to be sisted as an additional pursuer to the action.

(2) Any such minute shall be placed before the Lord Ordinary who may grant the minute and shall make such order as he considers appropriate, having regard to the provisions in this Chapter.

Failure by connected person to enter process S

43.19— (1) Where a connected person to whom intimation is made–

(a) does not apply to be sisted as an additional pursuer to the action;

(b) subsequently brings a separate action against the same defender in respect of the same personal injuries or death; and

(c) would, apart from this rule, be awarded the expenses or part of the expenses of that action,

he shall not be awarded those expenses except on cause shown.]

[F2 CHAPTER 43A S ACTIONS OF HARASSMENT

Textual Amendments

F2 Sch. 2 Ch. 43A inserted (16.6.1997) by Act of Sederunt (Rules of the Court of Session Amendment No.6 ) (Actions of harassment) 1997 (S.I. 1997/1527), paras. 1(1), 2

Application and interpretation of this Chapter S

43A.1.   –

(1) This Chapter applies to an action of harassment within the meaning of section 8(2) of the 1997 Act.

(2) In this Chapter–

“the 1997 Act” means the Protection from Harassment Act 1997

“non-harassment order” means an order granted under section 8(5)(b)(ii) of the 1997 Act.

Procedure for variation or revocation of non-harassment order S

43A.2.   An application under section 8(7) of the 1997 Act after final decree in an action of harassment for the variation or revocation of a non-harassment order shall be made by minute in the process of the action to which the application relates.]

CHAPTER 44 S TIME TO PAY DIRECTIONS

Application and interpretation of this Chapter S

44.1.—(1) This Chapter applies to an action in which a person may apply under section 1(1) of the Debtors (Scotland) Act 1987(1) for a time to pay direction.

(2) In this Chapter–

“the Act of 1987” means the Debtors (Scotland) Act 1987;

“time to pay direction” means a direction made under section 1(1) of the Act of 1987.

Commencement Information

I1 Sch. 2 rule 44.1 in force at 5.9.1994, see para. 1(1)

Notice about time to pay directions S

44.2.—(1) In an action in which a defender may apply to the court for a time to pay direction, the pursuer shall serve on that defender a notice in Form 44.2–A and an application in Form 44.2–B at the same time as he serves a copy of the summons, or pleadings, as amended by a minute of amendment calling him as a defender.

(2) Before serving a notice and an application under paragraph (1), the pursuer shall insert in Form 44.2–A the date by which Form 44.2–B must be returned to the court by the defender (being the date on which the period of notice expires) and shall complete Part A of Form 44.2–B.

Commencement Information

I2 Sch. 2 rule 44.2 in force at 5.9.1994, see para. 1(1)

Applications for time to pay directions where appearance not entered S

44.3.—(1) Where a defender–

(a) does not enter appearance in an action,

(b) intends to apply to the court for a time to pay direction, and

(c) where appropriate, seeks recall or restriction of an arrestment,

he shall complete and send the application in Form 44.2–B to the Deputy Principal Clerk before the date specified in Form 44.2–A.

(2) On receipt of an application for a time to pay direction, the Deputy Principal Clerk shall–

(a) cause the application to be lodged in the process to which it relates; and

(b) give written intimation to the pursuer that he has received the application.

(3) Where the pursuer does not object to the application by a defender for a time to pay direction or the recall or restriction of an arrestment, he may apply by motion for decree in absence stating that he does not object to the application.

(4) Where the pursuer objects to the application by a defender for a time to pay direction or the recall or restriction of an arrestment, he shall intimate–

(a) the motion for decree in absence, and

(b) the grounds of objection to the application by the defender,

in Form 44.3 to the defender not less than 7 days before the date on which the motion is enrolled.

(5) On enrolling a motion for decree in absence, the pursuer shall lodge in process a copy of Form 44.3 intimated to the defender.

(6) The defender need not appear at the hearing of the motion for decree in absence and may send to the Deputy Principal Clerk written representations in response to the grounds of objection of the pursuer.

(7) A motion for decree in absence to which paragraph (4) applies shall require the appearance of counsel or other person having a right of audience.

Commencement Information

I3 Sch. 2 rule 44.3 in force at 5.9.1994, see para. 1(1)

Applications for time to pay directions where appearance entered but defences not lodged S

44.4.—(1) Where a defender–

(a) after entering appearance does not lodge defences,

(b) intends to apply to the court for a time to pay direction, and

(c) where appropriate, seeks recall or restriction of an arrestment,

then, notwithstanding the date specified in Form 44.2–A as the date by which Form 44.2–B must be returned, he shall complete and send the application in Form 44.2–B to the court not later than the day on which defences would have had to be lodged in process.

(2) Paragraphs (2) to (7) of rule 44.3 (applications for time to pay directions where appearance not entered) shall apply to an application under this rule as they apply to an application under that rule.

Commencement Information

I4 Sch. 2 rule 44.4 in force at 5.9.1994, see para. 1(1)

Applications for time to pay directions where defences lodged S

44.5.  An application for a time to pay direction by–

(a) a defender in an action in which defences have been lodged by that defender, or

(b) any other party,

shall be made by motion.

Commencement Information

I5 Sch. 2 rule 44.5 in force at 5.9.1994, see para. 1(1)

Applications for variation or recall of time to pay directions or arrestments S

44.6.—(1) An application under section 3(1) of the Act of 1987 (variation or recall of time to pay direction or recall or restriction of arrestment) shall be made by motion.

(2) The applicant shall–

(a) in a motion under paragraph (1), state briefly the grounds on which the order is sought; and

(b) give written intimation of the motion to the debtor or creditor, as the case may be, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation;

(b) the Post Office receipt or certificate of posting of that letter; and

(c) any document he intends to rely on at the hearing of the motion.

Commencement Information

I6 Sch. 2 rule 44.6 in force at 5.9.1994, see para. 1(1)

Notice to debtor for payment of interest on decrees S

47.7.  Where a creditor seeks to recover interest (other than interest awarded as a specific sum) under a decree containing a time to pay direction, the notice to be served under section 1(7) of the Act of 1987 shall be served on the debtor by the creditor–

(a) in the case of a decree containing a time to pay direction for payment by instalments, not less than 14 days before the date on which the last instalment is due to be paid; and

(b) in the case of a decree which includes a time to pay direction for payment by deferred lump sum, not less than 14 days before the date on which the lump sum is due to be paid.

CHAPTER 45 S ACTIONS OF DIVISION AND SALE

Remit to reporter to examine property S

45.1.—(1) In an action of division and sale of heritable property, the court shall, in accordance with paragraph (2), remit to a reporter to examine the property and to report to the court–

(a) whether the property is capable of division in a manner equitable to the interests of the pro indiviso proprietors and, if so, how such division may be effected; and

(b) in the event that the property is to be sold–

(i) whether the property should be sold as a whole or in lots and, if in lots, what those lots should be;

(ii) whether the property should be exposed for sale by public roup or private bargain;

(iii) whether the sale should be subject to any upset or minimum price and, if so, the amount;

(iv) the manner and extent to which the property should be advertised for sale; and

(v) any other matter which the reporter considers pertinent to a sale of the property.

(2) A remit under paragraph (1) shall be made–

(a) where the action is undefended, on the motion of the pursuer at any time after the period for lodging defences has expired;

(b) where the action is defended–

(i) at the closing of the record, on the motion of any party to the action;

(ii) on the court finding, after a hearing on the Procedure Roll or a proof, that the pursuer is entitled to bring and insist in the action of division and sale; or

(iii) at such other time as the court thinks fit.

(3) On completion of a report made under paragraph (1), the reporter shall send the report, with a copy for each party, to the Deputy Principal Clerk.

(4) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from the process.

(5) After the lodging of such a report, any party may apply by motion for further procedure or for approval of the report.

(6) At the hearing of a motion under paragraph (5), the court may–

(a) in the event of challenge to any part of the report, order a note of objection to the report and answers to the note to be lodged within such period as the court thinks fit; or

(b) in the absence of such challenge, order that the property be divided or sold, as the case may be, in accordance with the recommendations of the reporter, subject to such modification, if any, as the court thinks fit.

(7) Where, in accordance with paragraph (6)(a), the lodging of a note of objection and answers has been ordered, the cause shall be put out on the By Order Roll before the Lord Ordinary after the expiry of the period for lodging the note of objection and answers; and the court may make such order for further procedure as it thinks fit.

Commencement Information

I7 Sch. 2 rule 45.1 in force at 5.9.1994, see para. 1(1)

Division or sale of property S

45.2.—(1) Where the court orders the division or sale of heritable property, it shall direct that the division or sale, as the case may be, shall be conducted under the oversight and direction of the Deputy Principal Clerk or any other fit person whom it may appoint for that purpose.

(2) The Deputy Principal Clerk or person appointed under paragraph (1), as the case may be, may report any matter of difficulty arising in the course of the division or sale to the court.

(3) At a hearing on a report made under paragraph (2), the court may give such directions as it thinks fit, including authority to the Deputy Principal Clerk to sign, on behalf of any proprietor, a disposition of his interest in the property.

(4) On the conclusion of a sale of property–

(a) the proceeds of the sale, under deduction of the expenses of the sale, shall be consigned into court; and

(b) The Deputy Principal Clerk or the person appointed under paragraph (1), as the case may be, shall lodge in process a report of the sale and a proposed scheme of division of the proceeds of sale.

(5) At the hearing of a motion for approval of a report of the sale of property lodged under paragraph (4) and the proposed scheme of division, the court may–

(a) approve the report and scheme of division, and direct that payment of the proceeds of sale be made in terms of the report;

(b) deal with any question as to the expenses of process or of sale; and

(c) make such other order as it thinks fit.

Commencement Information

I8 Sch. 2 rule 45.2 in force at 5.9.1994, see para. 1(1)

[F3 CHAPTER 45A S ACTIONS OF REMOVING

Textual Amendments

F3 Sch. 2 Ch. 45A inserted (23.9.1996) by Act of Sederunt (Rules of the Court of Session Amendment No. 4) (Miscellaneous) 1996 (S.I. 1996/2168), paras. 1(1), 2(12)

Application of this Chapter S

45A.1.— (1) Subject to paragraph (2), this Chapter applies only to a conclusion for removing in an action of removing against a person or persons in possession of heritable property without right or title to possess the property.

(2) This Chapter shall not apply with respect to a person who has or had a title or other right to occupy the heritable property and who has been in continuous occupation since that title or right is alleged to have come to an end.

Service on unnamed occupiers S

45A.2.— (1) Where the name of a person in occupation of the heritable property is not known and cannot reasonably be ascertained, the pursuer shall call that person as a defender by naming him as an “occupier”.

(2) Where the name of a person in occupation of the heritable property is not known and cannot reasonably be ascertained, the summons shall be served (whether or not it is also served on a named person), unless the court otherwise directs, by a messenger-at-arms—

(a) affixing a copy of the summons and a citation in Form 45A.2 addressed to “the occupiers” to the main door or other conspicuous part of the premises, and if practicable, depositing a copy of each of those documents in the premises; or

(b) in the case of land only, inserting stakes in the ground at conspicuous parts of the occupied land to each of which is attached a sealed transparent envelope containing a copy of the summons and a citation in Form 45A.2 addressed to “the occupiers”.

(3) Paragraphs (1), (2) and (4) of rule 16.3 (service by messenger-at-arms) shall apply to service of a summons under this rule as they apply to service by a method to which those paragraphs apply.

Shortening or dispensing with periods of time S

45A.3.   Where the action is directed against a person in occupation of the heritable property vi clam aut precario, the pursuer may apply by motion to shorten or dispense with the period of notice or other period of time in these Rules relating to the conduct of the action or the extracting of any decree.

Application by occupiers to become defenders S

45A.4.   A person not named as a defender in the summons who is in occupation of the heritable property may, within the period of notice, apply by minute to be sisted as a defender to the action.]

CHAPTER 46 S ADMIRALTY ACTIONS

Interpretation of this Chapter S

46.1.  In this Chapter–

“Admiralty action” means an action having a conclusion appropriate for the enforcement of a claim to which section 47(2) of the Administration of Justice Act 1956(2) applies or in respect of a contract of respondentia

“ship” has the meaning assigned in section 48(f) of that Act.

Commencement Information

I9 Sch. 2 rule 46.1 in force at 5.9.1994, see para. 1(1)

Forms of action S

46.2.—(1) An Admiralty action against the owners of, or parties interested in, a ship or cargo may be brought–

(a) in rem, where the conclusion of the summons is directed to recovery in respect of a maritime lien against the ship or cargo or the proceeds of it as sold under order of the court or where arrestment in rem may be made under section 47(3) of the Administration of Justice Act 1956;

(b) in personam, where the conclusion of the summons is directed to a decree in common form against the defender; or

(c) both in rem and in personam, where sub-paragraphs (a) and (b) apply.

(2) When bringing an Admiralty action, the pursuer shall insert the words “Admiralty Action in rem”, “Admiralty Action in personam” or “Admiralty Action in rem and in personam”, as the case may be, immediately below the words “IN THE COURT OF SESSION” where they occur above the instance, and on the backing, of the summons and any copy of it.

Commencement Information

I10 Sch. 2 rule 46.2 in force at 5.9.1994, see para. 1(1)

Actions in rem S

46.3.—(1) In an Admiralty action in rem–

(a) where the owners of, or parties interested in, the ship or cargo against which the action is directed are known to the pursuer, they shall be called as defenders by name;

(b) where such owners or parties are unknown to the pursuer–

(i) he may call them as defenders as “the owners of or parties interested in the ship (name and identify by its port of registry) [or cargo]”; and

(ii) the master, if known, shall also be called as a defender representing the owners.

(2) In an Admiralty action in rem, the ship or cargo shall be arrested in rem and a warrant for such arrestment shall be inserted in the summons in the form in Form 13.2–A.

Commencement Information

I11 Sch. 2 rule 46.3 in force at 5.9.1994, see para. 1(1)

Actions in personam S

46.4.—(1) In an Admiralty action in personam directed against the owners of a ship or cargo, such owners shall, if known to the pursuer, be called as defenders by name.

(2) In such an action, where–

(a) the vessel is not a British ship, and

(b) the names of the owners are not known to the pursuer,

the master of the ship may be called as the defender representing the owners.

(3) In an action to which paragraph (2) applies, any warrant to arrest to found jurisdiction shall be executed against the master of the ship in his representative capacity.

(4) In an action to which paragraph (2) applies, any decree shall be pronounced against the master in his representative capacity.

(5) A decree in an Admiralty action in personam may be pronounced against an owner of, or a party interested in, the ship or cargo only where that owner or party interested, as the case may be, has been called or added as a defender.

Commencement Information

I12 Sch. 2 rule 46.4 in force at 5.9.1994, see para. 1(1)

Sale of ship or cargo S

46.5.—(1) This rule shall not apply to the sale of a cargo arrested on the dependence of an Admiralty action in personam

(2) Where, in an Admiralty action or an action of declarator and sale of a ship–

(a) the court makes a finding that the pursuer has a claim which falls to be satisfied out of an arrested ship or cargo, or

(b) a decree for a sum of money has been granted in an action in which a ship has been arrested on the dependence,

the pursuer may apply by motion for an order for the sale of that ship or a share in it, or the cargo, as the case may be, by public auction or private bargain.

(3) Before making such an order, the court shall remit to a reporter for the purpose of obtaining–

(a) an inventory of,

(b) a valuation and recommended upset price for, and

(c) any recommendation as to the appropriate advertisement for the sale of,

the ship, share or cargo.

(4) Where a remit is made under paragraph (3), the pursuer shall instruct the reporter within 14 days after the date of the interlocutor making the remit and be responsible, in the first instance, for payment of his fee.

(5) On completion of a report following a remit under paragraph (3), the reporter shall send the report and a copy for each party to the Deputy Principal Clerk.

(6) On receipt of such a report, the Deputy Principal Clerk shall–

(a) give written intimation to each party of receipt of the report;

(b) request the pursuer to show to him a discharge in respect of the fee for which he is responsible under paragraph (4); and

(c) after sight of such a discharge–

(i) lodge the report in process;

(ii) give written intimation to each party that this has been done and that he may uplift a copy of the report from process; and

(iii) cause the action to be put out on the By Order Roll before the Lord Ordinary.

(7) Where the court orders the sale of a ship, share or cargo, the conduct of the sale, including any advertisement of it, shall be under the direction of the Deputy Principal Clerk.

(8) Where such a sale is the sale of a ship or a share in it, the interlocutor ordering the sale shall include a declaration that the right to transfer the ship or share to the purchaser is vested in the Deputy Principal Clerk.

(9) Where, in such a sale, no offer to purchase the ship, share or cargo, as the case may be, has reached the upset price, the pursuer may apply by motion for authority to expose such ship, share or cargo for sale at a reduced upset price.

(10) The proceeds of such a sale shall be consigned into court, under deduction of all dues to the date the court adjudges the ship, share or cargo to belong to the purchaser under paragraph (11)(a), payable to Her Majesty’s Customs and Excise or to the port or harbour authority within the jurisdiction of which the ship or cargo lies and in respect of which such port or harbour authority has statutory power to detain the ship or cargo.

(11) On consignation being made under paragraph (10), the court shall–

(a) adjudge the ship, share or cargo, as the case may be, declaring the same to belong to the purchaser, freed and disburdened of all bonds, mortgages, liens, rights of retention and other incumbrances affecting it and ordering such ship, share or cargo to be delivered to the purchaser on production of a certified copy of the interlocutor pronounced under this sub-paragraph; and

(b) order such intimation and advertisement, if any, for claims on the consigned fund as it thinks fit.

(12) The court shall, after such hearing or inquiry as it thinks fit–

(a) determine all questions of expenses;

(b) rank and prefer any claimants in order of preference; and

(c) make such other order, if any, as it thinks fit.

Commencement Information

I13 Sch. 2 rule 46.5 in force at 5.9.1994, see para. 1(1)

Ship collisions and preliminary acts S

46.6.—(1) Subject to rule 46.7 (applications to dispense with preliminary acts), this rule applies to an Admiralty action of damages arising out of a collision between ships at sea.

(2) An action to which this rule applies may be brought in rem in personam or in rem and in personam

(3) A summons in such an action shall not contain a condescendence or pleas-in-law.

(4) Where such an action is brought in personam, the conclusion of the summons shall contain sufficient detail to enable the defender to identify the date and place of, and the ships involved in, the collision.

(5) Within 7 days after the summons has called, the pursuer shall lodge in process a sealed envelope containing–

(a) a preliminary act in Form 46.6; and

(b) a brief condescendence and appropriate pleas-in-law.

(6) Within 28 days after the preliminary act for the pursuer has been lodged under paragraph (5), the defender shall lodge in process a sealed envelope containing a preliminary act in form 46.6.

(7) A party who lodges a preliminary act under paragraph (5) or (6) shall not send a copy of it to any other party.

(8) On the lodging of a preliminary act by the defender under paragraph (6), a clerk of session in the General Department shall–

(a) open both sealed envelopes;

(b) mark the contents of those envelopes with appropriate numbers of process; and

(c) give written intimation to each party that sub-paragraphs (a) and (b) have been complied with.

(9) On receipt of the written intimation under paragraph (8)(c), the pursuer and defender shall exchange copies of the contents of their respective envelopes.

(10) Within 7 days after the sealed envelopes have been opened up under paragraph (8), the defender may lodge defences to the action in process and any counterclaim on which he proposes to found.

(11) Within 7 days after a counterclaim has been lodged under paragraph (10), the pursuer may lodge answers to it in process.

(12) Within 14 days after defences have been lodged under paragraph (10) or answers have been lodged under paragraph (11), whichever is the earlier, the pursuer shall make up an open record with a copy of each of the preliminary acts appended to it; and Chapter 22 (making up and closing records) shall, subject to paragraph (13) of this rule, apply to the action as it applies to an ordinary action.

(13) No amendment, adjustment or alteration may be made to a preliminary act except by order of the court.

Commencement Information

I14 Sch. 2 rule 46.6 in force at 5.9.1994, see para. 1(1)

Applications t o dispense with preliminary acts S

46.7.—(1) Within 7 days after the date on which the summons has called, any party may apply for an order to dispense with preliminary acts in an action to which rule 46.6 applies.

(2) An application under paragraph (1) shall be made by minute craving the court to dispense with preliminary acts and setting out the grounds on which the application is made.

(3) Before lodging such a minute in process, the party making the application shall intimate a copy of the minute, and the date on which it will be lodged, to every other party.

(4) Any other party may lodge in process answers to such a minute within 14 days after such a minute has been lodged.

(5) After the expiry of the period mentioned in paragraph (4), the court may, on the motion of any party, after such further procedure, if any, as it thinks fit, dispense with preliminary acts.

(6) Where the court dispenses with preliminary acts, the pursuer shall lodge a condescendence with appropriate pleas-in-law within such period as the court thinks fit; and the action shall thereafter proceed in the same way as an ordinary action.

(7) Where the court refuses to dispense with preliminary acts, it shall ordain a party or parties, as the case may be, to lodge preliminary acts under rule 46.6 within such period as it thinks fit.

(8) An interlocutor dispensing or refusing to dispense with preliminary acts shall be final and not subject to review.

Commencement Information

I15 Sch. 2 rule 46.7 in force at 5.9.1994, see para. 1(1)

Ship collision and salvage actions S

46.8.—(1) Without prejudice to rule 36.3(1) (lodging productions for proof), in an Admiralty action arising out of a collision between ships at sea or salvage, the parties shall–

(a) within 4 days after the interlocutor allowing proof,

(b) within 4 days before the taking of evidence on commission, or

(c) on or before such other date as the court, on special cause shown, shall determine,

lodge in process the documents, if any, mentioned in paragraph (2).

(2) The documents to be lodged under paragraph (1) are–

(a) the log books, including scrap log books, of the ships concerned;

(b) all de recenti written reports in conection with the collision or salvage, as the case may be, by the masters or mates of the vessels concerned to their respective owners; and

(c) reports of any surveys of the ship in respect of which damage or salvage is claimed.

Commencement Information

I16 Sch. 2 rule 46.8 in force at 5.9.1994, see para. 1(1)

International Oil Pollution Compensation Fund S

46.9.—(1) In this rule–

[F4 “the Act of 1995” means the Merchant Shipping Act 1995]

“the Fund” means the [F5 International Fund established by the Fund Convention referred to in section 172(1)(b) of the Act of 1995].

(2) In an action in respect of liability under [F6 section 153 of the Act of 1995], intimation of the action under [F7 section 177(2) of that Act] to the Fund shall be given by the pursuer in accordance with paragraphs (3) and (4) of this rule.

(3) Where intimation is to be made under paragraph (1), the pursuer shall insert a warrant for intimation in the summons in the following terms:– “Warrant to intimate to the International Oil Pollution Compensation Fund (address) as a person having an interest in this action.”.

(4) Intimation under paragraph (2) shall be given by a notice of intimation in Form 46.9 attached to a copy of the summons.

(5) Where the Fund is not a party to an action to which this rule applies, a defender may apply by motion for warrant to serve a third party notice on the Fund.

(6) Where, in an action under [F8 section 175 of the Act of 1995] (compensation from Fund for persons suffering pollution damage), the court grants decree against the Fund, the clerk of court shall, within 14 days after the date of the decree, send a copy of it by first class post to the fund.

(7) Any notice under [F9 section 176(3)(b) of the Act of 1995] (notification of whether amount of claim to be reduced) by the Fund to the court shall be sent to the Deputy Principal Clerk.

(8) An application by virtue of [F10 section 176(3)(a) of the Act of 1995] for leave to enforce a decree against the Fund shall be made by motion.

Textual Amendments

F4 Words in Sch. 2 rule 46.9(1) 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(15)(a)(i)

F5 Words in Sch. 2 rule 46.9(1) 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(15)(a)(ii)

F6 Words in Sch. 2 rule 46.9(2) 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(15)(b)(i)

F7 Words in Sch. 2 rule 46.9(2) 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(15)(b)(ii)

F8 Words in Sch. 2 rule 46.9(6) 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(15)(c)

F9 Words in Sch. 2 rule 46.9(7) 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(15)(d)

F10 Words in Sch. 2 rule 46.9(8) 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(15)(e)

Commencement Information

I17 Sch. 2 rule 46.9 in force at 5.9.1994, see para. 1(1)

[F11 CHAPTER 47 S COMMERCIAL ACTIONS

Textual Amendments

F11 Sch. 2 Ch. 47 substituted (20.9.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.1) (Commercial Actions) 1994 (S.I. 1994/2310), paras. 1(1), 2(4)

Application and interpretation of this Chapter S

47.1.— (1) This Chapter applies to a commercial action.

(2) In this Chapter—

“commercial action” means an action arising out of, or concerned with, any transaction or dispute of a commercial or business nature in which an election has been made under rule 47.3(1) or which has been transferred under rule 47.10;

“preliminary hearing” means a hearing under rule 47.11;

“procedural hearing” means a hearing under rule 47.12.

Proceedings before commercial judge S

47.2.   All proceedings in the Outer House in a commercial action shall be brought before a judge of the court nominated by the Lord President as a commercial judge or, where a commercial judge is not available, any other judge of the court (including the vacation judge); and “commercial judge” shall be construed accordingly.

Election of procedure for commercial actions and form of summons S

47.3.— (1) The pursuer may elect to adopt the procedure in this Chapter by bringing an action in which there are inserted the words “Commercial Action” immediately below the words “IN THE COURT OF SESSION” where they occur above the instance, and on the backing, of the summons and any copy of it.

(2) A summons in a commercial action shall—

(a) specify, in the form of conclusions, the orders sought;

(b) identify the parties to the action and the transaction or dispute from which the action arises;

(c) summarise the circumstances out of which the action arises; and

(d) set out the grounds on which the action proceeds.

(3) There shall be appended to a summons in a commercial action a schedule listing the documents founded on or adopted as incorporated in the summons.

Disapplication of certain rules S

47.4.— (1) The requirement in rule 4.1(4) for a step of process to be folded lengthwise shall not apply in a commercial action.

(2) An open record shall not be made up in, and Chapter 22 (making up and closing records) shall not apply to, a commercial action unless otherwise ordered by the court.

(3) The following rules shall not apply to a commercial action:—

• rule 6.2 (fixing and allocation of diets in Outer House),

• rule 25.1(3) (form of counterclaim),

• rule 25.2(2) (applications for warrants for diligence in counterclaims),

• rule 36.3 (lodging productions).

Procedure in commercial actions S

47.5.   Subject to the provisions of this Chapter, the procedure in a commercial action shall be such as the commercial judge shall order or direct.

Defences S

47.6.— (1) Defences in a commercial action shall be in the form of answers to the summons with any additional statement of facts or legal grounds on which it is intended to rely.

(2) There shall be appended to the defences in a commercial action a schedule listing the documents founded on or adopted as incorporated in the defences.

Counterclaims and third party notices S

47.7.— (1) A party seeking to lodge a counterclaim or to serve a third party notice shall apply by motion to do so.

(2) The commercial judge shall, on a motion to lodge a counterclaim or to serve a third party notice, make such order and give such directions as he thinks fit with regard to—

(a) the time within which a counterclaim may be lodged or a third party notice served and any answers lodged;

(b) where the motion is made before the preliminary hearing, a date for the preliminary hearing if it is to be a date other than the date referred to in rule 47.8(2); and

(c) any application for a warrant to use any form of diligence which would have been permitted under rule 13.6(c) (warrants for diligence in summons) had the warrant been sought in a summons in a separate action.

(3) Paragraphs (2) and (3) of rule 47.3 shall apply to the form of a counterclaim as they apply to the form of a summons.

Commercial Roll S

47.8.— (1) All proceedings in an action in which an election has been made under rule 47.3(1) or which has been transferred under rule 47.10 shall, in the Outer House, be heard and determined on the Commercial Roll on such dates and at such times as shall be fixed by the commercial judge.

(2) A commercial action shall call on the Commercial Roll for a preliminary hearing within 14 days after defences have been lodged.

(3) The appearance of a commercial action on the Commercial Roll for a hearing on a specified date shall not affect the right of any party to apply by motion at any time under these Rules.

Withdrawal of action from Commercial Roll S

47.9.— (1) At any time before or at the preliminary hearing, the commercial judge shall—

(a) on the motion of a party, withdraw a commercial action from the procedure in this Chapter and appoint it to proceed as an ordinary action where, having regard to—

(i) the likely need for detailed pleadings to enable justice to be done between the parties,

(ii) the length of time required for preparation of the action, or

(iii) any other relevant circumstances,

he is satisfied that the speedy and efficient determination of the action would not be served by the cause being dealt with as a commercial action; and

(b) on the motion of a party with the consent of all other parties, withdraw a commercial action from the Commercial Roll and appoint it to proceed as an ordinary action.

[F12 (1A) At any time before or at the preliminary hearing, the commercial judge may–

(a) on the motion of a party; or

(b) ex proprio motu, after hearing the parties to the action,

if he is satisfied that the action is not a commercial action, withdraw it from the procedure in this Chapter and appoint it to proceed as an ordinary action.]

(2) If a motion to withdraw a commercial action from the Commercial Roll made before or renewed at a preliminary hearing is refused, no subsequent motion to withdraw the action from the Commercial Roll shall be considered except on special cause shown.

Textual Amendments

F12 Sch. 2 rule 47.9(1A) inserted (7.4.2000) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2000 (S.S.I. 2000/66), paras. 1(1), 2(7)

Transfer of action to Commercial Roll S

47.10.— (1) In an action within the meaning of rule 47.1(2) (definition of commercial action) in which the pursuer has not made an election under rule 47.3(1), any party may apply by motion at any time to have the action appointed to be a commercial action on the Commercial Roll.

(2) A motion enrolled under paragraph (1) shall be heard by the commercial judge on such a date and at such a time as the Keeper of the Rolls shall fix in consultation with the commercial judge.

(3) Where an interlocutor is pronounced under paragraph (1) appointing an action to be a commercial action on the Commercial Roll, the action shall be put out by order for a preliminary hearing within 14 days—

(a) if defences have been lodged, after the date of that interlocutor; or

(b) if defences have not been lodged, after defences have been lodged.

Preliminary hearing S

47.11.— (1) Unless a commercial action is withdrawn under rule 47.9 from the Commercial Roll then, at the preliminary hearing of a commercial action in which an election has been made under rule 47.3(1), the commercial judge—

(a) shall determine whether and to what extent and in what manner further specification of the claim and defences should be provided;

(b) may make an order in respect of any of the following matters:—

(i) detailed written pleadings to be made by a party either generally or restricted to particular issues;

(ii) a statement of facts to be made by one or more parties either generally or restricted to particular issues;

(iii) the allowing of an amendment by a party to his pleadings;

(iv) disclosure of the identity of witnesses and the existence and nature of documents relating to the action or authority to recover documents either generally or specifically;

(v) documents constituting, evidencing or relating to the subject-matter of the action or any invoices, correspondence or similar documents relating to it to be lodged in process within a specified period;

(vi) each party to lodge in process, and sent to every other party, a list of witnesses;

(vii) reports of skilled persons or witness statements to be lodged in process;

(viii) affidavits concerned with any of the issues in the action to be lodged in process; and

(ix) the action to proceed to a hearing without any further preliminary procedure either in relation to the whole or any particular aspect of the action;

(c) may fix the period within which any such order shall be complied with;

(d) may continue the preliminary hearing to a date to be appointed by him; and

(e) may make such other order as he thinks fit for the speedy determination of the action.

(2) Where the commercial judge makes an order under paragraph (1)(b)(i) or (ii) or (c), he may ordain the pursuer to—

(a) make up a record; and

(b) lodge that record in process within such period as the commercial judge thinks fit.

(3) At the conclusion of the preliminary hearing, the court shall, unless it has made an order under paragraph (1)(b)(ix) (order to proceed without a further hearing), fix a date for a procedural hearing to determine further procedure.

(4) The date fixed under paragraph (3) for a procedural hearing shall not be extended except on special cause shown on a motion enrolled not less than 7 days before the date fixed for the procedural hearing.

Procedural hearing S

47.12.— (1) Not less than 3 days before the date fixed under rule 47.11(3) for the procedural hearing, each party shall—

(a) lodge a written statement of his proposals for further procedure which shall, inter alia, state—

(i) whether he seeks to have the commercial action appointed to debate or to have the action sent to proof on the whole or any part of it; and

(ii) what the issues are which he considers should be sent to debate or proof;

(b) lodge a list of the witnesses he proposes to cite or call to give evidence, identifying the matters to which each witness will speak;

(c) lodge the reports of any skilled persons;

(d) where it is sought to have the action appointed to debate, lodge a note of argument consisting of concise numbered paragraphs stating the legal propositions on which it is proposed to submit that any preliminary plea should be sustained or repelled with reference to the principal authorities and statutory provisions to be founded on; and

(e) send a copy of any such written statement, lists, reports or note of argument, as the case may be, to every other party.

(2) At the procedural hearing, the commercial judge—

(a) shall determine whether the commercial action should be appointed to debate or sent to proof on the whole or any part of the action;

(b) where the action is appointed to debate or sent to proof, may order that written arguments on any question of law should be submitted;

(c) where the action is sent to proof, may determine whether evidence at the proof should be by oral evidence, the production of documents or affidavits on any issue;

(d) may determine, in the light of any witness statements, affidavits or reports produced, that proof is unnecessary on any issue;

(e) may direct that there should be consultation between skilled persons with a view to reaching agreement about any points held in common;

(f) without prejudice to Chapter 12 (assessors), may appoint an expert to examine, on behalf of the court, any reports of skilled persons or other evidence submitted and to report to the court within such period as the commercial judge may specify;

(g) may remit an issue to a person of skill;

(h) may direct that proof of the authenticity of a document or other formal matters may be dispensed with;

(i) if invited to do so by all parties, direct the action to be determined on the basis of written submissions, or such other material, without any oral hearing; and

(j) may continue the procedural hearing to a date to be appointed by him.

Debates S

47.13.   Chapter 28 (procedure roll) shall apply to a debate ordered in a commercial action under rule 47.12(2)(a) as it applies to a cause appointed to the Procedure Roll.

Lodging of productions for proof S

47.14.— (1) Any document not previously lodged required for any proof in a commercial action shall be lodged as a production not less than 7 days before the date fixed for the proof.

(2) No document may be lodged as a production after the date referred to in paragraph (1), even by agreement of all parties, unless the court is satisfied that any document sought to be lodged could not with reasonable diligence have been lodged in time.

Hearings for further procedure S

47.15.   At any time before final judgment, the commercial judge may, at his own instance or on the motion of any party, have a commercial action put out for hearing for further procedure; and the commercial judge may make such order as he thinks fit.

Failure to comply with rule or order of commercial judge S

47.16.   Any failure by a party to comply timeously with a provision in these Rules or any order made by the commercial judge in a commercial action shall entitle the judge, at his own instance—

(a) to refuse to extend any period for compliance with a provision in these Rules or an order of the court,

(b) to dismiss the action or counterclaim, as the case may be, in whole or in part,

(c) to grant decree in respect of all or any of the conclusions of the summons or counterclaim, as the case may be, or

(d) to make an award of expenses,

as he thinks fit.]

CHAPTER 48 S EXCHEQUER CAUSES

Proceedings before Lord Ordinary in Exchequer Causes S

48.1.—(1) Subject to Part IV of Chapter 41 (Exchequer appeals), all proceedings in an Exchequer cause shall be brought before the Lord Ordinary in Exchequer Causes.

(2) An application for the suspension of a decree, charge, threatened charge or diligence in an Exchequer cause shall be made to the Lord Ordinary in Exchequer Causes.

(3) Where another judge of the court acts in place of the Lord Ordinary in Exchequer Causes, any interlocutor pronounced by him shall state that he acted in the absence of the Lor d Ordinary in Exchequer Causes.

Commencement Information

I18 Sch. 2 rule 48.1 in force at 5.9.1994, see para. 1(1)

Procedure in Exchequer causes S

48.2.  An Exchequer cause commenced by summons shall proceed as an ordinary action.

Commencement Information

I19 Sch. 2 rule 48.2 in force at 5.9.1994, see para. 1(1)

Precedence of extracts S

48.3.  The Extractor shall give priority to extracts in Exchequer causes over all other business.

Commencement Information

I20 Sch. 2 rule 48.3 in force at 5.9.1994, see para. 1(1)

CHAPTER 49 S FAMILY ACTIONS

PART I S GENERAL PROVISIONS

Interpretation of this Chapter S

49.1.—(1) In this Chapter, “family action” means–

(a) an action of divorce;

(b) an action of separation;

(c) an action of declarator of nullity of marriage;

(d) an action of declarator of marriage;

(e) an action of declarator of legitimacy;

(f) an action of declarator of illegitimacy;

(g) an action of declarator of parentage;

(h) an action of declarator of non-parentage;

(i) an action of declarator of legitimation;

[F13 (j) an action or application for, or in respect of, an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.) except a petition for the appointment of a judicial factor;]

(k) an action of, or application for or in respect of, aliment;

(l) an action or application for financial provision after a divorce or annulment in an overseas country within the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984(3);

(m) an action or application for an order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981(4).

(2) In this Chapter, unless the context otherwise requires–

“the Act of 1975” means the Children Act 1975(5);

“the Act of 1976” means the Divorce (Scotland) Act 1976(6);

“the Act of 1981” means the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

“the Act of 1985” means the Family Law (Scotland) Act 1985(7);

[F14 “the Act of 1995” means the Children (Scotland) Act 1995;

“contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;]

F15 ...

[F16 “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;]

“mental disorder” means mental illness or mental handicap however caused or manifested;

“order for financial provision” means, except in Part VII of this Chapter (financial provision after overseas divorce or annulment), an order mentioned in section 8(1) of the Act of 1985;

[F17 “parental responsibilities” has the meaning assigned in section 1(3) of the Act of 1995;

“parental rights” has the meaning assigned in section 2(4) of the Act of 1995;

“residence order” has the meaning assigned in section 11(2)(c) of the Act of 1995;

“section 11 order” means an order under section 11 of the Act of 1995.]

(3) For the purposes of rule 49.2 (averments in certain family actions about other proceedings) and rule 49.3 (averments where [F18 section 11 order] sought) and, in relation to proceedings in another jurisdiction, Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973(8) (sisting of consistorial actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

Textual Amendments

F13 Sch. 2 rule 49.1(1)(j) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(a)

F14 Words in Sch. 2 rule 49.1(2) inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(b)(i)

F15 Words in Sch. 2 rule 49.1(2) omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(b)(ii)

F16 Words in Sch. 2 rule 49.1(2) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(b)(iii)

F17 Words in Sch. 2 rule 49.1(2) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(b)(iv)

F18 Words in Sch. 2 rule 49.1(3) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(7)(c)

Commencement Information

I21 Sch. 2 rule 49.1 in force at 5.9.1994, see para. 1(1)

Averments in certain family actions about other proceedings S

49.2.—(1) This rule applies to an action of divorce, separation, declarator of marriage or declarator of nullity of marriage.

(2) In an action to which this rule applies, the pursuer shall state in the condescendence of the summons–

(a) whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage to which the summons relates or are capable of affecting its validity or subsistence; and

(b) where such proceedings are continuing–

(i) the court, tribunal or authority before which the proceedings have been commenced;

(ii) the date of commencement;

(iii) the names of the parties;

(iv) the date, or expected date of any proof (or its equivalent), in the proceedings; and

(v) such other facts as may be relevant to the question of whether or not the action in the Court of Session should be sisted under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973.

(3) Where–

(a) such proceedings are continuing;

(b) the action in the Court of Session is defended; and

(c) either–

(i) the summons does not contain the statement referred to in paragraph (2)(b), or

(ii) the particulars mentioned in [F19 paragraph] (2)(b) as set out in the summons are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the action shall include that statement and, where appropriate, the further or correct particulars mentioned in paragraph (2)(b).

Textual Amendments

F19 Word in Sch. 2 rule 49.2(3)(c)(ii) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(13)

Commencement Information

I22 Sch. 2 rule 49.2 in force at 5.9.1994, see para. 1(1)

[F20 Averments where section 11 order sought] S

49.3.—(1) A party to a family action, who makes an application in that [F21 action for a section 11 order] in respect of a child, shall include in his pleadings–

(a) where that action is an action of divorce, separation or declarator of nullity of marriage, averments giving particulars of any other proceedings known to him, whether in Scotland or elsewhere and whether concluded or not, which relate to the child in respect of whom the [F22 section 11 order] is sought;

(b) in any other family action–

(i) the averments mentioned in sub-paragraph (a); and

(ii) averments giving particulars of any proceedings known to him which are continuing, whether in Scotland or elsewhere, and which relate to the marriage of the parents of that child.

(2) Where such other proceedings are continuing or have taken place and the averments of the applicant for such a [F23 section 11 order]–

(a) do not contain particulars of the other proceedings, or

(b) contain particulars which are incomplete or incorrect,

any defences or minute, as the case may be, lodged by any person to the family action shall include such particulars or such further or correct particulars as are known to him.

(3) In paragraph (1)(b)(ii), “child” includes a child of the family within the meaning assigned in section 42(4) of the Family Law Act 1986(9).

Textual Amendments

F20 Sch. 2 rule 49.3 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(8)(a)

F21 Words in Sch. 2 rule 49.3(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(8)(b)

F22 Words in Sch. 2 rule 49.3(1)(a) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(8)(c)

F23 Words in Sch. 2 rule 49.3(2) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(8)(c)

Commencement Information

I23 Sch. 2 rule 49.3 in force at 5.9.1994, see para. 1(1)

Averments where identity or address of person not known S

49.4.  In a family action, where the identity or address of any person referred to in rule 49.8 as a person in respect of whom a warrant for intimation requires to be applied for is not known and cannot reasonably be ascertained, the party required to apply for the warrant shall include in his pleadings an averment of that fact and averments setting out what steps have been taken to ascertain the identity or address, as the case may be, of that person.

Commencement Information

I24 Sch. 2 rule 49.4 in force at 5.9.1994, see para. 1(1)

Averments about maintenance orders S

49.5.  In a family action in which an order for aliment or periodical allowance is sought, or is sought to be varied or recalled, by any party, the pleadings of that party shall contain an averment stating whether and, if so, when and by whom a maintenance order (within the meaning of section 106 of the Debtors (Scotland) Act 1987(10)) has been granted in favour of or against that party or any other person in respect of whom the order is sought.

Commencement Information

I25 Sch. 2 rule 49.5 in force at 5.9.1994, see para. 1(1)

Averments where aliment sought for a child S

49.6.—(1) In this rule–

“the Act of 1991” means the Child Support Act 1991(11);

“child” has the meaning assigned in section 55 of the Act of 1991;

“conclusion relating to aliment” means–

(a)

for the purposes of paragraph (2), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree; and

(b)

for the purposes of paragraph (3), a conclusion for decree of aliment in relation to a child or for recall or variation of such a decree or for the variation or termination of an agreement on aliment in relation to a child;

“maintenance assessment” has the meaning assigned in section 54 of the Act of 1991.

(2) A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 (top up maintenance orders) applies shall–

(a) include averments stating, where appropriate–

(i) that a maintenance assessment under section 11 of that Act is in force;

(ii) the date of the maintenance assessment;

(iii) the amount and frequency of periodical payments of child support maintenance fixed by the maintenance assessment; and

(iv) the grounds on which the sheriff retains jurisdiction under section 8(6), (7), (8) or (10) of that Act; and

(b) unless the court on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the party intimating the making of the maintenance assessment referred to in sub-paragraph (a).

(3) A family action containing a conclusion relating to aliment to which section 8(6), (7), (8) or (10) of the Act of 1991 does not apply, shall include averments stating–

(a) that the habitual residence of the absent parent, person with care or qualifying child, within the meaning of section 3 of that Act, is furth of the United Kingdom;

(b) that the child is not a child within the meaning of section 55 of that Act; or

(c) the grounds on which the court retains jurisdiction.

(4) In an action for declarator of non-parentage or illegitimacy–

(a) the summons shall include an article of condescendence stating whether the pursuer previously has been alleged to be the parent in an application for a maintenance assessment under section 4, 6 or 7 of the Act of 1991 (applications for maintenance assessment); and

(b) where an allegation of paternity has been made against the pursuer, the Secretary of State shall be named as a defender in the action.

(5) A family action involving parties in respect of whom a decision has been made in any application, review or appeal under the Act of 1991 relating to any child of those parties, shall–

(a) include averments stating that such a decision has been made and giving details of that decision; and

(b) unless the court on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

Commencement Information

I26 Sch. 2 rule 49.6 in force at 5.9.1994, see para. 1(1)

Warrants for arrestment or inhibition on dependence S

49.7.—(1) A warrant for inhibition or arrestment on the dependence in a family action or in respect of a claim to which section 19 of the Act of 1985 (action for aliment or claim for order for financial provision) applies shall be applied for by motion.

(2) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (1) shall be sufficient authority for execution of the diligence.

(3) A certified copy of the interlocutor containing a warrant for inhibition granted under this rule and an execution of service of it may be registered in the Register of Inhibitions and Adjudications.

(4) A notice of the certified copy of the interlocutor containing a warrant for inhibition granted under this rule may be registered under section 155 of the Titles to Land Consolidation (Scotland) Act 1868(12) (inhibitions to take effect from date of registration of notice); and such registration shall have the same effect as registration of a notice under that section.

Commencement Information

I27 Sch. 2 rule 49.7 in force at 5.9.1994, see para. 1(1)

Warrants for intimation in family actions S

49.8.—(1)  [F24 Subject to paragraphs (5) and (8), in the summons] in a family action, the pursuer shall insert a warrant for intimation–

(a) in an action where the address of the defender is not known to the pursuer and cannot reasonably be ascertained, to–

(i) every child of the marriage between the parties who has reached the age of 16 years, and

(ii) one of the next-of-kin of the defender who has reached that age,

unless the address of such a person is not known to the pursuer and cannot reasonably be ascertained, in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage [or to (name and address) the (relationship to defender), as one of the next-of-kin of the defender].”;

(b) in an action where the pursuer alleges that the defender has committed adultery with another person, to that person, unless–

(i) that person is not named in the summons and, if the adultery is relied on for the purposes of section 1(2)(a) of the Act of 1976 (irretrievable breakdown of marriage by reason of adultery), the summons contains an averment that his or her identity is not known to the pursuer and cannot reasonably be ascertained, or

(ii) the pursuer alleges that the defender has been guilty of rape upon or incest with, that named person,

in the following terms:– “Warrant to intimate to (name and address) as a person with whom the defender is alleged to have committed adultery.”;

(c) in an action where the defender is a person who is suffering from a mental disorder, to–

(i) those persons mentioned in sub-paragraph (a)(i) and (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained, and

(ii) the curator bonis to the defender, if one has been appointed,

in the following terms:– “Warrant to intimate to (name and address) as a child of the marriage, (name and address) the (relationship to defender) as one of the next-of-kin of the defender and (name and address), curator bonis to the defender.”;

(d) in an action relating to a marriage which was entered into under a law which permits polygamy where–

(i) one of the decrees specified in section 2(2)of the Matrimonial Proceedings (Polygamous Marriages) Act1972(13) is sought; and

(ii) either party to the marriage in question has any spouse additional to the other party,

to any such additional spouse in the following terms:– “Warrant to intimate to (name and address) as an additional spouse of the pursuer [or defender].”;

(e) in an action of divorce, separation or declarator of nullity of marriage where the court may make [F25 a section 11 order] in respect of a child–

(i) who is in the care of a local authority, to that local authority in the following terms:– “Warrant to intimate to the chief executive of (name and address of local authority) as the local authority having care of (name and address of child).”;

(ii) who, being a child of one party to the marriage who has been accepted as a child of the family by the other party to the marriage and who is liable to be maintained by a third party, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person liable to maintain (name and address of child).”; or

[F26 (iii) in relation to whom a third party in fact exercises care or control, to that third party in the following terms:– “Warrant to intimate to (name and address) as a person who in fact exercises care or control of (name and address of child).”]

(f) in an action where the pursuer concludes for [F27 a section 11 order], to any parent or guardian of the child who is not a party to the action in the following terms:– “Warrant to intimate to (name and address) as a parent [or guardian].”;

(g) in an action where the pursuer concludes for [F28 a residence order in respect] of a child and he is–

(i) not a parent of that child, and

(ii) resident in Scotland when the summons is presented for signeting,

to the local authority within which area the pursuer resides in the following terms:– “Warrant to intimate to the chief executive of (name and address of local authority) as the local authority within which area the pursuer, not being a parent of (name and address of child), resides.”;

[F29 (h) in an action which includes a conclusion for a section 11 order, to the child to whom the section 11 order would relate, if not a party to the action, in the following terms:–“Warrant to intimate to (name and address) as a child who may be affected by the action.”;]

(j) in an action where the pursuer makes an application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions), to–

(i) any third party in whose favour the transfer of, or transaction involving, the property is to be or was made, and

(ii) any other person having an interest in the transfer of, or transaction involving, the property,

in the following terms:– “Warrant to intimate to (name and address) as the person in whose favour the transfer of [or transaction involving] property referred to in the condescendence attached to this summons was made [or is to be made] [or is a person having an interest in the transfer of [or transaction involving] property referred to in the condescendence attached to this summons].”; F30 ...

(k) in an action where the pursuer makes an applicationfor an order under the Act of 1981(14)–

(i) where he is a non-entitled partner and the entitled partner has a spouse, to that spouse, or

(ii) where the application is under section 2(1)(e), 2(4)(a), 3(1), 3(2), 4, 7, 13 or 18 of that Act, and the entitled spouse or entitled partner is a tenant or occupies the matrimonial home by permission of a third party, to the landlord or the third party, as the case may be,

in the following terms:– “Warrant to intimate to (name and address) as a person with an interest in the order sought in the (number) conclusion of this summons.”[F31 ; and]

[F32 (l) in an action where the pursuer makes an application for an order under–

(i) section 8(1)(ba) of the Act of 1985 (orders under s.12A of the Act of1985 for pension lump sum), or

(ii) section 8(1)(baa) of that Act (pension sharing orders),

to the person responsible for the pension arrangement, in the following terms “Warrant to intimate to (name and address) as the person responsible for the pension arrangement in respect of which an order is sought in the (number) conclusion of this summons.]

(2) Expressions used in paragraph (1)(k) which are also used in the Act of 1981 have the same meaning as in that Act.

(3) A notice of intimation shall be attached to the copy of the summons where intimation is given on a warrant–

(a) under paragraph (1)(a) (address of defender not know), in Form 49.8–A;

(b) under paragraph (1)(b) (allegation of adultery), in Form 49.8–B;

(c) under paragraph (1)(c) (mental disorder of defender), in Form 49.8–C;

(d) under paragraph (1)(d) (polygamous marriage), in Form 49.8–D;

[F33 (e) under paragraph (1)(e)(i) or (ii) (where section 11 order may be made in respect of a child in care of local authority or accepted as a child of the marriage), in Form 49.8-E;

(f) under paragraph (1)(e)(iii) (where section 11 order may be made in respect of a child in relation to whom a third party in fact exercises care or control), in Form 49.8-F;

(g) under paragraph (1)(f) (section 11 order sought by guardian), in Form 49.8-G;

(h) under paragraph (1)(g) (residence order sought by non-parent resident in Scotland), in Form 49.8-H;]

F34 (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j) under paragraph (1)(i) (transfer of property), in Form 49.8–J;

(k) under paragraph (1)(j) (avoidance transactions), in Form 49.8–K;

(l) under paragraph (1)(k) (orders sought under the Act of 1981), in Form 49.8–L[F35 ;]

[F36 (m) under–

(i) paragraph (1)(l)(i) (orders for pension lump sums), in Form 49.8-M; and

(ii) paragraph (1)(l)(ii) (pension sharing orders), in Form 49.8-MA.]

(4) In a family action, where the pursuer–

[F37 (a) concludes for a residence order in respect of a child;]

(b) is not a parent of the child; and

(c) is not resident in Scotland when the summons is presented for signeting,

he shall, on presenting the summons for signeting, apply by motion for an order for intimation in Form 49.8–H to such local authority as the court thinks fit.

(5) Where the address of a person mentioned in paragraph (1)(b), (d), (e), (f), (g), (i), (j), (k) or (l) is not known and cannot reasonably be ascertained, the pursuer shall, immediately after the calling of the summons, apply by motion to dispense with intimation; and the court may grant that motion or make such other order as it thinks fit.

(6) Where the identity or address of a person to whom intimation of a family action is required becomes known during the course of the action, the party who would have been required to insert a warrant for intimation to that person shall apply by motion for a warrant for intimation to that person or to dispense with such intimation.

[F38 (7) In relation to paragraph (1)(h) (action which affects a child), a copy of the summons shall not be intimated to the child but a notice of intimation shall be intimated to him in Form 49.8-N.

(8) Where a pursuer considers that a warrant for intimation to a child under paragraph (1)(h) is inappropriate, he shall–

(a) apply by motion to dispense with intimation to that child; and

(b) include in the condescendence of the summons averments setting out the reasons why such intimation is inappropriate,

and the court may dispense with such intimation or make such other order as it thinks fit.]

Textual Amendments

F24 Words in Sch. 2 rule 49.8(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(i)

F25 Words in Sch. 2 rule 49.8(1)(e) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(ii)

F26 Sch. 2 rule 49.8(1)(e)(iii) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(iii)

F27 Words in Sch. 2 rule 49.8(1)(f) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(iv)

F28 Words in Sch. 2 rule 49.8(1)(g) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(v)

F29 Sch. 2 rule 49.8(1)(h) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(a)(vi)

F30 Word in Sch. 2 rule 49.8(1)(j) omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(16)(a)(i)

F31 Word in Sch. 2 rule 49.8(1)(k) substituted for full stop (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(16)(a)(ii)

F32 Sch. 2 rule 49.8(1)(l) substituted (1.12.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Pension Sharing on Divorce etc.) 2000 (S.S.I. 2000/412), paras. 1(1), 2(2)(a)

F33 Sch. 2 rule 49.8(3)(e)-(h) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(b)

F34 Sch. 2 rule 49.8(3)(i) omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(c)

F35 Sch. 2 rule 49.8(3)(l): semi-colon substituted for full stop (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(16)(b)(i)

F36 Sch. 2 rule 49.8(3)(m) substituted (1.12.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Pension Sharing on Divorce etc.) 2000 (S.S.I. 2000/412), paras. 1(1), 2(2)(b)

F37 Sch. 2 rule 49.8(4)(a) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(d)

F38 Sch. 2 rule 49.8(7)(8) substituted for Sch. 2 rule 49.8(7) (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(9)(e)

Commencement Information

I28 Sch. 2 rule 49.8 in force at 5.9.1994, see para. 1(1)

Intimation where relevant association S

49.9.—(1) In a family action where the pursuer alleges a relevant association as defined in paragraph (4) between the defender and another named person, the pursuer shall, when the summons is presented for signeting, apply by motion for an order for intimation to that person or to dispense with such intimation.

(2) In determining a motion under paragraph (1), the court may–

(a) make such order for intimation as it thinks fit; or

(b) dispense with intimation; and

(c) where it dispenses with intimation, order that the name of that person be deleted from the condescendence of the summons.

(3) Where intimation is ordered under paragraph (2), a notice of intimation in Form 49.9 shall be attached to the copy of the summons to be intimated.

(4) In paragraph (1), “relevant association” means sodomy, incest or any homosexual relationship.

Commencement Information

I29 Sch. 2 rule 49.9 in force at 5.9.1994, see para. 1(1)

Productions in action of divorce or where [F39 section 11 order] may be made S

49.10.—(1) There shall be lodged as a production with the principal writ when first lodged in process–

(a) in an action of divorce, an extract or certified copy of the relevant entry in the register of marriages; and

(b) in a family action in which the court may make [F40 a section 11 order], an extract or certified copy of the relevant entry in the register of births.

(2) In the application of sub-paragraph (a) of paragraph (1) to an action of divorce where the address of the defender is not known, the document to be lodged under that sub-paragraph shall be one obtained and dated within three months before the date on which it is lodged.

Textual Amendments

F39 Words in Sch. 2 rule 49.10 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(10)(a)

F40 Words in Sch. 2 rule 49.10(1)(b) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(10)(b)

Commencement Information

I30 Sch. 2 rule 49.10 in force at 5.9.1994, see para. 1(1)

Execution of service on, or intimation to, local authority S

49.11.—(1) Where a local authority referred to in rule 49.8(1)(g) ( [F41 residence order] sought by non-parent resident in Scotland) or rule 49.8(4) ([F41 residence order] sought by non-parent not resident in Scotland) is called as a defender in a summons at the time of signeting, service of the summons on that local authority shall be executed within 7 days after the date of signeting.

(2) Where in a family action–

(a) to which rule 49.8(1)(g) applies, or

(b) in which a motion under rule 49.8(4) is required,

the local authority referred to in that provision is called as a defender in the summons at the time of signeting, a notice in Form 49.8–H shall be attached to the copy of the summons served on that local authority unless the court otherwise orders.

[F42 (3) In any family action, the court may, if it thinks fit, order intimation to a local authority, and such intimation shall be in Form 49.8-H.]

[F43 (4)] Where, by virtue of [F44 paragraph (3) of this rule or rule 49.8(1)(g), 49.8(4) or 49.15(3), intimation of an application for a section 11 order] is to be made to a local authority, intimation to that local authority shall be given within 7 days after the date of signeting or order for intimation, as the case may be; and a notice in Form 49.8–H shall be attached to the copy of the summons intimated to that local authority.

Textual Amendments

F41 Words in Sch. 2 rule 49.11(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(11)(a)

F42 Sch. 2 rule 49.11(3) inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(11)(c)

F43 Sch. 2 rule 49.11(3) renumbered as rule 49.11(4) (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(11)(b)

F44 Words in Sch. 2 rule 49.11(4) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(11)(d)

Commencement Information

I31 Sch. 2 rule 49.11 in force at 5.9.1994, see para. 1(1)

Notice of actions by advertisement S

49.12.  Where notice of a family action is given by advertisement under rule 16.5 (service where address of person is not known), the period of notice shall be 21 days from the date of publication of the advertisement unless the court otherwise orders.

Commencement Information

I32 Sch. 2 rule 49.12 in force at 5.9.1994, see para. 1(1)

Service in cases of mental disorder of defender S

49.13.—(1) In a family action where the defender suffers or appears to suffer from mental disorder and is resident in a hospital or other similar institution, service of the summons shall be executed in accordance with rule 16.4 (service by post) addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the summons–

(a) any notice required by rule 49.14(1) (notices in certain actions of divorce or separation);

(b) a request in Form 49.13–A requesting the medical officer to–

(i) deliver and explain the summons, citation and any notice or form of notice of consent required under rule 49.14(1); or

(ii) certify that such delivery or explanation would be dangerous to the health or mental condition of the defender; and

(iii) complete the certificate in Form 49.13–B; and

(c) a stamped envelope addressed for return of that certificate to the pursuer or his agent, if he has one.

(2) The medical officer referred to in paragraph (1) shall send the certificate in Form 49.13–B duly completed to the pursuer or his agent, as the case may be.

(3) The certificate mentioned in paragraph (2) shall be attached to the summons when it is lodged for calling.

(4) Where such a certificate bears that the summons has not been delivered to the defender, the court may, at any time while the action is depending–

(a) order such further medical inquiry, and

(b) make such order for further service or intimation,

as it thinks fit.

Commencement Information

I33 Sch. 2 rule 49.13 in force at 5.9.1994, see para. 1(1)

Notices in certain actions of divorce or separation S

49.14.—(1) In the following actions of divorce or separation, there shall be attached to the copy of the summons served on the defender–

(a) in an action relying on section 1(2)(d) of the Act of 1976(15) (no cohabitation for two years with consent of defender to decree)–

(i) which is an action of divorce, a notice in Form 49.14–A and a form of notice of consent in Form 49.14–B;

(ii) which is an action of separation, a notice in Form 49.14–C and a form of notice of consent in Form 49.14–D;

(b) in an action relying on section 1(2)(e) of the Act of 1976 (no cohabitation for five years)–

(i) which is an action of divorce, a notice in Form 49.14–E;

(ii) which is an action of separation, a notice in Form 49.14–F.

(2) The certificate of service of a summons in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been included with the summons.

Commencement Information

I34 Sch. 2 rule 49.14 in force at 5.9.1994, see para. 1(1)

[F45 Orders for intimation by the court S

49.15.— (1) In any family action, the court may, at any time–

(a) subject to paragraph (2), order intimation to be made to such person as it thinks fit;

(b) postpone intimation, where it considers that such postponement is appropriate and in that case, the court shall make such order in respect of postponement of intimation as it thinks fit; or

(c) dispense with intimation, where it considers that such dispensation is appropriate.

(2) Where the court is considering whether to make a section 11 order by virtue of section 12 of the Act of 1995 (restrictions on decrees for divorce, separation or annulment affecting children), it shall, subject to paragraph (1)(c) and without prejudice to paragraph (1)(b) of this rule, order intimation to the child to whom the section 11 order would relate unless–

(a) intimation has been given to the child under rule 49.8(7); or

(b) the court considers that the child is not of sufficient age or maturity to express his views.

(3) Where a party makes an application or averment in a family action which, had it been made in a summons when presented for signeting, would have required a warrant for intimation under rule 49.8, that party shall apply by motion for a warrant for intimation or to dispense with such intimation; and rule 49.8 shall, with the necessary modifications, apply to a warrant under this paragraph as it applies to a warrant under that rule.]

Textual Amendments

F45 Sch. 2 rule 49.15 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(12)

Interested persons entering process S

49.16.—(1) A person on whom intimation has been made of a family action or an application in a family action, may apply by minute for leave to be sisted as a party and to lodge defences, answers or a minute, as the case may be–

(a) where the intimation was made on a warrant in a summons, within 7 days after the summons is lodged for calling; and

(b) in any other case, within the period of notice.

(2) Where the court grants a motion under paragraph (1), it shall make such order for further procedure as it thinks fit.

Commencement Information

I35 Sch. 2 rule 49.16 in force at 5.9.1994, see para. 1(1)

Appointment of curators ad litem to defenders S

49.17.—(1) This rule applies to an action of divorce or separation where it appears to the court that the defender is suffering from a mental disorder.

(2) In an action to which this rule applies, the court shall, after the expiry of the period for lodging defences–

(a) appoint a curator ad litem to the defender; and

(b) where the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for two years with consent of defender to decree) are relied on–

(i) make an order for intimation of the ground of the action to the Mental Welfare Commission for Scotland; and

(ii) include in such an order a requirement that the Commission sends to the Deputy Principal Clerk a report indicating whether in its opinion the defender is capable of deciding whether or not to give consent to the granting of decree.

(3) Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him a copy of the summons and any defences lodged (including any adjustments and amendments).

(4) On receipt of a report required under paragraph (2)(b)(ii), the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation that this has been done to–

(i) the pursuer;

(ii) the agent for the defender, if known; and

(iii) the curator ad litem

(5) The curator ad litem shall lodge in process one of the writs mentioned in paragraph (6)–

(a) within 14 days after the report required under paragraph (2)(b)(ii) has been lodged in process; or

(b) where no such report is required, within 21 days after the date of his appointment under paragraph (2)(a).

(6) The writs referred to in paragraph (5) are–

(a) defences to the action;

(b) a minute adopting defences already lodged in process; and

(c) a minute stating that the curator ad litem does not intend to lodge defences.

(7) Notwithstanding that he has lodged a minute stating that he does not intend to lodge defences, a curator ad litem may appear at any stage of the action to protect the interests of the defender.

(8) If, at any time, it appears to the curator ad litem that the defender is not suffering from mental disorder, he may report that fact to the court and seek his own discharge.

(9) The pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until–

(a) he lodges a minute stating that he does not intend to lodge defences;

(b) he decides to instruct the lodging of defences or a minute adopting defences already lodged; or

(c) being satisfied after investigation that the defender is not suffering from mental disorder, he is discharged.

Commencement Information

I36 Sch. 2 rule 49.17 in force at 5.9.1994, see para. 1(1)

Applications for sist S

49.18.  An application for a sist, or there call of a sist, under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973(16) shall be made by motion.

Commencement Information

I37 Sch. 2 rule 49.18 in force at 5.9.1994, see para. 1(1)

Notices of consent to divorce or separation S

49.19.—(1) Where, in an action of divorce or separation in which the facts in section 1(2)(d) of the Act of 1976 (no cohabitation for two years with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree of divorce or separation, as the case may be, he shall do so by giving notice in writing in Form 49.14–B (divorce) or Form 49.14–D (separation), as the case may be, to the Deputy Principal Clerk.

(2) The evidence of one witness shall be sufficient for the purpose of establishing that the signature on a notice of consent under paragraph (1) is that of the defender.

(3) In an action of divorce or separation where the summons includes, for the purposes of section 1(2)(d) of the Act of 1976, an averment that the defender consents to the grant of decree, the defender may give notice by letter sent to the Deputy Principal Clerk stating that he has not so consented or that he withdraws any consent which he has already given.

(4) On receipt of a letter under paragraph (3), the Deputy Principal Clerk shall–

(a) cause the letter to be lodged in process; and

(b) give written intimation of the terms of the letter to the pursuer.

(5) On receipt of an intimation under paragraph (4)(b), the pursuer may, within 14 days after the date of the intimation, if none of the other facts mentioned in section 1(2) of the Act of 1976 is averred in the summons, apply by motion for the action to be sisted.

(6) If no such motion is enrolled, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

(7) If a motion under paragraph (5) is granted and the sist is not recalled or renewed within a period of 6 months from the date of the interlocutor granting the sist, the pursuer shall be deemed to have abandoned the action and the action shall be dismissed.

Commencement Information

I38 Sch. 2 rule 49.19 in force at 5.9.1994, see para. 1(1)

P[F46 rocedure in respect of children S

49.20.— (1) In a family action, in relation to any matter affecting a child, where that child has–

(a) returned Form 49.8-N, or

(b) otherwise indicated to the court a wish to express views on a matter affecting him,

the court shall not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where a child has indicated his wish to express his views, the court shall order such steps to be taken as it considers appropriate to ascertain the views of that child.

(3) The court shall not grant an order in a family action, in relation to any matter affecting a child who has indicated his wish to express his views, unless due weight has been given by the court to the views expressed by that child, having regard to his age and maturity.]

Textual Amendments

F46 Sch. 2 rule 49.20 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(13)

Reports by local authorities under section 49(2) of the Act of 1975 S

F47 49.21.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F47 Sch. 2 rule 49.21 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(14)

Appointment of local authority or reporter to report on a child S

49.22.—(1) This rule applies where, at any stage of a family action, the court appoints–

[F48 (a) a local authority, whether under section 11(1) of the Matrimonial Proceedings (Children) Act 1958 (reports as to arrangements for future care and upbringing of children) or otherwise, or]

(b) another person (referred to in this rule as a “reporter”), whether under a provision mentioned in sub-paragraph (a) or otherwise,

to investigate and report to the court on the circumstances of a child and on proposed arrangements for the care and upbringing of the child.

(2) On making an appointment referred to in paragraph (1), the court shall direct that the party who sought the appointment or, where the court makes the appointment at its own instance, the pursuer or minuter, as the case may be, shall–

(a) instruct the local authority or reporter; and

(b) be responsible, in the first instance, for the fees and outlays of the local authority or reporter appointed.

(3) Where a local authority or reporter is appointed–

(a) the party who sought the appointment, or

(b) where the court makes the appointment at its own instance, the pursuer or minuter, as the case may be,

shall, within 7 days after the date of the appointment, intimate the name and address of the local authority or reporter to any local authority to which intimation of the family action has been made.

(4) The local authority or reporter, as the case may be, shall, on completion of a report referred to in paragraph (1), send the report, and a copy of it for each party, to the Deputy Principal Clerk.

(5) On receipt of such a report, the Deputy Principal Clerk shall–

(a) cause the report to be lodged in process; and

(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from process.

(6) Where a local authority or reporter has been appointed to investigate and report in respect of a child, an application for [F49 a section 11 order in respect] of that child shall not be determined until the report of the local authority or the reporter, as the case may be, has been lodged in process.

Textual Amendments

F48 Sch. 2 rule 49.22(1)(a) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(15)(a)

F49 Words in Sch. 2 rule 49.22(6) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(15)(b)

Commencement Information

I39 Sch. 2 rule 49.22 in force at 5.9.1994, see para. 1(1)

Referral to family mediation F50 ... S

49.23.  In any family action in which [F51 an order in relation to parental responsibilities or parental rights is in issue], the court may, at any stage of the action where it considers it appropriate to do so F52 ..., refer [F53 that issue] to a [F54 mediator accredited to a specified family mediation organisation] .

Textual Amendments

F50 Words in Sch. 2 rule 49.23 heading omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(17)(a)

F51 Words in Sch. 2 rule 49.23 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(16)(a)

F52 Words in Sch. 2 rule 49.23 omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(17)(b)

F53 Words in Sch. 2 rule 49.23 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(16)(b)

F54 Words in Sch. 2 rule 49.23 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(17)(c)

Commencement Information

I40 Sch. 2 rule 49.23 in force at 5.9.1994, see para. 1(1)

Applications for orders to disclose whereabouts of children S

49.24.—(1) An application for an order under section 33(1) of the Family Law Act 1986(17) (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

(2) Where the court makes an order under section 33(1) of the Family Law Act 1986, it may ordain the person against whom the order has been made to appear before it or to lodge an affidavit.

Commencement Information

I41 Sch. 2 rule 49.24 in force at 5.9.1994, see para. 1(1)

Applications in relation to removal of children S

49.25.—(1) An application for leave under section 51(1) of the Act of 1975(18) (authority to remove a child from the care and possession of the applicant for [F55 a residence order] ) or for an order under section 35(3) of the Family Law Act 1986 (application for interdict or interim interdict prohibiting removal of child from jurisdiction)–

(a) by a party, shall be made by motion;

(b) by a person other than a party, shall be made by minute in the process of that action.

(2) An application under section 35(3) of the Family Law Act 1986 need not be served or intimated.

(3) An application under section 23(2) of the Child Abduction and Custody Act 1985(19) (declarator that removal of child from United Kingdom was unlawful) shall be made–

(a) in an action depending before the court–

(i) by a party, in the summons, defences or minute, as the case may be, or by motion; or

(ii) by any other person, by minute; or

(b) after final decree, by minute in the process of the action to which the application relates.

Textual Amendments

F55 Words in Sch. 2 rule 49.25(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(17)

Commencement Information

I42 Sch. 2 rule 49.25 in force at 5.9.1994, see para. 1(1)

Intimation to local authority before supervised [F56 contact order] S

49.26.—(1) Where the court, at its own instance or on the motion of a party, is considering making [F57 a contact order or an interim contact order] subject to supervision by the social work department of a local authority, it shall ordain the party moving [F58 for such an order] to intimate to the chief executive of that local authority (unless a party to the action and represented at the hearing at which the issue arises)–

(a) the terms of any relevant motion;

(b) the intention of the court to order that [F59 the contact order] be supervised by the social work department of that local authority; and

(c) that the local authority shall, within such period as the court has determined–

(i) notify the Keeper of the Rolls whether it intends to make representations to the court through counsel or other person having a right of audience or in writing; and

(ii) where it intends to make representations in writing, to do so within that period.

(2) After receiving notice or written representations, as the case may be, under paragraph (1)(c), the Keeper of the Rolls shall put the action out on the By Order Roll before the Lord Ordinary on such a date as may be convenient, for the court to determine, after considering any representations of a local authority under paragraph (1), whether to order such supervision.

Textual Amendments

F56 Words in Sch. 2 rule 49.26 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(18)(a)

F57 Words in Sch. 2 rule 49.26(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(18)(b)(i)

F58 Words in Sch. 2 rule 49.26(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(18)(b)(ii)

F59 Words in Sch. 2 rule 49.26(1)(b) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(18)(b)(iii)

Commencement Information

I43 Sch. 2 rule 49.26 in force at 5.9.1994, see para. 1(1)

Joint minutes S

49.27.  Where any parties have reached agreement in relation to–

(a) a [F60 a section 11 order],

(b) aliment for a child, or

(c) an order for financial provision,

a joint minute may be entered into expressing that agreement; [F61 and, subject to rule 49.20(3) (no order before views of child expressed), the court] may grant decree in respect of those parts of the joint minute in relation to which it could otherwise make an order, whether or not such a decree would include a matter for which there was no conclusion or crave.

Textual Amendments

F60 Words in Sch. 2 rule 49.27(a) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(19)(a)

F61 Words in Sch. 2 rule 49.27 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(19)(b)

Commencement Information

I44 Sch. 2 rule 49.27 in force at 5.9.1994, see para. 1(1)

[F62 Expenses of curator ad litem appointed to a child S

49.27A.   Where in any family action a curator ad litem is appointed to a child, the pursuer shall be responsible, in the first instance, for payment of the fees and outlays of the curator ad litem incurred during the period from his appointment until the occurrence of any of the following events—

(a) the lodging of a minute by the curator stating that he does not intend to lodge defences;

(b) the curator instructing the lodging of defences or a minute adopting defences which are already lodged; or

(c) the discharge, before the occurrence of the events mentioned in sub-paragraphs (a) and (b), of the curator.]

Textual Amendments

F62 Sch. 2 rule 49.27A inserted (29.10.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.7) (Miscellaneous) 1999 (S.S.I. 1999/109), paras. 1(1), 2(4)

PART II S UNDEFENDED FAMILY ACTIONS

Evidence in certain undefended family actions S

49.28.—(1) This rule–

(a) subject to sub-paragraph (b), applies to all family actions in which no defences have been lodged, other than a family action–

(i) for [F63 a section 11 order or for] aliment;

(ii) for financial provision after an overseasdivorce or annulment within the meaning of Part IV of the Matrimonial and Family Proceedings Act 1984(20); or

(iii) for an order under the Act of 1981(21);

(b) applies to a family action in which a curator ad litem has been appointed under rule 49.17(2)(a) where the curator ad litem to the defender has lodged a minute intimating that he does not intend to lodge defences;

(c) applies to any family action which proceeds at any stage as undefended where the court so directs;

(d) applies to the merits of a family action which is undefended on the merits where the court so directs, notwithstanding that the action is defended on an ancillary matter.

(2) Unless the court otherwise directs, evidence shall be given by affidavit.

(3) Unless the court otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being sworn by a person other than a parent or party to the action.

(4) Evidence in the form of a written statement bearing to be the professional opinion of a duly qualified medical practitioner, which has been signed by him and lodged in process, shall be admissible in place of parole evidence by him.

(5) Rule 36.8 [F64 (lodging of certain written statements)] shall not apply in an undefended family action to which this rule applies.

Textual Amendments

F63 Words in Sch. 2 rule 49.28(1)(a)(i) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(20)

F64 Words in Sch. 2 rule 49.28(5) substituted (18.9.2001) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 2001 (S.S.I. 2001/305), paras. 1(1)(b), 7(2)

Commencement Information

I45 Sch. 2 rule 49.28 in force at 5.9.1994, see para. 1(1)

Procedure for decree in actions under rule 49.28 S

49.29.—(1) In an action to which rule 49.28 (evidence in certain undefended family actions) applies, if counsel or other person having a right of audience, on consideration of the available affidavits and support in documents, is satisfied that a motion for decree may properly be made, he may, at any time after the expiry of the period for lodging defences, move the court by minute in Form 49.29–A to grant decree in terms of the conclusions of the summons or in such restricted terms as may be appropriate.

(2) On lodging such a minute in process, the pursuer shall–

(a) lodge in process the documents specified in the schedule to the minute; and

(b) send to the Deputy Principal Clerk, Form 49.29–B duly completed.

(3) The court may, at any time after the minute and other documents referred to in paragraph (2) have been lodged, without requiring the appearance of counsel or other person having a right of audience–

(a) grant decree in terms of the motion for decree contained in the minute; or

(b) put the action out on the By Order Roll before the Lord Ordinary for such further procedure, if any, including proof by parole evidence, as the court thinks fit.

(4) Notice shall be given in the rolls of all decrees granted under paragraph (3)(a).

Commencement Information

I46 Sch. 2 rule 49.29 in force at 5.9.1994, see para. 1(1)

No suspension in undefended divorce actions S

49.30.  A defender may not bring any proceedings for the suspension of any decree of divorce pronounced in an undefended action.

Commencement Information

I47 Sch. 2 rule 49.30 in force at 5.9.1994, see para. 1(1)

PART III S DEFENDED FAMILY ACTIONS

Defences in family actions S

49.31.—(1) This rule applies where the defender in a family action seeks–

(a) to oppose any conclusion in the summons;

(b) to make a claim for–

(i) aliment;

(ii) an order for financial provision within the meaning of section 8(3) of the Act of 1985; or

(iii) [F65 a section 11 order]; or

(c) an order–

(i) under section 16(1)(b) or (3) of theAct of 1985(22) (setting aside or varying agreement as to financial provision);

(ii) under section 18 of the Act of 1985 (which relates to avoidance transactions); or

(iii) under the Act of 1981; or

(d) to challenge the jurisdiction of the court.

(2) In an action to which this rule applies, the defender shall–

(a) lodge defences to the action in process; and

(b) make any claim or seek any order, as the case may be, referred to in paragraph (1) in those defences by setting out in those defences–

(i) conclusions;

(ii) averments in the answers to the condescendence in support of those conclusions; and

(iii) appropriate pleas-in-law.

Textual Amendments

F65 Words in Sch. 2 rule 49.31(1)(b)(iii) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(21)

Commencement Information

I48 Sch. 2 rule 49.31 in force at 5.9.1994, see para. 1(1)

Abandonment by pursuer S

49.32.  Notwithstanding abandonment by a pursuer, the court may allow a defender to pursue an order or claim sought in his defences; and the proceedings in relation to that order or claim shall continue in dependence as if a separate cause.

Commencement Information

I49 Sch. 2 rule 49.32 in force at 5.9.1994, see para. 1(1)

Adjustment and further procedure S

49.33.—(1) Chapter 22 (making up and closing records) shall not apply to a family action.

(2) The court shall, 14 days after the date on which defences were lodged, or a minute by a person on whom intimation has been made under rule 49.8, 49.9, or 49.15 was lodged, pronounce an interlocutor allowing the parties a proof of their respective averments.

(3) Notwithstanding the pronouncement of an interlocutor under paragraph (2), the parties may adjust their respective pleadings until 28 days before the diet of proof; and any such adjustments shall be written on the summons, defences or minute, as the case may be.

(4) Not earlier than 28 days after the allowance of proof, the court may, on cause shown, withdraw the allowance of proof and appoint the action to the Procedure Roll.

(5) The pursuer shall, within 7 days after the end of the adjustment period under paragraph (3) or the appointment of the action to the Procedure Roll, as the case may be–

(a) subject to rule 49.68 (procedure for minutes in causes under the Act of 1981), make up a copy of the adjusted pleadings in the form of a record;

(b) send not less than three copies of the record to every other party; and

(c) not later than 48 hours before the diet of proof or hearing on the Procedure Roll, as the case may be, lodge two copies of the record in process.

Commencement Information

I50 Sch. 2 rule 49.33 in force at 5.9.1994, see para. 1(1)

Late appearance by defenders S

49.34.—(1) In a family action, the court may, at any time while the action is depending, make an order with such conditions, if any, as it thinks fit, allowing a defender–

(a) to lodge defences to the action; and

(b) to appear and be heard at a diet of proof although he has not lodged defences, but he shall not, in that event, be allowed to lead evidence without the pursuer’s consent.

(2) Where the court makes an order under paragraph (1)(a), the pursuer may recall a witness already examined or lead other evidence whether or not he closed his proof before that order was made.

Commencement Information

I51 Sch. 2 rule 49.34 in force at 5.9.1994, see para. 1(1)

PART IV S APPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS

Application and interpretation of this Part S

49.35.—F66 (...) This Part applies to an action of divorce, separation or declarator of nullity of marriage.

F67 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F66 Word in Sch. 2 rule 49.35 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(22)(a)

F67 Sch. 2 rule 49.35(2) omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(22)(b)

Commencement Information

I52 Sch. 2 rule 49.35 in force at 5.9.1994, see para. 1(1)

Applications in actions to which this Part applies S

49.36.—(1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a conclusion in the summons or defences, as the case may be, in an action to which this Part applies; or

(b) where the application is made by a person other than the pursuer or defender, by minute in that action.

(2) The orders referred to in paragraph (1) are–

(a) an order for [F68 a section 11 order]; and

(b) an order for aliment for a child.

Textual Amendments

F68 Words in Sch. 2 rule 49.36(2)(a) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(23)

Commencement Information

I53 Sch. 2 rule 49.36 in force at 5.9.1994, see para. 1(1)

Intimation before committal to care or supervision S

F69 49.37.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F69 Sch. 2 rule 49.37 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(24)

Care or supervision orders S

F70 49.38.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F70 Sch. 2 rule 49.38 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(25)

Intimation of certain applications to local authorities or other persons S

F71 49.39.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F71 Sch. 2 rule 49.39 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(26)

[F72 Applications in depending actions by motion S

49.40.— [F73 (1)] An application by a party in an action depending before the court to which this Part applies for, or for variation of, an order for–

(a) interim aliment for a child under the age of 18, or

(b) an interim residence order or an interim contact order,

shall be made by motion.

[F74 (2) Written intimation of a motion under paragraph (1) shall be given to every other party not less than 7 days before the date on which the motion is enrolled.]]

Textual Amendments

F72 Sch. 2 rule 49.40 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(27)

F73 Sch. 2 rule 49.40 renumbered as Sch. 2 rule 49.40(1) (6.4.1997) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 1997 (S.I. 1997/1050), paras. 1(1), 2(6)

F74 Sch. 2 rule 49.40(2) added (6.4.1997) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 1997 (S.I. 1997/1050), paras. 1(1), 2(6)

Applications after decree relating to [F75 a section 11 order] S

49.41.— [F76 (1) An application after final decree for, or for the variation or recall of, a section 11 order other than a contact order shall be made by minute in the process of the action to which the application relates.]

(2) [F77 Where] a minute has been lodged under paragraph (1), any party–

(a) may apply by motion for any interim order which may be made pending the determination of the application; and

(b) shall intimate any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Textual Amendments

F75 Words in Sch. 2 rule 49.41 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(28)(a)

F76 Sch. 2 rule 49.41(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(28)(b)

F77 Word in Sch. 2 rule 49.41(2) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(28)(c)

Commencement Information

I54 Sch. 2 rule 49.41 in force at 5.9.1994, see para. 1(1)

Applications after decree relating to [F78 a contact order] S

49.42.— [F79 (1) An application after final decree for, or for the variation or recall of, a contact order shall be made by motion in the process of the action to which the application relates.]

(2) A motion under paragraph (1) shall–

(a) include a brief statement of the reasons for the order sought, and

(b) be intimated by registered post or the first class recorded delivery service to–

(i) any person concerned or a solicitor known to be acting on behalf of that person, and

(ii) where appropriate, the local authority concerned, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation; and

(b) the Post Office receipt or certificate of posting of that letter.

(4) At the hearing of a motion under paragraph (1), the court may order that the application be made by minute; and, in such a case, shall make an order for the lodging of answers to the minute in process within such period as it thinks fit.

(5) Where the court makes an order under paragraph (4), any party may apply by motion for an interim order pending the determination of the application.

Textual Amendments

F78 Words in Sch. 2 rule 49.42 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(29)(a)

F79 Sch. 2 rule 49.42(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(29)(b)

Commencement Information

I55 Sch. 2 rule 49.42 in force at 5.9.1994, see para. 1(1)

Applications after decree relating to aliment S

49.43.—(1) An application after final decree for, or for the variation or recall of, an order for aliment for a child shall be made by motion in the process of the action to which the application relates.

(2) A motion under paragraph (1) shall–

(a) include a brief statement of the reasons for the order sought; and

(b) be intimated by registered post or the first class recorded delivery service to any person concerned or a solicitor known to be acting on behalf of that person, not less than 14 days before the date on which the motion is enrolled.

(3) On enrolling a motion under paragraph (1), the applicant shall lodge in process–

(a) a copy of the letter of intimation;

(b) the Post Office receipt or certificate of posting of that letter; and

(c) written evidence of the earnings or other income of the applicant or, if not employed, written evidence of that fact.

(4) At the hearing of a motion under paragraph (1), the court may order that the application be made by minute; and, in such a case, shall make an order for the lodging of answers to the minute in process within such period as the court thinks fit.

(5) Where the court makes an order under paragraph (4), any party–

(a) may apply by motion for an interim order pending the determination of the application; and

(b) shall give written intimation of any such motion to every other party not less than 7 days before the date on which the motion is enrolled.

Commencement Information

I56 Sch. 2 rule 49.43 in force at 5.9.1994, see para. 1(1)

Applications after decree by persons over 18 years for aliment S

49.44.—(1) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985(23),

(b) in whose favour an order for aliment while under the age of 18 years was made in an action to which this Part applies, and

(c) who seeks, after attaining that age, an order for aliment against a person in that action against whom the order for aliment in his favour was made,

shall apply by minute in the process of that action.

(2) An application for interim aliment pending the determination of an application under paragraph (1) shall be made by motion.

(3) Where a decree has been pronounced in an application under paragraph (1) or (2), any application for variation or recall of any such decree shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

Commencement Information

I57 Sch. 2 rule 49.44 in force at 5.9.1994, see para. 1(1)

PART V S ORDERS RELATING TO FINANCIAL PROVISION ETC.

Application and interpretation of this Part S

49.45.—(1) This Part applies to an action of divorce or declarator of nullity of marriage.

(2) In this Part, “incidental order” has the meaning assigned in section 14(2) of the Act of 1985.

Commencement Information

I58 Sch. 2 rule 49.45 in force at 5.9.1994, see para. 1(1)

Applications in actions to which this Part applies S

49.46.—(1) An application for an order mentioned in paragraph (2) shall be made–

(a) by a conclusion in the summons or defences, as the case may be, in an action to which this Part applies; or

(b) where the application is made by a person other than the pursuer or defender, by minute in that action.

(2) The orders referred to in paragraph (1) are–

(a) an order for financial provision within the meaning of section 8(3) of the Act of 1985;

(b) an order under section 16(1)(b) or (3) of the Act of 1985 (setting aside or varying agreement as to financial provision);

(c) an order under section 18 of the Act of 1985 (which relates to avoidance transactions); and

(d) an order under section 13 of the Act of 1981(24) (transfer or vesting of tenancy of a matrimonial home).

Commencement Information

I59 Sch. 2 rule 49.46 in force at 5.9.1994, see para. 1(1)

Applications in depending actions relating to incidental orders S

49.47.—(1) In an action depending before the court to which this Part applies–

(a) the pursuer or defender, notwithstanding rule 49.31(2) (application by defender for order for financial provision) and rule 49.46(1)(a) (application for order for financial provision in summons or defences), may apply by motion for an incidental order; and

(b) the court shall not be bound to determine such a motion if it considers that the application should properly be by a conclusion in the summons or defences, as the case may be.

(2) In an action depending before the court to which this Part applies, an application under section 14(4) of the Act of 1985 for the variation or recall of an incidental order shall be made by motion.

Commencement Information

I60 Sch. 2 rule 49.47 in force at 5.9.1994, see para. 1(1)

Applications relating to interim aliment S

49.48.—(1) An application for, or for the variation or recall of, an order for interim aliment for the pursuer or defender shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

Commencement Information

I61 Sch. 2 rule 49.48 in force at 5.9.1994, see para. 1(1)

Applications relating to orders for financial provision S

49.49.—(1) An application–

(a) after final decree under any of the following provisions of the Act of 1985–

(i) section 8(1) for periodical allowance,

(ii) section 12(1)(b) (payment of capital sum or tran sfer of property),

(iii) section 12(4) (variation of date or method of payment of capital sum or date of transfer of property), or

(iv) section 13(4) (variation, recall, backdating or conversion of periodical allowance), or

(b) after the grant or refusal of an application under–

(i) section 8(1) or 14(3) for an incidental order, or

(ii) section 14(4) (variation or recall of incidental order),

• shall be made by motion in the process of the action to which the application relates.

(2) Rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this rule as it applies to a motion under [F80 paragraph (1) of] that rule.

[F81 (3) An application under—

(a) paragraph (5) of section 12A of the Act of 1985 (recall or variation of order in respect of a pension lump sum), or

(b) paragraph (7) of that section (variation of order in respect of pension lump sum to substitute [F82 person responsible for the pension arrangement]),

shall be made by minute in the process of the action to which the application relates.]

Textual Amendments

F80 Words in Sch. 2 rule 49.49(2) inserted (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(18)(a)

F81 Sch. 2 rule 49.49(3) inserted (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(18)(b)

F82 Words in Sch. 2 rule 49.49(3)(b) substituted (1.12.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Pension Sharing on Divorce etc.) 2000 (S.S.I. 2000/412), paras. 1(1), 2(3)

Commencement Information

I62 Sch. 2 rule 49.49 in force at 5.9.1994, see para. 1(1)

Applications after decree relating to agreements or avoidance transactions S

49.50.  An application for an order–

(a) under section 16(1)(a) or (3) of the Act of 1985 (setting aside or varying agreement as to financial provision), or

(b) under section 18 of the Act of 1985 (which relates to avoidance transactions),

made after final decree shall be made by minute in the process of the action to which the application relates.

Commencement Information

I63 Sch. 2 rule 49.50 in force at 5.9.1994, see para. 1(1)

PART VI S APPLICATIONS RELATING TO AVOIDANCE TRANSACTIONS

Form of applications relating to avoidance transactions S

49.51.—(1) An application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions) by a party to a family action shall be made by including in the summons, defences or minute, as the case may be, appropriate conclusions, averments and pleas-in-law.

(2) An application for an order under section 18 of the Act of 1985 after final decree in a family action, shall be made by minute in the process of the action to which the application relates.

Commencement Information

I64 Sch. 2 rule 49.51 in force at 5.9.1994, see para. 1(1)

PART VII S FINANCIAL PROVISION AFTER OVERSEAS DIVORCE OR ANNULMENT

Interpretation of this Part S

49.52.  In this Part–

“the Act of 1984” means the Matrimonial and Family Proceedings Act 1984(25);

“order for financial provision” has the meaning assigned in section 30(1) of the Act of 1984;

“overseas country” has the meaning assigned in section 30(1) of the Act of 1984.

Commencement Information

I65 Sch. 2 rule 49.52 in force at 5.9.1994, see para. 1(1)

Applications for financial provision after overseas divorce or annulment S

49.53.—(1) An application under section 28 of the Act of 1984(26) for an order for financial provision after a divorce or annulment in an overseas country shall be made by summons.

(2) An application for an order in an action to which paragraph (1) applies–

(a) made before or after final decree under–

(i) section 13 of the Act of 1981(27) (transfer of tenancy of matrimonial home),

(ii) section 29(4) of the Act of 1984 for interim periodical allowance, or

(iii) section 14(4) of the Act of 1985 (variation or recall of an incidental order), or

(b) made after final decree under–

(i) section 12(4) of the Act of 1985 (variation of date or method of payment of capital sum or date of transfer of property),

(ii) section 13(4) of the Act of 1985 (variation, recall, backdating or conversion of periodical allowance), or

(iii) section 14(4) of the Act of 1985 (variation or recall of incidental order),

• shall be made by motion.

(3) Rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this rule as it applies to a motion under [F83 paragraph (2) of] that rule.

[F84 (4) An application under—

(a) paragraph (5) of section 12A of the Act of 1985 (recall or variation of order in respect of a pension lump sum), or

(b) paragraph (7) of that section (variation of order in respect of pension lump sum to substitute [F85 person responsible for the pension arrangement]),

shall be made by minute in the process of the action to which the application relates.]

Textual Amendments

F83 Words in Sch. 2 rule 49.53(3) inserted (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(19)(a)

F84 Sch. 2 rule 49.53(4) inserted (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(19)(b)

F85 Words in Sch. 2 rule 49.53(4)(b) substituted (1.12.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Pension Sharing on Divorce etc.) 2000 (S.S.I. 2000/412), paras. 1(1), 2(4)

Commencement Information

I66 Sch. 2 rule 49.53 in force at 5.9.1994, see para. 1(1)

PART VIII S ACTIONS OF ALIMENT

Interpretation of this Part S

49.54.  In this Part, “action of aliment” means a claim for aliment under section 2(1) of the Act of 1985.

Commencement Information

I67 Sch. 2 rule 49.54 in force at 5.9.1994, see para. 1(1)

Undefended actions of aliment S

49.55.—(1) Where a motion for decree in absence is enrolled in an action of aliment, the pursuer shall, on enrolling the motion, lodge all documentary evidence of the means of the parties available to him in support of the amount of aliment sought.

(2) Where the court requires any appearance for the pursuer, the cause shall be put out for hearing on the Motion Roll.

Commencement Information

I68 Sch. 2 rule 49.55 in force at 5.9.1994, see para. 1(1)

Applications relating to aliment S

49.56.—(1) An application for, or for the variation of, an order for interim aliment in an action of aliment depending before the court shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

(3) An application after final decree for the variation or recall of an order for aliment in an action of aliment shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

(4) A person–

(a) to whom an obligation of aliment is owed under section 1 of the Act of 1985(28),

(b) in whose favour an order for aliment while made under the age of 18 years was made in an action of aliment, or

(c) who seeks, after attaining that age, an order for aliment against the person in that action against whom the order for aliment in his favour was made,

shall apply by minute in the process of that action.

(5) An application for interim aliment pending the determination of an application under paragraph (4) shall be made by motion.

(6) Where a decree has been pronounced in an application under paragraph (3) or (4), any application for variation or recall of any such decree shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.

Commencement Information

I69 Sch. 2 rule 49.56 in force at 5.9.1994, see para. 1(1)

Applications relating to agreements on aliment S

49.57.  An application under section 7(2) of the Act of 1985 (variation or termination of agreement on aliment) shall be made by summons or in defences in a family action, as the case may be.

Commencement Information

I70 Sch. 2 rule 49.57 in force at 5.9.1994, see para. 1(1)

PART IX S [F86 APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995]

Textual Amendments

F86 Sch. 2 Ch. 49 Pt. 9 heading substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(30)

[F87 Application of this Part S

49.58.   This Part applies to an application for a section 11 order in a family action other than in an action of divorce, separation or declarator of nullity of marriage.]

Textual Amendments

F87 Sch. 2 rule 49.58 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(31)

Form of applications relating to parental rights S

49.59.  Subject to any other provision in this Chapter, an application for an order for any parental rights in respect of a child shall be made–

(a) by an action for parental rights,

(b) by a conclusion in the summons or defences, as the case may be, in any other family action to which this Part applies; or

(c) where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Commencement Information

I71 Sch. 2 rule 49.59 in force at 5.9.1994, see para. 1(1)

[F88 Defenders in actions for a section 11 order S

49.60.   In an action for a section 11 order, the pursuer shall call as a defender–

(a) the parents or other parent of the child in respect of whom the order is sought;

(b) any guardian of the child;

(c) any person who has treated the child as a child of his family;

(d) any person who in fact exercises care or control in respect of the child; and

F89 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F88 Sch. 2 rule 49.60 substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(33)

F89 Sch. 2 rule 49.60(e) omitted (21.4.1998) by virtue of Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(12)

Modifications etc. (not altering text)

C1 Sch. 2 rules 35.2, 49.60, 52.1: functions transferred (temp.) (6.5.1999) by The Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), art. 5, Sch. (with arts. 8, 9)

Applications relating to interim orders in depending actions S

49.61.—(1) An application, in an action depending before the court to which this Part applies, for, or for the variation or recall of, [F90 an interim residence order or an interim contact order] shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

Textual Amendments

F90 Words in Sch. 2 rule 49.61(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(34)

Commencement Information

I72 Sch. 2 rule 49.61 in force at 5.9.1994, see para. 1(1)

Care and supervision by local authorities S

F91 49.62.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F91 Sch. 2 rule 49.62 omitted (1.11.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(35)

Applications after decree S

49.63.— [F92 (1) An application after final decree for the variation or recall of a section 11 order other than a contact order shall be made by minute in the process of the action to which it relates.]

(2) Where a minute has been lodged under paragraph (1), any party–

(a) may apply by motion for an interim order pending the determination of the application; and

(b) shall intimate such a motion to every other party not less than 7 days before the date on which the motion is enrolled.

[F93 (3) An application after final decree for, or for the variation or recall of, a contact order shall be made by motion; and rule 49.43 (applications after decree relating to aliment) shall apply to a motion under this paragraph as it applies to a motion under that rule.]

Textual Amendments

F92 Sch. 2 rule 49.63(1) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(36)(a)

F93 Sch. 2 rule 49.63(3) substituted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(36)(b)

Commencement Information

I73 Sch. 2 rule 49.63 in force at 5.9.1994, see para. 1(1)

PART X S CAUSES UNDER THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981

Interpretation of this Part S

49.64.  Unless the context otherwise requires, words and expressions used in this Part which are also used in the Act of 1981(29) have the same meaning as in that Act.

Commencement Information

I74 Sch. 2 rule 49.64 in force at 5.9.1994, see para. 1(1)

Form of applications under the Act of 1981 S

49.65.  Subject to any other provision in this Chapter, an application for an order under the Act of 1981 shall be made–

(a) by an action for such an order;

(b) by a conclusion in the summons or in defences, as the case may be, in any other family action; or

(c) where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Commencement Information

I75 Sch. 2 rule 49.65 in force at 5.9.1994, see para. 1(1)

Defenders in causes under the Act of 1981 S

49.66.  The applicant for an order under the Act of 1981 shall call as a defender–

(a) where he is seeking an order as a spouse, the other spouse;

(b) where he is a third party making an application under section 7(1)(30) (dispensing with consent of non-entitled spouse to a dealing), or section 8(1) (payment from non-entitled spouse in respect of loan), of the Act of 1981, both spouses; and

(c) where the application is made under section 18 of the Act of 1981(31) (occupancy rights of cohabiting couples),or is one to which that section applies, the other partner.

Commencement Information

I76 Sch. 2 rule 49.66 in force at 5.9.1994, see para. 1(1)

Applications by motion under the Act of 1981 S

49.67.—(1) An application under any of the following provisions of the Act of 1981 shall be made by motion:–

(a) section 3(4) (interim order for regulation of rights of occupancy etc.);

(b) section 4(6) (interim order suspending occupancy rights);

(c) section 5 (variation and recall of orders regulating occupancy rights and of exclusion order);

(d) section 15(1) (order attaching power of arrest), if made after application for matrimonial interdict;

(e) section 15(2)(32) and (5) (variation and recall of matrimonial interdict and power of arrest); and

(f) the proviso to section 18(1)(33) (extension of period of occupancy rights).

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled–

(a) to the other spouse or partner, as the case may be;

(b) where the motion is under paragraph (1)(a), (b), (c) or (f) and the entitled spouse or partner is a tenant or occupies the matrimonial home by the permission of a third party, to the landlord or third party, as the case may be; and

(c) to any other person to whom intimation of the application was or is to be made by virtue of rule 49.8(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 49.15 (orders for intimation by the court).

Commencement Information

I77 Sch. 2 rule 49.67 in force at 5.9.1994, see para. 1(1)

Procedure for minutes S

49.68.  Where an application is made by minute under rule 49.65(c) (form of application under the Act of 1981 by a person other than a party) and answers to that minute are lodged, the minute and answers shall not be included with the other pleadings in the action in any record, but shall be made up separately in the form of a record; and rule 49.33(5)(b) and (c) (lodging etc. of records) shall apply to that record as it applies to a record under that rule.

Commencement Information

I78 Sch. 2 rule 49.68 in force at 5.9.1994, see para. 1(1)

Sist of actions to enforce occupancy rights S

49.69.  Unless the court otherwise directs, the sist of an action by virtue of section 7(4) of the Act of 1981 (where action raised by non-entitled spouse to enforce occupancy rights) shall apply only to such part of the action as relates to the enforcement of occupancy rights by a non-entitled spouse.

Commencement Information

I79 Sch. 2 rule 49.69 in force at 5.9.1994, see para. 1(1)

Certificates of execution of delivery of documents to chief constable S

49.70.—(1) Where an applicant is required to comply with section 15(4) or (5), as the case may be, of the Act of 1981(34) (delivery of documents to chief constable where power of arrest attached to matrimonial interdict is granted, varied or recalled), he shall, after such compliance, lodge in process a certificate of delivery in Form 49.70.

(2) Where a matrimonial interdict to which a power of arrest under section 15(1) of the Act of 1981 has been attached ceases to have effect by reason of a decree of divorce or declarator of nullity of marriage being pronounced by the court, the pursuer in the action of divorce or declarator of nullity of marriage, as the case may be, shall send–

(a) to the chief constable of the police area in which the matrimonial home is situated, and

(b) if the applicant spouse (within the meaning of section 15(6) of the Act of 1981) resides in another police area, to the chief constable of that other police area,

a copy of the interlocutor granting decree; and lodge in process a certificate of delivery in Form 49.70.

Commencement Information

I80 Sch. 2 rule 49.70 in force at 5.9.1994, see para. 1(1)

Evidence in causes under the Act of 1981 S

49.71.—(1) For the purposes of proof in any application for an order under the Act of 1981, evidence by affidavit shall be admissible in place of parole evidence.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a cause to which paragraph (1) of this rule applies.

Commencement Information

I81 Sch. 2 rule 49.71 in force at 5.9.1994, see para. 1(1)

PART XI S SIMPLIFIED DIVORCE APPLICATIONS

Application and interpretation of, and directions under, this Part S

49.72.—(1) This Part applies to an application for divorce by a party to a marriage made in the manner prescribed in rule 49.73 (form of applications for simplified divorce) if, but only if—

(a) that party relies on the facts set out in section 1(2)(d) (no cohabitation for two years with consent of defender to decree), or section 1(2)(e) (no cohabitation for five years), of the Act of 1976(35);

(b) in an application under section 1(2)(d) of the Act of 1976, the other party consents to decree of divorce being granted;

(c) no other proceedings are pending in any court which could have the effect of bringing the marriage to an end;

(d) there are no children of the marriage under the age of 16 years;

(e) neither party to the marriage applies for an order for financial provision on divorce; and

(e) neither party to the marriage suffers from mental disorder.

(2) If an application ceases to be one to which this Part applies at any time before final decree, it shall be deemed to be abandoned and shall be dismissed.

(3) In this Part, “simplified divorce application” means an application mentioned in paragraph (1).

(4) The Principal Clerk shall give directions in relation to the administrative procedures to be followed on the lodging of a simplified divorce application for–

(a) the registration and service of such an application,

(b) having it brought before the court for consideration,

(c) in the event of decree of divorce being granted, for notification to the parties, and

(d) connected purposes;

and such directions shall have effect subject to the provisions of this Part.

Commencement Information

I82 Sch. 2 rule 49.72 in force at 5.9.1994, see para. 1(1)

Form of applications for simplified divorce S

49.73.—(1) A simplified divorce application in which the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for two years with consent of defender to decree) are relied on shall be made in Form 49.73–A and shall only be of effect if–

(a) it is signed by the applicant; and

(b) the form of consent in Part 2 of Form 49.73–A is signed by the party to the marriage giving consent.

(2) A simplified divorce application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for five years) are relied on shall be made in Form 49.73–B and shall only be of effect if it is signed by the applicant.

Commencement Information

I83 Sch. 2 rule 49.73 in force at 5.9.1994, see para. 1(1)

Lodging and registration of simplified divorce applications S

49.74.—(1) The applicant shall send a simplified divorce application to the Deputy Principal Clerk with–

(a) an extract or certified copy of the marriage certificate; and

(b) the appropriate fee.

(2) Subject to the following rules of this Part, a simplified divorce application shall, on being registered in accordance with any directions made under rule 49.72(4), be treated as a summons in an action of divorce which has commenced.

Commencement Information

I84 Sch. 2 rule 49.74 in force at 5.9.1994, see para. 1(1)

Warrants for service or intimation of simplified divorce applications S

49.75.—(1) On registration of a simplified divorce application where the address of the other party to the marriage is known, a clerk of session shall grant warrant for service of the application.

(2) On registration of an application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for five years) are relied on where the address of the other party to the marriage is not known to the applicant and cannot reasonably be ascertained–

(a) the Deputy Principal Clerk shall grant warrant for intimation of the application to–

(i) every child of the marriage, and

(ii) one of the next of kin of the other party who has reached the age of 16 years,

unless the address of such person is not known and cannot reasonably be ascertained; and

(b) the application shall thereafter be placed before the Lord Ordinary for such order under rule 16.5 (service where address of person is not known) as he thinks fit.

(3) A warrant granted under paragraph (1) or (2)(a) shall be sufficient authority for such service and intimation.

Commencement Information

I85 Sch. 2 rule 49.75 in force at 5.9.1994, see para. 1(1)

Execution of service or intimation of simplified divorce applications S

49.76.—(1) Subject to the following paragraphs, service of intimation of a simplified divorce application on a warrant granted under rule 49.75 on any person whose address is known to the applicant shall be made–

(a) by the Deputy Principal Clerk by post in accordance with rule 16.4 (service by post); or

(b) by a messenger-at-arms.

(2) In the application of Part I of Chapter 16 (service and intimation) to service or intimation under this rule, the following provisions of that Part of that Chapter shall not apply:–

• rule 16.1(3) (which relates to a party lodging a certificate of service in process),

• rule 16.3(1)(b) (form of citation and certificate of service by messenger-at-arms),

• rule 16.4(2)(b) (service by post by agent),

• rule 16.4(4) (form of citation in service by post).

(3) In the case of service of a simplified divorce application on the other party to the marriage under paragraph (1), the person executing service shall complete a citation in Form 49.76–A (no cohabitation for two years with consent to divorce) or Form 49.76–B (no cohabitation for five years), as the case may be.

(4) In the case of intimation of a simplified divorce application on a person under paragraph (1), the person giving intimation shall complete a notice of intimation in Form 49.76–C.

(5) A certificate of service or intimation in Form 49.76–D (certificate by Deputy Principal Clerk) or Form 49.76–E (certificate by messenger-at-arms), as the case may be, shall be–

(a) completed by the person executing service or giving intimation;

(b) in the case of a certificate completed by a messenger-at-arms, sent to the Deputy Principal Clerk; and

(c) attached to the application by the Deputy Principal Clerk.

Commencement Information

I86 Sch. 2 rule 49.76 in force at 5.9.1994, see para. 1(1)

Opposition to simplified divorce applications S

49.77.—(1) Any person on whom service or intimation of a simplified divorce application has been made may give notice by letter sent to the Deputy Principal Clerk within the period of notice that he challenges the jurisdiction of the court or opposes the grant of decree of divorce and giving the reasons for hisfi opposition to the application.

(2) Where opposition to a simplified divorce application is made under paragraph (1), the court shall dismiss the application unless it is satisfied that the reasons given for the opposition are frivolous.

(3) The Deputy Principal Clerk shall give written intimation of the decision under paragraph (2) to the applicant and the respondent.

(4) The sending of a letter under paragraph (1) shall not imply acceptance of the jurisdiction of the court.

Commencement Information

I87 Sch. 2 rule 49.77 in force at 5.9.1994, see para. 1(1)

Evidence in simplified divorce applications S

49.78.—(1) Parole evidence shall not be given in a simplified divorce application.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a simplified divorce application.

Commencement Information

I88 Sch. 2 rule 49.78 in force at 5.9.1994, see para. 1(1)

No reclaiming in simplified divorce applications S

49.79.  A decree pronounced in a simplified divorce application may not be reclaimed against.

Commencement Information

I89 Sch. 2 rule 49.79 in force at 5.9.1994, see para. 1(1)

Applications after decree in simplified divorce applications S

49.80.—(1) Any application to the court after decree of divorce has been granted in a simplified divorce application which could have been made if it had been an action of divorce shall be made by minute.

(2) On lodging a minute under paragraph (1), the minuter shall lodge a process.

Commencement Information

I90 Sch. 2 rule 49.80 in force at 5.9.1994, see para. 1(1)

PART XII S CHILD SUPPORT ACT 1991

Interpretation of this Part S

F94 49.81.  In this Part–

“the Act of 1991” means the Child Support Act 1991(36);

“child” has the meaning assigned in section 55 of the Act of 1991;

“maintenance assessment” has the meaning assigned in section 54 of the Act of 1991.

Textual Amendments

F94 By Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(20) it is purported that the word “(1)” be omitted from Sch. 2, rule 49.81

Commencement Information

I91 Sch. 2 rule 49.81 in force at 5.9.1994, see para. 1(1)

Restriction of expenses S

49.82.  Where the Secretary of State is called as a defender in an action for declarator of non-parentage or illegitimacy, and the Secretary of State does not defend the action, no expenses shall be awarded against the Secretary of State.

Commencement Information

I92 Sch. 2 rule 49.82 in force at 5.9.1994, see para. 1(1)

Effect of maintenance assessments S

49.83.  The Deputy Principal Clerk shall, on receiving notification that a maintenance assessment has been made, cancelled or has ceased to have effect so as to affect an order of a kind prescribed for the purposes of section 10 of the Act of 1991, endorse on the interlocutor sheet relating to that order a certificate in Form 49.83–A or 49.83–B, as the case may be.

Commencement Information

I93 Sch. 2 rule 49.83 in force at 5.9.1994, see para. 1(1)

Effect of maintenance assessments on extracts relating to aliment S

49.84.—(1) Where an order relating to aliment is affected by a maintenance assessment, any extract of that order issued by the Extractor shall be endorsed with a certificate in Form 49.84–A.

(2) Where an order relating to aliment has ceased to have effect on the making of a maintenance assessment, and that maintenance assessment is later cancelled or ceases to have effect, any extract of that order issued by the Extractor shall be endorsed also with a certificate in Form 49.84–B.

Commencement Information

I94 Sch. 2 rule 49.84 in force at 5.9.1994, see para. 1(1)

[F95 PART XIII S REFERRALS TO PRINCIPAL REPORTER

Textual Amendments

F95 Sch. 2 Ch. 49 Pts. 13, 14 inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(37)

Application and interpretation of this Part S

49.85.— (1) This Part applies where the court, in a family action, refers a matter to the Principal Reporter under section 54 of the Act of 1995 (reference to the Principal Reporter by court).

(2) In this Part, “Principal Reporter” has the meaning assigned in section 93(1) of the Act of 1995.

Textual Amendments

F95 Sch. 2 Ch. 49 Pts. 13, 14 inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(37)

Intimation to Principal Reporter S

49.86.   Where a matter is referred by the court to the Principal Reporter under section 54 of the Act of 1995, the clerk of court shall give written intimation of the interlocutor making the reference to the Principal Reporter; and that intimation shall specify which of the conditions in section 52(2)(a) to (h), (j), (k) or (l) of that Act it appears to the court have been satisfied.

Textual Amendments

F95 Sch. 2 Ch. 49 Pts. 13, 14 inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(37)

Intimation of decision by Principal Reporter S

49.87.— (1) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having reached the view that compulsory measures of supervision are necessary, arranges a children’s hearing under section 69 of that Act (continuation or disposal of referral by children’s hearing), the Principal Reporter shall give written intimation to the court which referred the matter to him of–

(a) the decision to arrange such children’s hearing;

(b) where there is no appeal made against the decision of that children’s hearing once the period for appeal has expired, the outcome of the children’s hearing; and

(c) where such an appeal has been made, that an appeal has been made and, once determined, the outcome of that appeal.

(2) Where a matter has been referred by the court to the Principal Reporter under section 54 of the Act of 1995 and the Principal Reporter, having made such investigation as he thinks appropriate and having considered whether compulsory measures of supervision are necessary, decides not to arrange a children’s hearing under section 69 of that Act, the Principal Reporter shall give written intimation of that decision to the court which referred the matter to him.

Textual Amendments

F95 Sch. 2 Ch. 49 Pts. 13, 14 inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(37)

PART XIV S MANAGEMENT OF MONEY PAYABLE TO CHILDREN

[F96 Application under section 11(1)(d) of the Act of 1995 following order under section 13 of that Act] S

49.88.   Where the court has made an order under section 13 of the Act of 1995 (awards of damages to children), an application by a person for an order by virtue of section 11(1)(d) of that Act (administration of child’s property) may be made by minute in the process of the cause in which the order under section 13 of that Act was made.]

Textual Amendments

F95 Sch. 2 Ch. 49 Pts. 13, 14 inserted (1.11.1996) by Act of Sederunt (Rules of the Court of Session Amendment No.5) (Family Actions and Miscellaneous) 1996 (S.I. 1996/2587), paras. 1(1), 2(37)

F96 Sch. 2 rule 49.88 heading inserted (6.4.1997) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 1997 (S.I. 1997/1050), paras. 1(1), 2(7)

[F97 PART XV S MANAGEMENT OF CHILD’S PROPERTY BY VIRTUE OF SECTION 9(5)(a) OR 11(2)(g) OF THE ACT OF 1995

Textual Amendments

F97 Sch. 2 Ch. 49 Pt. 15 inserted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 5

[F98 Directions] S

49.89.   In making an appointment under section 9(5)(a) or 11(2)(g) of the Act of 1995, or when it receives a report under the said section 11(2)(g), the court may give such directions as it thinks fit regarding the management of the property concerned, and it may from time to time, on the application of a judicial factor so appointed, of the Accountant of Court or of any other person having an interest, give further such directions.]

Textual Amendments

F97 Sch. 2 Ch. 49 Pt. 15 inserted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 5

F98 Sch. 2 rule 49.89 heading inserted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(12)

CHAPTER 50 S CAUSES UNDER THE PRESUMPTION OF DEATH (SCOTLAND) ACT 1977

Interpretation of this Chapter S

50.1.  In this Chapter–

“the Act of 1977” means the Presumption of Death (Scotland) Act 1977(37);

“action of declarator” means an action under section 1(1) of the Act of 1977;

“missing person” has the meaning assigned in section 1(1) of the Act of 1977.

Commencement Information

I95 Sch. 2 rule 50.1 in force at 5.9.1994, see para. 1(1)

Parties to, and service and intimation of, actions for declarator S

50.2.—(1) The missing person shall be called as the defender in an action of declarator and [F99 service on that person shall be by advertisement in such newspaper or other publication as the court thinks fit of such of the facts relating to the missing person and set out in the summons as the court may specify.]

(2) The period of notice where service is executed in accordance with [F100 paragraph (1)] shall be 21 days from the date of publication of the advertisement unless the court otherwise orders.

[F101 (3) In the application of rule 16.5(3)(a) (form of advertisement) to service under paragraph (1) of this rule, for the reference to Form 16.5 there shall be substituted a reference to Form 50.2–A.]

(4) Subject to paragraph (6), in the summons in an action of declarator, the pursuer shall insert a warrant for intimation to–

(a) the missing person's–

(i) spouse, and

(ii) children or, if he has no children, nearest relative known to the pursuer.

(b) any person, including any insurance company, who so far as known to the pursuer, has any interest in the action, and

(c) the Lord Advocate,

in the following terms:– “Warrant for intimation to (name and address) as [husband or wife, child or nearest relative] [a person having an interest in the presumed death] of (name and last known address of the missing person) and to the Lord Advocate.”.

(5) A notice of intimation in Form 50.2–B shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (4).

(6) The court may, on the motion of the pursuer, dispense with intimation on a person mentioned in paragraph (4)(a) or (b).

(7) Notwithstanding the reference in subsection 5 of section 1 of the Act of 1977 (person interested in seeking determination or appointment not sought by pursuer) to lodging a minute, an application under that subsection shall be made by lodging defences containing a conclusion for the determination or appointment sought, averments in the answers to the condescendence in support of that conclusion and an appropriate plea-in-law.

(8) On lodging defences under paragraph (7), the defender shall, as well as complying with rule 4.6 (intimation of steps of process)–

(a) send a copy of the defences by registered post or the first class recorded delivery service to each person to whom intimation of the action has been made under paragraph (4); and

(b) lodge in process the Post Office receipt or certificate of posting of those defences.

Textual Amendments

F99 Words in Sch. 2 rule 50.2(1) substituted (19.5.1999) by Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 1999 (S.I. 1999/1386), paras. 1(2), 2(6)(a)

F100 Words in Sch. 2 rule 50.2(2) substituted (19.5.1999) by Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 1999 (S.I. 1999/1386), paras. 1(2), 2(6)(b)

F101 Sch. 2 rule 50.2(3) ceases to have effect (19.5.1999) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 1999 (S.I. 1999/1386), paras. 1(2), 2(6)(c)

Commencement Information

I96 Sch. 2 rule 50.2 in force at 5.9.1994, see para. 1(1)

Further advertisement and procedure S

50.3.— [F102 (1) The pursuer in an action of declarator shall, on the expiry of the period for lodging defences and without any defences having been lodged indicating knowledge of the present whereabouts of the missing person, apply by motion–

(a) for such advertisement of the facts relating to the missing person set out in the summons in such newspapers or other publications as the court thinks fit; or

(b) to dispense with further advertisement.]

(2) At any time before the determination of the action, the court may, at its own instance or on the motion of a party, make such order for further advertisement as it thinks fit.

Textual Amendments

F102 Sch. 2 rule 50.3(1) ceases to have effect (19.5.1999) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Miscellaneous) 1999 (S.I. 1999/1386), paras. 1(2), 2(7)

Commencement Information

I97 Sch. 2 rule 50.3 in force at 5.9.1994, see para. 1(1)

Applications for proof S

50.4.  In an action of declarator where no defences have been lodged, the pursuer shall, after such further advertisment as may be ordered under rule 50.3, apply by motion for an order for a proof.

Commencement Information

I98 Sch. 2 rule 50.4 in force at 5.9.1994, see para. 1(1)

Applications for variation or recall of decrees S

50.5.—(1) An application under section 4(1) of the Act of 1977 (variation or recall of decree) shall be made by minute in the process of the action to which the application relates.

(2) On the lodging of such a minute, the minuter shall apply by motion for an order–

(a) for service on the missing person, where his whereabouts have become known;

(b) for intimation to those persons mentioned in rule 50.2(4) or to dispense with intimation to a person mentioned in rule 50.2(4)(a) or (b); and

(c) for any answers to the minute to be lodged in process within such period as the court thinks fit.

(3) An application under section 4(3) of the Act of 1977(38) (person interested seeking determination or appointment not sought by applicant for variation order) shall be made by lodging answers containing a crave for the determination or appointment sought.

(4) A person lodging answers containing a crave under [F103 paragraph (3)] shall, as well as sending a copy of the answers to the minuter–

(a) send a copy of the answers by registered post or the first class recorded delivery service to each person on whom service or intimation of the minute was ordered; and

(b) lodge in process the Post Office receipt or certificate of posting of those answers.

Textual Amendments

F103 Words in Sch. 2 rule 50.5(4) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(14)

Commencement Information

I99 Sch. 2 rule 50.5 in force at 5.9.1994, see para. 1(1)

Applications for remit from sheriff court S

50.6.—(1) An application by a person for a direction under section 1(6) or 4(4) of the Act of 1977 (remit of action or application to the court) shall be made by petition.

(2) An action of declarator or an application which is remitted to the court under section 1(6) or 4(4) of the Act of 1977 shall proceed in the Outer House as if it were an action brought or an application made, as the case may be, in that court.

Commencement Information

I100 Sch. 2 rule 50.6 in force at 5.9.1994, see para. 1(1)

Appointment of judicial factors S

50.7.—(1) Rule 61.6 (documents relating to judicial factories for Accountant of Court) shall apply to an application for the appointment of a judicial factor under section 2(2)(c) or section 4(2) of the Act of 1977 as it applies to a petition for the appointment of a judicial factor.

(2) Where, in an action of declarator or an application under section 4(1) of the Act of 1977 (variation or recall of decree), a judicial factor on the estate of the missing person is appointed, the process shall forthwith be transmitted to, and retained by, the Petition Department; and the judicial factory shall proceed as if the judicial factor had been appointed in a petition for that purpose.

(3) In the application of rule 50.5 (applications for variation or recall of decrees) to an application under section 4(1) of the Act of 1977 in a cause transmitted to the Petition Department under paragraph (2), for references to a minute there shall be substituted references to a note.

Commencement Information

I101 Sch. 2 rule 50.7 in force at 5.9.1994, see para. 1(1)

CHAPTER 51 S ACTIONS OF MULTIPLEPOINDING

Application of this Chapter S

51.1.  This Chapter applies to an action of multiplepoinding.

Commencement Information

I102 Sch. 2 rule 51.1 in force at 5.9.1994, see para. 1(1)

Parties to actions of multiplepoinding S

51.2.—(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.

Commencement Information

I103 Sch. 2 rule 51.2 in force at 5.9.1994, see para. 1(1)

Condescendence of fund in medio S

51.3.—(1) Where the pursuer is the holder of the fund in medio, he shall include a detailed statement of the fund in the condescendence annexed to the summons.

(2) Where the pursuer is not the holder of the fund in medio, the holder shall, unless he has lodged defences in accordance with rule 51.4 (objections to actions of multiplepoinding), lodge in process a condescendence of the fund in medio, stating–

(a) any claim or lien which he may profess to have on that fund, and

(b) all persons so far as known to him as having an interest in the fund,

within 7 days after the date on which the summons has called.

Commencement Information

I104 Sch. 2 rule 51.3 in force at 5.9.1994, see para. 1(1)

Objections to actions of multiplepoinding S

51.4.—(1) Any objection to an action of multiplepoinding on any ground shall be made by lodging defences.

(2) Where the holder of a fund in medio lodges defences under paragraph (1), he shall, notwithstanding his objection to the action, disclose all persons so far as known to him and reasonably ascertainable who have an interest in that fund.

(3) On defences being lodged under paragraph (1), the pursuer shall comply with rule 22.1 (making up open records); and the action shall proceed for the purpose of determining the objection stated in the defences as an ordinary action.

(4) Where the holder of the fund in medio has lodged defences, the court shall, on determining those defences without dismissing the action, ordain the holder of the fund to lodge a condescendence of the fund in medio stating any claim or lien which he may profess to have on that fund, within such period as it thinks fit.

Commencement Information

I105 Sch. 2 rule 51.4 in force at 5.9.1994, see para. 1(1)

Advertisement for objections to condescendence and claims S

51.5.—(1) The pursuer may–

(a) after the expiry of the period for lodging defences without defences having been lodged, or

(b) where defences have been lodged, after those defences have been repelled and, where an order is made under rule 51.4(4), the condescendence of the fund has been lodged,

apply by motion for the orders mentioned in paragraph (2).

(2) The orders referred to in paragraph (1) are–

(a) the ordaining of any objection to the condescendence of the fund in medio and claims on the fund to be lodged within such period as the court thinks fit; and

(b) advertisement of the call for any objection and claims in such newspapers or other publications and for such number of insertions as the court thinks fit.

(3) An advertisement ordered under paragraph (1) shall be in Form 51.5.

Commencement Information

I106 Sch. 2 rule 51.5 in force at 5.9.1994, see para. 1(1)

Form of objection to condescendence and claims S

51.6.—(1) An objection to a condescendence of the fund in medio shall be made by lodging defences.

(2) A claim on the fund in medio shall be made in the form of a condescendence, claim and appropriate pleas-in-law.

(3) On lodging a condescendence and claim, a claimant shall lodge his ground of debt and all other documents supporting his claim.

(4) Where a person intends to–

(a) object to the condescendence on the fund in medio, and

(b) make a claim on the fund,

he shall lodge defences and a separate condescendence and claim.

Commencement Information

I107 Sch. 2 rule 51.6 in force at 5.9.1994, see para. 1(1)

Procedure following call for objections S

51.7.—(1) Where defences are lodged under rule 51.6 (form of objection to condescendence and claims), an open record shall be made up on the condescendence and such objection, and the pursuer shall comply with rule 22.1 (making up open records); and the cause shall proceed for the purposes of determining the objection as an ordinary action.

(2) No order shall be pronounced in relation to any claims on the fund in medio until any defences under rule 51.6 have been disposed of and the condescendence of the fund in medio approved.

(3) Where the court disposes of defences, or where no defences have been lodged under rule 51.6, the court shall–

(a) approve the condescendence of the fund in medio, subject to such alteration as it may make in disposing of any objection;

(b) find the pursuer, or where he is not the holder of the fund, the holder, liable only in once and single payment;

(c) make such further order, if any, for claims as it thinks fit.

Commencement Information

I108 Sch. 2 rule 51.7 in force at 5.9.1994, see para. 1(1)

Advertisement of dependence of actions S

51.8.  The court may, at its own instance or on the motion of a party, at any time order–

(a) such advertisement of the dependence of the action as it thinks fit; and

(b) intimation of the dependence of the action to any person not called as a defender.

Commencement Information

I109 Sch. 2 rule 51.8 in force at 5.9.1994, see para. 1(1)

Evidence of advertisement and intimation S

51.9.  Where the court orders advertisement or intimation under this Chapter, the party required to make such advertisement or intimation shall lodge in process, as the case may be–

(a) a copy of the newspaper or other publication containing the advertisement or a certificate of publication by the publisher stating the date of publication and the text of the advertisement; or

(b) the certificate of intimation.

Commencement Information

I110 Sch. 2 rule 51.9 in force at 5.9.1994, see para. 1(1)

Consignation of fund and discharge of holder S

51.10.—(1) On approval of the condescendence of the fund in medio, the holder of the fund may apply by motion for–

(a) a finding that he is entitled to his expenses out of the fund; and

(b) authority to consign the fund into court, after deduction of his expenses as taxed by the Auditor.

(2) Where consignation is made by virtue of an authority under paragraph (1)(b), the holder of the fund may apply by motion for his exoneration and discharge.

Commencement Information

I111 Sch. 2 rule 51.10 in force at 5.9.1994, see para. 1(1)

Claims not timeously lodged S

51.11.—(1) A claimant who fails to lodge his claim within the period specified in the order under rule 51.5(2)(a) (order for any objections and for claims) may apply by motion to have his claim received.

(2) The court may allow such a claim to be received on such conditions as to expenses, if any, as it thinks fit.

Commencement Information

I112 Sch. 2 rule 51.11 in force at 5.9.1994, see para. 1(1)

Procedure following approval of fund in medio S

51.12.—(1) After the condescendence of the fund in medio has been approved, and it appears that there is no competition, the court may, on the motion of any claimant, rank and prefer the parties who have lodged claims.

(2) After the condescendence of the fund in medio has been approved and where there is competition–

(a) any party may apply by motion for an order to print a record in the competition and, on such an order being made, an open record shall be made up on the condescendences and claims and the pursuer shall comply with rule 22.1 (making up open records); and the action shall proceed for the purpose of determining the competition as an ordinary action; and

(b) during the period of adjustment, a claimant may adjust his condescendence to state any objection to any other claim.

(3) When pronouncing any decree of ranking on the fund in medio, the court may determine any question of expenses; and, where it finds any party entitled to expenses out of the fund in medio, notwithstanding rule 42.1(1)(b) (decerniture for expenses as taxed) it shall not at the same time decern for payment of those expenses.

Commencement Information

I113 Sch. 2 rule 51.12 in force at 5.9.1994, see para. 1(1)

Decrees for payment S

51.13.—(1) No decree for payment out of the fund in medio, whether consigned into court or not, following an order for ranking (whether for aught yet seen or otherwise) shall be made until–

(a) all accounts of expenses found payable out of the fund in medio have been taxed and the report of the Auditor on those accounts [F104 has] been approved; and

(b) the certificate referred to in rule 8.1(1)(b) (Inland Revenue certificate of taxes or duties paid) has been lodged.

(2) Where the fund in medio has been consigned into court, any decree for payment out of the fund shall include–

(a) warrant to the bank, on production of a certified copy of the interlocutor granting decree, to pay to each party the sums for which he has been ranked; and

(b) warrant to the Accountant of Court, on production of a certified copy of the interlocutor granting decree, to endorse and deliver the consignation receipt to the bank in order that the payments may be made.

Textual Amendments

F104 Word in Sch. 2 rule 51.13(1)(a) substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(15)

Commencement Information

I114 Sch. 2 rule 51.13 in force at 5.9.1994, see para. 1(1)

Reclaiming by claimant against ranking for aught yet seen S

51.14.—(1) A claimant, who has failed to lodge his claim on the fund in medio before a ranking for aught yet seen, may reclaim against the interlocutor making such ranking at any time while the action is depending.

(2) The Division of the Inner House before which a motion for review of an interlocutor is brought under paragraph (1) may recall that interlocutor and remit the cause to the Lord Ordinary to receive the claim on such conditions as to expenses, if any, as it thinks fit.

Commencement Information

I115 Sch. 2 rule 51.14 in force at 5.9.1994, see para. 1(1)

Exoneration of holder where no consignation S

51.15.  Where the holder of the fund in medio has not been exonered and discharged, he may–

(a) following a decree for payment,

(b) on production of the receipts of the persons entitled to payment under that decree, and

(c) on consignation of any balance of the fund remaining,

apply by motion for his exoneration and discharge.

Commencement Information

I116 Sch. 2 rule 51.15 in force at 5.9.1994, see para. 1(1)

CHAPTER 52 S ACTIONS OF PROVING THE TENOR

Parties to action of proving the tenor S

52.1.  In an action of proving the tenor, the pursuer shall call as a defender–

(a) any person having an interest in the document to be proved; or

(b) where only the pursuer has such an interest, the Lord Advocate as representing the public interest.

Modifications etc. (not altering text)

C1 Sch. 2 rules 35.2, 49.60, 52.1: functions transferred (temp.) (6.5.1999) by The Scotland Act 1998 (General Transitory, Transitional and Savings Provisions) Order 1999 (S.I. 1999/901), art. 5, Sch. (with arts. 8, 9)

Commencement Information

I117 Sch. 2 rule 52.1 in force at 5.9.1994, see para. 1(1)

Lodging of supporting evidence S

52.2.  On lodging the summons for signeting, supporting documentary evidence of the tenor of the document to be proved in an action of proving the tenor, so far as in the possession or control of the pursuer, shall be lodged in process.

Commencement Information

I118 Sch. 2 rule 52.2 in force at 5.9.1994, see para. 1(1)

Proof in undefended actions S

52.3.  Where no appearance has been entered or no defences have been lodged in an action of proving the tenor, the pursuer shall apply by motion for an order for proof.

Commencement Information

I119 Sch. 2 rule 52.3 in force at 5.9.1994, see para. 1(1)

CHAPTER 53 S ACTIONS OF REDUCTION

Conclusions for suspension etc. S

53.1.  In an action where real or personal diligence may proceed on a document sought to be reduced in the action, the pursuer may include in the summons, in relation to that diligence, conclusions for suspension, interdict, and liberation as circumstances may require.

Commencement Information

I120 Sch. 2 rule 53.1 in force at 5.9.1994, see para. 1(1)

Intimation to clerk of inferior court or tribunal S

53.2.—(1) In an action in which reduction of a decree, order, decision or warrant of whatever nature of an inferior court or tribunal is concluded for, intimation of the action shall be made to the clerk of that court or tribunal.

(2) In an action to which paragraph (1) applies, the pursuer shall insert a warrant for intimation in the summons in the following terms:– “Warrant to the (designation of the clerk of the relevant court or tribunal) being the court [or tribunal] in which the decree [or as the case may be] was granted [or made] which is sought to be reduced in this action.”.

(3) A notice of intimation in Form 53.2 shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (2).

(4) An interlocutor granting reduction in an action to which paragraph (1) applies shall include a direction to the clerk of court to send a copy of thfi e interlocutor to the clerk of the inferior court or tribunal to whom intimation of the action was made.

(5) Where such an interlocutor is reclaimed against or appealed to the House of Lords, the reclaimer or appellant, as the case may be, shall give written intimation of that fact to the clerk of the inferior court or tribunal forthwith after the reclaiming motion has been marked or the petition of appeal to the House of Lords has been lodged, as the case may be.

(6) The interlocutor disposing of such a reclaiming motion or giving effect to the judgment of the House of Lords shall include a direction to the clerk of court to send a copy of that interlocutor to the clerk of the inferior court or tribunal to whom intimation of the action was made.

Commencement Information

I121 Sch. 2 rule 53.2 in force at 5.9.1994, see para. 1(1)

Objection by defenders to production S

53.3.—(1) Where a defender objects to satisfying a conclusion for production of a document sought to be reduced in an action, he shall state in his defences–

(a) his grounds of objection; and

(b) any defence on the merits of the action.

(2) Where a defender objects to satisfying such a conclusion, he shall not be required to satisfy production at the time of lodging his defences.

(3) Where the court repels or reserves an objection to satisfying a conclusion for production, it shall, in the interlocutor repelling or reserving such objection, ordain the defender to satisfy production within such period as it thinks fit.

(4) Where–

(a) the defender obtempers an order made under paragraph (3), he shall, on lodging in process any such document as is in his possession or within his control, apply by motion to hold production either satisfied or satisfied in respect of the document lodged, as the case may be; or

(b) the defender fails to obtemper an order made under paragraph (3), the pursuer may apply by motion for decree by default.

Commencement Information

I122 Sch. 2 rule 53.3 in force at 5.9.1994, see para. 1(1)

Production by defenders where no objection S

53.4.—(1) Where a defender does not state an objection against satisfying a conclusion for production of a document sought to be reduced, he shall–

(a) on lodging his defences, lodge in process any such document as is in his possession or within his control; and

(b) apply by motion to hold production either satisfied or satisfied in respect of the document lodged.

(2) Where a defender–

(a) does not state an objection against satisfying a conclusion for production, and

(b) fails to comply with paragraph (1)(a),

the pursuer may apply by motion for decree by default.

Commencement Information

I123 Sch. 2 rule 53.4 in force at 5.9.1994, see para. 1(1)

Pursuers to satisfy production S

53.5.—(1) Where a document, in respect of which reduction is concluded for, is in the possession or the control of the pursuer, he shall lodge it in process on lodging the summons for calling.

(2) The court may, at any stage of an action, ordain the pursuer to satisfy a conclusion for production of a document sought to be reduced.

(3) The pursuer shall, on lodging a document under paragraph (1) or (2), apply by motion to hold production satisfied.

(4) Where a pursuer fails to obtemper an order made under paragraph (2), the defender may apply by motion for dismissal of the action.

Commencement Information

I124 Sch. 2 rule 53.5 in force at 5.9.1994, see para. 1(1)

Joint minutes for reduction S

53.6.  In an action in which a conclusion for production has not been satisfied and parties enter into a joint minute in terms of which decree of reduction is to be pronounced–

(a) the document to be reduced shall be lodged in process with the joint minute; and

(b) the terms of the joint minute shall be such as to enable the court, when interponing authority to it, to hold production satisfied.

Commencement Information

I125 Sch. 2 rule 53.6 in force at 5.9.1994, see para. 1(1)

Production satisfied by copies S

53.7.  The court may, with the consent of the parties, hold production satisfied by a copy of the document sought to be reduced.

Commencement Information

I126 Sch. 2 rule 53.7 in force at 5.9.1994, see para. 1(1)

Challenge of deeds or writings ope exceptionis S

53.8.  Where, in an action, a deed or other writing is founded on by a party, any objection to it may be stated by way of exception, unless the court considers that the objection would be more conveniently disposed of in a separate action of reduction.

Commencement Information

I127 Sch. 2 rule 53.8 in force at 5.9.1994, see para. 1(1)

[F105 CHAPTER 54 S APPLICATIONS UNDER THE DEFAMATION ACT 1996

Textual Amendments

F105 Sch. 2 Ch. 54 substituted (1.4.2001) by Act of Sederunt (Rules of the Court of Session Amendment No. 1) (Procedure for Offers to Make Amends) 2001 (S.S.I. 2001/93), paras. 1(1), 2

Form of application to court where proceedings have been taken S

54.1.— (1) An application to the court under section 3 of the Defamation Act 1996 (which relates to offers to make amends) where proceedings for defamation have been taken shall be by minute lodged in the process of those proceedings.

(2) A minute lodged under paragraph (1) shall set out—

(a) the questions to be determined by the court; and

(b) the contentions of the minuter,

and shall have appended to it a copy of the offer to make amends.

Form of application to court where proceedings have not been taken S

54.2   An application to the court under the said section 3 where proceedings for defamation have not been taken shall be by petition presented in the Outer House.]

CHAPTER 55 S CAUSES RELATING TO INTELLECTUAL PROPERTY

Application and interpretation of this Chapter S

55.1.— [F106 (1) This Chapter applies to any cause—

(a) under the Patents Act 1949;

(b) under the Registered Designs Act 1949;

(c) under the Defence Contracts Act 1958;

(d) under the Patents Act 1977;

(e) under the Copyright, Designs and Patents Act 1988;

(f) under the Trade Marks Act 1994;

(g) under the Olympics Association Right (Infringement Proceedings) Regulations 1995; or

(h) for the determination of a question relating to a patent under the inherent jurisdiction of the court.]

(2) In this Chapter–

F107 ...

“the Act of 1949” means the Patents Act 1949;

“the Act of 1977” means the Patents Act 1977;

“the Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

“the Copyright Act of 1988” means the Copyright, Designs and Patents Act 1988;

“existing patent” means a patent mentioned in section 127(2)(a) or (c) of the Act of 1977;

“the Journal” means the journal published in accordance with rules made under section 123(6) of the Act of 1977;

“patent” means an existing patent or a patent under the Act of 1977;

“patentee” has the meaning assigned to it in section 101(1) of the Act of 1949.

Textual Amendments

F106 Sch. 2 rule 55.1(1) 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(21)(a)

F107 Words in Sch. 2 rule 55.1(2) omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(21)(b)

Commencement Information

I128 Sch. 2 rule 55.1 in force at 5.9.1994, see para. 1(1)

Proceedings before [F108 intellectual property judge] S

55.2.  All proceedings in the Outer House in a cause to which this Chapter applies shall be brought before a judge of the court nominated by the Lord President as the [F108 intellectual property judge] or, where the [F108 intellectual property judge] is not available, any other judge of the court (including the vacation judge).

Textual Amendments

F108 Words in Sch. 2 rule 55.2 substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

Commencement Information

I129 Sch. 2 rule 55.2 in force at 5.9.1994, see para. 1(1)

[F109 Requirement for marking S

55.2A.   In a cause to which this Chapter applies, initiated—

(a) by summons, the pursuer shall, before presenting the summons to the General Department for signeting;

(b) by petition, the petitioner shall, before lodging the petition in the Petition Department,

mark it distinctly in red, both on the first page and on the backing, with the words “Intellectual Property Cause”; and thereafter every step of process in the cause shall be so marked by the person lodging it.]

Textual Amendments

F109 Sch. 2 rule 55.2A inserted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(3) (with para. 3)

[F110 Procedural hearings] S

55.3.— [F110 (1) In a cause to which this Chapter applies, not later than five weeks after—

(a) if it is a cause initiated by summons, the closing of the record; or

(b) if it is a cause initiated by petition, the expiry of any period of adjustment allowed,

• the pursuer or petitioner shall enrol a motion, which shall be put out unstarred, for a date to be fixed for a hearing in accordance with this rule (a “procedural hearing”); and after consultation with the intellectual property judge the Keeper of the Rolls shall fix a date accordingly and shall notify it to the parties.

(2) Unless the parties have otherwise agreed, notification under paragraph (1) shall be given at least 14 days before the date so fixed.

(2A) Not later than 7 days after notification under paragraph (1) the parties may, having conferred with one another, jointly attend the Keeper of the Rolls that he may fix a different date, more convenient to them, for the procedural hearing.

(2B) To any motion enrolled by him under paragraph (1) the pursuer or petitioner shall append a note—

(a) identifying the points which he intends to raise, other than on a preliminary plea, at the procedural hearing; and

(b) giving his estimate of the likely duration of that hearing.]

(3) Not less than 7 days before the [F111 date notified under paragraph (1)], each party shall lodge in process and send to every other party, a notice of any issue sought to be raised on a preliminary plea against any other party.

(4) At a [F112 procedural] hearing, the court shall consider–

(a) whether to direct that any issue of law or fact (including validity, infringement, an application for amendment of a patent under section 75 of the Act of 1977, damages or other remedies sought) should be determined separately from any other issue;

(b) whether the cause should be appointed to the Procedure Roll for consideration of any -preliminary plea, and may order–

(i) a party, whose plea is to be considered, to lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that the preliminary plea should be sustained, and to send a copy of it to every other party concerned within such period as the court thinks fit;

(ii) any other party to lodge in process a note of argument in reply and to send a copy of it to every other party, within a specified period thereafter; and

(c) whether–

(i) to remit to the Patent Office for a report and what the terms of the remit should be;

(ii) to order a party to make available to any other party a copy of any documents;

(iii) to appoint an assessor or assessors;

(iv) a meeting of experts should be held for the purpose of producing a joint report on the general state of the art;

(v) to order each party to make available to every other party a copy of any precognitions, or reports, of skilled witnesses on any matter which is not the subject of a joint report under head (iv) and the time by which they were to be made available;

(vi) to order the advisers of the parties to meet for the purpose of agreeing and preparing a single paginated inventory of productions and, if necessary, to fix a date by which this is to be done;

(vii) to make an order regulating the making of any experiment, inspection, test or report;

(viii) to fix a date by which a notice under rule 55.4 (notices to admit and notices of non-admission) shall be served; and

(ix) to fix the time within which, notwithstanding rule 36.3 (lodging productions for proofs), any production shall be lodged or within which any other step may be taken.

(5) at a [F112 procedural] hearing, the court may–

(a) continue the hearing to another date;

(b) without prejudice to paragraph (6), order a further [F112 procedural] hearing on a specified date or a date to be afterwards fixed; or

(c) give such further directions as to the conduct of the cause as it thinks fit.

(6) The court may order a further [F112 procedural] hearing at any time of its own motion or on the motion of any party.

(7) Where a party intends to seek a particular order at a [F112 procedural] hearing, he shall give written intimation, to the court and to every other party not less than 7 days before the hearing, of the order sought and the reason for seeking it.

Textual Amendments

F110 Sch. 2 rule 55.3(1)-(2B) and heading substituted for Sch. 2 rule 55.3(1) and heading (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(4)(a) (with para. 3)

F111 Words in Sch. 2 rule 55.3(3) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(4)(b) (with para. 3)

F112 Words in Sch. 2 rules 55.3(4)-(7) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(4)(c) (with para. 3)

Commencement Information

I130 Sch. 2 rule 55.3 in force at 5.9.1994, see para. 1(1)

Notices to admit and notices of non-admission S

55.4.—(1) In a cause under the Act of 1949 or the Act of 1977, at any time after defences or answers have been lodged but not later than such date as has been fixed by the court at a [F113 procedural] hearing, a party may intimate to any other party to the cause a notice or notices calling on him to admit for the purposes of that cause only–

(a) such facts relating to an issue averred in the pleadings as may be specified in the notice;

(b) that a particular document lodged in process and specified in the notice is–

(i) an original and properly authenticated document;

(ii) a true copy of an original and properly authenticated document; or

(iii) correct in the particular respects specified in the notice.

(2) Where a party on whom a notice has been served under paragraph (1)–

(a) does not admit any of the facts specified in the notice, or

(b) does not admit, or seeks to challenge, the authenticity or correctness of any document specified in the notice,

he shall, within 28 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him under paragraph (1) stating that he does not admit the fact or document specified.

(3) A party who fails to serve a notice of non-admission under paragraph (2) shall be deemed to have admitted the matters specified in the notice intimated to him under paragraph (1); and such matters may be used in evidence at a proof if otherwise admissible in evidence unless the court, on special cause shown, otherwise directs.

(4) A party who fails to intimate a notice of non-admission under paragraph (2) within 28 days after the notice to admit intimated to him under paragraph (1) shall be liable to the party intimating the notice to admit for the expenses of proving the matters specified in that notice unless the court otherwise directs.

(5) The party intimating a notice under paragraph (1) or (2) shall lodge a copy of it in process.

(6) A deemed admission under paragraph (3) shall not be used against the party by whom it was deemed to be made other than in the cause for the purpose of which it was deemed to be made or in favour of any person other than the party by whom the notice was given under paragraph (1).

(7) The court may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as it thinks fit.

Textual Amendments

F113 Word in Sch. 2 rule 55.4(1) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(5) (with para. 3)

Commencement Information

I131 Sch. 2 rule 55.4 in force at 5.9.1994, see para. 1(1)

Applications for leave to amend specifications S

55.5.—(1) A patentee or the proprietor of a patent intending to apply to the court under section 30 of the Act of 1949 or section 75 of the Act of 1977 (which provide for leave to amend specification) shall give notice of his intention to the Comptroller and at the same time deliver to him a form of advertisement–

(a) identifying the proceedings depending before the court in which it is intended to apply for such leave;

(b) giving particulars of the amendment sought;

(c) stating the address of the applicant for service within the United Kingdom; and

(d) stating that any person intending to oppose the amendment who is not a party to the proceedings must, within 28 days after the appearance of the advertisement, give written notice of that intention to the applicant and to the Deputy Principal Clerk.

(2) On receipt of a form of advertisement under paragraph (1), the Comptroller shall cause the advertisement to be inserted once in the Journal.

(3) A person who gives notice of intention to oppose the amendment in accordance with the advertisement shall be entitled to be heard on the application subject to any order of the court as to expenses.

(4) Within 35 days after the appearance of the advertisement, the applicant shall make his application under section 30 of the Act of 1949 or section 75 of the Act of 1977, as the case may be, by motion intimated, with a copy of the specification certified by the Comptroller and showing in coloured ink the amendment sought, to–

(a) the Comptroller;

(b) every other party; and

(c) any person who has intimated his intention to oppose the amendment.

(5) On enrolling a motion under paragraph (4), the applicant shall lodge in process–

(a) a copy of the Journal containing the advertisement referred to in paragraph (2); or

(b) a certificate of publication by the publisher sfitating the date of publication and the text of the advertisement.

(6) At the hearing of a motion under paragraph (4)–

(a) where there is no opposition to the amendment sought, the court may–

(i) grant the application; or

(ii) make such order for further procedure as it thinks fit; or

(b) where there is opposition to the amendment sought, the court shall ordain the applicant to lodge a minute setting out the grounds of his application within such period as the court thinks fit, and allow any party or person opposing the amendment to lodge answers to the minute in process within a specified period.

(7) Within 7 days after the expiry of the time for lodging answers under paragraph (6)(b), the applicant shall apply by motion for an order for further procedure.

(8) On a motion under paragraph (7), the court may–

(a) grant the application;

(b) determine whether the motion shall be heard at the same time as the hearing of the cause depending before the court relating to the patent in question or at a different time;

(c) determine the manner in which evidence shall be given and, if the evidence is to be given by affidavit, the period within which affidavits must be lodged; or

(d) make such other order for further procedure as it thinks fit.

(9) Where the court allows the specification to be amended, the applicant shall forthwith–

(a) lodge with the Comptroller a certified copy of the interlocutor; and

(b) if so required by the court or the Comptroller, leave at the Patent Office a new specification and drawings as amended, prepared in compliance with the Act of 1949 or the Act of 1977, as the case may be, and any rules made under either of those Acts.

(10) On receiving the certified copy interlocutor under paragraph (9), the Comptroller shall cause it to be inserted at least once in the Journal.

Commencement Information

I132 Sch. 2 rule 55.5 in force at 5.9.1994, see para. 1(1)

Applications for revocation of patents S

55.6.—(1) Subject to paragraph (2), an application under section 72 of the Act of 1977(39) (revocation of a patent) shall be made by petition.

(2) Where an action is depending before the court between the same parties in relation to the patent in question, such an application may be made by counterclaim in that action; and Chapter 25 (counterclaims) shall apply to any such counterclaim.

Commencement Information

I133 Sch. 2 rule 55.6 in force at 5.9.1994, see para. 1(1)

Proceedings for infringement S

55.7.—(1) In any cause in which it is alleged that a patent has been infringed, the person alleging infringement must aver in the petition or summons, as the case may be, particulars of the infringement relied on, showing which of the claims in the specification of the patent are alleged to have been infringed and giving at least one instance of each type of infringement alleged.

(2) Where, as a defence to such an allegation, it is averred that–

(a) at the time of the infringement there was in force a contract or licence relating to the patent made by or with the consent of the person alleging the infringement, and

(b) containing a condition or term void by virtue of section 44 of the Act of 1977,

the person stating that defence must aver particulars of the date of, and the parties to, each such contract or licence and particulars of each such condition or term.

Commencement Information

I134 Sch. 2 rule 55.7 in force at 5.9.1994, see para. 1(1)

Objections to validity of patent S

55.8.—(1) A person who–

(a) brings an action under section 32 of the Act of 1949(40) or presents a petition under section 72 of the Act of 1977 for revocation of a patent, or

(b) being a party to an action relating to a patent–

(i) challenges the validity of the patent, or

(ii) applies by counterclaim in the action for revocation of the patent,

• shall aver the grounds on which the validity of the patent is challenged.

(2) Where the grounds in respect of which averments are required under paragraph (1) include–

(a) want of novelty, or

(b) want of any inventive step,

the averments shall include the matters mentioned in paragraph (3).

(3) The matters referred to in paragraph (2) are–

(a) the manner, time and place of every prior publication or use relied on; and

(b) where prior use is alleged–

(i) specification of the name of every person alleged to have made such use;

(ii) an averment as to whether such use is alleged to have continued until the priority date of the claim in question or of the invention, as the case may be, and, if not, the earliest and latest date on which such use is alleged to have taken place;

(iii) a description accompanied, if necessary, by drawings sufficient to identify such use; and

(iv) if such use relates to machinery or apparatus, an averment as to whether the machinery or apparatus is in existence and where it can be inspected.

(4) Where, in the case of an existing patent–

(a) one of the grounds on which the validity of the patent is challenged is that the invention, so far as claimed in any claim of the complete specification, is not useful, and

(b) it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,

the averments shall specify that fact and identify each such claim and shall include particulars of each such example, specifying the respects in which it is alleged that it does not work or does not work as described.

Commencement Information

I135 Sch. 2 rule 55.8 in force at 5.9.1994, see para. 1(1)

Determination of question or application where Comptroller declines to deal with it S

55.9.  Where the Comptroller–

(a) declines to deal with a question under the following sections of the Act of 1977:–

(i) section 8 (entitlement to patents etc.),

(ii) section 12 (entitlement to foreign and convention patents),

(iii) section 37(41) (right to patent after grant), or

(iv) section 61(3) (infringement of patent),

(b) declines to deal with an application under section 40 of that Act (compensation of employees for certain inventions), or

(c) issues a certificate under section 72(7) of that Act (revocation of patent should be determined by the court),

any person entitled to do so may, within 28 days after the decision of the Comptroller, apply by petition to have the question or application, as the case may be, determined by the court.

Commencement Information

I136 Sch. 2 rule 55.9 in force at 5.9.1994, see para. 1(1)

Applications by employees for compensation under section 40 of the Act of 1977 S

55.10.—(1) An application under section 40(1) or (2) of the Act of 1977 (compensation of employees for certain inventions) shall be made by summons commenced within the period which begins when the relevant patent is granted and which expires one year after it has ceased to have effect.

(2) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee within the period prescribed for the payment of that fee and an application is made to the Comptroller under section 28 of the Act of 1977(42) (restoration of lapsed patent), the period within which the application by summons is to be made shall–

(a) if restoration is ordered, continue as if the patent has remained continuously in effect; or

(b) if restoration is refused, be treated as if expiring one year after the patent ceased to have effect or 6 months after the refusal, whichever is the later.

Commencement Information

I137 Sch. 2 rule 55.10 in force at 5.9.1994, see para. 1(1)

Proceedings for determination of certain disputes S

55.11.  A reference or application under any of the following provisions shall be made by petition:–

(a) a reference under–

(i) section 48 of the Act of 1949 or section 58(43) of the Act of 1977 (which provide for disputes as to Crown use);

(ii) paragraph 3 of Schedule 1 to the Registered Designs Act 1949(44) (disputes as to Crown use);

(iii) section 4 of the Defence Contracts Act 1958(45) (payments for use and determination of disputes);

(iv) section 251(1) (design right matters), or section 252(1) (disputes as to Crown use), of the Act of 1988(46); and

(b) an application under section 45(3) of the Act of 1977 (variation of certain contracts).

Commencement Information

I138 Sch. 2 rule 55.11 in force at 5.9.1994, see para. 1(1)

Applications for rectification of Register of Designs or Patents S

55.12.—(1) Subject to paragraph (2), an application under section 20(1) of the Registered Designs Act 1949 (rectification of Register of Designs) or section 34(1) of the Act of 1977 (rectification of Register of Patents) shall be made by petition.

(2) Where an action for infringement of a patent is depending before the court, an application mentioned in paragraph (1) may be made by a counterclaim in that action; and Chapter 25 (counterclaims) shall apply to any such counterclaim.

(3) In an application under section 34(1) of the Act of 1977, the applicant shall intimate the application to the Comptroller, who may lodge answers in process and be heard on the application.

Commencement Information

I139 Sch. 2 rule 55.12 in force at 5.9.1994, see para. 1(1)

Counterclaim for rectification of Register of Designs S

55.13.—(1) Where, in any cause, an infringement of the copyright in a registered design is alleged, the party against whom the allegation is made may–

(a) put in issue the validity of the registration of that design;

(b) counterclaim for an order that the Register of Designs be rectified by cancelling or varying the registration; or

(c) put in issue such validity and make such a counterclaim.

(2) A party to any such cause who counterclaims for an order that the Register of Designs be rectified shall intimate to the Comptroller a copy of the counterclaim; and the Comptroller may, or (if ordered to do so by the court) shall, lodge answers in process and be heard in any such cause.

(3) Chapter 25 (counterclaims) shall apply to any such counterclaim.

Commencement Information

I140 Sch. 2 rule 55.13 in force at 5.9.1994, see para. 1(1)

Appeals [F114 and references] from Comptroller S

55.14.—(1) Subject to the following paragraphs of this rule, an appeal under the Act of 1949, the Act of 1977 or the Copyright Act of 1988 from a decision of [F115 , or a reference under the Copyright Act of 1988 from,] the Comptroller shall be heard in the Outer House by the [F116 intellectual property judge].

(2) In the application of Part III of Chapter 41 (appeals in Form 49.19) by virtue of rule 41.43 (appeals to Lord Ordinary) to an appeal [F117 or a reference] under paragraph (1) of this rule–

(a) for references to the Inner House there shall be substituted references to the [F118 intellectual property judge]; and

(b) the following paragraphs of this rule shall apply.

(3) Subject to paragraph (4), an appeal [F119 or a reference] shall be lodged in the General Department–

(a) in the case of a decision on a matter of procedure, within 14 days after the date of the decision [F120 appealed against]; and

(b) in any other case, within 6 weeks after the date of the decision [F121 appealed against or the decision referring the proceedings to the court, as the case may be].

(4) Except with the leave of the court, no appeal [F122 or reference] under this rule shall be entertained unless it has been lodged within the period specified in paragraph (3) or within such further period as the Comptroller may allow on an application made to him before the expiry of that period.

(5) Any determination by the Comptroller that a decision is on a matter of procedure shall be treated as being itself a decision on a matter of procedure.

(6) In the application of paragraph (1) of rule 41.21 (orders for service and answers), the order under that paragraph shall include a requirement to–

(a) intimate the appeal to the Comptroller; and

(b) serve the appeal on every other party to the proceedings before the Comptroller.

(7) On receiving intimation of the appeal, the Comptroller shall forthwith transmit to the Deputy Principal Clerk all the papers relating to the matter which is the subject of the appeal.

(8) A respondent who, not having appealed from the decision of the Comptroller, wishes to contend at the hearing of the appeal that the decision or the grounds of the decision should be varied shall–

(a) specify the grounds of that contention in his answers; and

(b) intimate those answers to the Comptroller and to every other party to the proceedings before the Comptroller.

(9) Intimation of the date of the hearing of the appeal shall be made to the Comptroller by the appellant not less than 7 days before that date, unless the court otherwise directs.

(10) An appeal under this rule shall be a re-hearing and the evidence led on appeal shall be the same as that led before the Comptroller; and, except with the leave of the court, no further evidence shall be led.

Textual Amendments

F114 Words in Sch. 2 rule 55.14 heading inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(i)

F115 Words in Sch. 2 rule 55.14(1) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(ii)

F116 Words in Sch. 2 rule 55.14(1) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

F117 Words in Sch. 2 rule 55.14(2) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(iii)

F118 Words in Sch. 2 rule 55.14(2)(a) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

F119 Words in Sch. 2 rule 55.14(3) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(iv)

F120 Words in Sch. 2 rule 55.14(3)(a) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(v)

F121 Words in Sch. 2 rule 55.14(3)(b) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(vi)

F122 Words in Sch. 2 rule 55.14(4) inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(a)(vii)

Commencement Information

I141 Sch. 2 rule 55.14 in force at 5.9.1994, see para. 1(1)

Intimation to Comptroller of reclaiming motion S

55.15.  The marking of a reclaiming motion from a decision of the [F123 intellectual property judge] on an appeal from a decision of the Comptroller shall be intimated by the reclaimer to the Comptroller as well as to the other parties to the appeal.

Textual Amendments

F123 Words in Sch. 2 rule 55.15 substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

Commencement Information

I142 Sch. 2 rule 55.15 in force at 5.9.1994, see para. 1(1)

Communication of information to European Patent Office S

55.16.—(1) The court may authorise the communication to the European Patent Office or the competent authority of any country which is a party to the European Patent Convention(47) of any such information in the records of the court as the court thinks fit.

(2) An application for such information shall be made by letter addressed to the Deputy Principal Clerk.

(3) Before complying with an application for the disclosure of information under paragraph (1), any person appearing to be affected by the application shall be given the opportunity of making representations to the [F124 intellectual property judge] in chambers on the question whether the information should be disclosed; and the decision of the [F124 intellectual property judge] shall be final and not subject to review.

(4) In this rule, “the European Patent Convention” has the meaning assigned in section 130(1) and (6) of the Act of 1977(48).

Textual Amendments

F124 Words in Sch. 2 rule 55.16(3) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

Commencement Information

I143 Sch. 2 rule 55.16 in force at 5.9.1994, see para. 1(1)

[F125 Intimation and service of [F126 certain statutory] applications F127 ... for orders for disposal of infringing matter S

55.17.   An application under section 114, 204 or 231 of the Copyright Act of 1988 (which provide for orders for disposal in respect of infringement of copyright, rights in performances and design rights), F128 ... section 19 of the Trade Marks Act 1994 (order as to disposal of infringing goods, material or articles) [F129 or regulation 5 of the Olympics Association Right (Infringement Proceedings) Regulations 1995 (order as to disposal of infringing goods, material or articles etc.)], shall be made–

(a) in a cause depending before the court, by motion; or

(b) where there is no depending cause, by petition; and

the applicant shall intimate the motion to, or serve the petition on, as the case may be, all persons, so far as known to the applicant or reasonably ascertainable, having an interest in the copy, article, recording or other thing which is the subject of the application, including any person in whose favour an order could be made in respect of the copy, article, recording or other thing under any of the said sections of the Copyright Act of 1988 [F130 ,] section 19 of the said Act of 1994 [F131 or regulation 5 of the said Regulations].]

Textual Amendments

F125 Sch. 2 rule 55.17 substituted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(b)

F126 Words in Sch. 2 rule 55.17 heading inserted (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(23)(a)(i)

F127 Words in Sch. 2 rule 55.17 heading omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(23)(a)(ii)

F128 Word in Sch. 2 rule 55.17 omitted (5.8.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.3) (Miscellaneous) 1996 (S.I. 1996/1756), paras. 1(1), 2(23)(b)

F129 Words in Sch. 2 rule 55.17 inserted (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(23)(c)

F130 Sch. 2 rule 55.17: comma substituted for word (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(23)(d)

F131 Words in Sch. 2 rule 55.17 inserted (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(23)(e)

Applications for leave to proceed S

55.18.—(1) Where leave of the court is required under the Copyright Act of 1988 before an action may proceed, the pursuer shall apply by motion for leave to proceed before the summons is signeted.

(2) A motion under paragraph (1) shall be heard in chambers.

(3) Where such leave is granted, a copy of the interlocutor allowing leave shall be attached to the copy of the summons served on the defender.

Commencement Information

I144 Sch. 2 rule 55.18 in force at 5.9.1994, see para. 1(1)

[F132 Appeals and references under the Trade Marks Act 1994 S

55.19.— (1) Subject to the following paragraphs of this rule, an appeal or reference under section 76 of the Trade Marks Act 1994 (appeal from registrar or reference from appointed person) shall be heard in the Outer House by the [F133 intellectual property judge].

(2) In the application of Part III of Chapter 41 (appeals in Form 41.19) by virtue of rule 41.43 (appeals to Lord Ordinary) to an appeal or reference under paragraph (1) of this rule–

(a) for references to the Inner House there shall be substituted references to the [F134 intellectual property judge]; and

(b) the following paragraphs of this rule shall apply.

(3) Subject to paragraph (4), an appeal or reference shall be lodged in the General Department–

(a) in the case of a decision on a matter of procedure, within 14 days after the date of the decision appealed against; and

(b) in any other case, within 6 weeks after the date of the decision appealed against or the decision referring the proceedings to the court, as the case may be.

(4) Except with the leave of the court, no appeal or reference under this rule shall be entertained unless it has been lodged within the period specified in paragraph (3) or within such further period as the Comptroller may allow on an application made to him before the expiry of that period.

(5) Any determination by the Comptroller that a decision is on a matter of procedure shall be treated as being itself a decision on a matter of procedure.

(6) In the application of paragraph (1) of rule 41.21 (orders for service and answers), the order under that paragraph shall include a requirement to–

(a) intimate the appeal to the Comptroller; and

(b) serve the appeal on every other party to the proceedings before the Comptroller.

(7) On receiving intimation of the appeal, the Comptroller shall forthwith transmit to the Deputy Principal Clerk all the papers relating to the matter which is the subject of the appeal.

(8) A respondent who, not having appealed from the decision of the Comptroller, wishes to contend at the hearing of the appeal that the decision or the grounds of the decision shoul be varied shall–

(a) specify the grounds of that contention in his answers; and

(b) intimate those answers to the Comptroller and to every other party to the proceedings before the Comptroller.

(9) Intimation of the date of the hearing of the appeal shall be made to the Comptroller by the appellant not less than 7 days before that date, unless the court otherwise directs.

(10) An appeal under this rule shall be a re-hearing and the evidence led on appeal shall be the same as that led before the Comptroller; and, except with the leave of the court, no further evidence shall be led.]

Textual Amendments

F132 Sch. 2 rule 55.19 inserted (5.12.1994) by Act of Sederunt (Rules of the Court of Session 1994 Amendment No.3) (Miscellaneous) 1994 (S.I. 1994/2901), paras. 1(1), 2(16)(c)

F133 Words in Sch. 2 rule 55.19(1) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

F134 Words in Sch. 2 rule 55.19(2)(a) substituted (12.7.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.6) (Causes Relating to Intellectual Property) 1999 (S.I. 1999/1785), paras. 1(1), 2(2) (with para. 3)

CHAPTER 56 S JUDGMENTS OF THE HOUSE OF LORDS

Applications to apply judgments of the House of Lords S

56.1.—(1) An application to apply a judgment of the House of Lords in a cause shall be made by motion in the Single Bills.

(2) On enrolling a motion under paragraph (1), the party enrolling it shall lodge four copies of the House of Lords judgment in process.

Commencement Information

I145 Sch. 2 rule 56.1 in force at 5.9.1994, see para. 1(1)

CHAPTER 57 S ADMISSION OF ADVOCATES

Form of petition for admission as advocate S

57.1.  A petition by a person for admission to the public office of advocate shall be in such form as the Lord President shall, in consultation with the Dean of the Faculty of Advocates, determine.

Commencement Information

I146 Sch. 2 rule 57.1 in force at 5.9.1994, see para. 1(1)

Disapplication of rules in relation to petitions S

57.2.  The following provisions of these Rules shall not apply to a petition by a person for admission to the public office of advocate:–

• rule 4.1 (form, size, etc., of documents forming the process),

• rule 4.3 (lodging of processes), and

• Chapter 14 (petitions).

Commencement Information

I147 Sch. 2 rule 57.2 in force at 5.9.1994, see para. 1(1)

Admission as advocate S

57.3.—(1) On presentation of the petition, the court shall pronounce an interlocutor remitting to the Dean and Faculty of Advocates to take trial of the qualifications of the petitioner for the public office of advocate and to report to the court.

(2) The Faculty of Advocates shall, subject to the approval of the court, make such rules and regulations with respect to the terms and conditions of admission to the Faculty of Advocates as it may from time to time think fit.

Commencement Information

I148 Sch. 2 rule 57.3 in force at 5.9.1994, see para. 1(1)

CHAPTER 58 S APPLICATIONS FOR JUDICIAL REVIEW

Application and interpretation of this Chapter S

58.1.—(1) This Chapter applies to an application to the supervisory jurisdiction of the court.

(2) In this Chapter–

“the first hearing” means a hearing under rule 58.9;

“the second hearing” means a hearing under rule 58.10.

Commencement Information

I149 Sch. 2 rule 58.1 in force at 5.9.1994, see para. 1(1)

Disapplication of certain rules to this Chapter S

58.2.  The following rules shall not apply to a petition to which this Chapter applies:–

• rule 14.4 (form of petitions),

• rule 14.5 (first order in petitions),

• rule 14.9 (unopposed petitions).

Commencement Information

I150 Sch. 2 rule 58.2 in force at 5.9.1994, see para. 1(1)

Applications for judicial review S

58.3.—(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court, including an application under section 45(b) of the Act of 1988 (specific performance of statutory duty), shall be made by petition for judicial review.

(2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment.

Commencement Information

I151 Sch. 2 rule 58.3 in force at 5.9.1994, see para. 1(1)

Powers of court in judicial review S

58.4.  The court, in exercising its supervisory jurisdiction on a petition for judicial review, may–

(a) grant or refuse any part of the petition, with or without conditions;

(b) make such order in relation to the decision in question as it thinks fit, whether or not such order was sought in the petition, being an order that could be made if sought in any action or petition, including an order for reduction, declarator, suspension, interdict, implement, restitution, payment (whether of damages or otherwise) and any interim order;

(c) subject to the provisions of this Chapter, make such order in relation to procedure as it thinks fit.

Commencement Information

I152 Sch. 2 rule 58.4 in force at 5.9.1994, see para. 1(1)

Nominated judge S

58.5.  A petition for judicial review shall be heard by a judge nominated by the Lord President for the purposes of this Chapter or, where such a judge is not available, any other judge of the court (including the vacation judge).

Commencement Information

I153 Sch. 2 rule 58.5 in force at 5.9.1994, see para. 1(1)

Form of petition S

58.6.—(1) A petition for judicial review shall be in Form 58.6.

(2) The petitioner shall lodge with the petition all relevant documents in his possession and within his control.

(3) Where the petitioner founds in the petition on a document not in his possession or within his control, he shall append to the petition a schedule specifying the document and the person who possesses or has control over the document.

(4) Where the decision, act or omission in question and the basis on which it is complained of is not apparent from the documents lodged with the petition, an affidavit shall be lodged stating the terms of the decision, act or omission and the basis on which it is complained of.

Commencement Information

I154 Sch. 2 rule 58.6 in force at 5.9.1994, see para. 1(1)

First order S

58.7.  On being lodged, the petition shall, without appearing in the Motion Roll, be presented forthwith to the Lord Ordinary in court or in chambers for–

(a) an order specifying–

(i) such intimation, service and advertisement as may be necessary;

(ii) any documents to be served with the petition;

(iii) a date for the first hearing, being a date not earlier than 7 days after the expiry of the period specified for intimation and service; or

(b) any interim order;

and, having heard counsel or other person having a right of audience, the Lord Ordinary may grant such an order.

Commencement Information

I155 Sch. 2 rule 58.7 in force at 5.9.1994, see para. 1(1)

Compearing parties S

58.8.—(1) A person to whom intimation of the first hearing has been made and who intends to appear–

(a) shall intimate his intention to do so to–

(i) the agent for the petitioner, and

(ii) the Keeper of the Rolls,

not less than 48 hours before the date of the hearing; and

(b) may lodge answers and any relevant documents.

(2) Any person not specified in the first order made under rule 58.7 as a person on whom service requires to be made [F135 , and who is directly affected by any issue raised,] may apply by motion for leave to enter the process; and if the motion is granted, the provisions of this Chapter shall apply to that person as they apply to a person specified in the first order.

Textual Amendments

F135 Words in Sch. 2 rule 58.8(2) inserted (2.10.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Public Interest Intervention in Judicial Review) 2000 (S.S.I. 2000/317), paras. 1(1), 2(2)

Commencement Information

I156 Sch. 2 rule 58.8 in force at 5.9.1994, see para. 1(1)

[F136 Applications for public interest intervention S

58.8A.— (1) A person to whom rule 58.8(2) does not apply may make an application to the [F137 court] for leave to intervene–

(a) in a petition for judicial review;

(b) in an appeal in connection with such a petition.

(2) An application for leave to intervene shall be by way of a [F137 minute of intervention] in [F138 Form 58.8A], and the applicant shall–

(a) send a copy of it to all the parties; and

(b) [F138 lodge it in process], certifying that sub-paragraph (a) above has been complied with.

(3) A [F137 minute of intervention] shall set out briefly–

(a) the name and description of the applicant;

(b) any issue in the [F137 cause] which the applicant wishes to address and the applicant’s reasons for believing that any such issue raises a matter of public interest; and

(c) the propositions to be advanced by the applicant and the applicant’s reasons for believing that they are relevant to the [F137 cause] and that they will assist the [F137 court].

(4) The [F137 court] may–

(a) refuse leave without a hearing;

(b) grant leave without a hearing unless a hearing is requested under paragraph (5) below; or

(c) refuse or grant leave after such a hearing.

(5) A hearing, at which the applicant and the parties may address the [F137 court] on the matters referred to in paragraph (6)(c) below, may be held if, within 14 days of the [F137 minute of intervention] being lodged, any of the parties lodges a request for a hearing.

(6) The [F137 court] may grant leave only if it is satisfied that–

(a) the [F137 cause] raise, and an issue in the [F137 cause] which the applicant wishes to address raises, a matter of public interest;

(b) the propositions to be advanced by the applicant are relevant to the [F137 cause] and are likely to assist the [F137 court]; and

(c) the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability for expenses.

(7) In granting leave, the [F137 court] may impose such terms and conditions as it considers desirable in the interests of justice, including making provision in respect of any additional expenses incurred by the parties as a result of the intervention.

(8) Where leave is granted–

(a) an intervention shall be by way of a written submission which (including any appendices) does not exceed 5000 words; and

(b) the applicant shall lodge the submission and send a copy of it to all the parties by such time as the [F137 court] may direct.

(9) The [F137 court] may in exceptional circumstances–

(a) allow a longer written submission to be made;

(b) direct that an oral submission is to be made.

(10) The Clerk of [F137 court] shall [F139 give written intimation of] a grant or refusal of leave to the applicant and all the parties.

(11) Any diet in pursuance of paragraph (5) or (9)(b) above shall be fixed by the Keeper of the Rolls [F140 who shall give written intimation of the diet] to the applicant and all the parties.

(12) Nothing in this [F141 rule] shall affect the power of the [F137 court] to make such other direction as it considers appropriate in the interests of justice.

(13) Any decision of the court in [F137 cause] under this rule shall be final [F142 and not subject to review].]

Textual Amendments

F136 Sch. 2 rule 58.8A inserted (2.10.2000) by Act of Sederunt (Rules of the Court of Session Amendment No. 5) (Public Interest Intervention in Judicial Review) 2000 (S.S.I. 2000/317), paras. 1(1), 2(3)

F137 Words in Sch. 2 rule 58.8A substituted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(a)

F138 Words in Sch. 2 rule 58.8A(2) substituted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(b)

F139 Words in Sch. 2 rule 58.8A(10) substituted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(c)

F140 Words in Sch. 2 rule 58.8A(11) substituted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(d)

F141 Word in Sch. 2 rule 58.8A(12) substituted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(e)

F142 Words in Sch. 2 rule 58.8A(13) inserted (1.3.2004) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 2004 (S.S.I. 2004/52), paras. 1(1), 2(13)(f)

First hearing S

58.9.—(1) At the first hearing, the Lord Ordinary shall–

(a) satisfy himself that the petitioner has duly complied with the first order made under rule 58.7; and

(b) hear the parties.

(2) After hearing the parties, the Lord Ordinary may–

(a) determine the petition; or

(b) make such order for further procedure as he thinks fit, and in particular may–

(i) adjourn or continue the first hearing to another date;

(ii) order service on a person not specified in the first order made under rule 58.7;

(iii) make any interim order;

(iv) order answers to be lodged within such period as he shall specify;

(v) order further specification in the petition or answers in relation to such matters as he shall specify;

(vi) order any fact founded on by a party at the hearing to be supported by evidence on affidavit to be lodged within such period as he shall specify;

(vii) order any party who appears to lodge such documents relating to the petition within such period as the Lord Ordinary shall specify;

(viii) appoint a reporter to report to him on such matters of fact as the Lord Ordinary shall specify; or

(ix) order a second hearing on such issues as he shall specify.

Commencement Information

I157 Sch. 2 rule 58.9 in force at 5.9.1994, see para. 1(1)

Second hearing S

58.10.—(1) Where the Lord Ordinary orders a second hearing under rule 58.9(2)(b)(ix), the Keeper of the Rolls shall, in consultation with the Lord Ordinary and the parties, fix a date for the second hearing as soon as reasonably practicable.

(2) Subject to the terms of any order for further procedure made under rule 58.9(2)(b), the parties shall, not less than 7 days before the date of the second hearing, lodge all documents and affidavits to be founded on by them at the second hearing with copies for use by the court.

(3) At any time before the date of the second hearing, the Lord Ordinary my cause the petition to be put out for hearing on the By Order Roll for the purpose of obtaining such information from the parties as he considers necessary for the proper disposal of the petition at the hearing.

(4) At a hearing on the By Order Roll under paragraph (3), the Lord Ordinary may make such order as he thinks fit, having regard to all the circumstances, including an order appointing a commissioner to recover a document or take the evidence of a witness.

(5) At the second hearing, the Lord Ordinary may–

(a) adjourn the hearing;

(b) continue the hearing for such further procedure as he thinks fit; or

(c) determine the petition.

Commencement Information

I158 Sch. 2 rule 58.10 in force at 5.9.1994, see para. 1(1)

CHAPTER 59 S APPLICATIONS FOR LETTERS

Applications for letters of arrestment or inhibition S

59.1.—(1) An application for letters of arrestment or inhibition may be made, as the case may be, in–

(a) Form 59.1–A (arrestment);

(b) Form 59.1–B (inhibition where decree granted [F143 or foreign judgment registered for execution]);

(c) Form 59.1–C (inhibition on deed registered for execution);F144 ...

(d) Form 59.1–D (inhibition on dependence of action in sheriff court)[F145 ; F146 ...

(e) Form 59.1-E ( inhibition in respect of future or contingent debt)] [F147 or

(f) Form 59.1-F (inhibition on contract for transfer of heritable property)]

(2) An application under paragraph (1) shall be presented [F148 to the Deputy Principal Clerk] together with any relevant supporting documents.

(3) [F149 Except where the application is in Form [F150 59.1–D or] 59.1-E,] if the Deputy Principal Clerk is satisfied that the applicant for such letters is entitled to a warrant for arrestment or inhibition–

(a) he shall sign and date the warrant in such an application; and

(b) the application shall be signeted;

and such signeted application and warrant shall constitute letters of arrestment or inhibition, as the case may be.

(4) [F151 Where the application is in any of Forms 59.1-A to [F152 59.1–C] [F153 or is in Form 59.1-F],] if the Deputy Principal Clerk refuses to sign and date such warrant, the application shall, on request, be placed before the Lord Ordinary; and the decision of the Lord Ordinary shall be final and not subject to review.

[F154 (4A) Where the application is in Form [F155 59.1–D or] 59.1-E, it shall be placed before the Lord Ordinary together with any such documents as are mentioned in paragraph (2); and if the Lord Ordinary is satisfied as is mentioned in paragraph (3)—

(a) he shall sign and date the warrant in the application; and

(b) the application shall be signeted,

and such signeted application and warrant shall constitute letters of inhibition.

(4B) The decision of the Lord Ordinary as respects an application in Form [F156 59.1–D or] 59.1-E shall be final and not subject to review.]

(5) An application for letters of arrestment or inhibition on the dependence of an action to which a claim under section 19 of the Family Law (Scotland) Act 1985(49) applies shall be placed before the Lord Ordinary; and the decision of the Lord Ordinary shall be final and not subject to review.

Textual Amendments

F143 Words in Sch. 2 rule 59.1(1)(b) inserted (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(24)

F144 Word in Sch. 2 rule 59.1(1) omitted (21.4.1998) by virtue of Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(13)(a)(i)

F145 Sch. 2 rule 59.1(1)(e) and word inserted (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(13)(a)(ii)

F146 Word in Sch. 2 rule 59.1(1) omitted (29.10.1999) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No.7) (Miscellaneous) 1999 (S.S.I. 1999/109), paras. 1(1), 2(5)(a)(i)

F147 Sch. 2 rule 59.1(1)(f) and word added (29.10.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.7) (Miscellaneous) 1999 (S.S.I. 1999/109), paras. 1(1), 2(5)(a)(ii)

F148 Words in Sch. 2 rule 59.1(2) substituted (6.4.1997) by Act of Sederunt (Rules of the Court of Session Amendment No.4) (Miscellaneous) 1997 (S.I. 1997/1050), paras. 1(1), 2(8)

F149 Words in Sch. 2 rule 59.1(3) inserted (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(13)(b)

F150 Words in Sch. 2 rule 59.1(3) inserted (10.11.2003) by Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Diligence on the Dependence) 2003 (S.S.I. 2003/537), paras. 1(1), 2(9)(a)

F151 Words in Sch. 2 rule 59.1(4) inserted (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(13)(c)

F152 Words in Sch. 2 rule 59.1(4) substituted (10.11.2003) by Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Diligence on the Dependence) 2003 (S.S.I. 2003/537), paras. 1(1), 2(9)(b)

F153 Words in Sch. 2 rule 59.1(4) inserted (29.10.1999) by Act of Sederunt (Rules of the Court of Session Amendment No.7) (Miscellaneous) 1999 (S.S.I. 1999/109), paras. 1(1), 2(5)(b)

F154 Sch. 2 rule 59.1(4A)(4B) inserted (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 2(13)(d)

F155 Words in Sch. 2 rule 59.1(4A) inserted (10.11.2003) by Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Diligence on the Dependence) 2003 (S.S.I. 2003/537), paras. 1(1), 2(9)(a)

F156 Words in Sch. 2 rule 59.1(4B) inserted (10.11.2003) by Act of Sederunt (Rules of the Court of Session Amendment No. 6) (Diligence on the Dependence) 2003 (S.S.I. 2003/537), paras. 1(1), 2(9)(a)

Commencement Information

I159 Sch. 2 rule 59.1 in force at 5.9.1994, see para. 1(1)

CHAPTER 60 S APPLICATIONS FOR SUSPENSION, SUSPENSION AND INTERDICT, AND SUSPENSION AND LIBERATION

Application of this Chapter S

60.1.  Subject to rule 53.1 (conclusions for suspension etc., in action of reduction), this Chapter applies to an application for suspension, suspension and interdict, or suspension and liberation.

Commencement Information

I160 Sch. 2 rule 60.1 in force at 5.9.1994, see para. 1(1)

Form of applications S

60.2.—(1) An application to which this Chapter applies shall be made by petition.

(2) It shall not be necessary in any such petition to make an offer of caution or consignation.

Commencement Information

I161 Sch. 2 rule 60.2 in force at 5.9.1994, see para. 1(1)

First order S

60.3.  Where the interlocutor ordering intimation, service or advertisement contains an interim suspension of execution, interim interdict or interim liberation, subject to the finding of caution or the giving of other security or any other conditions, the petition shall not be intimated, served or advertised until such condition has been met.

Commencement Information

I162 Sch. 2 rule 60.3 in force at 5.9.1994, see para. 1(1)

Further petition following refusal by default S

60.4.  Where a petition for suspension, suspension and interdict, or suspension and liberation has been refused–

(a) for failure by the petitioner to–

(i) find caution or give other security, or to consign money into court, or

(ii) comply with any other condition imposed by the court under rule 60.3 (first order), or

(b) on any other ground other than on the merits,

the petitioner may, having paid any expenses in which he was found liable, present another petition for suspension, suspension and interdict, or suspension and liberation, as the case may be.

Commencement Information

I163 Sch. 2 rule 60.4 in force at 5.9.1994, see para. 1(1)

Appointing petition to Adjustment Roll S

60.5.—(1) Any party may, within 7 days after any answers have been lodged, apply by motion for an order appointing the petition and answers to the Adjustment Roll.

(2) Where the court grants a motion under paragraph (1), the petitioner shall, within 14 days after the interlocutor granting the motion–

(a) send at least four copies of the petition and answers in the form of an open record to the respondent, and

(b) lodge two copies of the record in process;

and thereafter the cause shall proceed as an action.

Commencement Information

I164 Sch. 2 rule 60.5 in force at 5.9.1994, see para. 1(1)

Suspension of decree of inferior court or tribunal S

60.6.—(1) This rule applies to a petition for the suspension of a decree, order, decision or warrant of whatever nature of an inferior court or tribunal.

(2) The petition shall be served on the clerk of the inferior court or tribunal to which the petition relates.

(3) The Lord Ordinary may pronounce an interlocutor ordering production to the court of any part of the proceedings in the inferior court or tribunal within such period as he thinks fit.

(4) On an interlocutor being pronounced under paragraph (1), the petitioner shall exhibit to the clerk of the inferior court or tribunal a certified copy of the interlocutor; and that clerk shall transmit the documents ordered to be produced to the Deputy Principal Clerk.

(5) Where the petitioner fails to comply with the requirement on him under paragraph (4), the petition shall be refused.

(6) An interlocutor granting suspension shall include a direction to the clerk of court to send a copy of the interlocutor by post to the clerk of the inferior court or tribunal on whom service was executed under paragraph (2).

(7) Where an interlocutor granting suspension is reclaimed against, the reclaimer shall give written intimation of that fact to the clerk of the inferior court or tribunal as soon as possible after the reclaiming motion has been marked.

(8) The interlocutor disposing of such a reclaiming motion shall include a direction to the clerk of court to send a copy of that interlocutor to the clerk of the inferior court or tribunal on whom service was executed under paragraph (2).

Commencement Information

I165 Sch. 2 rule 60.6 in force at 5.9.1994, see para. 1(1)

Interlocutor refusing suspension after proof S

60.7.  Where the Lord Ordinary, after a proof, refuses a petition for suspension of a decree or decision of an inferior court or tribunal, he shall specify in his interlocutor the relevant facts of the case which he finds to be established and the points of law which he has applied to such facts.

Commencement Information

I166 Sch. 2 rule 60.7 in force at 5.9.1994, see para. 1(1)

CHAPTER 61 S JUDICIAL FACTORS

PART I S GENERAL PROVISIONS

Application and interpretation of this Chapter S

61.1.—(1) This Chapter applies to an application for the appointment of a judicial factor, and to a judicial factor appointed by the court.

(2) In this Chapter, unless the context otherwise requires–

“the Act of 1849” means the Judicial Factors Act 1849(50);

[F157 “the Act of 1995” means the Children (Scotland) Act 1995 and]

“judicial factor” includes a curator bonis, a factor loco absentis, a factor on trust or other estates, and a guardian.

Textual Amendments

F157 Words in Sch. 2 rule 61.1(2) inserted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(2) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

Commencement Information

I167 Sch. 2 rule 61.1 in force at 5.9.1994, see para. 1(1)

[F158 Application for appointment of judicial factor S

61.2.— (1) An application for the appointment of a judicial factor shall be made by petition.

(2) An application under section 9(5)(a) of the Act of 1995 (application by Accountant of Court for appointment of judicial factor to administer certain property of a child) shall be made by petition in Form 61.2; and Chapter 14 shall not apply as respects any such petition.

(3) A petition in Form 61.2 shall, after being lodged in the Petition Department and recorded in the Petitions Register but without appearing in the Motion Roll, be presented to the Lord Ordinary in court or in chambers; and he may—

(a) forthwith make the appointment sought; or

(b) make an order—

(i) for such intimation, service and advertisement of the petition as he considers appropriate; and

(ii) for a hearing, on such date as he may specify, as respects the petition.

(4) Without prejudice to the generality of paragraph (3)(b)(i), any order under that paragraph as to intimation may specify that Rule 16.4 shall not apply and that the Accountant of Court shall make intimation by post in such manner as the Lord Ordinary thinks fit.]

Textual Amendments

F158 Sch. 2 rule 61.2 substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(3) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

Crave to dispense with service on incapax S

61.3.  Where, in a petition for the appointment of a curator bonis to an incapax, dispensation of service on the incapax is craved on the ground that such service would be injurious to the health of the incapax, two medical certificates to that effect shall be lodged in process.

Commencement Information

I168 Sch. 2 rule 61.3 in force at 5.9.1994, see para. 1(1)

Incidental applications S

61.4.  Unless otherwise provided in this Chapter, an incidental application to the court in a petition for the appointment of a judicial factor shall be made by note.

Commencement Information

I169 Sch. 2 rule 61.4 in force at 5.9.1994, see para. 1(1)

Intimation and service S

61.5.—(1) The order for intimation and service under rule 14.5 (first order in petitions) in a petition or note relating to a judicial factory shall include a requirement for intimation to the Accountant of Court [F159 (except where the petition is in Form 61.2)] by first class recorded delivery post of the petition or note, as the case may be, and any production lodged with the petition or note.

(2) The Lord Ordinary may order publication of an advertisement of the petition in Form 61.5–A in the case of a petition for the appointment of a judicial factor or in Form 61.5–B in the case of a petition for the discharge o f a judicial factor.

(3) Where publication of an advertisement has been made under paragraph (2), there shall be lodged in process–

(a) a copy of the newspaper or other publication containing the advertisement; or

(b) a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

[F160 (4) After a petition for the appointment of a judicial factor is lodged in the Petition Department, the Clerk of Session in that department may (whether or not any order is made, or is competent, under rule 14.5(1)(a)) provide any interested party with details of the petition.]

Textual Amendments

F159 Words in Sch. 2 rule 61.5(1) inserted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(5)(a) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

F160 Sch. 2 rule 61.5(4) added (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(5)(b) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

Commencement Information

I170 Sch. 2 rule 61.5 in force at 5.9.1994, see para. 1(1)

Documents for Accountant of Court S

61.6.—(1) A person who lodges any document in a cause relating to a judicial factory (other than a petition for appointment of a judicial factor) shall send a copy of that document to the Accountant of Court.

(2) The clerk of session in the Petition Department shall transmit to the Accountant of Court any part of a process in a cause relating to a judicial factory as the Accountant of Court may request unless such part of the process is, at the time of request, required by the court.

Commencement Information

I171 Sch. 2 rule 61.6 in force at 5.9.1994, see para. 1(1)

Accountant of Court to send information on prior application S

61.7.  The Accountant of Court, on receiving intimation of a petition for the appointment of a judicial factor, shall report any information he may possess which he considers may be of use to the court in disposing of the petition.

Commencement Information

I172 Sch. 2 rule 61.7 in force at 5.9.1994, see para. 1(1)

Transmission of process to Accountant of Court to find caution S

61.8.  The clerk of session in the Petition Department shall, on the appointment of the judicial factor being made by the court, transmit the process of the petition to the Accountant of Court for the fixing and finding of caution.

Commencement Information

I173 Sch. 2 rule 61.8 in force at 5.9.1994, see para. 1(1)

Finding caution S

61.9.—(1) The appointment of a person as a judicial factor shall be subject to his finding caution; and the interlocutor appointing a judicial factor shall ordain him to find caution.

(2) The court may, on cause shown, on a motion made before the expiry of the period for finding caution specified by virtue of rule 33.3 (orders to find caution or other security), allow further time for finding caution.

(3) The Accountant of Court shall, on receiving the process in a petition for the appointment of a judicial factor transmitted to him under rule 61.8, fix the caution to be found by the judicial factor.

(4) Where the Accountant of Court considers that any caution fixed by the court under section 27 of the Act of 1849(51) (amount of caution limited by court), should be increased–

(a) the Accountant of Court may increase the amount unless the judicial factor requires him to report to the court;

(b) where the judicial factor requires him to report to the court, the Accountant of Court shall do so; and

(c) on the report mentioned in sub-paragraph (b) being received, the cause shall be put out on the By Order Roll before the Lord Ordinary to determine the amount of caution.

(5) A bond of caution or other security offered by a judicial factor shall be delivered to the Accountant of Court; and rule 33.4(3) (lodging of bond of caution in process) and rule 33.7(1) (Deputy Principal Clerk to satisfy himself that the bond of caution or other security is in proper form) shall not apply.

(6) Except in relation to paragraph (7), where caution has been found to the satisfaction of the Accountant of Court, he shall endorse and sign, on the interlocutor sheet of the process appointing the judicial factor, a certificate stating that caution has been found, the amount of caution and the date of the certificate.

(7) During the subsistence of a judicial factory, the Accountant of Court may, at any time–

(a) require the judicial factor to increase the amount of, or find new or additional, caution; or

(b) authorise the judicial factor to reduce the amount of existing caution.

Commencement Information

I174 Sch. 2 rule 61.9 in force at 5.9.1994, see para. 1(1)

Issue of official certified copy interlocutor S

61.10.  An official certified copy of the interlocutor appointing a judicial factor shall not be issued by a clerk of session without a certificate having been endorsed on the interlocutor sheet in accordance with rule 61.9(6).

Commencement Information

I175 Sch. 2 rule 61.10 in force at 5.9.1994, see para. 1(1)

Judicial factor’s title to act S

61.11.  A judicial factor shall not be entitled to act until he has received the official certified copy of the interlocutor appointing him.

Commencement Information

I176 Sch. 2 rule 61.11 in force at 5.9.1994, see para. 1(1)

Remission or modification of penal interest S

61.12.  The Accountant of Court may, if satisfied that the circumstances justify it, remit or modify any interest incurred by a judicial factor under section 5(1) of the Act of 1849(52) (interest incurred for failure by factor to lodge money in bank etc.).

Commencement Information

I177 Sch. 2 rule 61.12 in force at 5.9.1994, see para. 1(1)

Applications to encroach on capital S

61.13.—(1) Where the income from the estate of a ward is insufficient for the maintenance of the ward, the judicial factor may apply to the Accountant of Court for his consent to encroach on the capital of the estate for the purpose of maintaining the ward.

(2) An application under paragraph (1) shall be made by letter and shall be supported by such information as the Accountant of Court may require.

[F161 (3) On receipt of such an application, the Accountant of Court—

(a) may, if the proposed encroachment does not exceed 5% of the capital value of the estate as at the date when application is first made under paragraph (1), consent to the application subject to such conditions as he thinks fit to impose; and

(b) if he is unable, or declines, to consent under sub-paragraph (a), shall—

(i) ordain the judicial factor to intimate, in accordance with paragraphs (5) and (6), the making of the application; or

(ii) ordain him to apply by note to the Lord Ordinary for special powers.]

(4) A person to whom intimation is given in accordance with paragraphs (5) and (6) may object to the application by–

(a) lodging an objection in writing with the Accountant of Court; and

(b) sending a copy of his objection to the judicial factor within 28 days after the date on which intimation was given to him.

(5) The persons to whom intimation under paragraph [F162 (3)(b)(i)] is to be given are–

(a) any cautioner of the judicial factor;

(b) any petitioner for the appointment of the judicial factor [F163 (other than a petitioner using Form 61.2)];

(c) the ward, unless the circumstances of the ward are such as would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;

(d) the persons on whom the petition for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and

(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.

(6) The intimation under paragraph [F164 (3)(b)(i)] shall include–

(a) a copy of the letter of application; and

(b) a notice setting out–

(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (4); and

(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.

(7) The judicial factor shall, on giving intimation under paragraph [F165 (3)(b)(i)], send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice sent attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.

(8) Where no objections have been lodged under paragraph (4), the Accountant of Court may, on the expiry of the period for lodging objections–

(a) consent to the application subject to such conditions as he thinks fit; or

(b) require the judicial factor to apply to the court for special powers.

(9) Where any objection has been lodged under paragraph (4), the judicial factor shall, on expiry of the period for lodging objections, apply to the court for special powers.

Textual Amendments

F161 Sch. 2 rule 61.13(3) substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(6)(a) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

F162 Words in Sch. 2 rule 61.13(5) substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(6)(b)(i) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

F163 Words in Sch. 2 rule 61.13(5)(b) added (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(6)(b)(ii) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

F164 Words in Sch. 2 rule 61.13(6) substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(6)(c)(as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

F165 Words in Sch. 2 rule 61.13(7) substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(6)(c) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

Commencement Information

I178 Sch. 2 rule 61.13 in force at 5.9.1994, see para. 1(1)

Applications under section 2(3) of the Trusts (Scotland) Act 1961 S

61.14.—(1) An application under section 2(3) of the Trusts (Scotland) Act 1961(53) to the Accountant of Court for his consent to the doing of an act to which that section applies shall be made by letter and shall be supported by such information as the Accountant of Court may require.

(2) Any person to whom intimation requires to be given in accordance with paragraph (3) may object to the application by lodging any objection with the Accountant of Court, and sending a copy of it to the judicial factor, within 28 days after the date on which the intimation was given.

(3) On the date on which he makes the application referred to in paragraph (1), the judicial factor shall intimate the application to–

(a) any cautioner of the judicial factor;

[F166 (b) any person who petitioned for the judicial factor to be appointed (except where the petition was in Form 61.2);]

(c) the ward, unless the circumstances of the ward are such that would warrant dispensing with service on him of a petition for the appointment of a judicial factor on his estate;

(d) the persons upon whom the application for appointment of the judicial factor was served and whose whereabouts are known to the judicial factor; and

(e) all other persons who have an interest in the estate and whose identity and whereabouts are known to the judicial factor.

(4) The intimation to be given under paragraph (3) shall include–

(a) a copy of the letter of application, and

(b) a notice setting out–

(i) the right of the person receiving the notice to object to the application in the manner provided in paragraph (2); and

(ii) that, in the absence of any such objection, the Accountant of Court may consent to the application.

(5) The judicial factor shall, on giving intimation under paragraph (3), send to the Accountant of Court a certificate of intimation in Form 16.7 with a copy of the notice required under paragraph (4) attached to it; and rule 16.7(2) (attaching certificate of intimation to principal writ or lodging it in process) shall not apply.

Textual Amendments

F166 Sch. 2 rule 61.14(3)(b) substituted (1.8.1997) by Act of Sederunt (Rules of the Court of Session Amendment No. 7) (Judicial Factors) 1997 (S.I. 1997/1720), paras. 1(1), 6(7) (as modified (21.4.1998) by Act of Sederunt (Rules of the Court of Session Amendment) (Miscellaneous) 1998 (S.I. 1998/890), paras. 1(1), 3)

Commencement Information

I179 Sch. 2 rule 61.14 in force at 5.9.1994, see para. 1(1)

Applications for special powers or authority under section 5 of the Trusts (Scotland) Act 1921 S

61.15.—(1) This rule applies to an application by a judicial factor–

(a) for special powers at common law or under section 7 of the Act of 1849(54); or

(b) under section 5 of the Trusts (Scotland) Act 1921(55) (application for authority to do an act at variance with terms or purposes of the judicial factory).

(2) An application may be made–

(a) in the petition for the appointment of the judicial factor; or

(b) by note in the process of that petition.

(3) Before making an application, the judicial factor shall apply to the Accountant of Court for an opinion by lodging with him a report explaining why the special powers or authority are necessary and concluding with a statement of the precise powers he seeks.

(4) The Accountant of Court shall, after making any necessary inquiry, send his written opinion to the judicial factor.

(5) The judicial factor shall lodge in process his report to, and the opinion of, the Accountant of Court.

(6) The judicial factor shall send to the Accountant of Court a copy of the interlocutor disposing of the application within 2 days after the date of the interlocutor.

(7) An application by a judicial factor for special powers under this rule shall not be made before he has received an official certified copy of the interlocutor appointing him.

(8) An application by a judicial factor in respect of special powers sought in the petition for his appointment shall be made by him by motion.

Commencement Information

I180 Sch. 2 rule 61.15 in force at 5.9.1994, see para. 1(1)

PART II S APPLICATIONS UNDER SECTION 11A OF THE JUDICIAL FACTORS (SCOTLAND) ACT 1889

Application of this Part S

61.16.  This Part applies to a petition under section 11A of the Judicial Factors (Scotland) Act 1889(56) (appointment of a judicial factor on estate of person deceased).

Commencement Information

I181 Sch. 2 rule 61.16 in force at 5.9.1994, see para. 1(1)

Form of applications under section 11A of the Judicial Factors (Scotland) Act 1889 S

61.17.  A petition to which this Part applies shall include averments stating–

(a) the name, last known address and date of death of the deceased person;

(b) the reasons for the appointment being necessary;

(c) the interest of the petitioner, including–

(i) if a creditor, the nature and amount of the debt, how constituted, vouched or established, or

(ii) if a person having an interest in the succession to the estate, the nature of that interest;

(d) details of the estate of the deceased person so far as known to the petitioner including heritable and moveable property, any stock in trade, interests in any business or partnership, debts owed to or by the deceased and any other relevant facts;

(e) the names and addresses of all persons known to the petitioner as having an interest in the estate either as creditors or in the succession to the estate, and the nature of the interest in each case; and

(f) the name, designation and address of the person nominated to be the judicial factor.

Commencement Information

I182 Sch. 2 rule 61.17 in force at 5.9.1994, see para. 1(1)

Intimation and service of section 11A petition S

61.18.  The order for intimation and service under rule 14.5 (first order in petitions) in a petition under this Part shall include a requirement for–

(a) a notice of the petition in the Edinburgh Gazette in Form 61.18; and

(b) service of the petition on such persons named in the petition as personal representatives of the deceased who are not parties to the petition.

Commencement Information

I183 Sch. 2 rule 61.18 in force at 5.9.1994, see para. 1(1)

Interim appointment S

61.19.  The court may make an interim appointment of a judicial factor in a petition to which this Part applies when the petition is presented or at any time thereafter.

Commencement Information

I184 Sch. 2 rule 61.19 in force at 5.9.1994, see para. 1(1)

Notice calling for claims S

61.20.—(1) In order to ascertain the claims on the estate, the judicial factor shall, within 14 days after he has received the official certified copy of the interlocutor appointing him, place a notice in the Edinburgh Gazette, and in such other newspaper as he thinks fit, in Form 61.20.

(2) The judicial factor shall lodge in process–

(a) a copy of each newspaper containing the notice under paragraph (1); or

(b) a certificate of publication by the publisher of each such newspaper stating the date of publication and text of the notice.

(3) The period within which a creditor shall intimate a claim on the estate to the judicial factor shall be 4 months from the date of publication of the notice under paragraph (1).

Commencement Information

I185 Sch. 2 rule 61.20 in force at 5.9.1994, see para. 1(1)

Claims S

61.21.—(1) The judicial factor shall examine the claims of creditors in order to ascertain whether the debts are properly due from the estate of the deceased, and may–

(a) call for further evidence in support of the claims;

(b) if he thinks fit, require a creditor to constitute such claim by decree in a competent court in an action in which the judicial factor shall be called as a defender.

(2) For the purpose of ranking and payment of creditors, the date of the appointment of the judicial factor shall be deemed to be equivalent to the date of sequestration.

Commencement Information

I186 Sch. 2 rule 61.21 in force at 5.9.1994, see para. 1(1)

Custody and inspection of inventory of estate, etc. S

61.22.  There shall remain in the possession of the Accountant of Court and be open to inspection, within his office, by any creditor or person in the succession of the deceased–

(a) the inventory of estate, when adjusted and approved by the Accountant of Court and signed by him and the judicial factor;

(b) any report of the state of debts; and

(c) all subsequent accounts submitted by the judicial factor to the Accountant of Court.

Commencement Information

I187 Sch. 2 rule 61.22 in force at 5.9.1994, see para. 1(1)

Administration, deathbed and funeral expenses S

61.23.—(1) Out of the first funds realised by him, the judicial factor shall reserve sufficient funds to defray the estimated costs of his administration including the legal expenses of the judicial factory.

(2) On the expiry of the period for lodging claims, the judicial factor shall be entitled to pay out of such funds, with the prior approval of the Accountant of Court, those debts listed in paragraphs (a) to (e) of section 51(1) of the Bankruptcy (Scotland) Act 1985(57) (order of priority in distribution).

Commencement Information

I188 Sch. 2 rule 61.23 in force at 5.9.1994, see para. 1(1)

Procedure where there are creditors S

61.24.—(1) Where claims are lodged, the judicial factor shall–

(a) where funds remain available for division after payment of the claims referred to in rule 61.23(2), prepare a state of funds and scheme of division amongst the creditors; or

(b) where no such funds remain after payment of those claims, prepare a state of funds only.

(2) The judicial factor shall–

(a) lodge with the Accountant of Court–

(i) the state of funds and any scheme of division,

(ii) all relevant writings and documents; and

(b) provide the Accountant of Court with such explanations as he may require.

(3) The Accountant of Court shall prepare a written report on the state of funds and any scheme of division containing such observations as he thinks fit for consideration by the court.

(4) The Accountant of Court shall issue the report under paragraph (3) to the judicial factor.

Commencement Information

I189 Sch. 2 rule 61.24 in force at 5.9.1994, see para. 1(1)

Notice to creditors S

61.25.—(1) As soon as the report of the Accountant of Court under rule 61.24(3) has been issued, the judicial factor shall–

(a) lodge in process that report, the state of funds and any scheme of division;

(b) send to each person who has lodged with him a claim on the estate of the deceased a notice by first class post, or, if that person is furth of Europe, by air mail, stating–

(i) that the state of funds and scheme of division or state of funds only, as the case may be, and a report have been lodged in court; and

(ii) the amount for which the creditor has been ranked and whether his claim is to be paid in full or by a dividend and the amount of it; or

(iii) that his claim has been rejected; or

(iv) that no funds are available for division;

(c) place a notice in Form 61.25 in the Edinburgh Gazette; and

(d) if–

(i) any person, other than a person who has lodged a claim with him, is stated in the application or in the books, deed of settlement, or other papers of the deceased, to be a creditor of the estate or has an interest in the estate, or

(ii) he has reason to believe that any other person is either a creditor of the estate or has an interest in the estate,

give notice to such person, by first class post or, if that person is furth of Europe, by air mail, that no dividend is allotted to him in the scheme of division.

(2) Any creditor or person having an interest in the succession to the deceased’s estate shall be entitled to examine–

(a) the state of funds and any scheme of division lodged in process; and

(b) the claims and supporting vouchers or evidence lodged with the judicial factor.

Commencement Information

I190 Sch. 2 rule 61.25 in force at 5.9.1994, see para. 1(1)

Approval of state of funds or scheme of division S

61.26.—(1) Any creditor or person having an interest in the succession to the estate of the deceased who is dissatisfied with the state of funds or any scheme of division may lodge in process a note of objection within 28 days after the date of the notice given under rule 61.25(1)(b) and, until the expiry of that period, the court shall not approve the state of funds and any scheme of division.

(2) Where a note of objection under paragraph (1) is lodged, the court shall dispose of the note after hearing any objector and the judicial factor and making such investigations as it thinks fit.

(3) If any objection is sustained to any extent, the necessary alterations shall be made to the state of funds and any scheme of division, and shall be approved by the court.

(4) Where no note of objection is lodged, the court shall approve the state of funds and any scheme of division.

Commencement Information

I191 Sch. 2 rule 61.26 in force at 5.9.1994, see para. 1(1)

Payment following approval of scheme of division S

61.27.  After the court has approved a scheme of division, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the scheme.

Commencement Information

I192 Sch. 2 rule 61.27 in force at 5.9.1994, see para. 1(1)

Partial division on first scheme of division S

61.28.—(1) Where, in the opinion of the judicial factor, a partial division of funds among the creditors who have claimed may be made with safety in the interests of all concerned, the judicial factor may, with the approval of the Accountant of Court, prepare a state of funds and first scheme of division as soon as possible after the period for lodging claims has expired.

(2) The following provisions of this Part shall apply to a state of funds and first scheme of division prepared under paragraph (1) of this rule as they apply to a state of funds and scheme of division prepared under rule 61.24(1)(a):–

• rule 61.24(2) (lodging of state of funds etc. with Accountant of Court),

• rule 61.24(3) (report by Accountant of Court on state of funds),

• rule 61.25 (notice to creditors),

• rule 61.26 (approval of state of funds or scheme of division) subject to paragraph (3) of this rule.

(3) Subject to paragraph (4), the court may, not earlier than 6 months after the death of the deceased, approve the first scheme of division and, where it so approves, the judicial factor shall pay, deliver or convey to the parties the sums or other property to which they are entitled under the first scheme.

(4) Out of the funds there shall be retained and deposited in an institution authorised under the Banking Act 1987(58) or other appropriate institution a sufficient sum to meet–

(a) the amount of the claims of creditors whose debts have not at that time been admitted by the judicial factor, or whose debts are future or contingent; and

(b) the full amount of such debts as are claimed as preferable but the priority of which is not admitted by the judicial factor.

Commencement Information

I193 Sch. 2 rule 61.28 in force at 5.9.1994, see para. 1(1)

Procedure where no creditors S

61.29.  Where, on the expiry of the period for lodging claims, no creditor has lodged a claim, the judicial factor shall not lodge a state of funds but shall prepare a report with regard to the disposal of the surplus estate in accordance with rule 61.30.

Commencement Information

I194 Sch. 2 rule 61.29 in force at 5.9.1994, see para. 1(1)

Disposal of surplus estate S

61.30.—(1) Where, after payment of the creditors, there is a surplus, the judicial factor shall lodge with the Accountant of Court a statement of–

(a) the amount of the surplus;

(b) the parties claiming that surplus and their respective grounds of claim; and

(c) those parties who, in the opinion of the judicial factor, are entitled to the suplus and the reasons for his opinion.

(2) The Accountant of Court shall prepare a written opinion on the statement of the judicial factor lodged under paragraph (1) and issue that opinion to the judicial factor.

(3) On receipt of the opinion of the Accountant of Court under paragraph (2), the judicial factor shall–

(a) lodge in process that opinion and the statement prepared under paragraph (1); and

(b) give notice to each party claiming an interest or apparently entitled to any part of the estate, by first class post or, if that person is furth of Europe, by air mail, that–

(i) the statement of the judicial factor and the opinion of the Accountant of Court have been lodged in process; and

(ii) should any such party wish to lodge any objection to the statement, he shall lodge a note of objection with the Deputy Principal Clerk within 28 days after the date of the posting of the notice by the judicial factor.

(4) On expiry of the period for lodging objections under paragraph (3)(b)(ii), the court, on considering the statement, opinion, and any note of objection and, after such procedure as it thinks fit, shall–

(a) determine which parties are entitled to the surplus estate and direct the judicial factor to make payment accordingly; or

(b) if the court considers that it is desirable that the judicial factor should continue to administer the surplus estate, direct the judicial factor to do so.

Commencement Information

I195 Sch. 2 rule 61.30 in force at 5.9.1994, see para. 1(1)

PART III S DISCHARGE OF JUDICIAL FACTORS

Applications for discharge to Accountant of Court S

61.31.—(1) This rule applies to a judicial factor appointed as a–

(a) curator bonis;

(b) guardian;

(c) factor loco absentis; or

(d) commissary factor.

(2) Where a judicial factory is terminated by reason of the recovery, death or coming of age of the ward, or by reason of the exhaustion of the estate, the judicial factor, or where he has died, his representative, may apply to the Accountant of Court for a certificate of discharge.

(3) The judicial factor shall intimate a notice in Form 61.31 of an application under paragraph (2) to–

(a) the cautioner; and

(b) any person having an interest in the estate of the ward.

(4) Any person to whom intimation has been given under paragraph (3) may make written representations relating to the application to the Accountant of Court within 21 days after the date of such intimation.

(5) On the expiry of the period specified in paragraph (4), the Accountant of Court shall, after considering the application and representations made, send to–

(a) the factor,

(b) the Deputy Principal Clerk, and

(c) any person who has made representations,

a copy of his decision to issue or refuse to issue a certificate of discharge and a note of his reasons for making that decision.

(6) The Accountant of Court–

(a) shall not sign a certificate of discharge until the time for lodging an appeal under rule 61.32 has expired; and

(b) shall, on issuing a certificate of discharge, give written intimation of the issue of the certificate to the Deputy Principal Clerk.

(7) The issue of a certificate of discharge shall be sufficient authority for the judicial factor to uplift his bond of caution.

Commencement Information

I196 Sch. 2 rule 61.31 in force at 5.9.1994, see para. 1(1)

Appeals against decisions under rule 61.31 S

61.32.—(1) The judicial factor, or any person who has made representations under rule 61.31(4), may, within 14 days after intimation of a decision to him under rule 61.31(5), appeal to the Lord Ordinary against the determination of the Accountant of Court.

(2) An appeal under paragraph (1) shall be–

(a) made by letter to the Deputy Principal Clerk containing a statement of the grounds of appeal; and

(b) intimated to the Accountant of Court.

(3) On receipt of an appeal under paragraph (1), the Deputy Principal Clerk shall place the appeal before the Lord Ordinary in chambers for determination.

(4) On disposing of such an appeal, the Lord Ordinary may–

(a) direct the Accountant of Court to sign the certificate of discharge;

(b) ordain the judicial factor to lodge a petition for his discharge; or

(c) make such other order as he thinks fit.

(5) The decision of the Lord Ordinary on an appeal to him under paragraph (1) shall be final and not subject to review.

Commencement Information

I197 Sch. 2 rule 61.32 in force at 5.9.1994, see para. 1(1)

Applications for discharge to court S

61.33.—(1) Where a judicial factor, other than one to whom rule 61.31 (applications for discharge to Accountant of Court) applies, seeks his discharge, he, or where he has died, his representative, shall apply to the court by petition for his discharge.

(2) The order for intimation and service under rule 14.5 (first order in petitions) in a petition for discharge of a judicial factor appointed under section 11A of the Judicial Factors (Scotland) Act 1889 shall include a requirement for–

(a) a notice of the petition in the Edinburgh Gazette in Form 61.33; and

(b) service on the cautioner and on the personal representatives of the deceased person in respect of whom the appointment was made.

(3) The court shall remit a petition under paragraph (1) to the Accountant of Court to report to the court on the petition.

Commencement Information

I198 Sch. 2 rule 61.33 in force at 5.9.1994, see para. 1(1)

(1)

1987 c. 18.

(2)

1956 c. 46.

(3)

1984 c. 42; Part IV was amended by the Family Law (Scotland) Act 1985 (c. 37), Schedule 1, paragraphs 12 and 13.

(4)

1981 c. 59.

(5)

1975 c. 72.

(6)

1976 c. 39.

(7)

1985 c. 37.

(8)

1973 c. 45; Schedule 3 was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12), Schedule 1, paragraphs 19 and 20.

(9)

Section 42(4) was amended by the Children Act 1989 (c. 41), Schedule 13, paragraph 71.

(10)

1987 c. 18; section 106 was amended by the Child Support Act 1991 (c. 48), Schedule 5, paragraph 8(7).

(11)

1991 c. 48.

(12)

1868 c. 101.

(13)

1972 c. 38; section 2(2) was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12), Schedule 1, paragraph 13, by the Law Reform (Husband and Wife) (Scotland) Act 1984 (c. 15), Schedule 1, paragraph 6, by the Family Law (Scotland) Act 1985, Schedule 1, paragraph 8 and by the Statute Law (Repeals) Act 1986 (c. 12), Schedule 1, Part I.

(14)

1981 c. 59.

(15)

1976 c. 39.

(16)

1973 c. 45; Schedule 3 was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12), Schedule 1, paragraphs 19 and 20.

(17)

1986 c. 55.

(18)

Section 51(1) of the Act of 1975 was amended by the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), Schedule 2, paragraph 25.

(19)

1985 c. 60.

(20)

1984 c. 42; Part IV was amended by the Act of 1985 (c. 37), Schedule 1, paragraphs 12 and 13.

(21)

1981 c. 59.

(22)

1985 c. 37.

(23)

1985 c. 37.

(24)

1981 c. 59; section 13 was amended by the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983 (c. 12), Schedule 1, paragraph 23, by the Tenants' Rights, Etc. (Scotland) Amendment Act 1984 (c. 18), section 8(2), by the Family Law (Scotland) Act 1985, Schedule 1, paragraph 11 and by the Housing (Scotland) Act 1987 (c. 26), Schedule 23, paragraph 26.

(25)

1984 c. 42.

(26)

Section 28 was extended by section 29A (inserted by the Act of 1985, Schedule 1, paragraph 12) to an annulment.

(27)

1981 c. 51; section 13(2) was amended by the Act of 1985, Schedule 1, paragraph 11.

(28)

1985 c. 37.

(29)

1981 c. 59.

(30)

Section 7(1) was amended by the Age of Legal Capacity (Scotland) Act 1991 (c. 50), Schedule 1, paragraph 37.

(31)

Section 18 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 13(9).

(32)

Section 15(2) was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 64(a).

(33)

The proviso to section 18(1) of the Act of 1981 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73), section 13(9).

(34)

Section 15(4) was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), section 64(b).

(35)

1976 c. 39.

(36)

1991 c. 48.

(37)

1977 c. 27.

(38)

Section 4(3) of the Act of 1977 is amended by this Act of Sederunt, Schedule 3, paragraph 1.

(39)

Section 72 was amended by the Copyright Act of 1988 (c. 48), Schedule 5, paragraph 8 and Schedule 8.

(40)

Section 32 of the Act of 1949 was amended by the Act of 1977 (c. 37), section 127 and Schedule 1, paragraph 6 and Schedule 6.

(41)

Section 37 of the Act of 1977 was amended by the Copyright Act of 1988 (c. 48), Schedule 5, paragraph 9.

(42)

Section 28 of the Act of 1977 was amended by the Copyright Act of 1988 (c. 48), Schedule 5, paragraph 6 and Schedule 8.

(43)

Section 58 was amended by the Copyright Act of 1988, Schedule 5, paragraph 16.

(44)

1949 c. 88; paragraph 3 of Schedule 1 was amended by the Copyright Act of 1988 (c. 48), Schedule 3, paragraph 37(3) and Schedule 8. The text of the Registered Designs Act 1949 as amended is set out in Schedule 4 to the Copyright Act of 1988.

(45)

1958 c. 38.

(46)

1988 c. 48.

(47)

Cmnd. 8510 (1982).

(48)

1977 c. 37.

(49)

1985 c. 37.

(50)

1849 c. 51.

(51)

Section 27 was amended by the age of Legal Capacity (Scotland) Act 1991 (c. 50), Schedule 1, paragraph 10.

(52)

Section 5 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55), section 7 and by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40), Schedule 8, paragraph 21(1)(a).

(53)

1961 c. 57; sub-section (3) was inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 (c. 55), section 8.

(54)

Section 7 was amended by the Mental Health (Scotland) Act 1960 (c. 61), Schedule 4.

(55)

1921 c. 58.

(56)

1889 c. 39; section 11A was inserted by the Bankruptcy (Scotland) Act 1985 (c. 66), Schedule 7, paragraph 4.

(57)

1985 c. 66.

(58)

1987 c. 22.