Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999

CHAPTER 1 S GENERAL

Citation and commencement S

1.1—(1) This Act of Sederunt may be cited as the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc. Rules) 1999 and shall come into force on 1st July 1999.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Interpretation S

1.2—(1) In this Act of Sederunt, unless the context otherwise requires–

• “Ordinary Cause Rules” means the First Schedule to the Sheriff Courts (Scotland) Act 1907 M1 ;

• “sheriff clerk” includes sheriff clerk depute; and

• “summary application” has the meaning given by section 3(p) of the Sheriff Courts (Scotland) Act 1907.

(2) Unless the context otherwise requires, any reference in this Act of Sederunt to a specified Chapter, Part or rule shall be construed as a reference to the Chapter, Part or rule bearing that number in this Act of Sederunt, and a reference to a specified paragraph, sub-paragraph or head shall be construed as a reference to the paragraph, sub-paragraph or head so numbered or lettered in the provision in which that reference occurs.

(3) Any reference in this Act of Sederunt to a numbered Form shall, unless the context otherwise requires, be construed as a reference to the Form so numbered in Schedule 1 to this Act of Sederunt and includes a form substantially to the same effect with such variation as circumstances may require.

Marginal Citations

M1 1907 c.51; the First Schedule was substituted by S.I. 1993/1956.

Revocation S

1.3  The Acts of Sederunt mentioned in column (1) of Schedule 2 to this Act of Sederunt are revoked to the extent specified in column (3) of that Schedule.

Application S

1.4  Unless otherwise provided in this Act of Sederunt or in any other enactment, any application or appeal to the sheriff shall be by way of summary application and the provisions of Chapter 2 of this Act of Sederunt shall apply accordingly.

CHAPTER 2 S SUMMARY APPLICATION RULES

PART I S INTERPRETATION S

Interpretation S

2.1  In this Chapter, unless the context otherwise requires–

• “decree” includes any judgment, deliverance, interlocutor, act, order, finding or authority which may be extracted;

• “defender” means any person other than the pursuer who is a party to a summary application; and

• “pursuer” means any person making a summary application.

PART II S GENERAL RULES S

Application S

2.2  This Part applies to summary applications.

Relief from failure to comply with rules S

2.3—(1) The sheriff may relieve a party from the consequences of failure to comply with a provision in this Part which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in this Part of these Rules under paragraph (1), he may make such order as he thinks fit to enable the summary application to proceed as if the failure to comply with the provision had not occurred.

The initial writ S

2.4—(1) Unless otherwise prescribed by any other enactment, a summary application shall be commenced by initial writ in Form 1.

(2) The initial writ shall be written, typed or printed on A4 size paper of durable quality and shall not be backed or folded.

(3) Where the pursuer has reason to believe that an agreement exists prorogating jurisdiction over the subject-matter of the summary application to another court, the initial writ shall contain details of that agreement.

(4) Where the pursuer has reason to believe that proceedings are pending before another court involving the same cause of action and between the same parties as those named in the instance of the initial writ, the initial writ shall contain details of those proceedings.

(5) An article of condescendence shall be included in the initial writ averring–

(a) the ground of jurisdiction; and

(b) the facts upon which the ground of jurisdiction is based.

(6) Where the residence, registered office or place of business, as the case may be, of the defender is not known and cannot reasonably be ascertained, the pursuer shall set out in the instance of the initial writ that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.

(7) The initial writ shall be signed by the pursuer or his solicitor (if any) and the name and address of that solicitor shall be stated on the back of every service copy of that writ.

(8) The initial writ shall include averments about those persons who appear to the pursuer to have an interest in the application and in respect of whom a warrant for citation is sought.

Order for intimation to interested persons by sheriff S

2.5  The sheriff may make an order for intimation to any person who appears to him to have an interest in the summary application.

Time limits S

2.6—(1) This rule applies to a summary application where the time within which the application may be made is not otherwise prescribed.

(2) An application to which this rule applies shall be lodged with the sheriff clerk within 21 days after the date on which the decision, order, scheme, determination, refusal or other act complained of was intimated to the pursuer.

(3) On special cause shown, the sheriff may hear an application to which this rule applies notwithstanding that it was not lodged within the period prescribed in paragraph (2).

Warrants, forms and certificate of citation S

2.7—(1) Subject to paragraph (2), a warrant for citation, intimation or arrestment on the dependence may be signed by the sheriff or sheriff clerk.

(2) A warrant containing a period of notice shorter than the period of notice to be given to a defender under rule 3.6(1)(a) or (b), as the case may be, of the Ordinary Cause Rules or any other warrant which the sheriff clerk may not sign, shall be signed by the sheriff.

(3) Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the summary application may apply to the sheriff for the warrant.

(4) Where citation is necessary–

(a) the warrant of citation shall, subject to paragraph (5), be in Form 2; and

(b) citation shall, subject to paragraph (7) and rule 2.13 (service where address of person is not known), be in Form 3.

(5) Where a time to pay direction under the Debtors (Scotland) Act 1987 M2 may be applied for by the defender, the warrant of citation shall be in Form 4.

(6) Where a warrant of citation in accordance with Form 4 is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in Form 5.

(7) Where a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender, citation shall be in Form 6 which shall be attached to a copy of the initial writ and warrant of citation.

(8) Where citation is necessary, the certificate of citation shall be in Form 7 which shall be attached to the initial writ.

(9) Where citation is by a sheriff officer, one witness shall be sufficient for the execution of citation.

(10) Where citation is by a sheriff officer, the certificate of citation shall be signed by the sheriff officer and the witness and shall state–

(a) the method of citation; and

(b) where the method of citation was other than personal or postal citation, the full name and designation of any person to whom the citation was delivered.

(11) Where citation is executed under paragraph (3) of rule 2.11 (depositing or affixing by sheriff officer), the certificate shall include a statement–

(a) of the method of service previously attempted;

(b) of the circumstances which prevented such service being executed; and

(c) that a copy of the document was sent in accordance with the provisions of paragraph (4) of that rule.

Marginal Citations

M2 1987 c.18.

Orders against which caveats may be lodged S

2.8  A person may lodge a caveat against an interim order (other than an order under section 1 of the Administration of Justice (Scotland) Act 1972 (orders for inspection of documents and other property, etc.)) M3 sought before service of the initial writ.

Marginal Citations

M3 1972 c.59; section 1 was amended by the Law Reform (Miscellaneous) (Provisions) (Scotland) Act 1985 (c.73), section 19 and Schedule 2, paragraph 15.

Form, lodging and renewal of caveats S

2.9—(1) A caveat shall be in Form 8 and shall be lodged with the sheriff clerk.

(2) A caveat shall remain in force for a period of one year from the date on which it was lodged and may be renewed on its expiry for a further period of one year and yearly thereafter.

(3) Where a caveat has been lodged and has not expired, no order in respect of which the caveat was lodged may be pronounced unless the sheriff is satisfied that all reasonable steps have been taken to afford the person who lodged the caveat an opportunity of being heard; and the sheriff may continue the hearing on such an order until he is satisfied that such steps have been taken.

Postal service or intimation S

2.10—(1) In any summary application in which service or intimation of any document or citation of any person may be by recorded delivery, such service, intimation or citation shall be by the first class recorded delivery service.

(2) Notwithstanding the terms of section 4(2) of the Citation Amendment (Scotland) Act 1882 (time from which period of notice reckoned) M4 , where service or intimation is by post, any period of notice contained in the warrant of citation shall run from the beginning of the day after the date of posting.

(3) On the face of the envelope used for postal service or intimation under this rule there shall be written or printed the following notice:–

Marginal Citations

M4 1882 c. 77.

“This envelope contains a citation to or intimation from (specify the court). If delivery cannot be made at the address shown it is to be returned immediately to:– The Sheriff Clerk (insert address of sheriff clerk’s office).”.

(4) The certificate of citation or intimation in the case of postal service shall have attached to it any relevant postal receipts.

Service within Scotland by sheriff officer S

2.11—(1) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served by a sheriff officer on any person shall be served–

(a) personally; or

(b) by being left in the hands of a resident at the person’s dwelling place or an employee at his place of business.

(2) Where service is executed under paragraph (1)(b), the certificate of citation or service shall contain the full name and designation of any person in whose hands the initial writ, decree, charge, warrant or other order or writ, as the case may be, was left.

(3) Where a sheriff officer has been unsuccessful in executing service in accordance with paragraph (1), he may, after making diligent enquiries, serve the document in question by–

(a) depositing it in that person’s dwelling place or place of business; or

(b) affixing it to the door of that person’s dwelling place or place of business.

(4) Subject to rule 2.18 (service of schedule of arrestment), where service is executed under paragraph (3), the sheriff officer shall, as soon as possible after such service, send a letter containing a copy of the document by ordinary first class post to the address at which he thinks it most likely that the person on whom service has been executed may be found.

Service on persons furth of Scotland S

2.12—(1) Subject to the following provisions of this rule, an initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served on a person furth of Scotland shall be served–

(a) at a known residence or place of business in England, Wales, Northern Ireland, the Isle of Man, the Channel Islands or any country with which the United Kingdom does not have a convention providing for service of writs in that country–

(i) in accordance with the rules for personal service under the domestic law of the place in which service is to be executed; or

(ii) by posting in Scotland a copy of the document in question in a registered letter addressed to the person at his residence or place of business;

(b) in a country which is a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965 M5 or the Convention in Schedule 1 or 3C to the Civil Jurisdiction and Judgments Act 1982 M6 –

(i) by a method prescribed by the internal law of the country where service is to be executed for the service of documents in domestic actions upon persons who are within its territory;

(ii) by or through the central, or other appropriate, authority in the country where service is to be executed at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(iii) by or through a British Consular Office in the country where service is to be executed at the request of the Secretary of State for Foreign and Commonwealth Affairs;

(iv) where the law of the country in which the person resides permits, by posting in Scotland a copy of the document in a registered letter addressed to the person at his residence; or

(v) where the law of the country in which service is to be executed permits, service by anhuissier, other judicial officer or competent official of the country where service is to be executed; or

(c) in a country with which the United Kingdom has a convention on the service of writs in that country other than the conventions mentioned in sub-paragraph (b), by one of the methods approved in the relevant convention.

(2) Any document which requires to be posted in Scotland for the purposes of this rule shall be posted by a solicitor or a sheriff officer, and on the face of the envelope there shall be written or printed the notice set out in rule 2.10(3).

(3) In the case of service by a method referred to in paragraph (1)(b)(ii) and (iii), the pursuer shall–

(a) send a copy of the writ and warrant of service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the Secretary of State for Foreign and Commonwealth Affairs; and

(b) lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4) In the case of service by a method referred to in paragraph (1)(b)(v), the pursuer or the sheriff officer shall–

(a) send a copy of the writ and warrant for service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b) lodge in process a certificate of the official who executed service stating that it has been, and the manner in which it was, served.

(5) Where service is executed, in accordance with paragraph (1)(a)(i) or (1)(b)(i) other than on another party in the United Kingdom, the Isle of Man or the Channel Islands, the party executing service shall lodge a certificate by a person who is conversant with the law of the country concerned and who practises or has practised law in that country or is a duly accredited representative of the Government of that country, stating that the method of service employed is in accordance with the law of the place where service was executed.

(6) Every writ, document, citation or notice on the face of the envelope mentioned in rule 2.10(3) shall be accompanied by a translation in an official language of the country in which service is to be executed unless English is an official language of that country.

(7) A translation referred to in paragraph (6) shall be certified as correct by the person making it and the certificate shall–

(a) include his full name, address and qualifications; and

(b) be lodged with the execution of citation or service.

Marginal Citations

M5 Cmnd. 3986 (1969).

M6 1982 c.27; Schedule 1 was substituted by S.I. 1990/2591. Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 1 and Schedule 1.

Service where address of person is not known S

2.13—(1) Where the address of a person to be cited or served with a document is not known and cannot reasonably be ascertained, the sheriff shall grant warrant for citation or service upon that person by–

(a) the publication of an advertisement in Form 9 in a specified newspaper circulating in the area of the last known address of that person; or

(b) displaying on the walls of court a copy of the instance and crave of the initial writ, the warrant of citation and a notice in Form 10;

and any period of notice contained in the warrant of citation shall run from the date of publication of the advertisement or display on the walls of court, as the case may be.

(2) Where service requires to be executed under paragraph (1), the pursuer shall lodge a service copy of the initial writ and a copy of any warrant of citation with the sheriff clerk from whom they may be uplifted by the person for whom they are intended.

(3) Where a person has been cited or served in accordance with paragraph (1) and, after the summary application has commenced, his address becomes known, the sheriff may allow the initial writ to be amended subject to such conditions as to re-service, intimation, expenses or transfer of the summary application as he thinks fit.

(4) Where advertisement in a newspaper is required for the purpose of citation or service under this rule, a copy of the newspaper containing the advertisement shall be lodged with the sheriff clerk by the pursuer.

(5) Where display on the walls of court is required under paragraph (1)(b), the pursuer shall supply to the sheriff clerk for that purpose a certified copy of the instance and crave of the initial writ and any warrant of citation.

Persons carrying on business under trading or descriptive name S

2.14—(1) A person carrying on a business under a trading or descriptive name may be designed in the instance of the initial writ by such trading or descriptive name alone, and an extract of a–

(a) decree pronounced in the sheriff court; or

(b) decree proceeding upon any deed, decree arbitral, bond, protest of a bill, promissory note or banker’s note or upon any other obligation or document on which execution may proceed, recorded in the sheriff court books,

against such person under such trading or descriptive name, shall be a valid warrant for diligence against such person.

(2) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree in a summary application in which a person carrying on business under a trading or descriptive name is designed in the instance of the initial writ by that name shall be served–

(a) at any place of business or office at which such business is carried on within the sheriffdom of the sheriff court in which the cause is brought; or

(b) where there is no place of business within that sheriffdom, at any place where such business is carried on (including the place of business or office of the clerk or secretary of any company, corporation or association or firm).

Endorsation unnecessary S

2.15  An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree may be served, enforced or otherwise lawfully executed anywhere in Scotland without endorsation by a sheriff clerk and, if executed by a sheriff officer, may be so executed by a sheriff officer of the court which granted it or by a sheriff officer of the sheriff court district in which it is to be executed.

Re-service S

2.16  Where it appears to the sheriff that there has been any failure or irregularity in citation or service on a person, he may order the pursuer to re-serve the initial writ on such conditions as the sheriff thinks fit.

No objection to regularity of citation, service or intimation S

2.17—(1) A person who appears in a summary application shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him, and his appearance shall remedy any defect in such citation, service or intimation.

(2) Nothing in paragraph (1) shall preclude a party from pleading that the court has no jurisdiction.

Service of schedule of arrestment S

2.18  If a schedule of arrestment has not been personally served on an arrestee, the arrestment shall have effect only if a copy of the schedule is also sent by registered post or the first class recorded delivery service to–

(a) the last known place of residence of the arrestee; or

(b) if such a place of residence is not known, or if the arrestee is a firm or corporation, to the arrestee’s principal place of business if known, or, if not known, to any known place of business of the arrestee,

and the sheriff officer shall, on the certificate of execution, certify that this has been done and specify the address to which the copy of the schedule was sent.

Arrestment on dependence before service S

2.19—(1) An arrestment on the dependence of a summary application used before service shall cease to have effect if the initial writ is not served within 20 days from the date of arrestment and either–

(a) in the case where the pursuer is entitled to minute for decree in absence on the expiry of a period of notice contained in the warrant of citation, decree in absence has not been pronounced within 20 days after the expiry of the period of notice; or

(b) in the case where the pursuer is not entitled to minute for decree in absence prior to the first hearing of the summary application, there is no appearance by the pursuer at the first hearing and the summary application drops from the roll.

(2) After such an arrestment has been executed, the party who executed it shall forthwith report the execution to the sheriff clerk.

Movement of arrested property S

2.20—(1) Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment to found jurisdiction or on the dependence of a summary application.

(2) Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

Transfer to another sheriff court S

2.21—(1) The sheriff may, on cause shown, remit a summary application to another sheriff court.

(2) Subject to paragraph (4), where a summary application in which there are two or more defenders has been brought in the sheriff court of the residence or place of business of one of them, the sheriff may transfer the summary application to any other sheriff court which has jurisdiction over any of the defenders.

(3) Subject to paragraph (4), where a plea of no jurisdiction is sustained, the sheriff may transfer the summary application to the sheriff court before which it appears to him the summary application ought to have been brought.

(4) The sheriff shall not transfer a summary application to another sheriff court under paragraph (2) or (3) except–

(a) on the motion of a party; and

(b) where he considers it expedient to do so having regard to the convenience of the parties and their witnesses.

(5) On making an order under paragraph (1), (2) or (3), the sheriff–

(a) shall state his reasons for doing so in the interlocutor; and

(b) may make the order on such conditions as to expenses or otherwise as he thinks fit.

(6) The court to which a summary application is transferred under paragraph (1), (2) or (3) shall accept the summary application.

(7) A transferred summary application shall proceed in all respects as if it had been originally brought in the court to which it is transferred.

(8) An interlocutor transferring a summary application may, with leave of the sheriff, be appealed to the sheriff principal but shall not be subject to appeal to the Court of Session.

Applications for time to pay directions S

2.22—(1) This rule applies to a summary application in which a time to pay direction may be applied for under the Debtors (Scotland) Act 1987.

(2) A defender may apply for a time to pay direction and, where appropriate, for recall or restriction of an arrestment–

(a) by appearing and making the appropriate motion at a diet fixed for hearing of the summary application;

(b) except where the warrant of citation contains a shorter period of notice than the period of notice to be given to a defender under rule 3.6(1)(a) or (b), as the case may be, of the Ordinary Cause Rules, by completing and returning the appropriate portion of Form 5 to the sheriff clerk at least seven days before the first diet fixed for hearing of the summary application or the expiry of the period of notice or otherwise, as the case may be in the warrant of citation; or

(c) by application to the court at any stage before final decree.

(3) The sheriff may determine an application under paragraph (2)(b) or (c) without the defender having to appear.

Remuneration of assessors S

2.23  Where an assessor is appointed by the sheriff to assist him in determining the summary application, the remuneration to be paid to such assessor shall be part of the expenses of the application.

Deposits for expenses S

2.24  Where, under any enactment, the sheriff requires the pursuer to deposit a sum of money to cover the expenses of an appeal under the enactment, such sum shall, subject to the provisions of that enactment, not exceed an amount which is twenty-five times the amount of the fee payable at that time in respect of lodging the initial writ.

When decrees extractable S

2.25—(1) Subject to the following paragraphs–

(a) subject to sub-paragraph (c), a decree in absence may be extracted after the expiry of 14 days from the date of decree;

(b) subject to sub-paragraph (c), any decree pronounced in a defended summary application may be extracted at any time after whichever is the later of the following–

(i) the expiry of the period within which an application for leave to appeal may be made and no such application has been made;

(ii) the date on which leave to appeal has been refused and there is no right of appeal from such refusal;

(iii) the expiry of the period within which an appeal may be marked and no appeal has been marked; or

(iv) the date on which an appeal has been finally disposed of; and

(c) where the sheriff has, in pronouncing decree, reserved any question of expenses, extract of that decree may be issued only after the expiry of 14 days from the date of the interlocutor disposing of the question of expenses unless the sheriff otherwise directs.

(2) The sheriff may, on cause shown, grant a motion to allow extract to be applied for and issued earlier than a date referred to in paragraph (1).

(3) In relation to a decree referred to in paragraph (1)(b) or (c), paragraph (2) shall not apply unless–

(a) the motion under that paragraph is made in the presence of the parties; or

(b) the sheriff is satisfied that proper intimation of the motion has been made in writing to every party not present at the hearing of the motion.

(4) Nothing in this rule shall affect the power of the sheriff to supersede extract.

Form of extract decree S

2.26  The extract of a decree shall be in Form 11.

Form of warrant for execution S

2.27  An extract of a decree on which execution may proceed shall include a warrant for execution in the following terms:–

“This extract is warrant for all lawful execution hereon.”.

Date of decree in extract S

2.28—(1) Where the sheriff principal has adhered to the decision of the sheriff following an appeal, the date to be inserted in the extract decree as the date of decree shall be the date of the decision of the sheriff principal.

(2) Where a decree has more than one date it shall not be necessary to specify in an extract what was done on each date.

Decrees in absence where defender furth of Scotland S

2.29—(1) Where a defender is domiciled in another part of the United Kingdom or in another Contracting State, the sheriff shall not grant decree in absence until it has been shown that the defender has been able to receive the initial writ in sufficient time to arrange for his defence or that all necessary steps have been taken to that end, and for the purposes of this paragraph–

(a) the question whether a person is domiciled in another part of the United Kingdom shall be determined in accordance with sections 41 and 42 of the Civil Jurisdiction and Judgements Act 1982 M7 ;

(b) the question whether a person is domiciled in another Contracting State shall be determined in accordance with Article 52 of the Convention in Schedule 1 or 3C to that Act M8 , as the case may be; and

(c) the term “Contracting State” has the meaning assigned in section 1 of that Act M9 .

(2) Where an initial writ has been served in a country to which the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965 applies, decree shall not be granted until it is established to the satisfaction of the sheriff that the requirements of Article 15 of the Convention have been complied with.

Marginal Citations

M7 1982 c.27; sections 41 and 42 were amended by the Civil Jurisdiction and Judgments Act 1991 (c.12), Schedule 2, paragraphs 16 and 17 respectively.

M8 Schedule 1 was substituted by S.I. 1990/2591. Schedule 3C was inserted by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 1 and Schedule 1.

M9 Section 1 was amended by S.I. 1990/2591 and by the Civil Jurisdiction and Judgments Act 1991 (c.12), section 2.

Motion procedure S

2.30  Except where the sheriff otherwise directs, any motion relating to a summary application shall be made in accordance with, and regulated by, Chapter 15 of the Ordinary Cause Rules.

Power of sheriff to make orders S

2.31  The sheriff may make such order as he thinks fit for the progress of a summary application in so far as it is not inconsistent with section 50 of the Sheriff Courts (Scotland) Act 1907.

CHAPTER 3 S RULES ON APPLICATIONS UNDER SPECIFIC STATUES

PART I S ADMINISTRATION OF JUSTICE (SCOTLAND) ACT 1972

Interpretation and application S

3.1.1—(1) In this Part, “the Act” means the Administration of Justice (Scotland) Act 1972 M10 .

(2) This Part applies to applications under section 1(1) of the Act.

Marginal Citations

M10 1972 c.59.

Applications under section 1(1) of the Act S

3.1.2  An application for an order under section 1(1) of the Act (orders for inspection of documents and other property, etc.) shall be made by summary application where the proceedings in respect of which the application is made have not been commenced.

PART II S BETTING AND GAMING APPEALS

Interpretation S

3.2.1  In this Part–

• “the 1963 Act” means the Betting Gaming and Lotteries Act 1963 M11 ;

• “the 1968 Act” means the Gaming Act 1968 M12 ; and

• “the 1976 Act” means the Lotteries and Amusements Act 1976 M13 .

Marginal Citations

M11 1963 c.2.

M12 1968 c.65.

M13 1976 c.32.

Appeals under Part I of the 1963 Act S

3.2.2—(1) This rule applies to–

(a) appeals under paragraph 24(1) of Schedule 1 to the 1963 Act against the decision of a licensing board refusing to grant or renew a bookmaker’s permit, betting agency permit or betting office licence;

(b) appeals under paragraph 28(2) of Schedule 1 to the 1963 Act against a decision of a licensing board ordering that a bookmaker’s permit be forfeited or cancelled;

(c) appeals under paragraph 28D of Schedule 1 to the 1963 Act M14 against the decision of a licensing board ordering that a betting office licence be forfeited and cancelled;

(d) appeals under paragraph 7 of Schedule 2 to the 1963 Act against the decision of a registering authority to refuse to register that appellant as a pools promoter, or to revoke his registration as a pools promoter; and

(e) appeals under paragraph 13(3) of Schedule 3 to the 1963 Act against the decision of a licensing authority to revoke a track betting licence.

(2) The appellant shall serve a copy of the initial writ on–

(a) the clerk to the licensing board, registering authority or licensing authority, as the case may be;

(b) all parties who appeared at the hearing before the licensing board, registering authority or licensing authority, as the case may be; and

(c) in the case of an appeal against the forfeiture and cancellation of a bookmaker’s permit or of a betting office licence, the applicant for forfeiture and cancellation.

(3) The clerk to the licensing board, registering authority or licensing authority, as the case may be shall, within 7 days after the date of service on him of a copy of the initial writ, send a written statement setting out the reasons for the decision of the licensing board, registering authority or licensing authority, as the case may be to–

(a) the sheriff clerk; and

(b) each of the persons on whom service of a copy initial writ is required to be made in terms of paragraph (2).

Marginal Citations

M14 Paragraph 28D of Schedule 1 was inserted by S.I. 1997/947.

Appeals by applicants under Part II of the 1968 Act S

3.2.3—(1) This rule applies to–

(a) appeals under paragraph 33(1) of Schedule 2 to the 1968 Act against the decision of a licensing board refusing to grant or renew a licence for gaming to take place on premises or imposing restrictions on such a licence; and

(b) appeals under paragraph 45 of that Schedule against the decision of a licensing board cancelling such a licence.

(2) The appellant shall serve a copy of the initial writ on–

(a) the clerk to the licensing board;

(b) all parties who appeared at the hearing before the licensing board;

(c) the Gaming Board;

(d) the appropriate collector of duty; and

(e) the appropriate officer of police.

(3) The clerk to the licensing board shall within 7 days after the date of service on him of a copy of the initial writ, send a written statement setting out the reasons for the decision of the licensing board to–

(a) the sheriff clerk; and

(b) each of the persons on whom service of a copy initial writ is required to be made in terms of paragraph (2).

Appeals by the Gaming Board under Part II of the 1968 Act S

3.2.4—(1) This rule applies to–

(a) appeals under paragraph 34(1) of Schedule 2 to the 1968 Act against the decision of a licensing board to grant or renew a licence for gaming to take place on premises, with or without imposing restrictions; and

(b) appeals under paragraph 47(1) of that Schedule against the decision of a licensing board refusing to cancel such a licence.

(2) Where a licensing board, after hearing any objections or representations made by or on behalf of the Gaming Board or any other person–

(a) grants or renews a licence for gaming to take place on premises, with or without imposing restrictions; or

(b) refuses an application for the cancellation of such a licence,

the clerk to the licensing board shall forthwith give notice of the decision of the licensing board to the Gaming Board.

(3) The appellant shall serve a copy of the initial writ on–

(a) the clerk to the licensing board;

(b) the applicant;

(c) all parties who appeared at the hearing before the licensing board;

(d) the Gaming Board;

(e) the appropriate collector of duty; and

(f) the appropriate officer of police.

(4) The clerk to the licensing board shall within 7 days after the date of service on him of a copy of the initial writ, send a written statement setting out the reasons for the decision of the licensing board to–

(a) the sheriff clerk; and

(b) each of the persons on whom service of a copy initial writ is required to be made in terms of paragraph (3).

Appeals under Part III of the 1968 Act and Part III of the 1976 Act S

3.2.5—(1) This rule applies to–

(a) appeals under paragraph 15 of Schedule 9 to the 1968 Act against the decision of the appropriate authority refusing to grant or renew a permit for the provision of machines for amusement purposes on premises, or to grant such a permit subject to a condition; and

(b) appeals under paragraph 12 of Schedule 3 to the 1976 Act against the decision of the appropriate authority refusing to grant or renew a permit for the provision of amusements with prizes or to grant or renew such a permit subject to a condition.

(2) The appellant shall serve a copy of the initial writ on–

(a) the clerk to the authority;

(b) the applicant;

(c) all parties who appeared at the hearing before the authority;

(d) the Gaming Board;

(e) the appropriate collector of duty; and

(f) the appropriate officer of police.

PART III S COAL MINING SUBSIDENCE ACT 1991

Interpretation and application S

3.3.1—(1) In this Part–

• “the Act” means the Coal Mining Subsidence Act 1991 M15 ;

• “agreement or consent” means the agreement or consent referred to in section 41 of the Act M16 ;

• “person” means a person referred to in section 41 of the Act;

• “any person with responsibility for subsidence affecting any land” has the meaning given in section 43 of the Coal Industry Act 1994 M17 .

(2) This Part applies to proceedings under section 41 of the Act.

Marginal Citations

M15 1991 c.45.

M16 Section 41 was amended by the Coal Industry Act 1994 (c.21), Schedule 6, paragraph 7.

M17 1994 c.21.

Applications under section 41 of the Act S

3.3.2—(1) An application under section 41 of the Act (disputes about withholding of agreement or consent) shall specify–

(a) the person with whom any person with responsibility for subsidence affecting any land has reached agreement and from whom any person with responsibility for subsidence affecting any land obtained consent; and

(b) the steps which have been taken to obtain the agreement or consent of the person who is withholding such agreement or consent.

(2) An application under section 41 of the Act made in relation to the exercise of a power under section 5(3) or (5) of the Act, shall, when lodged with the sheriff clerk, be accompanied by the notice of proposed remedial action under section 4(2) of the Act.

PART IV S CONVEYANCING AND FEUDAL REFORM (SCOTLAND) ACT 1970

Application S

3.4.1—(1) In this Part, “the Act” means the Conveyancing and Feudal Reform (Scotland) Act 1970 M18 .

(2) This Part applies to applications and counter applications under Part II of the Act.

Marginal Citations

M18 1970 c.35; relevant amendments are contained in the Redemption of Standard Securities (Scotland) Act 1971 (c.45), section 1, the Land Tenure Reform (Scotland) Act 1974 (c.38), section 11(6), the Land Registration (Scotland) Act 1979 (c.33), Schedule 2, paragraph 4, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c.59), section 20, S.I. 1986/843, S.I. 1990/661, the Agricultural Holdings (Scotland) Act 1991 (c.55), Schedule 11, paragraph 32 and the Requirements of Writing (Scotland) Act 1995 (c.7), Schedule 4, paragraphs 44, 45 and 46.

Disposal of applications under Part II of the Act S

3.4.2  An interlocutor of the sheriff disposing of an application or counter application under Part II of the Act shall be final and not subject to appeal except as to a question of title or as to any other remedy granted.

PART V S COPYRIGHT, DESIGNS AND TRADE MARKS

Interpretation S

3.5.1  In this Part–

• “the 1988 Act” means the Copyright, Designs and Patents Act 1988 M19 ;

• “the 1994 Act” means the Trade Marks Act 1994 M20 ; and

• “the 1995 Regulations” means the Olympics Association Right (Infringement Proceedings) Regulations 1995 M21 .

Marginal Citations

M19 1988 c.48.

M20 1994 c.26.

M21 S.I. 1995/3325.

Orders for delivery up, forfeiture, destruction or other disposal S

3.5.2  An application to the sheriff made under sections 99, 114, 195, 204, 230, 231 or 298 of the 1988 Act M22 , under sections 16 or 19 of the 1994 Act or under Regulation 3 or 5 of the 1995 Regulations, shall be made–

(a) by motion or incidental application, as the case may be, where proceedings have been commenced; or

(b) by summary application where no proceedings have been commenced.

Marginal Citations

M22 Section 195 was amended by S.I. 1996/2967. Sections 114, 204 and 231 were amended by the Trade Marks Act 1994, (c.26), Schedule 4, paragraph 8(2).

Service of notice on interested persons S

3.5.3  Where an application has been made under section 114, 204, 231 or 298 of the 1988 Act, section 19 of the 1994 Act or Regulation 5 of the 1995 Regulations–

(a) the application shall–

(i) specify the name and address of any person known or believed by the applicant to have an interest in the subject matter of the application; or

(ii) state that to the best of the applicant’s knowledge and belief no other person has such an interest; and

(b) the sheriff shall order that there be intimated to any person who has such an interest, a copy of the pleadings and any motion, incidental application or summary application, as the case may be.

Procedure where leave of court required S

3.5.4—(1) Where leave of the court is required under the 1988 Act before the action may proceed, the pursuer shall lodge along with the initial writ or summons a motion or incidental application, as the case may be, stating the grounds upon which leave is sought.

(2) The sheriff may hear the pursuer on the motion or incidental application and may grant or refuse it or make such other order in relation to it as he considers appropriate prior to determination.

(3) Where such motion or incidental application is granted, a copy of the sheriff’s interlocutor shall be served upon the defender along with the warrant of citation.

PART VI S DRUG TRAFFICKING ACT 1994

Interpretation and application S

3.6.1—(1) In this Part, “the Act” means the Drug Trafficking Act 1994 M23 .

(2) This Part applies to applications under Part II of the Act.

Marginal Citations

M23 1994 c.37.

Determination of applications for continued detention of cash S

3.6.2—(1) On the lodging of an application for an order under section 42(2) of the Act (order for continued detention of seized cash), the sheriff shall proceed to determine the application.

(2) A further application for the continued detention of cash under section 42(3) of the Act shall be made by minute in the original process and shall be proceeded with in accordance with paragraph (3).

(3) On the lodging of a further application in accordance with paragraph (2), the sheriff shall–

(a) fix a date for determination of the application; and

(b) order service of the application together with notice of such date for determination on any persons whom he considers may be affected.

Determination of application for release of cash S

3.6.3—(1) An application under section 42(6) of the Act (release of detained cash) shall be made–

(a) prior to the making of an application for an order under section 42(2) of the Act, by summary application; or

(b) subsequent to the making of such an application, by minute in the original process.

(2) On the lodging of an application in accordance with paragraph (1), the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on the Procurator Fiscal and any other person whom he considers may be affected by the granting of such an application.

Determination of application for forfeiture of cash S

3.6.4—(1) An application under section 43 of the Act (forfeiture of detained cash) shall be made–

(a) prior to the making of an application for an order under section 42(2) of the Act, by summary application; or

(b) subsequent to the making of such an application, by minute in the original process.

(2) On the lodging of an application in accordance with paragraph (1), the sheriff shall–

(a) fix a date for a hearing; and

(b) order service of the application together with notice of such hearing on any person whom he considers may be affected by the granting of such an application.

Service S

3.6.5  Service of any document under this Part shall be made by such method as the sheriff directs.

Sist of party S

3.6.6  Where any person is affected by the detention of cash under the Act, he may, before the conclusion of any hearing, apply by motion for leave to be sisted as a party to any proceedings under this Part.

PART VII S LICENSING (SCOTLAND) ACT 1976

Interpretation and application S

3.7.1—(1) In this Part, “the Act” means the Licensing (Scotland) Act 1976 M24 .

(2) This Part applies to appeals under section 39 of the Act M25 .

Marginal Citations

M24 1976 c.66.

M25 Section 39 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c.40), Schedule 8, paragraph 11.

Service S

3.7.2  The appellant shall serve a copy of the initial writ on–

(a) the clerk to the licensing board and the chief constable;

(b) if he was the applicant at the hearing before the licensing board, upon all parties who appeared at the hearing; and

(c) if he was an objector at the hearing, upon the applicant.

Statement of reasons of licensing board S

3.7.3—(1) Where the appellant has received from the licensing board a statement of reasons for its decision, he shall lodge a copy thereof with the sheriff clerk along with the initial writ.

(2) The sheriff may, at any time prior to pronouncing a final interlocutor, require the licensing board to state the ground of refusal of an application and to give their reasons for finding such ground to be established.

PART VIII S MENTAL HEALTH (SCOTLAND) ACT 1984

Interpretation and application S

3.8.1—(1) In this Part, “the Act” means the Mental Health (Scotland) Act 1984 M26 .

(2) This Part applies to–

(a) applications for admission submitted to a sheriff under section 21 of the Act M27 ;

(b) guardianship applications submitted to a sheriff under section 40 of the Act M28 ; and

(c) community care applications submitted under section 35A of the Act M29 .

Marginal Citations

M26 1984 c.36.

M27 Section 21 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section 51(2), and by the Mental Health (Detention) (Scotland) Act 1991 (c.47), section 2.

M28 Section 40 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section 51(2).

M29 Section 35A was inserted by the Mental Health (Patients in the Community) Act 1995 (c.52), section 4.

Appointment of hearing S

3.8.2—(1) On an application being submitted, the sheriff shall appoint a hearing subject, in the case of an application for admission, to section 21(3A) of the Act M30 .

(2) The sheriff may, where he considers it appropriate in all the circumstances, appoint that the hearing of an application shall take place in a hospital or other place.

Marginal Citations

M30 Subsection (3A) of section 21 was inserted by the Mental Health (Detention) (Scotland) Act 1991 (c.47), section 2.

Service of application S

3.8.3—(1) The sheriff clerk shall serve or cause to be served on the patient a copy of the application, with the exception of any medical recommendation, together with a notice in Form 12.

(2) Where the patient is not a resident patient in a hospital, the notice and copy application shall be served on him personally by sheriff officer.

(3) Where the patient is a resident patient in a hospital, the notice and copy application shall be served together with a notice in Form 13 on his responsible medical officer–

(a) by first class recorded delivery service; or

(b) personally by sheriff officer.

(4) Where the patient is already the subject of a guardianship order, the notice and copy application (including any medical recommendations) shall, in addition to any other service required by this rule, be served on the guardian–

(a) by first class recorded delivery service; or

(b) personally by a sheriff officer.

Duties of responsible medical officer S

3.8.4—(1) On receipt of a notice in Form 13 the responsible medical officer shall, subject to rule 3.8.5(1)–

(a) deliver the notice in Form 12 to the patient; and

(b) as soon as practicable thereafter, complete and return to the court a certificate of such delivery in Form 14.

(2) Where, in the opinion of the responsible medical officer, it would be prejudicial to the patent’s health or treatment if the patient were to be present during the proceedings–

(a) in an application to which rule 3.8.3(3) applies, the responsible medical officer shall set forth his reasons for his opinion in the certificate in Form 14; and

(b) in any other case, the responsible medical officer or the special medical officer, as the case may be, shall set forth his reasons for his opinion in writing and send them to the sheriff clerk.

Appointment of curatorad litem S

3.8.5—(1) Where two medical certificates are produced stating that it would be prejudicial to the health or treatment of the patient if personal service were effected in terms of rule 3.8.3(2) or 3.8.4(1) the sheriff–

(a) may dispense with such service; and

(b) if he does so, shall appoint a curatorad litem to receive the application and represent the interest of that patient.

(2) The sheriff may appoint a curatorad litem to represent the interests of the patient where he is satisfied that–

(a) the patient should be excluded from the whole or any part of the proceedings under section 113(2) of the Act; or

(b) in any other case, it is in all the circumstances appropriate to do so.

(3) The sheriff clerk shall serve the application on the curatorad litem by handing, or sending by first class recorded delivery service, to him a copy of the application and of the order appointing him as the curator.

Appointment of solicitor by court S

3.8.6  Where the patient has indicated that he wishes to be represented at the hearing but has not nominated a representative, the sheriff may appoint a solicitor to take instructions from the patient.

Intimation to representatives S

3.8.7  Where in any proceedings under the Act, the sheriff clerk is aware that the patient is represented by any person and that representative would not otherwise receive intimation of any diet, a copy of the notice served on the patient shall be intimated to the representative by the sheriff clerk by first class recorded delivery service.

Service by sheriff officer S

3.8.8—(1) Where a copy of an application and any notice has been served personally by sheriff officer, he shall prepare and return to the court an execution of such service setting forth in detail the manner and circumstances of such service.

(2) Where a sheriff officer has been unable to effect personal service under this Part, he shall report to the court the reason why service was not effected.

Variation of conditions of community care order S

3.8.9—(1) Where, after consulting the persons referred to in subsections (1) and (2) of section 35D of the Act (variation of conditions of community care order) M31 , an application is made by the special medical officer for the variation of a community care order under that section, the special medical officer shall–

(a) complete Form 22 in Schedule 2 to the Mental Health (Prescribed Forms) (Scotland) Regulations 1996 M32 ; and

(b) lodge that form with the sheriff clerk, together with a certified copy of the community care order to which the application for variation relates.

Marginal Citations

M31 Section 35D was inserted by the Mental Health (Patients in the Community) Act 1995 (c.52), section 4.

M32 S.I. 1996/743.

Hearing S

3.8.10—(1) Any hearing to determine an application under rule 3.8.9 shall take place within 28 days after receipt by the sheriff clerk of Form 22 and the community care order referred to in that rule.

(2) Intimation of the date of the hearing referred to in paragraph (1) shall be given by the sheriff clerk by first class recorded delivery service to such persons as the sheriff may direct; and any intimation of such date to the patient shall be made personally by sheriff officer.

Appeal against community care order S

3.8.11  An application by way of appeal for the revocation of a community care order under section 35F of the Act M33 shall be in Form 15.

Marginal Citations

M33 Section 35F was inserted by the Mental Health (Patients in the Community) Act 1995 (c.52), section 4.

PART IX S PROCEEDS OF CRIME (SCOTLAND) ACT 1995

Interpretation and application S

3.9.1—(1) In this Part–

“the Act” means the Proceeds of Crime (Scotland) Act 1995 M34 ; and

“administrator” means the person appointed under paragraph 1(1) of Schedule 1 to the Act.

(2) This Part applies to proceedings under sections 28, 29, 30, 31 and 33 of, and paragraphs 1, 2, 4, 6 and 12 of Schedule 1 to, the Act.

Marginal Citations

M34 1995 c.43.

Service of restraint orders S

3.9.2  Where the sheriff pronounces an interlocutor making a restraint order under section 28(1) of the Act (application for restraint order), the prosecutor shall serve a copy of that interlocutor on every person named in the interlocutor as restrained by the order.

Recall or variation of restraint orders S

3.9.3—(1) An application to the sheriff under any of the following provisions of the Act shall be made by note in the process containing the interlocutor making the restraint order to which the application relates–

(a) section 29(4) or (5) (recall of restraint orders in relation to realisable property);

(b) section 30(3) or (4) (recall of restraint orders in relation to forfeitable property);

(c) section 31(1) (variation or recall of restraint order).

(2) In respect of an application by note under paragraph (1)(c) by a person having an interest for an order for variation or recall under section 31(1)(b) of the Act–

(a) the note shall be lodged in process within 21 days after service of the restraint order on that person or within such other period as the sheriff thinks fit; and

(b) the period of notice for lodging answers to the note shall be 14 days or such other period as the sheriff thinks fit.

Applications for interdict S

3.9.4—(1) An application to the sheriff under section 28(8) of the Act (interdict) may be made–

(a) in the application made under section 28(1) of the Act; or

(b) if made after a restraint order has been made, by note in the process of the application for that order.

(2) An application under section 28(8) of the Act by note under paragraph (1)(b) shall not be intimated, served or advertised before that application is granted.

Applications in relation to arrestment S

3.9.5—(1) An application to the sheriff under section 33(1) of the Act (arrestment of property affected by restraint order) by the prosecutor for warrant for arrestment may be made–

(a) in the application made under section 28(1) of the Act; or

(b) if made after a restraint order has been applied for, by note in the process of the application for that order.

(2) An application to the sheriff under section 33(2) of the Act, to loose, restrict or recall an arrestment shall be made by note in the process of the application for the restraint order.

(3) An application to the sheriff under section 33(4) of the Act (recall or restriction of arrestment) shall be made by note in the process containing the interlocutor making the restraint order to which the application relates.

Appeals to the Court of Session S

3.9.6—(1) This rule applies to appeals against an interlocutor of the sheriff refusing, varying or recalling or refusing to vary or recall a restraint order.

(2) An appeal to which this rule applies shall be marked within 14 days after the date of the interlocutor concerned.

(3) An appeal to which this rule applies shall be marked by writing a note of appeal on the interlocutor sheet, or other written record containing the interlocutor appealed against, or on a separate sheet lodged with the sheriff clerk, in the following terms:– “The applicant appeals to the Court of Session.”.

(4) A note of appeal to which this rule applies shall–

(a) be signed by the appellant;

(b) bear the date on which it is signed; and

(c) where the appellant is represented, specify the name and address of the solicitor or other agent who will be acting for him in the appeal.

(5) The sheriff clerk shall transmit the process within 4 days after the appeal is marked to the Deputy Principal Clerk of Session.

(6) Within the period specified in paragraph (5), the sheriff clerk shall–

(a) send written notice of the appeal to every other party; and

(b) certify on the interlocutor sheet that he has done so.

(7) Failure of the sheriff clerk to comply with paragraph (6) shall not invalidate the appeal.

Applications for appointment of administrators S

3.9.7—(1) An application to the sheriff under paragraph 1 of Schedule 1 to the Act (appointment of administrators) shall be made–

(a) where made after a restraint order has been made, by note in the process of the application for that order; or

(b) in any other case, by summary application.

(2) The notification to be made by the sheriff clerk under paragraph 1(3)(a) of Schedule 1 to the Act shall be made by intimation of a copy of the interlocutor to the person required to give possession of property to an administrator.

Incidental applications in an administration S

3.9.8—(1) An application to the sheriff under any of the following provisions of Schedule 1 to the Act shall be made by note in the process of the application for appointment of the administrator–

(a) paragraph 1(1) with respect to an application after appointment of an administrator to require a person to give property to him;

(b) paragraph 1(4) (making or altering a requirement or removal of administrator);

(c) paragraph 1(5) (appointment of new administrator on death, resignation or removal of administrator);

(d) paragraph 2(1)(n) (directions as to functions of administrator);

(e) paragraph 4 (directions for application of proceeds).

(2) An application to the sheriff under any of the following provisions of Schedule 1 to the Act shall be made in the application for appointment of an administrator under paragraph 1(1) of that Schedule or, if made after the application has been made, by note in the process–

(a) paragraph 2(1)(o) (special powers of administrator);

(b) paragraph 2(3) (vesting of property in administrator);

(c) paragraph 12 (order to facilitate the realisation of property).

Requirements where order to facilitate realisation of property considered S

3.9.9  Where the sheriff considers making an order under paragraph 12 of Schedule 1 to the Act (order to facilitate the realisation of property)–

(a) the sheriff shall fix a date for a hearing in the first instance; and

(b) the applicant or noter, as the case may be, shall serve a notice in Form 16 on any person who has an interest in the property.

Documents for Accountant of Court S

3.9.10—(1) A person who has lodged any document in the process of an application for the appointment of an administrator shall forthwith send a copy of that document to the Accountant of Court.

(2) The sheriff clerk shall transmit to the Accountant of Court any part of the process as the Accountant of Court may request in relation to an administration which is in dependence before the sheriff unless such part of the process is, at the time of request, required by the sheriff.

Procedure for fixing and finding caution S

3.9.11  Rules 9 to 12 of the Act of Sederunt (Judicial Factors Rules) 1992 (fixing and finding caution in judicial factories) M35 shall, with the necessary modifications, apply to the fixing and finding of caution by an administrator under this Part as they apply to the fixing and finding of caution by a judicial factor.

Marginal Citations

M35 S.I. 1992/272.

Administrator’s title to act S

3.9.12  An administrator appointed under this Part shall not be entitled to act until he has obtained a copy of the interlocutor appointing him.

Duties of administrator S

3.9.13—(1) The administrator shall, as soon as possible, but within three 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 vouchers, securities, and other documents which are in his possession; and

(c) a statement of that 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, subject to paragraph (3)–

(a) within six months after the date of his appointment; and

(b) at six monthly intervals after the first account during the subsistence of his appointment,

lodge with the Accountant of Court an account of his intromissions in such form, with such supporting vouchers and other documents, as the Accountant of Court may require.

(3) The Accountant of Court may waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period.

State of funds and scheme of division S

3.9.14—(1) The administrator shall–

(a) where there are funds available for division, prepare a state of funds after application of sums in accordance with paragraph 4(2) of Schedule 1 to the Act, and a scheme of division amongst those who held property which has been realised under the Act and lodge them and all relevant documents with the Accountant of Court; or

(b) where there are no funds available for division, prepare a state of funds only and lodge it with the Accountant of Court, and give to the Accountant of Court such explanations as he shall require.

(2) The Accountant of Court shall–

(a) make a written report on the state of funds and any scheme of division including such observations as he considers appropriate for consideration by the sheriff; and

(b) return the state of funds and any scheme of division to the administrator with his report.

(3) The administrator shall, on receiving the report of the Accountant of Court–

(a) lodge in process the report, the state of funds and any scheme of division;

(b) intimate a copy of it to the prosecutor; and

(c) intimate to each person who held property which has been realised under the Act a notice stating–

(i) that the state of funds and scheme of division or the state of funds only, as the case may be, and the report of the Accountant of Court, have been lodged in process; and

(ii) the amount for which that person has been ranked, and whether he is to be paid in full, or by a dividend, and the amount of it, or that no funds are available for payment.

Objections to scheme of division S

3.9.15—(1) A person wishing to be heard by the sheriff in relation to the distribution of property under paragraph 4(3) of Schedule 1 to the Act shall lodge a note of objection in the process to which the scheme of division relates within 21 days of the date of the notice intimated under rule 3.9.14(3)(c).

(2) After the period for lodging a note of objection has expired and no note of objection has been lodged, the administrator may apply by motion for approval of the scheme of division and state of funds, or the state of funds only, as the case may be.

(3) After the period for lodging a note of objection has expired and a note of objection has been lodged, the sheriff shall dispose of such objection after hearing any objector and the administrator and making such inquiry as he thinks fit.

(4) 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 sheriff.

Application for discharge of administrator S

3.9.16—(1) Where the scheme of division is approved by the sheriff and the administrator has paid, delivered or conveyed to the persons entitled the sums or receipts allocated to them in the scheme, the administrator may apply for his discharge.

(2) An application to the sheriff for discharge of the administrator shall be made by note in the process of the application under paragraph 1(1) of Schedule 1 to the Act.

Appeals against determination of outlays and remuneration S

3.9.17  An appeal to the sheriff under paragraph 6(2) of Schedule 1 to the Act (appeal against a determination by the Accountant of Court) shall be made by note in the process of the application in which the administrator was appointed.

PART X S RATING (DISABLED PERSONS) ACT 1978

Interpretation and application S

3.10.1—(1) In this Part, “the Act” means the Rating (Disabled Persons) Act 1978 M36 .

(2) This Part applies to appeals under section 6(5) or 6(5A) of the Act M37 .

Marginal Citations

M36 1978 c.40.

M37 Section 6 was amended by the Rating and Valuation (Amendment) (Scotland) Act 1984 (c.31) (“the 1984 Act”), section 5. Section 6(5A) was inserted by the 1984 Act, section 5(2).

Appeals under section 6(5) or 6(5A) of the Act S

3.10.2  Any appeal under this Part shall be lodged within 42 days of the date on which the application to the rating authority is refused by the authority.

PART XI S REPRESENTATION OF THE PEOPLE ACT 1983

Interpretation and application S

3.11.1—(1) In this Part–

• “sheriff clerk” means, except in rule 3.11.2, the sheriff clerk of the sheriff court district where the trial of the election petition is to take place;

• “the Act” means the Representation of the People Act 1983 M38 .

(2) This Part applies to election petitions under the Act.

Marginal Citations

M38 1983 c.2.

Initiation of proceedings S

3.11.2—(1) The election petition shall be lodged with the sheriff clerk of a sheriff court district within which the election questioned has taken place.

(2) The sheriff clerk shall without delay transmit it to the sheriff principal who shall forthwith appoint–

(a) the time and place for trial of the petition;

(b) the amount of the security to be given by the petitioner; and

(c) if he thinks fit, answers to be lodged within a specified time after service.

(3) Service in terms of section 136(3) of the Act (security for costs) M39 shall be effected–

(a) personally within–

(i) 5 days; or

(ii) such other period as the sheriff principal may appoint,

of the giving of security; or

(b) by first class recorded delivery post within–

(i) 5 days; or

(ii) such other period as the sheriff principal may appoint,

of the giving of security.

Marginal Citations

M39 Section 136 was amended by the Representation of the People Act 1985 (c.50), Schedule 4, paragraph 48.

Security for expenses by bond of caution S

3.11.3—(1) If the security proposed is in whole or in part by bond of caution, it shall be given by lodging with the sheriff clerk a bond for the amount specified by the sheriff principal.

(2) Such bond shall–

(a) recite the nature of the petition; and

(b) bind and oblige the cautioner and the petitioner jointly and severally, and their respective heirs, executors and successors whomsoever, that the petitioner shall make payment of all costs, charges and expenses that may be payable by him to any person by virtue of any order or decree pronounced in the petition.

(3) The sufficiency of the cautioner must be attested to the satisfaction of the sheriff clerk, as in the case of judicial bonds of caution.

Objections to bond of caution S

3.11.4—(1) Objections to a bond of caution shall be lodged with the sheriff clerk within 14 days of service in terms of section 136(3) of the Act.

(2) Objections shall be heard and disposed of by the sheriff clerk.

(3) If any objection is allowed, it may be removed by a deposit of such sum of money as the sheriff clerk shall determine, made in the manner provided in rule 3.11.5 and within 5 days after the date of the sheriff clerk’s determination.

Security by deposit S

3.11.5—(1) Security tendered in whole or in part by deposit of money shall be made in such bank as the sheriff clerk may select.

(2) The deposit receipt shall be–

(a) taken in joint name of the petitioner and the sheriff clerk;

(b) handed to the sheriff clerk; and

(c) held by the sheriff clerk subject to the orders of the court in the petition.

Amendment of pleadings S

3.11.6—(1) Subject to paragraph (2), the sheriff principal shall have power at any stage to allow the petition and any answers to be amended upon such condition as to expenses or otherwise as he shall think fit.

(2) No amendment altering the ground upon which the election was questioned in the petition as presented shall be competent, except to the extent sanctioned by section 129(6) of the Act (time for presentation or amendment of petition questioning local election).

Notice of date and place of trial S

3.11.7—(1) The sheriff clerk shall, as soon as he receives intimation of the time and place fixed for trial–

(a) display a notice thereof on the walls of his principal office; and

(b) send by first class post one copy of such notice to–

(i) the petitioner;

(ii) the respondent;

(iii) the Lord Advocate; and

(iv) the returning officer.

(2) The returning officer on receipt of notice from the sheriff clerk shall forthwith publish the time and place fixed for trial in the area for which the election questioned was held.

(3) Subject to paragraph (4), display of a notice in accordance with paragraph (1)(a) shall be deemed to be notice in the prescribed manner within the meaning of section 139(1) of the Act (trial of petition) and such notice shall not be vitiated by any miscarriage of or relating to all or any copies sent by post.

(4) At any time before the trial it shall be competent for any party interested to bring any miscarriage of notice sent by post before the sheriff principal, who shall deal therewith as he may consider fit.

Clerk of court S

3.11.8  The sheriff clerk shall attend and act as clerk of court at the trial of the petition.

Shorthand writer’s charges S

3.11.9  The shorthand writer’s charges, as approved by the sheriff principal, shall be paid in the first instance by the petitioner.

Appeals S

3.11.10  The application to state a special case referred to in section 146(1) of the Act (special case for determination of the Court of Session) shall be made by minute in the petition proceedings.

List of votes objected to and of objections S

3.11.11—(1) When a petitioner claims the seat for an unsuccessful candidate, alleging that such candidate had a majority of lawful votes, he and the respondent shall, 5 days before the day fixed for the trial, respectively deliver to the sheriff clerk, and send by first class post to the other party and the Lord Advocate, a list of the votes intended to be objected to, and of the objections to each such vote.

(2) The sheriff clerk shall allow inspection of such list to all parties concerned.

(3) No evidence shall be allowed to be given against any vote or in support of any objection not specified in such list, except by leave of the sheriff principal granted upon such terms as to the amendment of the list, postponement of the trial, and payment of expenses as to him may seem fit.

Petition against undue return S

3.11.12—(1) When on the trial of a petition complaining of an undue return and claiming the office for some person, the respondent intends to give evidence to prove that that person was not duly elected, such respondent shall, 5 days before the day appointed for the trial, deliver to the sheriff clerk, and send by first class post to the petitioner and the Lord Advocate, a list of the objections to the election upon which he intends to rely.

(2) No evidence shall be allowed to be given by a respondent in support of any objection to the election not specified in such list except by leave of the sheriff principal granted upon such terms as to the amendment of the list, postponement of the trial, and payment of expenses as to him may seem fit.

Prescribed officer S

3.11.13  The sheriff clerk shall be the prescribed officer for the purposes of sections 143(1) (expenses of witnesses) and 155(2) (neglect or refusal to pay costs) of the Act.

Leave to abandon S

3.11.14—(1) Application for leave to withdraw a petition in terms of section 147(1) of the Act (withdrawal of petition), shall be made by minute in Form 17 and shall be preceded by written notice of the intention to make it, sent by first class post to–

(a) the respondent;

(b) the Lord Advocate; and

(c) the returning officer.

(2) The returning officer shall forthwith publish the fact of his having received such notice in the area for which the election questioned was held.

(3) The sheriff principal, upon the application being laid before him, shall by interlocutor, fix the time, not being earlier than 8 days after the date of the interlocutor, and place for hearing it.

(4) The petitioner shall, at least 6 days before the day fixed for the hearing, publish in a newspaper circulating in the district named in the interlocutor a notice in Form 18.

Death of petitioner S

3.11.15—(1) In the event of the death of the sole petitioner, or of the last survivor of several petitioners, the sheriff clerk shall forthwith, upon the fact being brought to his knowledge, insert in a newspaper circulating in the district a notice in Form 19.

(2) The time within which any person who might have been a petitioner in respect of the election may apply to the court by minute in the petition proceedings to be substituted as a petitioner shall be 21 days from the date of publication of such notice.

Notice by respondent that he does not oppose petition S

3.11.16—(1) Notice that a respondent does not intend to oppose a petition shall be given by leaving a written notice to that effect at the office of the sheriff clerk at least 6 days (exclusive of the day of leaving such notice) before the day fixed for the trial.

(2) On such notice being left with the sheriff clerk, or on its being brought to his knowledge that a respondent other than a returning officer has died, resigned, or otherwise ceased to hold the office to which the petition relates, the sheriff clerk shall forthwith–

(a) advertise the fact once in a newspaper circulating in the district; and

(b) send intimation thereof by first class post to–

(i) the petitioner;

(ii) the Lord Advocate; and

(iii) the returning officer, who shall publish the fact in the district.

(3) The advertisement to be made by the sheriff clerk shall state the last day on which, under this Part, application to be admitted as a respondent to oppose the petition can be made.

Application to be admitted as respondent S

3.11.17  Application to be admitted as a respondent to oppose a petition on the occurrence of any of the events mentioned in section 153(1) of the Act (withdrawal and substitution of respondents before trial) must be made by minute in the petition proceedings within 10 days after the date of publication of the advertisement mentioned in rule 3.11.16, unless the sheriff principal on cause shown sees fit to extend the time.

Public notice of trial not proceeding S

3.11.18—(1) This rule applies where after the notice of trial has been published the sheriff clerk receives notice of–

(a) the petitioner’s intention to apply for leave to withdraw;

(b) the respondent’s intention not to oppose;

(c) the abatement of the petition by death; or

(d) the occurrence of any of the events mentioned in section 153(1) of the Act.

(2) Where this rule applies the sheriff clerk shall forthwith give notice by advertisement inserted once in a newspaper circulating in the district, that the trial will not proceed on the day fixed.

Notice to a party’s agent sufficient S

3.11.19  Where a party to proceedings under this Part is represented by a solicitor any reference to such party shall, where appropriate, be construed as a reference to the solicitor representing that party and a notice sent to his solicitor shall be held to be notice to the party.

Cost of publication S

3.11.20  Where under this Part the returning officer or the sheriff clerk requires to have published a notice or advertisement, the cost shall be paid in the first instance by the petitioner or in the case of a notice under rule 3.11.15 from the estate of the sole or last surviving petitioner and shall form part of the general expenses of the petition.

Expenses S

3.11.21  The expenses of petitions and other proceedings under the Act shall be taxed by the auditor of the sheriff court.

PART XII S REQUESTS OR APPLICATIONS UNDER THE MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION

Interpretation S

3.12.1  In this Part, “the Model Law” means the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration as set out in Schedule 7 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 M40 .

Marginal Citations

M40 1990 c.40.

Application S

3.12.2—(1) Subject to sub-paragraph (2), any request or application which may be made to the sheriff under the Model Law shall be made by summary application.

(2) Where proceedings involving the same arbitration and the same parties are already pending before the sheriff under this Part, a further application or request may be made by note in the same process.

(3) The sheriff shall order service of such summary application or note to be made on such persons as he considers appropriate.

Recognition and enforcement of awards S

3.12.3—(1) There shall be lodged along with an application under Article 35 of the Model Law–

(a) the original arbitration agreement or certified copy thereof;

(b) the duly authenticated original award or certified copy thereof; and

(c) where appropriate, a duly certified translation in English of the agreement and award.

(2) An application under this paragraph shall specify whether to the knowledge of the applicant–

(a) the arbitral award has been recognised, or is being enforced, in any other jurisdiction; and

(b) an application for setting aside or suspension of the arbitral award has been made to a court of the country in which or under whose law the award was made.

(3) Where the sheriff is satisfied that an arbitral award should be recognised and enforced, he shall so order and shall instruct the sheriff clerk to register the award in the Books of the Sheriff Court for execution.

PART XIII S SEX DISCRIMINATION ACT 1975

Interpretation S

3.13.1  In this Part–

• “the Act” means the Sex Discrimination Act 1975 M41 ; and

• “the Commission” means the Equal Opportunities Commission established under section 53 of the Act.

Marginal Citations

M41 1975 c.65.

Application S

3.13.2  This Part shall apply to the following proceedings under the Act:–

(a) an application by the Commission under section 59(4) for an order requiring a person to comply with a notice served on him under section 59(1);

(b) an appeal by a person under section 68(1) against a requirement of a non-discrimination notice served on him under section 67;

(c) an application by the Commission under section 71(1) for an order restraining a person from doing any of the acts referred to in that section;

(d) an application by the Commission under section 72(2) for a decision whether an alleged contravention of section 38, 39 or 40 has occurred;

(e) an application by the Commission under section 72(4) for an order restraining a person from doing any of the acts referred to in that section; and

(f) an application by a person under section 77(5) M42 for an order removing or modifying any term of a contract made unenforceable by section 77(2).

Marginal Citations

M42 Section 77 was amended by the Trade Union Reform and Employment Rights Act 1993 (c.19), Schedule 6, paragraph 1 and by the Employment Rights (Dispute Resolution) Act 1998 (c.8), sections 8, 9, 10, 15 and Schedule 1, paragraph 2.

Taxation of Commission expenses S

3.13.3  The expenses incurred by the Commission within the meaning and for the purposes of section 75(3) of the Act M43 shall be taxed by the auditor of the sheriff court in which the proceedings under the Act were taken or would have been taken but for any compromise or settlement, as if they were outlays incurred by a solicitor on behalf of the applicant.

Marginal Citations

M43 Section 75 was amended by the Industrial Tribunals Act 1996 (c.17), Schedule 1, paragraph 3.

Proceedings under section 66 of the Act S

3.13.4—(1) In a cause in which a breach of statutory duty under section 66(1) of the Act (proceedings for act of discrimination) M44 is averred, the sheriff may, of his own motion or on the motion of any party, appoint an assessor.

(2) An assessor appointed under paragraph (1) shall be a person who the sheriff considers has special qualifications to be of assistance in determining a cause referred to in that paragraph.

(3) In a cause referred to in paragraph (1), the pursuer shall send a copy of the initial writ by post by first class recorded delivery service to the Commission.

Marginal Citations

M44 Section 66 was amended by S.I. 1996/438.

Rodger of Earlsferry

Lord President, I.P.D

Edinburgh

19th March 1999