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

PART II S APPLICATIONS UNDER THE PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACT 1989 [F1 OR THE ORDER OF 1995]

Textual Amendments

F1 Words in Sch. 2 Ch. 76 Pt. 2 heading 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(35)

Application and interpretation of this Part S

76.19.  In this Part–

“the [F2 Act] of 1989” means the Prevention of Terrorism (Temporary Provisions) Act 1989(1);

“administrator” shall be construed in accordance with paragrapfi h 11(1)(b) of Schedule 4 to the Act of 1989;

[F3 “the Order of 1995” means the Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995;]

“restraint order” means an order made under paragraph 13(1) of Schedule 4 to the Act of 1989.

Textual Amendments

F2 Word in Sch. 2 rule 76.19 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(21)(b)

F3 Words in Sch. 2 rule 76.19 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(36)

Commencement Information

I1 Sch. 2 rule 76.19 in force at 5.9.1994, see para. 1(1)

Disapplication of certain rules to this Part S

76.20.  The following rules shall not apply to a petition or note mentioned in this Part:–

• rule 14.5 (first order in petitions),

• rule 14.6 (1) (period of notice for lodging answers),

• rule 14.7 (intimation and service of petitions),

• rule 14.9 (unopposed petitions).

Commencement Information

I2 Sch. 2 rule 76.20 in force at 5.9.1994, see para. 1(1)

Applications for restraint orders S

76.21.—(1) An application under paragraph 14(1) of Schedule 4 to the Act of 1989 (restraint order), shall be made by petition.

(2) Where the court pronounces an interlocutor making a restraint order, the Lord Advocate shall serve a certified copy of that interlocutor on every person named in the interlocutor as restrained by the order.

Commencement Information

I3 Sch. 2 rule 76.21 in force at 5.9.1994, see para. 1(1)

Applications in relation to protective measures S

76.22.—(1) An application under any of the following provisions of Schedule 4 to the Act of 1989 shall be made by note in the process containing the interlocutor making the restraint order to which the application relates:–

(a) paragraph 13(4) (discharge of a restraint order);

(b) paragraph 14(2) (variation or recall of restraint order); and

(c) paragraph 14(3) (recall of restraint order).

(2) Subject to rule 14.6(2) (application to shorten or extend the period of notice), the period of notice for lodging answers to a note under paragraph (1)(b) [F4 of this rule] by any person affected by a restraint order shall be 14 days.

(3) An application under paragraph 16(1) [F5 (warrant for inhibition), or 16A(1) (warrant for arrestment),] of Schedule 4 to the Act of 1989 F6 ... may be made–

(a) in the prayer of the petition under paragraph 13(1) of Schedule 4 to the Act of 1989; or

(b) if made after the petition has been presented, by motion which shall not be intimated.

(4) Any of the following applications under Schedule 4 to the Act of 1989 shall be made by motion:–

[F7 (a) an application to recall, loose or restrict an inhibition under paragraph 16(2)(a);

(b) an application under paragraph 16(6)(a) (recall or restriction of inhibition);

(c) an application to recall, loose or restrict an arrestment under paragraph 16A(2); or

(d) an application under paragraph 16A(4) (recall or restriction of arrestment).]

Textual Amendments

F4 Words in Sch. 2 rule 76.22(2) 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(37)(a)

F5 Words in Sch. 2 rule 76.22(3) 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(37)(b)(i)

F6 Words in Sch. 2 rule 76.22(3) omitted (23.9.1996) by virtue of Act of Sederunt (Rules of the Court of Session Amendment No. 4) (Miscellaneous) 1996 (S.I. 1996/2168), paras. 1(1), 2(37)(b)(ii)

F7 Sch. 2 rule 76.22(4)(a)-(d) substituted for rule 76.22(4)(a)(b) (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(37)(c)

Commencement Information

I4 Sch. 2 rule 76.22 in force at 5.9.1994, see para. 1(1)

Applications for compensation S

76.23.  An application under paragraph 17(1) of Schedule 4 to the Act of 1989 (compensation) shall be made by petition.

Commencement Information

I5 Sch. 2 rule 76.23 in force at 5.9.1994, see para. 1(1)

Powers and duties of adminsistrator S

76.24.  Subject to any condition or exception specified by the court, an administrator appointed under paragraph 11(1)(b) of Schedule 4 to the Act of 1989–

(a) may take possession of the property in respect of which he has been appointed and of any document which–

(i) is in the possession or control of the person in whom the property is vested; and

(ii) relates to the property;

(b) may have access to, and copy, any document relating to the property and not in such possession or control as is mentioned in sub-paragraph(a);

(c) may bring, defend or continue any legal proceedings relating to the property;

(d) may borrow money in so far as it is necessary to do so to safeguard the property and may for the purposes of such borrowing create a security over any part of the property;

(e) may, if the administrator considers that to do so would be beneficial for the management and the realisation of the property, enter into any contract, or execute any deed, with respect to the property;

(f) may effect or maintain insurance policies with respect to the property;

(g) may, where the person in whom the property is vested has not completed title to any of the property, complete title to it: provided that completion of title in the name of the person in whom the property is vested shall not validate by accretion any unperfected right in favour of any person other than the administrator;

(h) may sell (but not to himself or an accociate of his) the property and redeem any obligation secured on that property;

(i) may discharge any of his functions through agents or employees: provided that the administrator shall be personally liable to meet the fees and expenses of any such agents or employees out of such remuneration as is payable to the administrator by virtue of paragraph 12(2) and (3) of Schedule 4 to the Act of 1989;

(j) may take such professional advice as he considers necessary for the proper discharge of his functions;

(k) may at any time apply to the court for directions with respect to the exercise of his powers and duties;

(l) may exercise any power conferred on him by the court whether such power was conferred at the time of his appointment or on his subsequent application to the court; and

(m) may do anything incidental to the above powers and duties.

(2) Subject to the proviso to sub-paragraph (g) of paragraph (1)–

(a) a person dealing with an administrator in good faith and for value shall not require to determine whether the administrator is acting within the powers mentioned in that sub-paragraph; and

(b) the validity of any title shall not be challengeable by reason only of the administrator having acted outwith those powers.

(3) The exercise of a power mentioned in any of sub-paragraphs (c) to (h) of paragraph (1) shall be in the name of the person in whom the property is vested.

Commencement Information

I6 Sch. 2 rule 76.24 in force at 5.9.1994, see para. 1(1)

Duties of administrator in relation to accounts S

76.25.—(1) The administrator shall, as soon as possible, but within 3 months after the date of his appointment, lodge with the Accountant of Court–

(a) an inventory of the property in respect of which he has been appointed;

(b) all land certficates, title deeds, vouchers and other documents which relate to that property and are in his possession; and

(c) a statement of the property which he has in his possession or intends to realise.

(2) An administrator shall maintain accounts of his intromissions with the property in his charge and shall–

(a) lodge an account of his intromissions with the Accountant of Court in such form as the Accountant of Court may require–

(i) 6 months after the date of his appointment; and

(ii) at 6 monthly intervals after the first account during the subsistence of his appointment, unless the Accountant of Court agrees to waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period; and

(b) lodge, with the account of his intromissions, all such supporting vouchers and other documents as the Accountant of Court may require.

Commencement Information

I7 Sch. 2 rule 76.25 in force at 5.9.1994, see para. 1(1)

Money received by administrator S

76.26.—(1) Subject to paragraph (2), any money received by an administrator in the exercise of his powers and duties shall be deposited by him in an appropriate bank or institution, in the name of the person in whom the property is vested.

(2) The administrator may, at any time, retain in his hands a sum of money not exceeding £200.

(3) In paragraph (1), “appropriate bank or institution” means the Bank of England, an institution authorised under the Banking Act 1987(2) or a person for the time being specified in Schedule 2 to that Act.

Commencement Information

I8 Sch. 2 rule 76.26 in force at 5.9.1994, see para. 1(1)

(1)

1989 c. 4.

(2)

1987 c. 22.