Sheriff Courts (Scotland) Act 1907

1907 c. 51

An Act to regulate and amend the Laws and practice relating to the civil procedure in Sheriff Courts in Scotland, and for other purposes.

Enacted[28th August 1907] ^C1^C2

Preliminary ¶

1 Short title.¶

This Act may be cited for all purposes as the Sheriff Courts (Scotland) Act 1907.

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3 Interpretation.¶

In construing this Act (unless where the context is repugnant to such construction)—

a “ sheriff principal” includes sheriff;

b “Tenant” includes sub-tenant;

c “Lease” includes sub-lease;

d “Action” or “cause” includes every civil proceeding competent in the ordinary sheriff court;

e “Person” includes company, corporation, or association and firm of any description nominate or descriptive, or any Board corporate or unincorporate;

f “Sheriff clerk” includes sheriff-clerk depute;

g “Agent” means a law-agent enrolled in terms of the ^M1Law Agents (Scotland) Act 1873;

h “Final judgment” means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that expenses found due may not have been modified, taxed, or decerned for;

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j “Small Debt Acts” means and includes the Small Debt (Scotland) Acts 1837 to 1889, and Acts explaining or amending the same;

k “Initial writ” means the statement of claim, petition, note of appeal, or other document by which the action is initiated;

l “Procurator-Fiscal” means procurator-fiscal in the sheriff-court;

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n “Pursuer” means and includes any person making a claim or demand, or seeking any warrant or order competent in the sheriff court;

o “Defender” means and includes any person who is required to be called in any action;

p “Summary application” means and includes all applications of a summary nature brought under the common law jurisdiction of the sheriff principal, and all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows, that the same shall be disposed of in a summary manner, but which does not more particularly define in what form the same shall be heard, tried, and determined;

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Jurisdiction ¶

^F7234 Jurisdiction.¶

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^F7235 Extension of jurisdiction. ¶

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^F7235A Power of sheriff to order sheriff clerk to execute deeds relating to heritage.¶

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^F7236 Action competent in sheriff court. ¶

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^F7577 Privative jurisdiction in causes under fifty pounds value.¶

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^F71410 Privilege not to exempt from jurisdiction.¶

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Sheriffs ¶

^F71511 Appointment of sheriffs and salaried sheriffs-substitute.¶

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^F71614 Salaries of sheriffs and sheriffs-substitute.¶

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17 Honorary sheriff-substitute.¶

The sheriff principal may by writing under his hand appoint such persons as he thinks proper to hold the office of honorary sheriff within his sheriffdom during his pleasure, and for whom he shall be answerable. An honorary sheriff, during the subsistence of his commission, shall be entitled to exercise the powers and duties appertaining to the office of sheriff. An honorary sheriff shall hold office, notwithstanding the death, resignation, or removal of the sheriff principal, until his commission shall be recalled by a succeeding sheriff principal. In this section “sheriff principal”does not include sheriff.

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Appeals ¶

^F78627 Appeal to sheriff.¶

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28 Appeal to Court of Session.¶

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^F78629 Effect of appeal.¶

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Removings ¶

^C2434 Removings. ^C3¶

Where lands exceeding two acres in extent are held under a probative lease specifying a term of endurance, and whether such lease contains an obligation upon the tenant to remove without warning or not, such lease, or an extract thereof from the books of any court of record, shall have the same force and effect as an extract decree of removing obtained in an ordinary action at the instance of the lessor, or any one in his right, against the lessee or any party in possession, and such lease or extract shall, along with authority in writing signed by the lessor or any one in his right or by his factor or law agent, be sufficient warrant to any sheriff officer or messenger-at-arms of the sheriffdom within which such lands or heritages are situated to eject such party in possession, his family, sub-tenants, cottars, and dependants, with their goods, gear and effects, at the expiry of the term or terms of endurance of the lease: Provided that previous notice in writing to remove shall have been given—

A When the lease is for three years and upwards not less than one year and not more than two years before the termination of the lease; and

B In the case of leases from year to year (including lands occupied by tacit relocation) or for any other period less than three years, not less than six months before the termination of the lease (or where there is a separate ish as regards land and houses or otherwise before that ish which is first in date):

Provided that if such written notice as aforesaid shall not be given the lease shall be held to be renewed by tacit relocation for another year, and thereafter from year to year: Provided further that nothing contained in this section shall affect the right of the landlord to remove a tenant who has been sequestrated under the ^M2Bankruptcy (Scotland) Act 1985 or 2016, or against whom a decree of cessio has been pronounced under the ^M3Debtors (Scotland) Act 1880, or who by failure to pay rent has incurred any irritancy of his lease or other liability to removal: Provided further that removal or ejectment in virtue of this section shall not be competent after six weeks from the date of the ish last in date: Provided further that nothing herein contained shall be construed to prevent proceedings under any lease in common form; and that the foregoing provisions as to notice shall not apply to any stipulations in a lease entitling the landlord to resume land for building, planting, feuing, or other purposes or to subjects let for any period less than a year.

^C2435 Letter of removal.¶

Where any tenant in possession of any lands exceeding two acres in extent (whether with or without a written lease) shall, either at the date of entering upon the lease or at any other time, have granted a letter of removal, ^F21. . .such letter of removal shall have the same force and effect as an extract decree of removing, and shall be a sufficient warrant for ejection to the like effect as is provided in regard to a lease or extract thereof, and shall be operative against the granter of such letter of removal or any party in his right within the same time and in the same manner after the like previous notice to remove: Provided always that where such letter is dated and signed within twelve months before the date of removal or before the first ish, if there be more than one ish, it shall not be necessary that any notice of any kind shall be given by either party to the other.

^C12^C2436 Notice to remove.¶

Where lands exceeding two acres in extent are occupied by a tenant without any written lease, and the tenant has given to the proprietor or his agent no letter of removal, the lease shall terminate on written notice being given to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant not less than six months before the determination of the tenancy, and such notice shall entitle the proprietor, in the event of the tenant failing to remove, to apply for and obtain a summary warrant of ejection against the tenant and everyone deriving right from him.

^C13^C2437 Notice of termination of tenancy.¶

In all cases where houses, with or without land attached, not exceeding two acres in extent, lands not exceeding two acres in extent let without houses, mills, fishings, shootings, and all other heritable subjects (excepting land exceeding two acres in extent) are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor or to the proprietor by or on behalf of the tenant: Provided always that notice under this section shall not warrant summary ejection from the subjects let to a tenant, but such notice, whether given to or by or on behalf of the tenant, shall entitle the proprietor to apply to the sheriff principal for a warrant for summary ejection in common form against the tenant and every one deriving right from him: Provided further that the notice provided for by this section shall be given at least forty days before the fifteenth day of May when the termination of the tenancy is the term of Whitsunday, and at least forty days before the eleventh day of November when the termination of the tenancy is the term of Martinmas.

^C2437A Exception for certain tenancies¶

The provisions of this Act relating to removings (including summary removings) shall not apply to or in relation to short limited duration tenancies , limited duration tenancies, modern limited duration tenancies or repairing tenancies within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11).

Summary Removings ¶

^C14^C2438 Summary removing.¶

Where houses or other heritable subjects are let for a shorter period than a year, any person by law authorised may present to the sheriff principal a summary application for removing, and a decree pronounced in such summary cause shall have the full force and effect of a decree of removing and warrant of ejection. Where asuch a let is for a period not exceeding four months, notice of removal therefrom shall, in the absence of express stipulation, be given as many days before the ish as shall be equivalent to at least one-third of the full period of the duration of the let; and where the let exceeds four months, notice of removal shall, in the absence of express stipulation be given at least forty days before the expiry of the said period.

Provided that in no case shall notice of removal be given less than 28 days before the date on which it is to take effect.

^C2438A Notice of termination in respect of dwelling-houses.¶

Any notice of termination of tenancy or notice of removal given under section 37 or 38 above in respect of a dwelling-house, on or after 2nd of December 1974, shall be in writing and shall contain such information as may be prescribed by virtue of section 112 of the ^M4Rent (Scotland) Act 1984, and Rule 112 of Schedule 1 to this Act shall no longer apply to any such notice under section 37 above.

Consistorial Causes ¶

38B Lord Advocate as party to action for divorce.¶

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Procedure Rules ¶

^C439 Procedure rules.¶

Subject to the provisions of any Act of Parliament in force after the passing of this Act, the procedure in all civil causes shall be conform to the rules of procedure set forth in the First Schedule hereto annexed. Such rules shall be construed and have effect as part of this Act.

^F71740 Court of Session to regulate fees, &c.¶

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Summary Applications ¶

^C5^C15^C16^C1750 Summary applications.¶

In summary applications (where a hearing is necessary) the sheriff principal shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff principal shall order a record) shall summarily dispose of the matter and give his judgment in writing: Provided that wherever in any Act of Parliament an application is directed to be heard, tried, and determined summarily or in the manner provided by section fifty-two of the ^M5Sheriff Courts (Scotland) Act 1876, such direction shall be read and construed as if it referred to this section of this Act: Provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought.

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SCHEDULES

^F34^C23^C25^C26First Schedule ¶

ORDINARY CAUSE RULES 1993

Initiation and progress of causes¶

CHAPTER 1 CITATION, INTERPRETATION, REPRESENTATION AND FORMS¶

1 Citation¶

These Rules may be cited as the Ordinary Cause Rules 1993.

1 Interpretation¶

1 In these Rules, unless the context otherwise requires—

“attend”, “attendance” and “attend personally” are construed in accordance with Chapter 4A (mode of attendance at hearings);
“document” has the meaning assigned to it in section 9 of the ^M6Civil Evidence (Scotland) Act 1988;
“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;
“Full Case Management Hearing” means a hearing under rules 33.36P or 33A.36P (Full Case Management Hearing), as the case may be;
“Initial Case Management Hearing” means a hearing under rules 33.36J or 33A.36J (Initial Case Management Hearing), as the case may be;
“period of notice” means the period determined under rule 3.6 (period of notice after citation).
“the Act of 2004” means the Vulnerable Witnesses (Scotland) Act 2004
“the 2014 Act” means the Courts Reform (Scotland) Act 2014;
“the all-Scotland sheriff court” means the sheriff court specified in the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 so far as the court is constituted by a sheriff sitting in the exercise of the sheriff’s all-Scotland jurisdiction for the purpose of dealing with civil proceedings of a type specified in that Order.

2 For the purposes of these Rules—

a “affidavit” includes an affirmation and a statutory or other declaration; and

b an affidavit shall be sworn or affirmed before a notary public or any other competent authority.

3 Where a provision in these Rules requires a party to intimate or send a document to another party, it shall be sufficient compliance with that provision if the document is intimated or sent to the solicitor acting in the cause for that party.

4 Unless the context otherwise requires, anything done or required to be done under a provision in these Rules by a party may be done by the agent for that party acting on his behalf.

5 Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form, is a reference to the Chapter, Part, rule or form in Appendix 1, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of that paragraph or that head of that sub-paragraph, in which the reference occurs.

7 In these Rules—

a references to a sheriff’s all-Scotland jurisdiction are to be construed in accordance with section 42(3) of the 2014 Act;

b references to a sheriff’s local jurisdiction are to be construed in accordance with section 42(4) of the 2014 Act.

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1 Representation¶

1 Subject to paragraph (2), a party to any proceedings arising solely under the provisions of the ^M7Debtors (Scotland) Act 1987 shall be entitled to be represented by a person other than a solicitor or an advocate provided that the sheriff is satisfied that such person is a suitable representative and is duly authorised to represent that party.

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3 A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment.

4 The person referred to in paragraph (3) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action.

1.3A Lay support¶

1 At any time during proceedings the sheriff may, on the request of a party litigant, permit a named individual to assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires—

a providing moral support;

b helping to manage the court documents and other papers;

c taking notes of the proceedings;

d quietly advising on—

i points of law and procedure;

ii issues which the litigant might wish to raise with the sheriff;

iii questions which the litigant might wish to ask witnesses.

2 It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance.

3 The sheriff may refuse a request under paragraph (1) only if—

a the sheriff is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or

b the sheriff is of the opinion that it would be contrary to the efficient administration of justice to grant it.

4 Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (5); but it is not effective during any period when the litigant is represented.

5 The sheriff may, of his or her own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1); but the sheriff must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue.

6 Where permission has been granted under paragraph (1), the litigant may—

a show the named individual any document (including a court document); or

b impart to the named individual any information,

which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

7 Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings.

1 Forms¶

Where there is a reference to the use of a form in these Rules, that form in Appendix 1 or Appendix 2, as the case may be, to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

CHAPTER 1A LAY REPRESENTATION¶

1A.1 Application and interpretation¶

1 This Chapter is without prejudice to any enactment (including any other provision in these Rules) under which provision is, or may be, made for a party to a particular type of case before the sheriff to be represented by a lay representative.

2 In this Chapter, a “lay representative” means a person who is not—

a a solicitor;

b an advocate, or

c someone having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

1A.2 Lay representation for party litigants¶

1 In any proceedings in respect of which no provision as mentioned in rule 1A.1(1) is in force, the sheriff may, on the request of a party litigant, permit a named individual (a “lay representative”) to appear, along with the litigant, at a specified hearing for the purpose of representing the litigant at that hearing.

2 An application under paragraph (1)—

a is to be made orally on the date of the first hearing at which the litigant wishes a named individual to represent the litigant; and

b is to be accompanied by a document, signed by the named individual, in Form 1A.2.

3 The sheriff may grant an application under paragraph (1) only if the sheriff is of the opinion that it would be in the interests of justice to grant it.

4 It is a condition of permission granted by the sheriff that the lay representative does not receive directly or indirectly from the litigant any remuneration or other reward for his or her assistance.

5 The sheriff may grant permission under paragraph (1) in respect of one or more specified hearings in the case; but such permission is not effective during any period when the litigant is legally represented.

6 The sheriff may, of his or her own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1).

6A Where permission is granted under paragraph (1), the lay representative may do anything in the preparation or conduct of the hearing that the litigant may do.

7 Where permission has been granted under paragraph (1), the litigant may—

a show the lay representative any document (including a court document); or

b impart to the lay representative any information,

which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the lay representative is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant.

8 Any expenses incurred by the litigant in connection with lay representation under this rule are not recoverable expenses in the proceedings.

CHAPTER 2 RELIEF FROM COMPLIANCE WITH RULES¶

2 Relief from failure to comply with rules¶

1 The sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules 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 these Rules under paragraph (1), he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

^C19CHAPTER 3 COMMENCEMENT OF CAUSES¶

3 Form of initial writ¶

1 A cause shall be commenced–

a in the case of an ordinary cause, by initial writ in Form G1; or

b in the case of a commercial action within the meaning of Chapter 40, by initial writ in Form G1A. ; or

c in the case of a personal injuries action within the meaning of Part AI of Chapter 36, by initial writ in Form PI1.

d in the case of a personal injuries action appointed to proceed in accordance with Chapter 36A under rule 36.C1, by initial writ in Form G1 which includes an interlocutor in Form PI4.

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 cause 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.

5A Where a personal injuries action within the meaning of Part A1 of Chapter 36 is raised in Edinburgh Sheriff Court the initial writ must include an averment indicating whether the proceedings are for determination in the exercise of the sheriff’s all-Scotland jurisdiction or the sheriff’s local jurisdiction.

5B Where an averment is included indicating that the proceedings are for determination in the exercise of the sheriff’s all-Scotland jurisdiction, the heading of the initial writ must state that the action is being raised in the all-Scotland sheriff court.

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 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.

3 Actions relating to heritable property¶

1 In an action relating to heritable property, it shall not be necessary to call as a defender any person by reason only of any interest he may have as the holder of a heritable security over the heritable property.

2 Intimation of such an action shall be made to the holder of the heritable security referred to in paragraph (1)—

a where the action relates to any heritable right or title; and

b in any other case, where the sheriff so orders.

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3 Actions relating to regulated agreements¶

In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—

a the initial writ shall include an averment that such an agreement exists and details of that agreement; and

b a copy of the regulated agreement shall be attached to the initial writ.

3 Warrants of citation¶

1 The warrant of citation in any cause other than—

a a family action within the meaning of rule 33.1(1),

b an action of multiplepoinding,

c an action in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for by the defender,

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e a civil partnership action within the meaning of rule 33A.1(1).

shall be in Form O1.

2 In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for the defender, the warrant of citation shall be in Form O2.

3 In a cause in which a warrant of citation in accordance with Form O2 is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in Form O3.

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3 Warrants for arrestment to found jurisdiction¶

1 Where an application for a warrant for arrestment to found jurisdiction may be made, it shall be made in the crave of the initial writ.

2 Averments to justify the granting of such a warrant shall be included in the condescendence.

^F4143 Warrants and precepts for arrestment on dependence¶

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3 Period of notice after citation¶

1 Subject to rule 5.6(1) (service where address of person is not known) and to paragraph (2) of this rule, a cause shall proceed after one of the following periods of notice has been given to the defender:—

a where the defender is resident or has a place of business within Europe, 21 days after the date of execution of service; or

b where the defender is resident or has a place of business outside Europe, 42 days after the date of execution of service.

2 Subject to paragraph (3), the sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the method or manner of service as he thinks fit.

3 A period of notice may not be reduced to a period of less than 2 days.

4 Where a period of notice expires on a Saturday, Sunday, or public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk’s office is open for civil court business.

CHAPTER 3A PERSONAL INJURY PRE-ACTION PROTOCOL¶

3A.1 Application and interpretation¶

1 This Chapter applies to an action of damages for, or arising from, personal injuries.

2 In this Chapter “the Protocol” means the Personal Injury Pre-Action Protocol set out in Appendix 4, and references to the “aims of the Protocol”, “requirements of the Protocol” and “stages of the Protocol” are to be construed accordingly.

3A.2 Requirement to comply with the Protocol¶

In any case where the Protocol applies, the court will normally expect parties to have complied with the requirements of the Protocol before proceedings are commenced.

3A.3 Consequences of failing to comply with the Protocol¶

1 This rule applies where the sheriff considers that a party (“party A”)—

a failed, without just cause, to comply with the requirements of the Protocol; or

b unreasonably failed to accept an offer in settlement which was—

i made in accordance with the Protocol; and

ii lodged as a tender during the period beginning with the commencement of proceedings and ending with the lodging of defences.

2 The sheriff may, on the sheriff’s own motion, or on the motion of any party, take any steps the sheriff considers necessary to do justice between the parties, and may in particular—

a sist the action to allow any party to comply with the requirements of the Protocol;

b make an award of expenses against party A;

c modify an award of expenses; or

d make an award regarding the interest payable on any award of damages.

3 A motion made by a party under paragraph (2) must include a summary of—

a the steps taken by parties under the Protocol with a view to settling the action; and

b that party’s assessment of the extent to which parties have complied with the requirements of the Protocol.

4 In considering what steps (if any) to take under paragraph (2), the sheriff must take into account—

a the nature of any breach of the requirements of the Protocol; and

b the conduct of the parties during the stages of the Protocol.

5 In assessing the conduct of the parties, the sheriff must have regard to the extent to which that conduct is consistent with the aims of the Protocol.

6 This rule does not affect any other enactment or rule of law allowing the sheriff to make or modify awards regarding expenses and interest.

^F263^F263CHAPTER 4 ¶

4 Orders against which caveats may be lodged¶

A person may lodge a caveat against—

a an interim interdict sought in an action before he has lodged a notice of intention to defend; or

b an interim order (other than an order under section 1 of the ^M8Administration of Justice (Scotland) Act 1972(orders for inspection of documents and other property, etc.)) sought before the expiry of the period within which he could lodge a notice of intention to defend.

4 Form lodging and renewal of caveats¶

1 A caveat shall be in Form G2 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 lodging 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.

CHAPTER 4A MODE OF ATTENDANCE AT HEARINGS¶

4A.1 Application¶

This Chapter is without prejudice to any enactment under which provision has been made regarding the mode of attendance of persons at hearings.

4A.2 Mode of attendance at hearings – procedural business¶

1 Hearings at which only procedural business is to be considered are to be attended by electronic means.

2 Paragraph (1) does not apply to hearings at which a party is unrepresented or utilising an interpreter.

4A.3 Alternative mode of attendance at hearings¶

1 The sheriff may, at the sheriff’s own instance or on the motion of a party on cause shown—

a in relation to hearings to which rule 4A.2(1) applies, order physical attendance at a hearing;

b in relation to any other hearings, order attendance at a hearing by electronic means.

2 The sheriff may revoke an order granted under paragraph (1) or this paragraph and, where the sheriff does so, the sheriff may make such further order as the sheriff thinks fit.

3 Before the sheriff makes an order under paragraph (1) or (2), the sheriff is to give parties the opportunity to make representations about the mode of attendance.

4A.4 Hybrid hearings¶

An order under rule 4A.3(1) or (2) may include provision for a person to attend a hearing—

a both physically and by electronic means;

b by one mode and another person to attend by the other mode,

and at different times or dates.

^C20CHAPTER 5 CITATION, SERVICE AND INTIMATION¶

5 Signature of warrants¶

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

2 The following warrants shall be signed by the sheriff:—

a a warrant containing an order shortening or extending the period of notice or any other order other than a warrant which the sheriff clerk may sign;

b a warrant for arrestment to found jurisdiction (including the arrestment of a ship);

ba a warrant for arrestment on the dependence;

c a warrant for intimation ordered under rule 33.8 (intimation where alleged association).

d a warrant for intimation ordered under rule 33A.8 (intimation where alleged association).

e a warrant for arrestment of a ship to found jurisdiction;

f a warrant for arrestment of a ship or cargo in rem;

g a warrant for arrestment of cargo.

3 Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the initial writ may apply to the sheriff for the warrant.

5 Form of citation and certificate¶

1 Subject to rule 5.6 (service where address of person is not known), in any cause other than—

a a family action within the meaning of rule 33.1(1),

aa a civil partnership action within the meaning of rule 33A.1(1);

b an action of multiplepoinding, ^F217. . .

c an action in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for by the defender, or

^F441d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

citation of any person shall be in Form O4 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

2 In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for by the defender, citation shall be in Form O5 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

^F4542A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 The certificate of citation in any cause other than a family action within the meaning of rule 33.1(1) or an action of multiplepoinding shall be in Form O6 which shall be attached to the initial writ.

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

5 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.

6 Where citation is executed under paragraph 3 of rule 5.4 (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 was sent in accordance with the provisions of paragraph (4) of that rule.

5 Postal service or intimation¶

1 In any cause 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 ^M9Citation Amendment (Scotland) Act 1882 (time from which period of notice reckoned), where service or intimation is by post, the period of notice 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:—

“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).”

5 Service within Scotland by sheriff officer¶

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 intial 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—

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

b by leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person.

4 Subject to rule 6.1 (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.

5 Where the firm which employs the sheriff officer has in its possession–

a the document or a copy of it certified as correct by the pursuer’s solicitor, the sheriff officer may serve the document upon the defender without having the document or certified copy in his possession, in which case he shall if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the document or certified copy to the person; or

b a certified copy of the interlocutor pronounced allowing service of the document, the sheriff officer may serve the document without having in his possession the certified copy interlocutor if he has in his possession a facsimile copy of the certified copy interlocutor (which he shall show, if required, to the person on whom service is executed).

6 Where service is executed under paragraphs (1)(b) or (3), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from (insert name of sheriff court)”and sealed by the sheriff officer.

5 Service on persons furth of Scotland¶

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 ^M10Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965 or the Convention in Schedule 1 or 3C to the ^M11Civil Jurisdiction and Judgments Act 1982—

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 Scottish Ministers:

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, Commonwealth and Development 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 an huissier, other judicial officer or competent official of the country where service is to be executed; ^F223... 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. ; or

d ^F298. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1A In a country to which the EC Service Regulation applies, service–

a may be effected by the methods prescribed in paragraph (1)(b)(ii) and (iii) only in exceptional circumstances; and

b is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (6).

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 5.3(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 Scottish Ministers or, as the case may be, the Secretary of State for Foreign, Commonwealth and Development 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 is 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 5.3(3) shall be accompanied by a translation in an official language of the country in which service is to be executed unless English is ^F300. . .

a an official language of the country in which service is to be executed; or

b in a country to which the EC Service Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed.

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.

8 In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time.

5 Service where address of person is not known¶

A1 Subject to rule 6.A7 this rule applies to service where the address of a person is not known.

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—

a by the publication of an advertisement in Form G3 in a specified newspaper circulating in the area of the last known address of that person, or

b by 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 G4;

and the period of notice fixed by the sheriff 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 intial 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 cause 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 cause 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.

5 Persons carrying on business under trading or descriptive name¶

1 A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone; and an extract—

a of a decree pronounced in the sheriff court, or

b of a 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 ^F42. . .,

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 cause in which a person carrying on business under a trading or descriptive name sues or is sued in 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).

5 Endorsation unnecessary¶

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.

5 Re-service¶

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 he thinks fit.

5 No objection to regularity of citation, service or intimation¶

1 A person who appears in a cause 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.

CHAPTER 6 INTERIM DILIGENCE¶

6 Interpretation¶

In this Chapter–

“the 1987 Act” means the Debtors (Scotland) Act 1987 ^M80; and
“the 2002 Act” means the Debt Arrangement and Attachment (Scotland) Act 2002 ^M81.

6 Application for interim diligence¶

1 The following shall be made by motion–

a an application under section 15D(1) of the 1987 Act for warrant for diligence by arrestment or inhibition on the dependence of an action or warrant for arrestment on the dependence of an admiralty action;

b an application under section 9C of the 2002 Act for warrant for interim attachment.

2 Such an application must be accompanied by a statement in Form G4A.

3 A certified copy of an interlocutor granting a motion under paragraph (1) shall be sufficient authority for the execution of the diligence concerned.

6 Effect of authority for inhibition on the dependence¶

1 Where a person has been granted authority for inhibition on the dependence of an action, a certified copy of the interlocutor granting the motion may be registered with a certificate of execution in the Register of Inhibitions and Adjudications.

2 A notice of a certified copy of an interlocutor granting authority for inhibition under rule 6.A2 may be registered in the Register of Inhibitions and Adjudications; and such registration is to have the same effect as registration of a notice of inhibition under section 155(2) of the Titles to Land Consolidation (Scotland) Act 1868 ^F289.

6 Recall etc of arrestment or inhibition¶

1 An application by any person having an interest–

a to loose, restrict, vary or recall an arrestment or an interim attachment; or

b to recall, in whole or in part, or vary, an inhibition,

shall be made by motion.

2 A motion under paragraph (1) shall—

a specify the name and address of each of the parties;

b where it relates to an inhibition, contain a description of the inhibition including the date of registration in the Register of Inhibitions and Adjudications.

6 Incidental applications in relation to interim diligence, etc¶

An application under Part 1A of the 1987 Act or Part 1A of the 2002 Act other than mentioned above shall be made by motion.

6^F290. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6 Service of inhibition on the dependence where address of defender not known¶

1 Where the address of a defender is not known to the pursuer, an inhibition on the dependence shall be deemed to have been served on the defender if the schedule of inhibition is left with or deposited at the office of the sheriff clerk of the sheriff court district where the defender's last known address is located.

2 Where service of an inhibition on the dependence is executed under paragraph (1), a copy of the schedule of inhibition shall be sent by the sheriff officer by first class post to the defender's last known address.

6 Form of schedule of arrestment on the dependence¶

1 An arrestment on the dependence shall be served by serving the schedule of arrestment on the arrestee in Form G4B.

2 A certificate of execution shall be lodged with the sheriff clerk in Form G4C.

6 Service of schedule of arrestment¶

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 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, certifiy that this has been done and specify the address to which the copy of the schedule was sent.

6^F416. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F6276 Movement of arrested property¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 7 UNDEFENDED CAUSES¶

7 Application of this Chapter¶

This Chapter applies to any cause other than an action in which the sheriff may not grant decree without evidence.

7 Minute for granting of decree without attendance¶

1 Subject to the following paragraphs, where the defender—

a does not lodge a notice of intention to defend,

b does not lodge an application for a time to pay direction under the ^M12Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974,

c has lodged such an application for a time to pay direction or time order and the pursuer does not object to the application or to any recall or restriction of an arrestment sought in the application,

the sheriff may, on the pursuer endorsing a minute for decree on the initial writ, at any time after the expiry of the period for lodging that notice or application, grant decree in absence or other order in terms of the minute so endorsed without requiring the attendance of the pursuer in court.

2 The sheriff shall not grant decree under paragraph (1)—

a unless it appears ex facie of the initial writ that a ground of jurisdiction exists under the ^M13Civil Jurisdiction and Judgments Act 1982 where that Act applies; and

b the cause is not a cause—

i in which decree may not be granted without evidence;

ii to which paragraph (4) applies; or

iii to which rule 33.31 (procedure in undefended family action for a section 11 order) applies.

3 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 Judgments Act 1982;

b the question whether a person is domiciled in another Contracting State shall be determined in accordance with Article 52 of the Convention inSchedule 1 or 3C to that Act; and

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

4 Where an initial writ has been served in a country to which the ^M14Hague Convention on the Service Abroad of Judicial and Exta-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 that Convention have been complied with.

7 Applications for time to pay directions or time orders in undefended causes¶

1 This rule applies to a cause in which

a a time to pay direction may be applied for under the Debtors (Scotland) Act 1987 ; or

b a time order may be applied for under the Consumer Credit Act 1974

2 A defender in a cause which is otherwise undefended, who wishes to apply for a time to pay direction or time order, and where appropriate, to have an arrestment recalled or restricted, shall complete and lodge with the sheriff clerk the appropriate part of Form O3 before the expiry of the period of notice.

2A As soon as possible after the application of the defender is lodged, the sheriff clerk shall send a copy of it to the pursuer by first class ordinary post.

3 Where the pursuer does not object to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff may grant decree or other order in terms of the application and minute.

4 Where the pursuer objects to the application of the defender made in accordance with paragraph (2) he shall on the same date—

a complete and lodge with the sheriff clerk Form O3A;

b minute for decree in accordance with rule 7.2; and

c send a copy of Form O3A to the defender.

4A The sheriff clerk shall then fix a hearing on the application of the defender and intimate the hearing to the pursuer and the defender.

4B The hearing must be fixed for a date within 28 days of the date on which the Form O3A and the minute for decree are lodged.

5 The sheriff may determine an application in which a hearing has been fixed under paragraph (4) whether or not any of the parties appear.

7 Decree for expenses¶

1 On granting decree in abence or thereafter, the sheriff may grant decree for expenses.

2 Where the pursuer elects, in the minute for decree, to claim expenses comprising—

a the inclusive charges set out in Part 1 of Table 1 in schedule 4 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and

b outlays comprising only—

i the court fee for warranting the initial writ;

ii postal charges incurred in effecting, or attempting to effect, service of the initial writ by post; and

iii where applicable, a sheriff officer’s fee for service of the initial writ,

the sheriff may grant decree for payment of such expenses without the necessity of taxation.

7 Finality of decree in absence¶

Subject to section 9(7) of the ^M15Land Tenure Reform (Scotland) Act 1974 (decree in action of removing for breach of condition of long lease to be final when extract recorded in Register of Sasines), a decree in absence which has not been recalled or brought under review by suspension or by reduction shall become final and shall have effect as a decree in foro contentioso—

a on the expiry of six months from the date of the decree or from the date of a charge made under it, as the case may be,where the service of the initial writ or of the charge has been personal; and

b in any event, on the expiry of 20 years from the date of the decree.

7 Amendment of initial writ¶

1 In an undefended cause, the sheriff may—

a allow the pursuer to amend the initial writ in any way permitted by rule 18.2 (powers of sheriff to allow amendment); and

b order the amended initial writ to be re-served on the defender on such period of notice as he thinks fit.

2 The defender shall not be liable for the expense occasioned by any such amendment unless the sheriff so orders.

3 Where an amendment has been allowed under paragraph (1), the amendment—

a shall not validate diligence used on the dependence of a cause so as to prejudice the rights of creditors of the party against whom the diligence has been executed, who are interested in defeating such diligence; and

b shall preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

^F507 Disapplication of certain rules¶

The following rules in Chapter 15 (motions) shall not apply to an action in which no notice of intention to defend has been lodged or to any action in so far as it proceeds as undefended:–

rule 15.2 (intimation of motions),
rule 15.3 (opposition to motions),
rule 15.5 (hearing of motions).

^C21CHAPTER 8 REPONING¶

8 Reponing¶

1 In any cause other than—

a a cause mentioned in rule 33.1(a) to (h) or (n) to (p) (certain family actions), or

aa a cause mentioned in rule 33A.1(a), (b) or (f) (certain civil partnership actions);

b a cause to which Chapter 37 (causes under the Presumption of death (Scotland) Act 1977) applies,

the defender or any party with a statutory title or interest may apply to be reponed by lodging with the sheriff clerk, before implement in full of a decree in absence, a reponing note setting out his proposed defence or the proposed order or direction, and explaining his failure to appear.

2 A copy of the note lodged under paragraph (1) shall be served on the pursuer and any other party.

3 The sheriff may, on considering the reponing note, recall the decree so far as not implemented subject to such order as to expenses as he thinks fit; and the cause shall thereafter proceed as if –

a the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree in absence was recalled ; or

b the party seeking the order or direction had lodged the appropriate application on the date when the decree was recalled.

4 A reponing note, when duly lodged with the sheriff clerk and served upon the pursuer and any other party, shall have effect to sist diligence.

4A Where an initial writ has been served on a defender furth of the United Kingdom under rule 5.5(1)(b) (service on persons furth of Scotland) and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the defender applying to be reponed in accordance with paragraph (1) above, recall the decree and allow defences to be received if–

a without fault on his part, he did not have knowledge of the initial writ in sufficient time to defend;

b he has disclosed aprima facie defence to the action on the merits; and

c the reponing note is lodged within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of decree.

5 Any interlocutor or order recalling, or incidental to the recall of, a decree in absence shall be final and not subject to appeal.

^C22CHAPTER 9 STANDARD PROCEDURE IN DEFENDED CAUSES¶

9 Notice of intention to defend¶

1 Subject to rule 35.8 (lodging of notice of appearance in action of multiplepoinding), where the defender intends to—

a challenge the jurisdiction of the court,

b state a defence, or

c make a counterclaim,

he shall, before the expiry of the period of notice, lodge with the sheriff clerk a notice of intention to defend in Form O7 and,at the same time, send a copy to the pursuer.

2 The lodging of a notice of intention to defend shall not imply acceptance of the jurisdiction of the court.

3 This Chapter shall not apply to a commercial action within the meaning of Chapter 40 or a family or civil partnership action within the meaning of Chapters 33 and 33A.

9 Fixing date for Options Hearing¶

1 ^F923... On the lodging of a notice of intention to defend, the sheriff clerk shall fix a date and time for an Options Hearing which date shall be on the first suitable court day occurring not sooner than 10 weeks after the expiry of the period of notice.

^F9241A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F9251B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2 On fixing the date for the Options Hearing, the sheriff clerk shall—

a forthwith intimate to the parties in Form G5—

i the last date for lodging defences;

ii the last date for adjustment; and

iii the date of the Options hearing; and

b prepare and sign an interlocutor recording those dates.

3 The fixing of the date for the Options Hearing shall not affect the right of a party to make any incidental application to the court.

9 Alteration of date for Options Hearing¶

1 Subject to paragraph (2), at any time before the date and time fixed under rule 9.2 (fixing date for Options Hearing) or under this rule, the sheriff–

a may, of his own motion or on the motion of any party–

i discharge the Options Hearing; and

ii fix a new date and time for the Options Hearing; or

b shall, on the joint motion of the parties–

i discharge the Options Hearing; and

ii fix a new date and time for the Options Hearing.

2 The date and time to be fixed–

a under paragraph (1)(a)(ii) may be earlier or later than the date and time fixed for the discharged Options Hearing;

b under paragraph (1)(b)(ii) shall be earlier than the date and time fixed for the discharged Options Hearing.

3 Where the sheriff is considering making an order under paragraph (1)(a) of his own motion and in the absence of the parties, the sheriff clerk shall–

a fix a date, time and place for the parties to be heard; and

b inform the parties of that date, time and place.

4 The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

5 On the discharge of the Options Hearing under paragraph (1), the sheriff clerk shall forthwith intimate to all parties–

a that the Options Hearing has been discharged under paragraph (1)(a) or (b), as the case may be;

b the last date for lodging defences, if appropriate;

c the last date for adjustment, if appropriate; and

d the new date and time fixed for the Options Hearing under paragraph (1)(a) or (b), as the case may be.

6 Any reference in these Rules to the Options Hearing or a continuation of it shall include a reference to an Options Hearing for which a date and time has been fixed under this rule.

9 Return of initial writ¶

Subject to rule 9.4 (lodging of pleadings before Options Hearing), the pursuer shall return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days after the expiry of the period of notice.

9 Lodging of pleadings before Options Hearing¶

Where any hearing, whether by motion or otherwise, is fixed before the Options Hearing, each party shall lodge in process a copy of his pleadings, or, where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

9 Process folder¶

1 On receipt of the notice of intention to defend, the sheriff clerk shall prepare a process folder which shall include—

a interlocutor sheets;

b duplicate interlocutor sheets;

c a production file;

d a motion file; and

e an inventory of process.

2 Any production or part of process lodged in a cause shall be placed in the process folder.

9 Defences¶

1 Where a notice of intention to defend has been lodged, the defender shall ^F933... lodge defences within 14 days after the expiry of the period of notice.

2 Subject to rule 19.1(3) (form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender.

^F9283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9 Implied admissions¶

Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.

9 Adjustment of pleadings¶

1 Parties may adjust their pleadings until 14 days before the date of the Options Hearing or any continuation of it.

2 Any adjustments shall be exchanged between parties and not lodged in process.

3 Parties shall be responsible for maintaining a record of adjustments made during the period for adjustment.

4 No adjustments shall be permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

9 Effect of sist on adjustment¶

1 Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as a part of the period for adjustment.

2 On recall of the sist of a cause, the sheriff clerk shall—

a fix a new date for the Options Hearing;

b prepare and sign an interlocutor recording that date; and

c intimate that date to each party.

9 Open record¶

The sheriff may, at any time before the closing of the record in a cause to which this Chapter applies, of his own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

9 Record for Options Hearing¶

1 The pursuer shall, at the end of the period for adjustment referred to in rule 9.8(1) and before the Options Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record.

2 Not later than 2 days before the Options Hearing, the pursuer shall lodge a certified copy of the record in process.

3 Where the Options Hearing is continued under rule 9.12(5), and further adjustment or amendment is made to the pleadings, a copy of the pleadings as adjusted or amended, certified by the pursuer, shall be lodged in process not later than 2 days before the Options Hearing so continued.

9 Options Hearing¶

1 At the Options Hearing the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

2 It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

3 At the Options Hearing the sheriff shall, except where the cause is ordered to proceed under the procedure in Chapter 10 (additional procedure), close the record and—

a appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

b after having heard parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

c after having heard parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

d consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

e ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.

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4 At the Options Hearing the sheriff may, having heard parties—

a of his own motion or on the motion of any party, and

b on being satisfied that the difficulty or complexity of the cause makes it unsuitable for the procedure under this Chapter,

order that the cause proceed under the procedure in Chapter 10 (additional procedure).

5 The sheriff may, on cause shown, of his motion or on the motion of any party, allow a continuation of the Options Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

6 On closing the record—

a where there are no adjustments made since the lodging of the record under rule 9.11.(2), that record shall become the closed record; and

b where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

7 For the purposes of rule 16.2 (decrees where party in default) ^F930... an Options Hearing shall be a diet in accordance with those rules.

8 Where the cause is appointed, under paragraph (3), to a proof or proof before answer, the sheriff shall consider whether a pre-proof hearing should be fixed under rule 28A.1.

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^F3099 Inspection and recovery of documents¶

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^F3109 Exchange of lists of witnesses¶

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^F3119 Applications for time to pay directions¶

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CHAPTER 9A DOCUMENTS AND WITNESSES¶

9A Application of this Chapter¶

This Chapter applies to any cause proceeding under Chapters 9 and 10.

9A Inspection and recovery of documents¶

1 Each party shall, within 14 days after the date of the interlocutor allowing proof or proof before answer, intimate to every other party a list of the documents, which are or have been in his possession or control and which he intends to use or put in evidence at the proof, including the whereabouts of those documents.

2 A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list at a time and place fixed by that party which is reasonable to both parties.

3 A party who seeks to use or put in evidence at a proof a document not on his list intimated under paragraph (1) shall, if any other party objects to such document being used or put in evidence, seek leave of the sheriff to do so; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

4 Nothing in this rule shall affect–

a the law relating, 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 28.2 for a commission and diligence for recovery of documents or an order under section 1 of the Administration of Justice (Scotland) Act 1972 ^F269.

9A Exchange of lists of witnesses¶

1 Within 28 days after the date of the interlocutor allowing a proof or proof before answer, each party shall–

a intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence he intends to rely at proof; and

b lodge a copy of that list in process.

2 A party who seeks to rely on the evidence of a person not on his list intimated under paragraph (1) shall, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence whether it is to be given orally or not; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

3 The list of witnesses intimated under paragraph (1) shall include the name, occupation (where known) and address of each intended witness and indicate whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 and whether any child witness notice or vulnerable witness application has been lodged in respect of that witness.

9A Applications in respect of time to pay directions, arrestments and time orders¶

An application for–

a a time to pay direction under section 1(1) of the Debtors (Scotland) Act 1987;

b the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act; or

c a time order under section 129 of the Consumer Credit Act 1974,

in a cause which is defended, shall be made by motion lodged before the sheriff grants decree.

CHAPTER 10 ADDITIONAL PROCEDURE¶

10 Additional period for adjustment¶

1 Where, under rule 9.12(4) (order at Options Hearing to proceed under Chapter 10), the sheriff orders that a cause shall proceed in accordance with the procedure in this Chapter, he shall continue the cause for adjustment for a period of 8 weeks.

2 Paragraphs (2) and (3) of rule 9.8 (exchange and record of adjustments) shall apply to a cause in which a period for adjustment under paragraph (1) of this rule has been allowed as they apply to the period for adjustment under that rule.

10 Effect of sist on adjustment period¶

Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as part of the period for adjustment.

10 Variation of adjustment period¶

1 At any time before the expiry of the period for adjustment the sheriff may close the record if parties, of consent or jointly, lodge a motion seeking such an order.

2 The sheriff may, if satisfied that there is sufficient reason for doing so, extend the period for adjustment for such period as he thinks fit, if any party—

a lodges a motion seeking such an order; and

b lodges a copy of the record adjusted to the date of lodging of the motion.

3 A motion lodged under paragraph (2) shall set out—

a the reasons for seeking an extension of the period for adjustment; and

b the period for adjustment sought.

10 Order for open record¶

10 Closing record¶

1 On the expiry of the period for adjustment, the record shall be closed and, without the attendance of parties, the sheriff clerk shall forthwith—

a prepare and sign an interlocutor recording the closing of the record and fixing the date of the Procedural Hearing under rule 10.6, which date shall be on the first suitable court day occurring not sooner than 21 days after the closing of the record; and

b intimate the date of the hearing to each party.

2 The pursuer shall, within 14 days after the date of the interlocutor closing the record, lodge a certified copy of the closed record in process.

3 The closed record shall contain only the pleadings of the parties.

10 Procedural Hearing¶

1 At the Procedural Hearing, the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

2 It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

3 At the Procedural Hearing the sheriff shall—

a appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

b after having heard the parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

c after having heard the parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

d consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or

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4 For the purposes of rules 16.2 (decrees where party in default), 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action), a Procedural Hearing shall be a diet in accordance with those rules.

5 Where the cause is appointed, under paragraph (3), to a proof or proof before answer, the sheriff shall consider whether a pre-proof hearing should be fixed under rule 28A.1

^F9356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 11 THE PROCESS¶

11 Form and lodging of parts of process¶

All parts of process shall be written, typed or printed on A4 size paper of durable quality and shall be lodged, unbacked and unfolded, with the sheriff clerk.

11 Custody of process¶

1 The initial writ, and all other parts of process lodged in a cause, shall be placed by the sheriff clerk in the process folder.

2 The initial writ, interlocutor sheets, borrowing receipts and the process folder shall remain in the custody of the sheriff clerk.

3 The sheriff clerk may, on cause shown, authorise the initial writ to be borrowed by the pursuer, his solicitor or the solicitor’s authorised clerk.

11 Borrowing and returning of process¶

1 Subject to paragraph (3), a process, or any part of a process which may be borrowed, may be borrowed only by a solicitor or by his authorised clerk.

2 All remedies competent to enforce the return of a borrowed process may proceed on the warrant of the court from the custody of which the process was obtained.

3 A party litigant—

a may borrow a process only—

i with leave of the sheriff; and

ii subject to such conditions as the sheriff may impose; or

b may inspect a process and obtain copies, where practicable, from the sheriff clerk.

4 The sheriff may, on the motion of any party, ordain any other party who has borrowed a part of process to return it within such time as the sheriff thinks fit.

11 Failure to return parts of process¶

1 Where a solicitor or party litigant has borrowed any part of process and fails to return it for any diet or hearing at which it is required, the sheriff may impose on such solicitor or party litigant a fine not exceeding £50, which shall be payable to the sheriff clerk; but an order imposing a fine may, on cause shown, be recalled by the sheriff.

2 An order made under this rule shall not be subject to appeal.

11 Replacement of lost documents¶

Where any part of process is lost or destroyed, a copy of it, authenticated in such manner as the sheriff thinks fit, may be substituted for and shall, for the purposes of the cause to which the process relates, be treated as having the same force and effect as the original.

11 Intimation of parts of process and adjustments¶

1 After a notice of intention to defend has been lodged, any party lodging a part of process or making an adjustment to his pleadings shall , at the same time, intimate such lodging or adjustment to every other party who has entered the process by delivering to every other party a copy of each part of process or adjustment, including, where practicable, copies of any documentary production.

2 Unless otherwise provided in these Rules, the party required to give intimation under paragraph (1) shall deliver to every other party who has entered the process a copy of the part of process or adjustment or other document, as the case may be, by—

a any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

b where intimation is to a party represented by a solicitor—

i personal delivery,

ii facsimile transmission,

iii first class ordinary post,

iv delivery to a document exchange,

to that solicitor.

3 Subject to paragraph (4), where intimation is given under—

a paragraph (2)(b)(i) or (ii), it shall be deemed to have been given—

i on the day of transmission or delivery where it is given before 5.00 pm on any day; or

ii on the day after transmission or delivery where it is given after 5.00 pm on any day; or

b paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

4 Where intimation is given or, but for this paragraph, would be deemedto be givenon a Saturday, Sunday or public or court holiday, it shall be deemed to have been given on the next day on which the sheriff clerk’s office is open for civil court business.

11 Retention and disposal of parts of process by sheriff clerk¶

1 Where any cause has been finally determined and the period for making an appeal has expired without an appeal having been made, the sheriff clerk shall—

a retain—

i the initial writ;

ii any closed record;

iii the interlocutor sheets;

iv any joint minute;

v any offer and acceptance of tender;

vi any report from a person of skill;

vii any affidavit; and

viii any extended shorthand notes of the proof; and

b dispose of all other parts of process (except productions) in such a manner as seems appropriate.

2 Where an appeal has been made on the final determination of the cause, the sheriff clerk shall exercise his duties mentioned in paragraph (1) after the final disposal of the appeal and any subsequent procedure.

11 Uplifting of productions from process¶

1 Where a party has lodged productions in a cause, that party must uplift the productions from process within the period specified in paragraph (1A).

1A The period is within 14 days after—

a the expiry of the period within which an appeal may be made following final determination of the cause, if no appeal is made; or

b the date on which such an appeal is finally disposed of.

2 Where any production has not been uplifted as required by paragraph (1), the sheriff clerk shall intimate to—

a the solicitor who lodged the production, or

b where no solicitor is acting, the party himself or such other party as seems appropriate,

that if he fails to uplift the production within 28 days after the date of such intimation, it will be disposed of in such a manner as the sheriff directs.

CHAPTER 12 THE PROCESS¶

12 Signature of interlocutors by sheriff clerk¶

In accordance with any directions given by the sheriff principal, any interlocutor other than a final interlocutor may be written and signed by the sheriff clerk and—

a any interlocutor written and signed by a sheriff clerk shall be treated for all purposes as if it had been written and signed by the sheriff; and

b any extract of such an interlocutor shall not be invalid by reason only of its being written and signed by a sheriff clerk.

12 Further provisions in relation to interlocutors¶

1 The sheriff may sign an interlocutor when outwith his or her sheriffdom.

2 At any time before extract, the sheriff may correct any clerical or incidental error in an interlocutor or note attached to it.

3 Paragraphs (4) and (5) apply in any cause other than—

a an undefended family action within the meaning of rule 33.1(1); or

b an undefended civil partnership action within the meaning of rule 33A.1(1).

4 At the conclusion of any hearing in which evidence has been led, the sheriff shall either—

a pronounce an extempore judgment in accordance with rule 12.3; or

b reserve judgment in accordance with rule 12.4.

5 In circumstances other than those mentioned in paragraph (4), the sheriff may, and must when requested by a party, append to the interlocutor a note setting out the reasons for the decision.

6 A party must make a request under paragraph (5) in writing within 7 days of the date of the interlocutor.

7 Where a party requests a note of reasons other than in accordance with paragraph (6), the sheriff may provide such a note.

12.3 Extempore judgments¶

1 This rule applies where a sheriff pronounces an extempore judgment in accordance with rule 12.2(4)(a).

2 The sheriff must state briefly the grounds of his or her decision, including the reasons for his or her decision on any questions of fact or law or of admissibility of evidence.

3 The sheriff may, and must if requested to do so by a party, append to the interlocutor a note setting out the matters referred to in paragraph (2) and his or her findings in fact and law.

4 A party must make a request under paragraph (3) in writing within 7 days of the date of the extempore judgment.

5 Where a party requests a note of reasons other than in accordance with paragraph (4), the sheriff may provide such a note.

12.4 Reserved judgments¶

1 This rule applies where a sheriff reserves judgment in accordance with rule 12.2(4)(b).

2 The sheriff must give to the sheriff clerk—

a an interlocutor giving effect to the sheriff’s decision and incorporating findings in fact and law; and

b a note stating briefly the grounds of his or her decision, including the reasons for his or her decision on any questions of fact or law or of admissibility of evidence.

3 The date of the interlocutor is the date on which it is received by the sheriff clerk.

4 The sheriff clerk must forthwith send a copy of the documents mentioned in paragraph (2) to each party.

CHAPTER 13 PARTY MINUTER PROCEDURE¶

13 Person claiming title and interest to enter process as defender¶

1 A person who has not been called as a defender or third party may apply by minute for leave to enter a process as a party minuter and to lodge defences.

2 A minute under paragraph (1) shall specify—

a the applicant’s title and interest to enter the process; and

b the grounds of the defence he proposes to state.

3 Subject to paragraph (4), after hearing the applicant and any party, the sheriff may—

a if he is satisfied that the applicant has shown title and interest to enter the process, grant the applicant leave to enter the process as a party minuter and to lodge defences; and

b make such order as to expenses or otherwise as he thinks fit.

4 Where an application under paragraph (1) is made after the closing of the record or in a personal injuries action subject to personal injuries procedure after the date upon which the record is required to be lodged, the sheriff shall only grant leave under paragraph (3) if he is satisfied as to the reason why earlier application was not made.

13 Procedure following leave to enter process¶

1 Where a party minuter lodges defences, the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the party minuter had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers.

2 At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit.

3 A decree or other order against the party minuter shall have effect and be extractable in the same way as a decree or other order against a defender.

4 Paragraphs (1), (2) and (3) shall not apply to a personal injuries action which is subject to personal injuries procedure.

5 Where the sheriff grants an application under rule 13.1 in a personal injuries action which is subject to personal injuries procedure, the sheriff may make such further order as he thinks fit.

CHAPTER 13A STATUTORY INTERVENERS¶

13A Interpretation¶

1 In this Chapter, “statutory intervener” means a person established by an enactment on whom a power to intervene in proceedings other than by taking part as a party has been conferred by an enactment.

2 This Chapter is without prejudice to any other entitlement of a statutory intervener to seek to be sisted as a party to proceedings by virtue of any enactment conferring title and interest on it to do so.

13A Interventions by the CEHR¶

1 This rule applies where an enactment requires a statutory intervener to apply for leave to intervene in proceedings.

2 An application for leave to intervene in proceedings is to be by way of minute of intervention in Form O7A and must set out—

a the name of the statutory intervener and the relevant statutory provisions which confer power on it to intervene;

b where the relevant statutory provisions prescribe conditions which must be satisfied before an application may be made by it or permission to intervene may be granted by the sheriff, how it is considered those conditions are satisfied;

c the issue in the proceedings which the statutory intervener wishes to address;

d the propositions to be advanced by the statutory intervener and the reasons for believing that they are relevant to the proceedings.

3 The statutory intervener must—

a send a copy of the minute to all the parties;

b lodge it in process, certifying that sub-paragraph (a) has been complied with.

4 Where the relevant statutory provisions prescribe conditions which must be satisfied before leave to intervene may be granted by the sheriff, leave to intervene may only be granted by the sheriff if the sheriff is so satisfied.

5 In granting leave, the sheriff may impose such terms and conditions as the sheriff 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.

6 The sheriff clerk is to give written intimation of a grant or refusal of leave to the statutory intervener and all the parties.

13A Applications to intervene¶

1 This rule applies where an enactment makes provision for a statutory intervener to be invited by the sheriff to intervene in proceedings.

2 Where an enactment requires that the sheriff be satisfied that intervention is likely to assist the sheriff, the sheriff may invite an intervention only if the sheriff is so satisfied.

3 An invitation by the sheriff to a statutory intervener to intervene in proceedings is to be in Form O7B and the sheriff clerk is to send a copy of it to the statutory intervener and all the parties.

4 An invitation is to be accompanied by—

a a copy of the pleadings in the proceedings;

b such other documents relating to the proceedings as the sheriff thinks relevant.

5 When issuing an invitation, the sheriff may impose such terms and conditions as the sheriff 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.

13A Form of intervention¶

1 An intervention by a statutory intervener is to be by way of a written submission which (including any appendices) does not exceed 5000 words.

2 The statutory intervener must lodge the submission and send a copy of it to all the parties by such time as the sheriff may direct.

3 The sheriff may in exceptional circumstances—

a allow a longer written submission to be made;

b direct that an oral submission is to be made.

4 Where a diet is fixed pursuant to paragraph (3)(b), the sheriff clerk is to give written intimation of the diet to the statutory intervener and all the parties.

^F968CHAPTER 13B INTERVENTIONS BY THE SCOTTISH COMMISSION FOR HUMAN RIGHTS¶

^F96813B Interpretation¶

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^F96813B Application to intervene¶

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^F96813B Invitation to intervene¶

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^F96813B Form of intervention¶

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CHAPTER 14 APPLICATIONS BY MINUTE¶

14 Application of this Chapter¶

1 Where an application may be made by minute, the form of the minute and the procedure to be adopted shall, unless otherwise provided in these Rules, be in accordance with this Chapter.

2 This Chapter shall not apply to—

a a minute of amendment; ^F60. . .

b a minute of abandonment ; or

c a joint minute.

14 Form of minute¶

A minute to which this Chapter applies shall contain—

a a crave;

b where appropriate, a condescendence in the form of a statement of facts supporting the crave; and

c where appropriate, pleas-in-law.

^F6314 Lodging of minutes¶

1 Before intimating any minute, the minuter shall lodge the minute in process.

2 On the lodging of a minute, and any document under rule 21.1(1)(b) (lodging documents founded on or adopted), the sheriff–

a may make an order for answers to be lodged;

b may order intimation of the minute without making an order for answers; or

c where he considers it appropriate for the expeditious disposal of the minute or for any other specified reason, may fix a hearing.

3 Any answers ordered to be lodged under paragraph (2)(a) shall, unless otherwise ordered by the sheriff, be lodged within 14 days after the date of intimation of the minute.

4 Where the sheriff fixes a hearing under paragraph (2)(c), the interlocutor fixing that hearing shall specify whether–

a answers are to be lodged;

b the sheriff will hear evidence at that hearing; and

c the sheriff will allow evidence by affidavit.

5 Any answers or affidavit evidence ordered to be lodged under paragraph (4) shall be lodged within such time as shall be specified in the interlocutor of the sheriff.

6 The following rules shall not apply to any hearing fixed under paragraph (2)(c):–

rule 14.7 (opposition where no order for answers made),
rule 14.8 (hearing of minutes where no opposition or no answers lodged),
rule 14.10 (notice of opposition or answers lodged).

7 The sheriff clerk shall forthwith return the minute to the minuter with any interlocutor pronounced by the sheriff.

^F6414 Intimation of minutes¶

1 The party lodging a minute shall, on receipt from the sheriff clerk of the minute, intimate to every other party including any person referred to in rule 14.13(1)–

a a notice in Form G7A, G7B or G7C, as the case may be, by any of the methods provided for in rule 14.5 (methods of intimation); and

b a copy of–

i the minute;

ii any interlocutor; and

iii any document referred to in the minute.

2 The sheriff may, on cause shown, dispense with intimation.

^F6514 Methods of intimation¶

1 Intimation of a minute may be given by–

a any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

b where intimation is to a party represented by a solicitor, by–

i personal delivery,

ii facsimile transmission,

iii first class ordinary post, or

iv delivery to a document exchange,

to that solicitor.

2 Where intimation is given–

a under paragraph (1)(b)(i) or (ii), it shall be deemed to have been given–

i on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

ii on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

b under paragraph 1(b)(iii) or (iv), it shall be deemed to have been given on the day after the date of posting or delivery.

^F6614 Return of minute with evidence of intimation¶

Where intimation of any minute has been given, the minute and a certificate of intimation in Form G8 shall be returned to the sheriff clerk within 5 days after the date of intimation.

^F6714 Opposition where no order for answers made¶

1 Where a party seeks to oppose a minute lodged under rule 14.3 (lodging of minutes) in which no order for answers has been made under paragraph (2)(a) of that rule, that party shall, within 14 days after the date of intimation of the minute to him–

a complete a notice of opposition in Form G9;

b lodge the notice with the sheriff clerk; and

c intimate a copy of that notice to every other party.

2 Rule 14.5 (methods of intimation) and rule 14.6 (return of minute with evidence of intimation) shall apply to intimation of opposition to a minute under paragraph (1)(c) of this rule as they apply to intimation of a minute.

3 The sheriff may, on cause shown, reduce or dispense with the period for lodging the notice mentioned in paragraph (1)(b).

^F6814 Hearing of minutes where no opposition or no answers lodged¶

1 Where no notice of opposition is lodged or where no answers have been lodged to the minute within the time allowed, the minute shall be determined by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs.

2 Where the sheriff requires to hear a party on a minute, the sheriff clerk shall–

a fix a date, time and place for the party to be heard; and

b inform that party–

i of that date, time and place; and

ii of the reasons for the sheriff wishing to hear him.

^F6914 Intimation of interlocutor¶

Where a minute has been determined in accordance with rule 14.8 (hearing of minutes where no opposition or no answers lodged), the sheriff clerk shall intimate the interlocutor determining that minute to the parties forthwith.

^F7014 Notice of opposition or answers lodged¶

1 Where a notice of opposition has, or answers have, been lodged to the minute, the sheriff clerk shall–

a assign a date, time and place for a hearing on the first suitable court day after the date of the lodging of the notice of opposition or answers, as the case may be; and

b intimate that date, time and place to the parties.

2 The interlocutor fixing a hearing under paragraph (1) shall specify whether the sheriff will hear evidence at the hearing or receive evidence by affidavit.

14.10A Orders under section 11 of the Children (Scotland) Act 1995¶

1 This rule applies where a notice of opposition or answers are lodged in respect of a minute including a crave for an order under section 11 of the Children (Scotland) Act 1995 (court orders relating to parental responsibilities etc.).

2 The sheriff, having regard to the measures referred to in rules 33.36J or 33A.36J (Initial Case Management Hearing), may make such orders as the sheriff considers appropriate to ensure the expeditious resolution of the issues in dispute.

^F7114 Procedure for hearing¶

1 A certified copy of the interlocutor assigning a hearing under this Chapter and requiring evidence to be led shall be sufficient warrant to a sheriff officer to cite a witness on behalf of a party.

2 At the hearing, the sheriff shall hear parties on the minute and any answers lodged, and may determine the minute or may appoint such further procedure as he considers necessary.

^F7214 Consent to minute¶

Subject to paragraph (2) of rule 14.8 (hearing of minutes where no opposition or no answers lodged), where all parties to the action indicate to the sheriff, by endorsement of the minute or otherwise in writing, their intention to consent to the minute, the sheriff may forthwith determine the minute in chambers without the appearance of parties.

^F7314 Procedure following grant of minute¶

1 Where the minute includes a crave seeking leave–

a for a person–

i to be sisted as a party to the action, or

ii to appear in the proceedings, or

b for the cause to be transferred against the representatives of a party who has died or is under a legal incapacity,

the sheriff, on granting the minute, may order a hearing under rule 9.12 (Options Hearing) to be fixed or may appoint such further procedure as he thinks fit.

2 Where an Options Hearing is ordered under paragraph (1), the sheriff clerk shall–

a fix a date and time for such hearing, which date, unless the sheriff otherwise directs, shall be on the first suitable court day occurring not sooner than 10 weeks after the date of the interlocutor of the sheriff ordering such hearing be fixed;

b forthwith intimate to the parties in Form G5–

i where appropriate, the last date for lodging defences;

ii where appropriate, the last date for adjustment; and

iii the date of the Options Hearing; and

c prepare and sign an interlocutor recording those dates.

3 For the purpose of fixing the date for the Options Hearing referred to in paragraph (1), the date of granting the minute shall be deemed to be the date of expiry of the period of notice.

^C18CHAPTER 15 MOTIONS¶

15.A1 Application of this Chapter¶

This Chapter applies to any cause other than a cause to which Chapter 15A applies.

15 ^F212 Lodging of motions¶

1 A motion may be made–

a orally with leave of the court during any hearing of a cause; or

b by lodging a written motion in Form G6.

2 Subject to paragraph (3), a written motion shall be lodged with the sheriff clerk within 5 days after the date of intimation of the motion required by rule 15.2 (intimation of motions) with–

a a certificate of intimation in Form G8; and

b so far as practicable any document referred to in the written motion and not already lodged in process.

3 Where the period for lodging opposition to the motion is varied under rule 15.2(4) (variation of and dispensing with period of intimation) to a period of 5 days or less, the written motion and certificate to be lodged in terms of paragraph (2) shall be lodged no later than the day on which the period for lodging opposition expires.

15 ^F213 Intimation of motions¶

1 Subject to paragraphs (4) and (7), a party intending to lodge a motion in accordance with rule 15.1(1)(b) (lodging written motion) shall intimate the motion in Form G7, and a copy of any document referred to in the motion, to every other party.

2 Intimation of a motion may be given by–

a any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

b where intimation is to a party represented by a solicitor, by–

i personal delivery,

ii facsimile transmission,

iii first class ordinary post, or

iv delivery to a document exchange,

to that solicitor.

3 Where intimation is given–

a under paragraph (2)(b)(i) or (ii), it shall be deemed to have been given–

i on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

ii on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

b under paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

4 The sheriff may, on the application of a party intending to lodge a written motion, vary the period of 7 days specified in rule 15.3(1)(c) for lodging opposition to the motion or dispense with intimation.

5 An application under paragraph (4) shall be made in the written motion, giving reasons for such variation or dispensation.

6 Where the sheriff varies the period within which notice of opposition is to be lodged under rule 15.3(1)(c), the form of intimation required under rule 15.2(1) (intimation of motion in Form G7) shall state the date by which such notice requires to be lodged.

7 A joint motion by all parties lodged in Form G6 need not be intimated.

^F21415 Opposition to motions¶

1 Where a party seeks to oppose a motion made in accordance with rule 15.1(1)(b) (written motion), he shall–

a complete a notice of opposition in Form G9;

b intimate a copy of that notice to every other party; and

c lodge the notice with the sheriff clerk within 7 days after the date of intimation of the motion or such other period as the sheriff may have determined under rule 15.2(6).

2 Paragraphs (2) and (3) of rule 15.2 (methods and time of intimation of motions) shall apply to the intimation of opposition to a motion under paragraph (1)(b) of this rule as they apply to intimation under that rule.

15 ^F215 Consent to motions¶

Where a party consents to a written motion, he shall endorse the motion, or give notice to the sheriff clerk in writing, of his consent.

15 ^F216 Hearing of motions¶

1 Subject to paragraph (2), where no notice of opposition is lodged with the sheriff clerk within the period specified in rule 15.3(1)(c), or ordered by virtue of rule 15.2(4), the motion shall be determined by the sheriff in chambers without the appearance of parties, unless the sheriff otherwise directs.

2 In accordance with any directions given by the sheriff principal, the sheriff clerk may determine any motion other than a motion which seeks a final interlocutor.

3 Where the sheriff clerk considers that a motion dealt with by him under paragraph (2) should not be granted, he shall refer that motion to the sheriff who shall deal with it in accordance with paragraph (1).

4 Where the sheriff requires to hear a party on a motion which is not opposed, the sheriff clerk shall–

a fix a date, time and place for the party to be heard, and

b inform that party–

i of that date, time and place; and

ii of the reasons for the sheriff wishing to hear him.

5 Where a notice of opposition is lodged in accordance with rule 15.3(1), the sheriff clerk shall–

a assign a date, time and place, on the first suitable court day after the lodging of the notice of opposition, for the motion to be heard; and

b intimate that date, time and place to the parties.

6 Where a motion has been determined under paragraph (1) or (2), the sheriff clerk shall intimate the interlocutor determining that motion to all parties forthwith.

7 Where the sheriff, under paragraph (4) of rule 15.2, dispenses with intimation required by paragraph (1) of that rule, he shall make such order as he thinks fit for intimation of his determination of the motion to every party to the action in respect of whom intimation has been so dispensed with.

8 Subject to paragraph (4), where all parties consent to a written motion, the sheriff may determine the motion in chambers without the appearance of parties.

9 Subject to paragraph (4) where a joint motion of all parties in Form G6 is lodged with the sheriff clerk, the sheriff may determine the motion in chambers without the appearance of parties.

15 Motions to sist¶

1 Where a motion to sist is made, either orally or in writing in accordance with rule 15.1(1)(a) or (b)–

a the reason for the sist shall be stated by the party seeking the sist; and

b that reason shall be recorded in the interlocutor.

2 Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.

15 Dismissal of action due to delay¶

1 Any party to an action may, while that action is depending before the court, apply by written motion for the court to dismiss the action due to inordinate and inexcusable delay by another party or another party's agent in progressing the action, resulting in unfairness.

2 A motion under paragraph (1) shall—

a include a statement of the grounds on which it is proposed that the motion should be allowed ^F440...; and

b be lodged in accordance with rule 15.1.

3 A notice of opposition to the motion in Form G9 shall include a statement of the grounds of opposition to the motion.

4 In determining an application made under this rule, the court may dismiss the action if it appears to the court that—

a there has been an inordinate and inexcusable delay on the part of any party or any party's agent in progressing the action; and

b such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that action.

5 In determining whether or not to dismiss an action under paragraph (4), the court shall take account of the procedural consequences, both for the parties and for the work of the court, of allowing the action to proceed.

CHAPTER 15A MOTIONS INTIMATED AND LODGED BY EMAIL¶

15A.1 Application of this Chapter¶

This Chapter applies—

a to a personal injuries action within the meaning of Part A1 of Chapter 36 proceeding in the all-Scotland sheriff court;

b where each party to such an action has provided to the sheriff clerk an email address for the purpose of transacting motion business.

15A.2 Interpretation of this Chapter¶

1 In this Chapter—

“court day” means a day on which the sheriff clerk’s office is open for civil court business;
“court day 1” means the court day on which a motion is treated as being intimated under rule 15A.4;
“court day 3” means the second court day after court day 1;
“court day 4” means the third court day after court day 1;
“lodging party” means the party lodging the motion;
“receiving party” means a party receiving the intimation of the motion from the lodging party; and
“transacting motion business” means—
1. intimating and lodging motions;
2. receiving intimation of motions;
3. intimating consent or opposition to motions;
4. receiving intimation of or opposition to motions.

2 In this Chapter, a reference to—

a the address of a party is a reference to the email address of—

i that party’s solicitor; or

ii that party,

included in the list maintained under rule 15A.2(4);

b the address of the court is a reference to the email address of the court included in that list under rule 15A.2(5).

15A.2 Provision of email addresses to sheriff clerk¶

1 A solicitor representing a party in an action of the sort mentioned in rule 15A.1(a) must provide to the sheriff clerk an email address for the purpose of transacting motion business.

2 A solicitor who does not have suitable facilities for transacting motion business by email may make a declaration in writing to that effect, which must be—

a sent to the sheriff clerk; and

b intimated to each of the other parties to the cause.

3 A party to an action of the sort mentioned in rule 15A.1(a) who is not represented by a solicitor may provide to the sheriff clerk an email address for the purpose of transacting motion business.

4 The sheriff clerk must maintain a list of the email addresses provided for the purpose of transacting motion business, which must be published in up to date form on the website of the Scottish Courts and Tribunals Service.

5 The sheriff clerk must also include on that list an email address of the court for the purpose of lodging motions.

15A.3 Making of motions¶

A motion may be made—

a orally with leave of the court during any hearing; or

b by lodging it in accordance with this Chapter.

15A.4 Intimation of motions by email¶

1 Where—

a a defender has lodged a notice of intention to defend under rule 9.1;

b a party has lodged a minute or answers; or

c provision is made in these Rules for the intimation of a motion to a party in accordance with this Part,

the lodging party must give intimation of his or her intention to lodge the motion, and of the terms of the motion, to every such party by sending an email in Form G6A (form of motion by email) to the addresses of every party.

2 The requirement under paragraph (1) to give intimation of a motion to a party by email does not apply where that party—

a having lodged a notice of intention to defend, fails to lodge defences within the period for lodging those defences;

b has not lodged answers within the period of notice for lodging those answers; or

c has withdrawn or is deemed to have withdrawn the defences, minute or answers, as the case may be.

3 A motion intimated under this rule must be intimated not later than 5 p.m. on a court day.

15A.5 Opposition to motions by email¶

1 A receiving party must intimate any opposition to a motion by sending an email in Form G9A (form of opposition to motion by email) to the address of the lodging party.

2 Any opposition to a motion must be intimated to the lodging party not later than 5 p.m. on court day 3.

3 Late opposition to a motion must be sent to the address of the court and may only be allowed with the leave of the court, on cause shown.

15A.6 Consent to motions by email¶

Where a receiving party seeks to consent to a motion, that party may do so by sending an email confirming the consent to the address of the lodging party.

15A.7 Lodging unopposed motions by email¶

1 This rule applies where no opposition to a motion has been intimated.

2 The motion must be lodged by the lodging party not later than 12.30 p.m. on court day 4 by sending an email in Form G6A headed “Unopposed motion” to the address of the court.

3 A motion lodged under paragraph (2) is to be determined by the court by 5 p.m. on court day 4.

4 Where for any reason it is not possible for a motion lodged under paragraph (2) to be determined by 5 p.m. on court day 4, the sheriff clerk must advise the parties or their solicitors of that fact and give reasons.

15A.8 Lodging opposed motions by email¶

1 This rule applies where opposition to a motion has been intimated.

2 The motion must be lodged by the lodging party not later than 12.30 p.m. on court day 4 by—

a sending an email in Form G6A headed “Opposed motion”, to the address of the court;

b attaching to that email the opposition in Form G9A intimated by the receiving party to the lodging party.

3 Where a motion is lodged under paragraph (2), the sheriff clerk must advise parties of the date on which the motion will be heard, which will be on the first suitable court day after court day 4.

15A.9 Issuing of interlocutor by email¶

Where the court pronounces an interlocutor determining a motion, the sheriff clerk must email a copy of the interlocutor to the addresses of the lodging party and every receiving party.

15A.10 Other periods of intimation etc. under these Rules¶

1 Where a provision of these Rules, other than Chapter 15 (motions), provides for a period of intimation of—

a a motion;

b opposition to a motion; or

c consent to a motion,

other than the period mentioned in this Chapter, that period will apply instead of the period mentioned in this Chapter.

2 Paragraph (1) applies whether or not the intimation period mentioned elsewhere in these Rules is referred to by a specific number of days.

3 Where—

a every receiving party in a cause consents to a shorter period of intimation; or

b the court shortens the period of intimation,

the motion may be lodged by the lodging party, or heard or otherwise determined by the court at an earlier time and date than that which is specified in this Part.

15A.11 Motions to sist¶

1 Where a motion to sist is made—

a the reason for the sist must be stated by the party seeking the sist; and

b that reason must be recorded in the interlocutor.

2 Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.

15A.12 Dismissal of action due to delay¶

1 Any party to an action may, while that action is depending before the court, apply by motion for the court to dismiss the action due to inordinate and inexcusable delay by another party or another party’s solicitor in progressing the action, resulting in unfairness.

2 A motion under paragraph (1) must—

a include a statement of the grounds on which it is proposed that the motion should be allowed; and

b be lodged in accordance with rule 15A.3(b) (lodging of motions).

3 A notice of opposition to the motion in Form G9 (form of notice of opposition to motion or minute) or Form G9A (form of opposition to motion by email) must include a statement of the grounds of opposition to the motion.

4 In determining an application made under this rule, the sheriff may dismiss the action if it appears to the sheriff that—

a there has been an inordinate and inexcusable delay on the part of any party or any party’s solicitor in progressing the action; and

b such delay results in unfairness specific to the factual circumstances, including the procedural circumstances, of that action.

5 In determining whether or not to dismiss an action under paragraph (4), the sheriff must take account of the procedural consequences, both for the parties and for the work of the court, of allowing the action to proceed.

CHAPTER 16 DECREES BY DEFAULT¶

16 Application of this Chapter¶

This Chapter applies to any cause other than—

a an action to which rule 33.37 (decree by default in family action) applies;

aa an action to which rule 33A.37 (decree by default in a civil partnership action) applies;

b an action of multiplepoinding; ^F77. . .

c a cause under the Presumption of Death (Scotland) Act 1977 ^F78. ; or

^F79d a commercial action within the meaning of Chapter 40.

16 Decrees where party in default¶

1 In a cause to which this Chapter applies, where a party fails—

a to lodge, or intimate the lodging of, any production or part of process within the period required under a provision in these Rules or an order of the sheriff,

b to implement an order of the sheriff within a specified period, ^F329. . .

c to appear or be represented at any diet, , or

d otherwise to comply with any requirement imposed upon that party by these Rules

that party shall be in default.

2 Where a party is in default the sheriff may, as the case may be–

a grant decree as craved with expenses;

b grant decree of absolvitor with expenses;

c dismiss the cause with expenses; or

d make such other order as he thinks fit to secure the expeditious progress of the cause.

3 Where no party appears at a diet, the sheriff may dismiss the cause.

4 In this rule, “diet” includes—

a a hearing under rule 9.12 (Options Hearing);

b a hearing under rule 10.6 (Procedural Hearing);

c a proof or proof before answer; and

d a debate.

16 Prorogation of time where party in default¶

In an action to which this Chapter applies, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process or for giving intimation or for implementing any order.

CHAPTER 17 SUMMARY DECREES¶

17 Application of this Chapter¶

This Chapter applies to any action other than—

a a family action within the meaning of rule 33.1(1);

aa a civil partnership action within the meaning of rule 33A.1(1);

ab an action of proving the tenor;

b an action of multiplepoinding; or

c a cause under the Presumption of Death (Scotland) Act 1977.

17 Applications for summary decree¶

1 Subject to paragraphs (2) to (4), a party to an action may, at any time after defences have been lodged, apply by motion for summary decree in accordance with rule 15.1(1)(b) (lodging of motions) or rule 15A.7 (lodging unopposed motions by email) or rule 15A.8 (lodging opposed motions by email) as the case may be.

2 An application may only be made on the grounds that—

a an opposing party’s case (or any part of it) has no real prospect of success; and

b there exists no other compelling reason why summary decree should not be granted at that stage.

3 The party enrolling the motion may request the sheriff—

a to grant decree in terms of all or any of the craves of the initial writ or counterclaim;

b to dismiss a cause or to absolve any party from any crave directed against him or her;

c to pronounce an interlocutor sustaining or repelling any plea-in-law; or

d to dispose of the whole or part of the subject-matter of the cause.

4 The sheriff may—

a grant the motion in whole or in part, if satisfied that the conditions in subparagraph (2) are met,

b ordain any party, or a partner, director, officer or office-bearer of any party—

i to produce any relevant document or article; or

ii to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.

5 Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change in circumstances.

^F62917 Application of summary decree to counterclaims, etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 18 AMENDMENT OF PLEADINGS¶

18 Alteration of sum sued for¶

1 In a cause in which all other parties have lodged defences or answers, the pursuer may, before the closing of the record, alter any sum sued for by amending the crave of the initial writ, ^F80. . . and any record.

2 The pursuer shall forthwith intimate any such amendment in writing to every other party.

18 Powers of sheriff to allow amendment¶

1 The sheriff may, at any time before final judgment, allow an amendment mentioned in paragraph (2).

2 Paragraph (1) applies to the following amendments:—

a an amendment of the initial writ which may be necessary for the purpose of determining the real question in controversy between the parties, notwithstanding that in consequence of such amendment—

i the sum sued for is increased or restricted after the closing of the record; or

ii a different remedy from that originally craved is sought;

b an amendment which may be necessary—

i to correct or supplement the designation of a party to the cause;

ii to enable a party who has sued or has been sued in his own right to sue or be sued in a representative capacity;

iii to enable a party who has sued or has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity;

iv to add the name of an additional pursuer or person whose concurrence is necessary;

v where the cause has been commenced or presented in the name of the wrong person, or it is doubtful whether it has been commenced or presented in the name of the right person, to allow any other person to be sisted in substitution for, or in addition to, the original person; or

vi to direct a crave against a third party brought into an action under Chapter 20 (third party procedure);

c an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties; and

d where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting in the initial writ an additional or substitute party and directing existing or additional craves, averments and pleas-in-law against that party.

18 Applications to amend¶

1 A party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, lodge a motion—

a to allow the minute of amendment to be received; and

b to allow—

i amendment in terms of the minute of amendment and, where appropriate, to grant an order under rule 18.5(1)(a) (service of amendment for additional or substitute party); or

ii where the minute of amendment may require to be answered, any other person to lodge answers within a specified period.

2 Where the sheriff has pronounced an interlocutor allowing a minute of amendment to be received and answered, he may allow a period for adjustment of the minute of amendment and answers and, on so doing, shall fix a date for parties to be heard on the minute of amendment and answers as adjusted.

3 Any adjustment to any minute of amendment or answers shall be exchanged between parties and not lodged in process.

^F814 Parties shall be responsible for maintaining a record of adjustment made and the date of their intimation.

^F815 No adjustments shall be permitted after the period of adjustment allowed, except with leave of the sheriff.

^F816 Each party shall, no later than 2 days before the hearing fixed in terms of paragraph (2), lodge in process a copy of their minute of amendment or answers with all adjustments made thereto in italic or bold type, or underlined.

18 Applications for diligence on amendment¶

1 Where a minute of amendment is lodged by a pursuer under rule 18.2(2)(d) (all parties not, or wrong person, called), he may apply by motion for warrant to use any form of diligence which could be used on the dependence of a separate action.

2 A copy certified by the sheriff clerk of the interlocutor granting warrant for diligence on the dependence applied for under paragraph (1) shall be sufficient authority for the execution of that diligence.

18 Service of amended pleadings¶

1 Where an amendment under rule 18.2(b)(iv), (v) or (vi) (additional or substitute defenders added by amendment) or rule 18.2(2)(d) (all parties not, or wrong person, called) has been made—

a the sheriff shall order that a copy of the initial writ or record, as the case may be, as so amended be served by the party who made the amendment on that additional or substitute party with—

i in a cause in which a time to pay direction under the ^M16Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for, a notice in Form O8 specifying the date by which a notice of intention to defend must be lodged in process, a notice in Form O3 and a notice of intention to defend in Form O7; or

ii in any other cause, a notice in Form O9 specifying the date by which a notice of intention to defend must be lodged in process and a notice of intention to defend in Form O7; and

b the party who made the amendment shall lodge in process—

i a copy of the initial writ or record as amended;

ii a copy of the notice sent in Form O8 or Form O9; and

iii a certificate of service.

2 When paragraph (1) has been complied with, the cause as so amended shall proceed in every respect as if that party had originally been made a party to the cause.

3 Where a notice of intention to defend is lodged by virtue of paragraph (1)(a), the sheriff clerk shall fix a date and time for a hearing under rule 9.12 (Options Hearing).

18 Expenses and conditions of amendment¶

The sheriff shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as he thinks fit.

18 Effect of amendment on diligence¶

Where an amendment has been allowed, the amendment—

b shall preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

18 Preliminary pleas inserted on amendment¶

1 Where a party seeks to add a preliminary plea by amendment or answers to an amendment, or by adjustment thereto, a note of the basis for the plea shall be lodged at the same time as the minute, answers or adjustment, as the case may be.

2 If a party fails to comply with paragraph (1), that party shall be deemed to be no longer insisting on the preliminary plea and the plea shall be repelled by the sheriff.

CHAPTER 19 COUNTERCLAIMS¶

19 Counterclaims¶

1 In any action other than a family action within the meaning of rule 33.1(1) , a civil partnership action within the meaning of rule 33A.1(1) or an action of multiplepoinding, a defender may counterclaim against a pursuer—

a where the counterclaim might have been made in a separate action in which it would not have been necessary to call as defender any person other than the pursuer; and

b in respect of any matter—

i forming part, or arising out of the grounds, of the action by the pursuer;

ii the decision of which is necessary for the determination of the question in controversy between the parties; or

iii which, if the pursuer had been a person not otherwise subject to the jurisdiction of the court, might have been the subject-matter of an action against that pursuer in which jurisdiction would have arisen by reconvention.

2 A counterclaim shall be made in the defences—

a when the defences are lodged or during the period for adjustment;

b by amendment at any other stage, with the leave of the sheriff and subject to such conditions, if any, as to expenses or otherwise as the sheriff thinks fit.

3 Defences which include a counterclaim shall commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and shall include—

a answers to the condescendence of the initial writ as required by rule 9.6(2) (form of defences);

b a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences; and

c appropriate pleas-in-law.

19 Warrants for diligence on counterclaims¶

1 A defender who makes a counterclaim may apply for a warrant for interim diligence which would have been permitted had the warrant been sought in an initial writ in a separate action.

2 ^F429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 ^F429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 ^F429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

19 Form of record where counterclaim lodged¶

Where, under rule 9.10 (open record), 9.11 (record for Options Hearing), 10.4 (open record), or 10.5 (closed record), a record requires to be lodged in an action in which a counterclaim is included in the defences, the pleadings of the parties shall be set out in the record in the following order:–

a the crave of the initial writ;

b the condescendence and answers relating to the initial writ;

c the pleas-in-law of the parties relating to the crave of the initial writ;

d the crave of the counterclaim;

e the statement of facts and answers relating to the counterclaim; and

f the pleas-in-law of the parties relating to the counterclaim.

19 Effect of abandonment of cause¶

1 The right of a pursuer to abandon a cause under rule 23.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition of, or in consequence of, such abandonment shall not include the expenses of the counterclaim.

2 Notwithstanding abandonment by the pursuer, a defender may insist in his counterclaim; and the proceedings in the counterclaim shall continue in dependence as if the counterclaim were a separate action.

19 Disposal of counterclaims¶

The sheriff may—

a deal with a counterclaim as if it had been stated in a separate action;

b regulate the procedure in relation to the counterclaim as he thinks fit; and

c grant decree for the counterclaim in whole or in part or for the difference between it and the sum sued for by the pursuer.

CHAPTER 20 THIRD PARTY PROCEDURE¶

20 Applications for third party notice¶

1 Where, in an action, a defender claims that—

a he has in respect of the subject-matter of the action a right of contribution, relief or indemnity against any person who is not a party to the action, or

b a person whom the pursuer is not bound to call as a defender should be made a party to the action along with the defender in respect that such person is—

i solely liable, or jointly or jointly and severally liable with the defender, to the pursuer in respect of the subject-matter of the action, or

ii liable to the defender in respect of a claim arising from or in connection with the liability, if any, of the defender to the pursuer,

he may apply by motion for an order for service of a third party notice on that other person in Form O10 for the purpose of convening that other person as a third party to the action.

2 Where—

a a pursuer against whom a counterclaim has been made, or

b a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form O10 in the same manner as a defender under that paragraph; and rules 20.2 to 20.6 shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

20 Averments where order for service of third party notice sought¶

1 Where a defender intends to apply by motion for an order for service of a third party notice before the closing of the record, he shall, before lodging the motion, set out in his defences, by adjustment to those defences, or in a separate statement of facts annexed to those defences—

a averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action; and

b appropriate pleas-in-law.

2 Where a defender applies by motion for an order for service of a third party notice after the closing of the record, he shall, on lodging the motion, lodge a minute of amendment containing—

a averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action, and

b appropriate pleas-in-law,

unless those grounds and pleas-in-law have been set out in the defences in the closed record.

3 A motion for an order for service of a third party notice shall be lodged before the commencement of the hearing of the merits of the cause.

20 Warrants for diligence on third party notice¶

1 A defender who applies for an order for service of a third party notice may apply for—

a a warrant for arrestment to found jurisdiction;

b a warrant for interim diligence,

which would have been permitted had the warrant been sought in an initial writ in a separate action.

2 Averments in support of the application for a warrant under paragraph (1)(a) shall be included in the defences or the separate statement of facts referred to in rule 20.2(1).

3 An application for a warrant under paragraph (1)(a) shall be made by motion—

a at the time of applying for the third party notice; or

b if not applied for at that time, at any stage of the cause thereafter.

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

20 Service on third party¶

1 A third party notice shall be served on the third party within 14 days after the date of the interlocutor allowing service of that notice.

2 Where service of a third party notice has not been made within the period specified in paragraph (1), the order for service of it shall cease to have effect; and no service of the notice may be made unless a further order for service of it has been applied for and granted.

3 There shall be served with a third party notice–

a a copy of the pleadings (including any amendments or adjustments); and

b where the pleadings have not been amended in accordance with the minute of amendment referred to in rule 20.2, a copy of that minute.

4 A copy of the third party notice, with a certificate of service attached to it, shall be lodged in process by the defender.

20 Answers to third party notice¶

1 An order for service of a third party notice shall specify 28 days, or such other period as the sheriff on cause shown may specify, as the period within which the third party may lodge answers.

2 Answers for a third party shall be headed “Answers for [E.F.], Third Party in the action at the instance of [A.B.], Pursuer against [C.D.], Defender” and shall include—

a answers to the averments of the defender against him in the form of numbered paragraphs corresponding to the numbered articles of the condescendence in the initial writ and incorporating, if the third party so wishes, answers to the averments of the pursuer; or

b where a separate statement of facts has been lodged by the defender under rules 20.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

c appropriate pleas-in-law.

20 Consequences of failure to amend pleadings¶

Where the pleadings have not been amended in accordance with the minute of amendment referred to in rule 20.2, no motion for a finding, order or decree against a third party may be enrolled by the defender unless, at or before the date on which he enrols the motion, he enrols a motion to amend the pleadings in accordance with that minute.

20 Procedure following answers¶

1 Where a third party lodges answer, the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the third party had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers.

2 At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit.

3 A decree or other order against the third party shall have effect and be extractable in the same way as a decree or other order against a defender.

CHAPTER 21 DOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS¶

21 Lodging documents founded on or adopted¶

1 Subject to any other provision in these Rules, any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him—

a when founded on or adopted in an initial writ, at the time of returning the initial writ under rule 9.3 or, in the case of a personal injuries action raised under Part AI of Chapter 36, when the initial writ is presented for warranting in accordance with rule 5.1;

b when founded on or adopted in a minute, defences, counterclaim or answers, at the time of lodging that part of process; and

c when founded on or adopted in an adjustment to any pleadings, at the time when such adjustment is intimated to any other party.

2 Paragraph (1) shall be without prejudice to any power of the sheriff to order the production of any document or grant a commission and diligence for recovery of it.

21 Consequences of failure to lodge documents founded on or adopted¶

Where a party fails to lodge a document in accordance with rule 21.1(1), he may be found liable in the expenses of any order for production or recovery of it obtained by any other party.

21 Objection to documents founded on¶

1 Where a deed or writing is founded on by a party, any objection to it by any other party may be stated and maintained by exception without its being reduced.

2 Where an objection is stated under paragraph (1) and an action of reduction would otherwise have been competent, the sheriff may order the party stating the objection to find caution or give such other security as the sheriff thinks fit.

3 An objection may not be stated by exception if the sheriff considers that the objection would be more conveniently disposed of in a separate action of reduction.

CHAPTER 22 PRELIMINARY PLEAS¶

22 Note of basis of preliminary plea¶

1 A party intending to insist on a preliminary plea shall, not later than 3 days before the Options Hearing under rule 9.12, the Procedural Hearing under rule 10.6 or the Full Case Management Hearing under rule 33.36P or rule 33A.36P—

a lodge in process a note of the basis for the plea; and

b intimate a copy of it to every other party.

2 Where the Options Hearing or Full Case Management Hearing is continued under rules 9.12(5) or 33.36P(7) and a preliminary plea is added by adjustment, a party intending to insist on that plea shall, not later than 3 days before the date of the Options Hearing or Full Case Management Hearing so continued—

a lodge in process a note of the basis for the plea; and

b intimate a copy of it to every other party.

3 If a party fails to comply with paragraph (1) or (2), the party is deemed to be no longer insisting on the preliminary plea; and the plea shall be repelled by the sheriff at the Options Hearing , Procedural Hearing or Full Case Management Hearing.

4 At any proof before answer or debate, parties may on cause shown raise matters in addition to those set out in the note mentioned in paragraph (1) or (2).

5 Where a note of the basis of a preliminary plea has been lodged under paragraph (1), and the Options Hearing is continued under rule 9.12(5), unless the basis of the plea has changed following further adjustment, it shall not be necessary for a party who is insisting on the plea to lodge a further note before the Options Hearing so continued.

CHAPTER 23 ABANDONMENT¶

23 Abandonment of causes¶

1 A pursuer may abandon a cause at any time before decree of absolvitor or dismissal by lodging a minute of abandonment and—

a consenting to decree of absolvitor; or

b seeking decree of dismissal.

2 The sheriff shall not grant decree of dismissal under paragraph (1)(b) unless full judicial expenses have been paid to the defender, and any third party against whom the pursuer has directed any crave, within 28 days after the date of taxation.

3 If the pursuer fails to pay the expenses referred to in paragraph (2) to the party to whom they are due within the period specified in that paragraph, that party shall be entitled to decree of absolvitor with expenses.

23 Application of abandonment to counterclaims¶

Rule 23.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of a cause.

CHAPTER 24 WITHDRAWAL OF SOLICITORS¶

24 Intimation of withdrawal to court¶

1 Subject to paragraph (3),Where a solicitor withdraws from acting on behalf of a party, he shall intimate his withdrawal by letter to the sheriff clerk and to every other party.

2 The sheriff clerk shall forthwith lodge such letter in process.

3 Where a solicitor withdraws from acting on behalf of a party in open court and in the presence of the other parties to the action or their representatives, paragraph (1) shall not apply.

24 Intimation to party whose solicitor has withdrawn¶

1 Subject to paragraph (1A), The sheriff shall, of his own motion, or on the motion of any other party, pronounce an interlocutor ordaining the party whose solicitor has withdrawn from acting to appear or be represented at a specified diet fixed by the sheriff to state whether or not he intends to proceed, under certification that if he fails to do so the sheriff may grant decree or make such other order or finding as he thinks fit.

1A Where any previously fixed diet is to occur within 14 days from the date when the sheriff first considers the solicitor’s withdrawal, the sheriff may either–

a pronounce an interlocutor in accordance with paragraph (1); or

b consider the matter at the previously fixed diet.

2 The diet fixed in the interlocutor under paragraph (1) shall not be less than 14 days after the date of the interlocutor unless the sheriff otherwise orders.

3 The party who has lodged the motion under paragraph (1), or any other party appointed by the sheriff, shall forthwith serve on the party whose solicitor has withdrawn a copy of the interlocutor and a notice in Form G10; and a certificate of service shall be lodged in process.

24 Consequences of failure to intimate intention to proceed¶

Where a party on whom a notice and interlocutor has been served under rule 24.2(2) fails to appear or be represented at a diet fixed under rule 24.2(1) and to state his intention as required by that paragraph, the sheriff may grant decree or make such other order or finding as he thinks fit.

CHAPTER 25 WITHDRAWAL OF SOLICITORS¶

25 Minutes of sist¶

Where a party dies or comes under legal incapacity while a cause is depending, any person claiming to represent that party or his estate may apply by minute to be sisted as a party to the cause.

25 Minutes of transference¶

^F95 . . .Where a party dies or comes under legal incapacity while a cause is depending and the provisions of rule 25.1 are not invoked, any other party may apply by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

^F962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 26 TRANSFER AND REMIT OF CAUSES¶

26 Transfer to another sheriff court¶

1 The sheriff may, on cause shown, transfer any cause to another sheriff court.

2 Subject to paragraph (4), where a cause 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 cause to any other sheriff court which has jurisdiction over any of the defenders.

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

4 The sheriff shall not transfer a cause 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 cause is transferred under paragraph (1), (2) or (3) shall accept the cause.

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

^F7658 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26.1A Remit and transfer of summary cause proceedings to all-Scotland sheriff court¶

1 This rule applies where the sheriff directs that a summary cause is to be treated as an ordinary cause and, at the same time, makes an order transferring the action to the all-Scotland sheriff court.

2 The pursuer must lodge an initial writ and intimate it to every other party within 14 days of the date of the order.

3 The defender must lodge defences within 28 days after the date of the order.

4 Following the making of a direction and order mentioned in paragraph (1), the action is to be treated as a personal injuries action within the meaning of Part A1 of Chapter 36.

26 Remit to the Court of Session: proceedings to which section 39 of the 2014 Act does not apply¶

1 An application under section 92(2) of the 2014 Act (remit of cases to the Court of Session) is to be made by motion.

2 Within 4 days after the sheriff has pronounced an interlocutor remitting a cause to the Court of Session under section 92(2), the sheriff clerk must—

a send written notice of the remit to each party;

b certify on the interlocutor sheet that subparagraph (a) has been complied with;

c transmit the process to the Deputy Principal Clerk of Session.

3 Failure by a sheriff clerk to comply with paragraph (2)(a) or (b) does not affect the validity of a remit.

26.2A Remit to the Court of Session: proceedings to which section 39 of the 2014 Act applies¶

1 An application under section 92(4) of the 2014 Act (request for remit to the Court of Session) is to be made by motion.

2 The decision of a sheriff on an application made under section 92(4) is to be recorded in an interlocutor, and a note of the sheriff’s reasons for that decision must be appended to that interlocutor.

3 Following receipt of an interlocutor from the Court of Session allowing the proceedings to be remitted the sheriff must issue an interlocutor remitting the proceedings under section 92(6).

4 Within 4 days after the sheriff has pronounced an interlocutor remitting a cause to the Court of Session under section 92(6), the sheriff clerk must—

a send written notice of the remit to each party;

b certify on the interlocutor sheet that subparagraph (a) has been complied with;

c transmit the process to the Deputy Principal Clerk of Session.

5 Failure by a sheriff clerk to comply with paragraph (4)(a) or (b) does not affect the validity of a remit.

26.2B Remit to the Court of Session: remits under other enactments¶

1 This rule applies where the sheriff has pronounced an interlocutor remitting a cause to the Court of Session under an enactment other than section 92 of the 2014 Act.

2 Within 4 days after the sheriff has pronounced that interlocutor, the sheriff clerk must—

a send written notice of the remit to each party;

b certify on the interlocutor sheet that subparagraph (a) has been complied with;

c transmit the process to the Deputy Principal Clerk of Session.

3 Failure by a sheriff clerk to comply with paragraph (2)(a) or (b) does not affect the validity of a remit.

26 Remit from Court of Session¶

On receipt of the process in an action which has been remitted from the Court of Session under section 93 of the 2014 Act (remit of cases from the Court of Session), the sheriff clerk shall—

a record the date of receipt on the interlocutor sheet;

b fix a hearing to determine further procedure on the first suitable court day occurring not earlier than 14 days after the date of receipt of the process; and

c forthwith send written notice of the date of the hearing fixed under sub-paragraph (b) to each party.

CHAPTER 27 CAUTION AND SECURITY¶

27 Application of this Chapter¶

This Chapter applies to—

a any cause in which the sheriff has power to order a person to find caution or give other security; and

b security for expenses ordered to be given by the election court or the sheriff under section 136(2)(i) of the ^M17Representation of the People Act 1983 in an election petition.

27 Form of applications¶

1 An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion.

2 The grounds on which such an application is made shall be set out in the motion.

27 Orders¶

Subject to section 726(2) of the ^M18Companies Act 1985 (expenses by certain limited com panies), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

^C627 Methods of finding caution or giving security¶

1 A person ordered—

a to find caution, shall do so by obtaining a bond of caution; or

b to consign a sum of money into court, shall do so by consignation under the ^M19Sheriff Court Consignations (Scotland) Act 1893 in the name of the sheriff clerk.

2 The sheriff may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security.

3 Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process.

4 Where the sheriff approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process.

5 Any document lodged in process, by which an order to find caution or give other security is satisifed, shall not be borrowed from process.

^C727 Cautioners and guarantors¶

A bond of caution or other security shall be given only by a person who is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000 ^F256.

^C827 Forms of bonds of caution and other securities¶

1 A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validity and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged.

2 A bond of caution or other security document given by a person shall state whether that person is an “authorised person” within the meaning of section 31 of the Financial Services and Markets Act 2000.

^C927 Sufficiency of caution or security and objections¶

1 The sheriff clerk shall satisfy himself that any bond of caution, or other document lodged in process under rule 27.4(3), is in proper form.

2 A party who is dissatisified with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 27.9 (failure to find caution or give security).

^C1027 Insolvency or death of cautioner or guarantor¶

Where caution has been found by bond of caution or security has been given by guarantee and the cautioner or guarantor, as the case may be—

a becomes apparently insolvent within the meaning assigned by section 16 of the Bankruptcy (Scotland) Act 2016 (meaning of apparent insolvency),

b calls a meeting of his creditors to consider the state of his affairs,

c dies unrepresented, or

d is a company and—

i an administration, bank administration or building society special administration order or a winding up, bank insolvency or building society insolvency order has been made, or a resolution for a voluntary winding up has been passed, with respect to it,

ii a receiver of all or any part of its undertaking has been appointed, or

iii a voluntary arrangement (within the meaning assigned by section 1(1) of the ^M20Insolvency Act 1986) has been approved under Part I of that Act,

the party entitled to benefit from the caution or guarantee may apply by motion for a new security or further security to be given.

27 Failure to find caution or give security¶

Where a party fails to find caution or give other security (in this rule referred to as “the party in default”), any other party may apply by motion—

a where the party in default is a pursuer, for decree of absolvitor; or

b where the party in default is a defender or a third party, for decree by default or for such other finding or order as the sheriff thinks fit.

CHAPTER 27A PURSUERS’ OFFERS¶

27A.1 Interpretation of this Chapter¶

In this Chapter—

“appropriate date” means the date by which a pursuer’s offer could reasonably have been accepted;
“charges” means charges for work carried out by the pursuer’s solicitor, and includes any additional charge;
“pursuer’s offer” means an offer by a pursuer to settle a claim against a defender made in accordance with this Chapter;
“relevant period” means the period from the appropriate date to the date of acceptance of the pursuer’s offer or, as the case may be, to the date on which judgment was given, or on which the verdict was applied.

27A.2 Pursuers’ offers¶

1 A pursuer’s offer may be made in any cause where the initial writ includes a crave for an order for payment of a sum or sums of money, other than an order—

a which the sheriff may not make without evidence; or

b the making of which is dependent on the making of another order which the sheriff may not make without evidence.

2 This Chapter has no effect as regards any other form of offer to settle.

27A.3 Making of offer¶

1 A pursuer’s offer is made by lodging in process an offer in the terms specified in rule 27A.4.

2 A pursuer’s offer may be made at any time before—

a the sheriff makes avizandum or, if the sheriff does not make avizandum, gives judgment; or

b in a jury trial, the jury retires to consider the verdict.

3 A pursuer’s offer may be withdrawn at any time before it is accepted by lodging in process a minute of withdrawal.

27A.4 Form of offer¶

A pursuer’s offer must—

a state that it is made under this Chapter;

b offer to accept—

i a sum or sums of money, inclusive of interest to the date of the offer; and

ii the taxed expenses of process; and

c specify the crave or craves of the initial writ in satisfaction of which the sum or sums and expenses referred to in paragraph (b) would be accepted.

27A.5 Disclosure of offers¶

1 No averment of the fact that a pursuer’s offer has been made may be included in any pleadings.

2 Where a pursuer’s offer has not been accepted—

a the sheriff must not be informed that an offer has been made until—

i the sheriff has pronounced judgment; or

ii in the case of a jury trial, the jury has returned its verdict; and

b a jury must not be informed that an offer has been made until it has returned its verdict.

27A.6 Acceptance of offers¶

1 A pursuer’s offer may be accepted any time before—

a the offer is withdrawn;

b the sheriff makes avizandum or, if the sheriff does not make avizandum, gives judgment; or

c in the case of a jury trial, the jury retires to consider its verdict.

2 A pursuer’s offer is accepted by lodging in process an acceptance of the offer in the form of a minute of acceptance.

3 A minute of acceptance must be unqualified other than as respects any question of contribution, indemnity or relief.

4 On acceptance of a pursuer’s offer either the pursuer or the defender may apply by motion for decree in terms of the offer and minute of acceptance.

5 Where a pursuer’s offer includes an offer to accept a sum of money in satisfaction of a crave for decree jointly and severally against two or more defenders, the offer is accepted only when accepted by all such defenders.

6 However, the sheriff may, on the motion of the pursuer, and with the consent of any defender who has lodged a minute of acceptance, grant decree in terms of the offer and minute of acceptance.

27A.7 Late acceptance of offers¶

1 This rule applies to the determination of a motion under rule 27A.6(4) where the sheriff is satisfied that a defender lodged a minute of acceptance after the appropriate date.

2 On the pursuer’s motion the sheriff must, except on cause shown—

a allow interest on any sum decerned for from the date on which the pursuer’s offer was made; and

b find the defender liable for payment to the pursuer of a sum calculated in accordance with rule 27A.9.

3 Where the sheriff is satisfied that more than one defender lodged a minute of acceptance after the appropriate date the sheriff may find those defenders liable to contribute to payment of the sum referred to in paragraph (2)(b) in such proportions as the sheriff thinks fit.

4 Where the sheriff makes a finding under paragraph (2)(b), the pursuer may apply for decerniture for payment of the sum as so calculated no later than the granting of decree for expenses as taxed.

27A.8 Non-acceptance of offers¶

1 This rule applies where—

a a pursuer’s offer has been made, and has not been withdrawn;

b the offer has not been accepted;

c either—

i the sheriff has pronounced judgment; or

ii in the case of a jury trial, the verdict of the jury has been applied;

d the judgment or verdict, in so far as relating to the craves specified in the pursuer’s offer, is at least as favourable in money terms to the pursuer as the terms offered; and

e the sheriff is satisfied that the pursuer’s offer was a genuine attempt to settle the proceedings.

2 For the purpose of determining if the condition specified in paragraph (1)(d) is satisfied, interest awarded in respect of the period after the lodging of the pursuer’s offer is to be disregarded.

3 On the pursuer’s motion the sheriff must, except on cause shown, decern against the defender for payment to the pursuer of a sum calculated in accordance with rule 27A.9.

4 Such a motion must be lodged no later than the granting of decree for expenses as taxed.

5 Where more than one defender is found liable to the pursuer in respect of a crave specified in the offer, the sheriff may find those defenders liable to contribute to payment of the sum referred to in paragraph (3) in such proportions as the sheriff thinks fit.

27A.9 Extent of defender’s liability¶

The sum that may be decerned for under rule 27A.7(2)(b) or rule 27A.8(3) is a sum corresponding to half the charges allowed on taxation of the pursuer’s account of expenses, in so far as those charges are attributable to the relevant period, or in so far they can reasonably be attributed to that period.

CHAPTER 28 RECOVERY OF EVIDENCE¶

28 Application and interpretation of this Chapter¶

1 This Chapter applies to the recovery of any evidence in a cause depending before the sheriff.

2 In this Chapter, “the Act of 1972” means the ^M21Administration of Justice (Scotland) Act 1972.

28 Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972¶

1 An application by a party for—

a a commission and diligence for the recovery of a document, or

b an order under ^M22section 1 of the Act of 1972,

shall be made by motion.

2 At the time of lodging a motion under paragraph (1), a specification of—

a the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

b the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

3 A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

a every other party;

b in respect of an application under section 1(1) of the ^M23Act of 1972, any third party haver; and

c where necessary–

i the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

ii the Lord Advocate (in any other case),

and, if there is any doubt, both.

4 Where the sheriff grants a motion made under paragraph (1) in whole or in part, he may order the applicant to find such caution or give such other security as he thinks fit.

5 The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).

28 Optional procedure before executing commission and diligence¶

1 Subject to rule 28.3A (optional procedure where there is a party litigant), this rule applies where a party has obtained a commission and diligence for the recovery of a document on an application made under rule 28.2(1)(a).

2 Such a party may, at any time before executing the commission and diligence against a haver, serve on the haver an order in Form G11 (in this rule referred to as “the order”).

3 The order and a copy of the specification referred to in rule 28.2(2), as approved by the sheriff, must be served on the haver or his known agent and must be complied with by the haver in the manner and within the period specified in the order.

4 Not later than the day after the date on which the order, and any document recovered, is received from a haver by the party who obtained the order, that party—

a must give written intimation of that fact in Form G11A to the sheriff clerk and every other party; and

b must—

i if the document has been sent by post, send a written receipt for the document in Form G11B to the haver; or

ii if the document has been delivered by hand, give a written receipt in Form G11B to the person delivering the document.

5 Where the party who has recovered any such document does not lodge it in process within 14 days of receipt of it, that party must—

a give written intimation to every party that that party may borrow, inspect or copy the document within 14 days after the date of that intimation; and

b in so doing, identify the document.

6 Where a party who has obtained any document under paragraph (5) wishes to lodge the document in process, that party must—

a lodge the document within 14 days after receipt of it; and

b at the same time, send a written receipt for the document in Form G11C to the party who obtained the order.

7 Where—

a no party wishes to lodge or borrow any such document under paragraph (5), the document is to be returned to the haver by the party who obtained the order within 14 days after the expiry of the period specified in paragraph (5)(a); or

b any such document has been uplifted by another party under paragraph (5) and that party does not wish to lodge it in process, the document shall be returned to the haver by that party within 21 days after the date of receipt of it by him.

8 Any such document lodged in process is to be returned to the haver by the party lodging it within 14 days after the expiry of any period allowed for appeal or, where an appeal has been marked, from the disposal of any such appeal.

9 If any party fails to return any such document as provided for in paragraph (7) or (8), the haver may apply by motion (whether or not the cause is in dependence) for an order that the document be returned to him and for the expenses occasioned by that motion.

10 The party holding any such document (being the party who last issued a receipt for it) is responsible for its safekeeping during the period that the document is in his custody or control.

11 If the party who served the order is not satisfied that—

a full compliance has been made with the order, or

b adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 28.4.

12 Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the sheriff may, on the motion of the party who served the order, direct that that party may inspect the book and take copies of any entries falling with the specification.

13 Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (12), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

14 The sheriff may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

28.3A Optional procedure where there is a party litigant¶

1 This rule applies where any of the parties to the action is a party litigant.

2 The party who has obtained a commission and diligence for the recovery of a document on an application under rule 28.2(1)(a) may, at any time before executing it against a haver, serve on the haver an order in Form G11D (in this rule referred to as “the order”).

4 Not later than the day after the date on which the order, and any document recovered, is received from a haver by the sheriff clerk, the sheriff clerk shall give written intimation of that fact to each party.

5 No party, other than the party who served the order, may uplift any such document until after the expiry of 7 days after the date of intimation under paragraph (4).

6 Where the party who served the order fails to uplift any such document within 7 days after the date of intimation under paragraph (4), the sheriff clerk must give written intimation of that failure to every other party.

7 Where no party has uplifted any such document within 14 days after the date of intimation under paragraph (6), the sheriff clerk must return it to the haver.

8 Where a party who has uplifted any such document does not wish to lodge it, he must return it to the sheriff clerk who must—

a give written intimation of the return of the document to every other party; and

b if no other party uplifts the document within 14 days after the date of intimation, return it to the haver.

9 Any such document lodged in process is to be returned to the haver by the party lodging it within 14 days after the expiry of any period allowed for appeal or, where an appeal has been made, from the disposal of any such appeal.

10 If any party fails to return any such document as provided for in paragraph (8) or (9), the haver may apply by motion (whether or not the cause is in dependence) for an order that the document be returned to him and for the expenses occasioned by that motion.

11 The party holding any such document (being the party who last issued a receipt for it) is responsible for its safekeeping during the period that the document is in his custody or control.

12 If the party who served the order is not satisfied that—

a full compliance has been made with the order, or

b adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 28.4.

13 Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the sheriff may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

14 Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (13), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

15 The sheriff may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

28 Execution of commission and diligence for recovery of documents¶

1 The party who seeks to execute a commission and diligence for recovery of a document obtained on an application made under rule 28.2(1)(a) shall—

a provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment; and

b instruct the clerk and any shorthand writer considered necessary by the commissioner or any party; and

c be responsible for the fees of the commissioner and his clerk, and of any shorthand writer.

2 The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission.

3 The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

4 A citation in Form G13 shall be served on the haver with a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments) ; and the party citing the haver shall lodge a certificate in Form G12.

5 The parties and the haver shall be entitled to be represented by a solicitor or person having a right of audience before the sheriff at the execution of the commission.

6 At the commission, the commissioner shall—

a administer the oath de fideli administratione to any clerk and any shorthand writer appointed for the commission; and

b administer to the haver the oath in Form G14, or, where the haver elects to affirm, the affirmation in Form G15.

7 The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

8 Not later than the day after the date on which such a report, document and inventory, if any, are received by the sheriff clerk, he shall intimate to the parties that he has received them.

9 No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (8).

10 Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (8), the sheriff clerk shall intimate that failure to every other party.

11 Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (10), the sheriff clerk shall return it to the haver.

12 Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the sheriff clerk who shall—

a intimate the return of the document to every other party; and

b if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

28 Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972¶

1 An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or recovery of that document or other property.

2 Rules 28.3 (optional procedure before executing commission and diligence) and 28.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

28 Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972¶

1 An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment on or with any such document or other property, as the case may be, subject to such conditions, if any, as the sheriff thinks fit.

2 A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

3 When such an order is executed, the party who obtained the order shall serve on the haver a copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

28 Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972¶

1 An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property ^F101. . . shall grant a commission and diligence for the detention and custody of that document or other property.

2 The party who has obtained an order under paragraph (1) shall—

a provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

b be responsible for the fees of the commissioner and his clerk; and

c serve a copy of the order on the haver.

3 The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the sheriff clerk for the further order of the sheriff.

28 Confidentiality¶

1 Where confidentiality is claimed for any evidence sought to be recovered under any of the following rules, such evidence is to be, where practicable, enclosed in a sealed packet—

a rule 28.3 (optional procedure before executing commission and diligence),

b rule 28.3A (optional procedure where there is a party litigant),

c rule 28.4 (execution of commission and diligence for recovery of documents),

d rule 28.5 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

e rule 28.7 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972).

28 (optional procedure before executing commission and diligence),

28 (execution of commission and diligence for recovery of documents),

28 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

28 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972).

2 A motion to have such a sealed packet opened up or such recovery allowed may be lodged by—

a the party who obtained the commission and diligence; or

b any other party after the date of intimation under rule 28.3(5), 28.3A(8) or 28.4(10).

3 In addition to complying with rule 15.2 (intimation of motions) or rule 15A.4 (intimation of motions by email), the party lodging such a motion shall intimate the terms of the motion to the haver by post by the first class recorded delivery service.

4 The person claiming confidentiality may oppose a motion made under paragraph (2).

28 Warrants for production of original documents from public records¶

1 Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the sheriff by motion.

2 Intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 7 days before the motion is lodged.

3 In relation to a public record kept by the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland, where it appears to the sheriff that it is necessary for the ends of justice that a motion under this rule should be granted, he shall pronounce an interlocutor containing a certificate to that effect; and the party applying for production may apply by letter (enclosing a copy of the interlocutor duly certified by the sheriff clerk), addressed to the Deputy Principal Clerk of Session, for an order from the Court of Session authorising the Keeper of the Registers or the Keeper of the Records, as the case may be, to exhibit the original of any register or deed to the sheriff.

4 The Deputy Principal Clerk of Session shall submit the application sent to him under paragraph (3) to the Lord Ordinary in chambers who, if satisfied, shall grant a warrant for production or exhibition of the original register or deed sought.

5 A certified copy of the warrant granted under paragraph (4) shall be served on the keeper of the public record concerned.

6 The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

28 Commissions for examination of witnesses¶

1 This rule applies to a commission—

a to take the evidence of a witness who—

i is resident beyond the jurisdiction of the court;

ii although resident within the jurisdiction of the court, resides at some place remote from that court; or

iii by reason of age, infirmity or sickness, is unable to attend the diet of proof; ^F103. . .

b in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis ; or

c on special cause shown, to take evidence of a witness on a ground other than one mentioned in sub-paragraph (a) or (b)

2 An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the sheriff.

2A A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder:

3 The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

4 At the commission, the commissioner shall—

a administer the oath de fideli administratione to any clerk and any shorthand writer appointed for the commis sion; and

b administer to the witness the oath in Form G14, or where the witness elects to affirm, the affirmation in Form G15.

5 Where a commission is granted for the examination of a witness, the commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

28 Commissions on interrogatories¶

1 Where interrogatories have not been dispensed with, the party who obtained the commis sion to examine a witness under rule 28.10 shall lodge draft interrogatories in process.

2 Any other party may lodge cross-interrogatories.

3 The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the sheriff clerk for approval and the settlement of any dispute as to their contents by the sheriff.

4 The party who has obtained the commission shall—

a provide the commissioner with a copy of the pleadings (including any adjustments and amend ments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

b instruct the clerk; and

c be responsible, in the first instance, for the fee of the commissioner and his clerk.

5 The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

6 The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

7 Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the sheriff clerk, he shall intimate to each party that he has received them.

8 The party who obtained the commission to examine the witness shall lodge in process—

a the report of the commission; and

b the executed interrogatories and any cross-interrogatories.

28 Commissions without interrogatories¶

1 Where interrogatories have been dispensed with, the party who has obtained a commis sion to examine a witness under rule 28.10 shall—

a provide the commissioner with a copy of the pleadings (including any adjustments and amend ments) and a certified copy of the interlocutor of his appointment;

b fix a diet for the execution of the commission in consultation with the commissioner and every other party;

c instruct the clerk and any shorthand writer; and

d be responsible in the first instance for the fees of the commissioner, his clerk and any shorthand writer.

2 All parties shall be entitled to be present and represented at the execution of the commission.

3 The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the sheriff clerk.

4 Not later than the day after the date on which such a report, any document and an inventory of that document are received by the sheriff clerk, he shall intimate to each party that he has received them.

5 The party who obtained the commission to examine the witness shall lodge the report in process.

28 Evidence taken on commission¶

1 Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 28.11 or 28.12 may be used as evidence at any proof of the cause.

2 Any party may object to the use of such evidence at a proof; and the objection shall be determined by the sheriff.

3 Such evidence shall not be used at a proof if the witness becomes available to attend the diet of proof.

4 A party may use such evidence in accordance with the preceding paragraphs of this rule not withstanding that it was obtained at the instance of another party.

28 Letters of request¶

1 Subject to paragraph (7), this rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the sheriff.

2 An application to which paragraph (1) applies may be made in relation to a request—

a for the examination of a witness ,

b for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be ,

c for the medical examination of any person,

d for the taking and testing of samples of blood from any person, or

e for any other order for obtaining evidence,

for which an order could be obtained from the sheriff.

3 Such an application shall be made by minute in Form G16 together with a proposed letter of request in Form G17.

4 It shall be a condition of granting a letter of request that any solicitor for the applicant , or a party litigant, as the case may be, shall be personally liable, in the first instance, for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the sheriff thinks fit.

5 Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory—

a where English is an official language, or

b in relation to which the sheriff clerk certifies that no translation is required,

then the applicant shall, before the issue of the letter of request, lodge in process a translation of that letter and any interrogatories and cross-interrogatories into the official language of that court or tribunal.

6 The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 28.11 and the translations (if any), shall be forwarded by the sheriff clerk to the Scottish Ministers or to such person and in such manner as the sheriff may direct.

7 This rule does not apply to any request for the taking of evidence under Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

28 Taking of evidence in the European Union ¶

1 This rule applies to any request–

a for the competent court of another Member State to take evidence under Article 1.1(a) of the Council Regulation; or

b that the court shall take evidence directly in another Member State under Article 1.1(b) of the Council Regulation.

2 An application for a request under paragraph (1) shall be made by minute in Form G16, together with the proposed request in form A or I (as the case may be) in the Annex to the Council Regulation.

3 In this rule, “the Council Regulation” means Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

28 Citation of witnesses and havers¶

The following rules shall apply to the citation of a witness or haver to a commission under this Chapter as they apply to the citation of a witness for a proof:—

rule 29.7 (citation of witnesses), except paragraph (4),
rule 29.9 (second diligence against a witness),
rule 29.10 (failure of witness to attend).

CHAPTER 28A PRE-PROOF HEARING¶

28A Pre-proof hearing¶

1 Subject to paragraph (1A) on the appointment of a cause to a proof or proof before answer or thereafter on the motion of any party or of his own motion, the sheriff may appoint the cause to a pre-proof hearing.

1A In a family action which must follow the procedure set out in Part III of Chapter 33 or 33A (defended family actions), the sheriff will fix a pre-proof hearing at the Full Case Management Hearing.

2 It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule.

3 At a pre-proof hearing the sheriff shall ascertain, so far as is reasonably practicable, whether the cause is likely to proceed to proof on the date fixed for that purpose and, in particular–

a the state of preparation of the parties; and

b the extent to which the parties have complied with their duties under rules 9A.2, 9A.3, 29.11 and 29.15 and any orders made by the sheriff under—

i rules 9.12(3)(a), (b), (d) or (e);

ii rules 10.6(3)(a) or (b);

iii rules 33.36P(4)(a), (b), (d) or (6); or

iv rules 33A.36P(4)(a), (b), (d) or (6); and

c consider any child witness notice or vulnerable witness application that has been lodged where no order has been made, or ascertain whether there is or is likely to be a vulnerable witness within the meaning of section 11(1) of the 2004 Act who is to give evidence at any proof or hearing and whether any order under section 12(1) of the Act of 2004 requires to be made.

4 At a pre-proof hearing the sheriff may–

a discharge the proof or proof before answer and fix a new date for such proof or proof before answer;

b adjourn the pre-proof hearing; or

c make such other order as he thinks fit to secure the expeditious progress of the cause.

5 For the purposes of rules 16.2 (decrees where party in default), 33.37 (decree by default in family action) and 33A.37 (decree by default in civil partnership action), a pre-proof hearing shall be a diet in accordance with those rules.

CHAPTER 29 PROOF¶

29 Reference to oath¶

1 Where a party intends to refer any matter to the oath of his opponent he shall lodge a motion to that effect.

2 If a party fails to appear at the diet for taking his deposition on the reference to his oath, the sheriff may hold him as confessed and grant decree accordingly.

29 Remit to person of skill¶

1 The sheriff may, on a motion by any party or on a joint motion, remit to any person of skill, or other person, to report on any matter of fact.

2 Where a remit under paragraph (1) is made by joint motion or of consent of all parties, the report of such person shall be final and conclusive with respect to the subject-matter of the remit.

3 Where a remit under paragraph (1) is made—

a on the motion of one of the parties, the expenses of the remit shall, in the first instance, be met by that party; and

b on a joint motion or of consent of all parties, the expenses shall, in the first instance, be met by the parties equally, unless the sheriff otherwise orders.

29 Written statements¶

Where a statement in a document is admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988 ^F314, any party who wishes to have that statement received in evidence shall–

a docquet that document as follows:– (Place and date) This document contains a statement admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988. (Signed) (Designation and address);

b lodge that document in process; and

c provide all other parties with a copy of that document.

29 Renouncing probation¶

1 Where, at any time the parties seek to renounce probation, they shall lodge in process a joint minute to that effect with or without a statement of admitted facts and any productions.

2 On the lodging of a joint minute under paragraph (1), the sheriff may make such order as he thinks fit to secure the expeditious progress of the cause.

29 Orders for proof¶

Where proof is necessary in any cause, the sheriff shall fix a date for taking the proof and may limit the mode of proof.

29 Hearing parts of proof separately¶

1 In any cause, the sheriff may—

a of his own motion, or

b on the motion of any party,

order that proof on liability or any specified issue be heard separately from proof on the question of the amount for which decree may be pronounced and determine the order in which the proofs shall be heard.

2 The sheriff shall pronounce such interlocutor as he thinks fit at the conclusion of the first proof of any cause ordered to be heard in separate parts under paragraph (1).

29 Citation of witnesses¶

1 A witness shall be cited for a proof—

a by registered post or the first class recorded delivery service by the solicitor for the party on whose behalf he is cited; or

b by a sheriff officer—

i personally;

ii by a citation being left with a resident at the person’s dwelling place or an employee at his place of business;

iii by depositing it in that person’s dwelling place or place of business;

iv by affixing it to the door of that person’s dwelling place or place of business; or

v by registered post or the first class recorded delivery service.

2 Where service is executed under paragraph (1)(b)(iii) or (iv), the sheriff officer shall, as soon as possible after such service, send, by ordinary post to the address at which he thinks it most likely that the person may be found, a letter containing a copy of the citation.

3 A certified copy of the interlocutor allowing a proof shall be sufficient warrant to a sheriff officer to cite a witness on behalf of a party.

4 A witness shall be cited on a period of notice of 7 days in Form G13 and the party citing the witness shall lodge a certificate of citation in Form G12.

5 A solicitor who cites a witness shall be personally liable for his fees and expenses.

6 In the event of a solicitor intimating to a witness that his citation is cancelled, the solicitor shall advise him that the cancellation is not to affect any other citation which he may have received from another party.

29 Citation of witnesses by party litigants¶

1 Where a party to a cause is a party litigant, he shall—

a not later than 4 weeks before the diet of proof, apply to the sheriff by motion to fix caution in such sum as the sheriff considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

b before instructing a sheriff officer to cite a witness, find caution for such expenses as can reasonably be anticipated to be incurred by the witness in answering the citation.

2 A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (1)(a), may apply by motion for variation of the amount of caution.

29 Second diligence against a witness¶

1 The sheriff may, on the motion of a party, grant a second diligence to compel the attendance of a witness under pain of arrest and imprisonment until caution can be found for his due attendance.

2 The warrant for a second diligence shall be effective without endorsation and the expenses of such a motion and diligence may be decerned for against the witness.

29 Failure of witness to attend¶

1 Where a witness fails to answer a citation after having been duly cited, the sheriff may, on the motion of a party and on production of a certificate of citation, grant warrant for the apprehension of the witness and for bringing him to court; and the expenses of such a motion and apprehension may be decerned for against the witness.

2 Where a witness duly cited and after having demanded and been paid his travelling expenses fails to attend a diet, either before the sheriff or before a commissioner, the sheriff may—

a ordain the witness to forfeit and pay a penalty not exceeding £250 unless a reasonable excuse be offered and sustained; and

b grant decree for that penalty in favour of the party on whose behalf the witness was cited.

29 Lodging productions¶

1 Where a proof has been allowed, all productions and affidavits which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.

2 A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless—

a by consent of parties; or

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

29 Copy productions¶

1 A copy of every documentary production, marked with the appropriate number of process of the principal production, shall be lodged for the use of the sheriff at a proof not later than 48 hours before the diet of proof.

2 Each copy production consisting of more than one sheet shall be securely fastened together by the party lodging it.

29 Returning borrowed parts of process and productions before proof¶

All parts of process and productions which have been borrowed shall be returned to process before 12.30 pm on the day preceding the diet of proof.

29 Notices to admit and notices of non-admission¶

1 At any time after the record has closed, a party may intimate to any other party 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; or

ii a true copy of an original and properly authenticated document.

2 Where a party on whom a notice is intimated under paragraph (1)—

a does not admit a fact specified in the notice, or

b does not admit, or seeks to challenge, the authenticity of a document specified in the notice,

he shall, within 21 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 intimate a notice of non-admission under paragraph (2) shall be deemed to have admitted the fact or document specified in the notice intimated to him under paragraph (1); and such fact or document may be used in evidence at a proof if otherwise admissible in evidence, unless the sheriff, on special cause shown, otherwise directs.

^F4964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 The party serving 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 for 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 sheriff may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as he thinks fit.

^F1158 A party may, at any time, withdraw in whole or in part a notice of non admission by intimating a notice of withdrawal.

29 Instruction of shorthand writer¶

Where a shorthand writer is to record evidence at a proof, the responsibility for instructing a shorthand writer shall lie with the pursuer.

29 Administration of oath or affirmation to witnesses¶

The sheriff shall administer the oath to a witness in Form G14 or, where the witness elects to affirm, the affirmation in Form G15.

29 Proof to be taken continuously¶

A proof shall be taken continuously so far as possible; but the sheriff may adjourn the diet from time to time.

29.17A Proof management hearing¶

1 Where a proof diet has been—

a discharged;

b adjourned, whether under rule 29.17 (proof to be taken continuously) or otherwise; or

c continued to a later date,

the sheriff may, of the sheriff’s own motion, fix a proof management hearing.

2 It is the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

3 At a proof management hearing the sheriff is to ascertain, so far as is reasonably practicable, whether the cause can proceed to proof or, as the case may be, continued proof and in particular—

a when the parties expect to be able to proceed to proof or continued proof;

b the likely availability of witnesses;

c the extent to which the proof or continued proof, and the attendance of witnesses, may be conducted remotely and how that might be achieved; and

d the extent to which affidavit evidence may be used.

4 At a proof management hearing the sheriff may—

a discharge the proof or continued proof;

b fix a date for the proof diet or, as the case may be, a new date for the continued proof;

c continue the proof management hearing to a later date;

d make such other order as the sheriff thinks fit to secure the expeditious progress of the cause.

29 Recording of evidence¶

1 Evidence in a cause shall be recorded by —

a a shorthand writer, to whom the oath de fideli administratione in connection with the sheriff court service generally has been administered, or

b tape recording or other mechanical means approved by the court,

unless the parties, by agreement and with the approval of the sheriff, dispense with the recording of evidence.

2 Where a shorthand writer is employed to record evidence, he shall, in the first instance, be paid by the parties equally.

3 Where evidence is recorded by tape recording or other mechanical means, any fee payable shall, in the first instance, be paid by the parties in equal proportions.

4 The solicitors for the parties shall be personally liable for the fees payable under paragraph (2) or (3), and the sheriff may make an order directing payment to be made.

5 The record of the evidence at a proof shall include—

a any objection taken to a question or to the line of evidence;

b any submission made in relation to such an objection; and

c the ruling of the court in relation to the objection and submission.

6 A transcript of the record of the evidence shall be made only on the direction of the sheriff; and the cost shall, in the first instance, be borne—

a in an undefended cause, by the solicitor for the pursuer; and

b in a defended cause, by the solicitors for the parties in equal proportions.

7 The transcript of the record of the evidence provided for the use of the court shall be certified as a faithful record of the evidence by—

a the shorthand writer who recorded the evidence; or

b where the evidence was recorded by tape recording or other mechanical means, by the persons who transcribed the record.

8 The sheriff may make such alterations to the transcript of the record of the evidence as appear to him to be necessary after hearing the parties; and, where such alterations are made, the sheriff shall authenticate the alterations.

9 Where a transcript of the record of the evidence has been made for the use of the sheriff, copies of it may be obtained by any party from the person who transcribed the record on payment of his fee.

10 Except with leave of the sheriff, the transcript of the record of the evidence may be borrowed from process only for the purpose of enabling a party to consider whether to appeal against the interlocutor of the sheriff on the proof.

11 Where a transcript of the record of the evidence is required for the purpose of an appeal but has not been directed to be transcribed under paragraph (6), the appellant—

a may request such a transcript from the shorthand writer or as the case may be, the cost of the transcript being borne by the solicitor for the appellant in the first instance; and

b shall lodge the transcript in process;

and copies of it may be obtained by any party from the shorthand writer or as the case may be, on payment of his fee.

12 Where the recording of evidence has been dispensed with under paragraph (1), the sheriff, if called upon to do so, shall—

a in the case of an objection to—

i the admissibility of evidence on the ground of confidentiality, or

ii the production of a document on any ground,

note the terms in writing of such objections and his decisions on the objection; and

b in the case of any other objection, record, in the note to his interlocutor disposing of the merits of the cause, the terms of the objection and his decision on the objection.

13 This rule shall, with the necessary modifications, apply to the recording of evidence at a commis sion as it applies to the recording of evidence at a proof.

29 Rulings on admissibility of evidence: leave to appeal¶

1 This rule applies where a party or any other person objects to—

a the admissibility of oral or documentary evidence on the ground of confidentiality;

b the production of a document on any ground.

2 An application for leave to appeal against the decision of the sheriff on the objection must be made immediately.

29 Parties to be heard at close of proof¶

At the close of the proof, or at an adjourned diet if for any reason the sheriff has postponed the hearing, the sheriff shall hear parties on the evidence and thereafter shall pronounce judgment with the least possible delay.

CHAPTER 30 DECREES, EXTRACTS AND EXECUTION¶

30 Interpretation of this Chapter¶

In this Chapter, “decree” includes any judgment, deliverance, interlocutor, act, order, finding or authority which may be extracted.

30 Taxes on money under control of the court¶

1 Subject to paragraph (2), in a cause in which money has been consigned into court under the ^M24Sheriff Court Consignations (Scotland) Act 1893, no decree, warrant or order for payment to any person shall be granted until there has been lodged with the sheriff clerk a certificate by an authorised officer of the Inland Revenue stating that all taxes or duties payable to the Commissioners of Inland Revenue have been paid or satisfied.

2 In an action of multiplepoinding, it shall not be necessary for the grant of a decree, warrant or order for payment under paragraph (1) that all of the taxes or duties payable on the estate of a deceased claimant have been paid or satisfied.

30 Decrees for payment in foreign currency¶

1 Where decree has been granted for payment of a sum of money in a foreign currency or the sterling equivalent, a party requesting extract of the decree shall do so by minute endorsed on or annexed to the initial writ ^F972....

2 A declaration in Form G18 stating—

a the rate of exchange on the date of the decree sought to be extracted or the date, within 3 days before the date, on which extract is ordered; and

b the sterling equivalent;

must be lodged with the minute requesting extract of the decree.

2A The declaration required under paragraph (2) must specify the source of the rate of exchange relied upon in the declaration.

2B On receipt of Form G18, the sheriff clerk must, if satisfied with the terms of the form, sign and date the docquet in Form G18.

3 The extract decree issued by the sheriff clerk shall mention any declaration referred to in paragraph (2).

30 When decrees extractable¶

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 cause 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 made and no appeal has been made; 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 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.

30 Extract of certain awards notwithstanding appeal¶

The sheriff clerk may issue an extract of an order under section 11 of the Children (Scotland) Act 1995(1) or in respect of aliment notwithstanding that an appeal has been made against an interlocutor containing such an award unless an order under rule 31.9 (appeals in connection with orders under section 11 of the Children (Scotland) Act 1995 or aliment) has been made excusing obedience to or implement of that interlocutor.

30 Form of extract decree¶

1 The extract of a decree mentioned in Appendix 2 shall be in the appropriate form for that decree in Appendix 2.

2 In the case of a decree not mentioned in Appendix 2, the extract of the decree shall be modelled on a form in that Appendix with such variation as circumstances may require.

30 Form of warrant for execution¶

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.”.

30 Date of decree in extract¶

1 Where the Sheriff Appeal Court 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 Appeal Court.

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.

30 Service of charge where address of defender not known¶

1 Where the address of a defender is not known to the pursuer, a charge shall be deemed to have been served on the defender if it is—

a served on the sheriff clerk of the sheriff court district where the defender’s last known address is located; and

b displayed by the sheriff clerk on the walls of court for the period of the charge.

2 On receipt of such a charge, the sheriff clerk shall display it on the walls of court and it shall remain displayed for the period of the charge.

3 The period specified in the charge shall run from the first date on which it was displayed on the walls of court.

4 On the expiry of the period of charge, the sheriff clerk shall endorse a certificate on the charge certifying that it has been displayed in accordance with this rule and shall thereafter return it to the sheriff officer by whom service was executed.

30 Expenses¶

A party who–

a is or has been represented by a person authorised under any enactment to conduct proceedings in the sheriff court; and

b would have been found entitled to expenses if he had been represented by a solicitor or an advocate,

may be awarded any expenses or outlays to which a party litigant may be found entitled under the Litigants in Person (Costs and Expenses) Act 1975 ^F409 or any enactment under that Act.

CHAPTER 31 APPEALS¶

^F77231 Time limit for appeal¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 Applications for leave to appeal¶

1 Where leave to appeal is required, applications for leave to appeal against an interlocutor of a sheriff shall be made within 7 days after the date of the interlocutor against which it is sought to appeal unless the interlocutor has been extracted following a motion under rule 30.4(2) (early extract).

^F7732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 An application for leave to appeal from a decision in relation to–

a a time to pay direction under section 1 of the Debtors (Scotland) Act 1987;

b the recall or restriction of an arrestment made under section 3(4) of that Act; or

c a time order under section 129 of the Consumer Credit Act 1974,

shall specify the question of law on which the appeal is made.

^F77431.2A Appeals in connection with interim diligence¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Form of appeal to Court of Session¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Form of appeal to the sheriff principal¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Transmission of process and notice to parties¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Record of pleadings etc.¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Determination of appeal¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F77031 Fixing of Options Hearing or making other order following appeal¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31 Appeals in connection with orders under section 11 of the Children (Scotland) Act 1995 or aliment¶

Where an appeal is marked against an interlocutor making an order under section 11 of the ^M25Children (Scotland) Act 1995(court orders relating to parental responsibilities etc.) or in respect of aliment, the marking of that appeal shall not excuse obedience to or implement of that order unless by order of the sheriff or the Sheriff Appeal Court.

31 Interim possession etc. pending appeal¶

1 Notwithstanding an appeal, the sheriff ^F775... from whose decision an appeal has been taken shall have power—

a to regulate all matters relating to interim possession;

b to make any order for the preservation of any property to which the action relates or for its sale if perishable;

c to make provision for the preservation of evidence; or

d to make any interim order which a due regard to the interests of the parties may require.

2 An order made under paragraph (1) may be reviewed by the Sheriff Appeal Court.

^F77731 Abandonment of appeal¶

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 31A QUALIFIED ONE-WAY COSTS SHIFTING¶

31A.1 Application and interpretation of this Chapter¶

1 This Chapter applies in civil proceedings, where either or both—

a an application for an award of expenses is made to the sheriff;

b such an award is made by the sheriff.

2 Where this Chapter applies—

a rules 23.1(2) and (3) (abandonment of causes);

b any common law rule entitling a pursuer to abandon a cause, to the extent that it concerns expenses,

are disapplied.

3 In this Chapter—

“the Act” means the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018;
“the applicant” has the meaning given in rule 31A.2(1), and “applicants” is construed accordingly;
“civil proceedings” means civil proceedings to which section 8 of the Act (restriction on pursuer’s liability for expenses in personal injury claims) applies.

31A.2 Application for an award of expenses¶

1 Where civil proceedings have been brought by a pursuer, another party to the action (“the applicant”) may make an application to the sheriff for an award of expenses to be made against the pursuer, on one or more of the grounds specified in either or both—

a section 8(4)(a) to (c) of the Act;

b paragraph (2) of this rule.

2 The grounds specified in this paragraph, which are exceptions to section 8(2) of the Act, are as follows—

a failure by the pursuer to obtain an award of damages greater than the sum offered by way of a tender lodged in process;

b unreasonable delay on the part of the pursuer in accepting a sum offered by way of a tender lodged in process;

c decree of absolvitor or decree of dismissal has been granted against the pursuer in terms of rule 17.2(3)(b) (applications for summary decree);

d abandonment of the cause in terms of rule 23.1(1), or at common law.

31A.3 Award of expenses¶

1 Subject to paragraph (2), the determination of an application under rule 31A.2(1) is at the discretion of the sheriff.

2 Where, having determined an application made under rules 31A.2(1), the sheriff makes an award of expenses against the pursuer on the ground specified in rule 31A.2(2)(a) or (b)—

a the pursuer’s liability is not to exceed the amount of expenses the applicant has incurred after the date of the tender;

b the liability of the pursuer to the applicant, or applicants, lodging the tender is to be limited to an aggregate sum, payable to all applicants (if more than one) of 75% of the amount of damages awarded to the pursuer and that sum is to be calculated without offsetting against those expenses any expenses due to the pursuer by the applicant, or applicants, before the date of the tender;

c the sheriff must order that the pursuer’s liability is not to exceed the sum referred to in sub-paragraph (b), notwithstanding that any sum assessed by the Auditor of Court as payable under the tender procedure may be greater or, if modifying those expenses to a fixed amount in terms of rule 32.1 (taxation before decree for expenses), that such amount does not exceed that referred to in sub-paragraph (b);

d where the award of expenses is in favour of more than one applicant the sheriff, failing agreement between the applicants, is to apportion the award of expenses recoverable under the tender procedure between them.

3 In the event that the sheriff makes an award of expenses against the pursuer on the ground specified in rule 31A.2(2)(d), the sheriff may make such orders in respect of expenses, as it considers appropriate, including—

a making an award of decree of dismissal dependant on payment of expenses by the pursuer within a specified period of time;

b provision for the consequences of failure to comply with any conditions applied by the court.

31A.4 Procedure¶

1 An application under rule 31A.2(1)—

a must be made by written motion, and Chapters 15 (motions) and 15A (motions intimated and lodged by email) otherwise apply to motions made under this Chapter;

b may be made at any stage in the case prior to the granting of an order disposing of the expenses of the cause.

2 Where an application under rule 31A.2(1) is made, the sheriff may make such orders as the sheriff thinks fit for dealing with the application, including an order—

a requiring the applicant to intimate the application to any other person;

b requiring any party to lodge a written response;

c requiring the lodging of any document;

d fixing a hearing.

31A.5 Award against legal representatives¶

Section 8(2) of the Act does not prevent the sheriff from making an award of expenses against a pursuer’s legal representative in terms of section 11 (awards of expenses against legal representatives) of the Act.

CHAPTER 32 TAXATION OF EXPENSES¶

32 Taxation before decree for expenses¶

1 Expenses allowed in any cause, whether in absence or in foro contentioso, unless modified at a fixed amount, shall be taxed before decree is granted for them.

2 Paragraph (1) applies subject to rule 7.4(2).

32.1A Time for lodging account of expenses¶

1 A party found entitled to expenses must lodge an account of expenses in process—

a not later than four months after the final judgment; or

b at any time with permission of the sheriff, but subject to such conditions, if any, as the sheriff thinks fit to impose.

2 Where an account of expenses is lodged by the Scottish Legal Aid Board in reliance on regulation 39(2)(a) of the Civil Legal Aid (Scotland) Regulations 2002, paragraph (1)(a) applies as if the period specified there is 8 months.

3 In this rule, “final judgment” has the meaning assigned by section 136(1) of the Courts Reform (Scotland) Act 2014.

32 Decree for expenses in name of solicitor¶

The sheriff may allow a decree for expenses to be extracted in the name of the solicitor who conducted the cause.

32.3 Diet of taxation¶

1 Where an account of expenses awarded in a cause is lodged for taxation, the sheriff clerk must transmit the account and the process to the auditor of court.

2 Subject to paragraph (3), the auditor of court must fix a diet of taxation on receipt of—

a the account of expenses;

b the process;

c vouchers in respect of all outlays claimed in the account, including counsel’s fees; and

d a letter addressed to the auditor of court—

i confirming that the items referred to in sub-paragraph (c) have been intimated to the party found liable in expenses; and

ii providing such information as is required to enable the auditor of court to give intimation to the party found liable in expenses in accordance with paragraph (4)(b).

3 The auditor of court must fix a diet of taxation where paragraph (2)(c) or (d), or both, have not been complied with.

4 The auditor of court shall intimate the diet of taxation to—

a the party found entitled to expenses; and

b the party found liable in expenses.

5 The party found liable in expenses may, not later than 1600 hours on the fifteenth day before the diet of taxation, intimate to the auditor of court and to the party found entitled to expenses particular points of objection, specifying each item objected to and stating concisely the nature and ground of objection.

6 Subject to paragraph (7), if the party found liable in expenses fails to intimate points of objection under paragraph (5) within the time limit set out there, the auditor of court must not take account of them at the diet of taxation.

7 Where a failure to comply with the requirement contained in paragraph (5) was due to mistake, oversight or other excusable cause, the auditor of court may relieve a party of the consequences of such failure on such conditions, if any, as the auditor thinks fit.

8 At the diet of taxation, or within such reasonable period of time thereafter as the auditor of court may allow, the party found entitled to expenses must make available to the auditor of court all documents, drafts or copies of documents sought by the auditor and relevant to the taxation.

^F9719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

32.3A Auditor’s statement¶

1 The auditor of court must—

a prepare a statement of the amount of expenses as taxed;

b transmit the process, the taxed account and the statement to the sheriff clerk; and

c on the day on which the documents referred to in sub-paragraph (b) are transmitted, intimate that fact and the date of the statement to each party to whom the auditor intimated the diet of taxation.

2 The party found entitled to expenses must, within 7 days after the date of receipt of intimation under paragraph (1)(c), send a copy of the taxed account to the party found liable in expenses.

3 Where no objections are lodged under rule 32.4 (objections to taxed account), the sheriff may grant decree for the expenses as taxed.

32.4 Objections to taxed account¶

1 A party to a cause who has appeared or been represented at a diet of taxation may object to the auditor of court’s statement by lodging in process a note of objection within 14 days after the date of the statement.

2 The party lodging a note of objection is referred to in this rule as “the objecting party”.

3 On lodging the note of objection the objecting party must apply by motion for an order—

a allowing the note of objection to be received; and

b allowing a hearing on the note of objection.

4 On the granting of the order mentioned in paragraph (3), the objecting party must intimate to the auditor of court—

a the note of objection; and

b the interlocutor containing the order.

5 Within 14 days after receipt of intimation of the items mentioned in paragraph (4) the auditor of court must lodge in process a statement of reasons in the form of a minute stating the reasons for the auditor’s decision in relation to the items to which objection is taken in the note.

6 On the lodging of the statement of reasons the sheriff clerk must fix a hearing on the note of objection.

7 At the hearing, the sheriff may—

a sustain or repel any objection or remit the account of expenses to the auditor of court for further consideration; and

b find any party liable in the expenses of the procedure on the note of objection.

32.5 Interest on expenses¶

1 Paragraph (2) applies where the sheriff grants decree for payment of—

a expenses as taxed; and

b interest thereon.

2 Without prejudice to the sheriff’s other powers in relation to interest, the decree pronounced may require the party decerned against to pay interest on the taxed expenses, or any part thereof, from a date no earlier than 28 days after the date on which the account of expenses was lodged.

^F917CHAPTER 32A LIVE LINKS¶

^F91732A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special provisions in relation to particular causes¶

CHAPTER 33 FAMILY ACTIONS¶

GENERAL PROVISIONS¶

PART I

33 Intepretation of this Chapter¶

1 In this Chapter, “family action” means—

a an action of divorce;

b an action of separation;

c an action of declarator of legitimacy;

d an action of declarator of illegitimacy;

e an action of declarator of parentage;

f an action of declarator of non-parentage;

g an action of declarator of legitimation;

h 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–

i an application for the appointment of a judicial factor mentioned in section 11(2)(g) of the Act of 1995 to which Part I of the Act of Sederunt (Judicial Factors Rules) 1992 applies; ^F583...

^F584ii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i an action of affiliation and aliment;

j an action of, or application for or in respect of, aliment;

k an action or application for financial provision after a divorce or annulment in an overseas country within the meaning of Part IV of the ^M26Martimonial and Family Proceedings Act 1984;

l an action or application for an order under the Act of 1981;

m an application for the variation or recall of an order mentioned in section 8(1) of the ^M27Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.

n an action of declarator of marriage;

o an action of declarator of nullity of marriage;

p an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973;

q an application under section 28 or 29 of the Act of 2006 (financial provision for former co-habitants).

r an action for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.

2 In this Chapter, unless the context otherwise requires—

“the Act of 1975” means the ^M28Children Act 1975;
“the Act of 1976” means the ^M29Divorce (Scotland) Act 1976;
“the Act of 1981” means the ^M30Matrimonial Homes (Family Protection) (Scotland) Act 1981;
“the Act of 1985” means the ^M31Family Law (Scotland) Act 1985;
“the Act of 1995” means the Children (Scotland) Act 1995;
“the Act of 2006” means the Family Law (Scotland) Act 2006;
“contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;
“full gender recognition certificate” and “interim gender recognition certificate” mean the certificates issued as such under section 4 or 5 of the Gender Recognition Act 2004 ^F260;
“Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Gender Recognition Act 2004;
“incapable” means incapable, by reason of mental disorder, of—
1. acting;
2. making decisions;
3. communicating decisions;
4. understanding decisions; or
5. retaining the memory of decisions,
but a person is not incapable by reason only of a lack of deficiency in a faculty of communication where that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);
^F124. . .
“local authority” means a council constituted under section 2 of the ^M32Local Government etc. (Scotland) Act 1994;
“mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003
“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;
“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 rules 33.2 (averments in actions of divorce or separation about other proceed ings) and 33.3 (averments where section 11 order sought) and, in relation to proceedings in another jurisdiction, Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973^M33 (sisting of consistorial actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

33 Averments in certain family actions about other proceedings¶

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 initial writ—

a whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the marriage to which the initial writ 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 before the sheriff should be sisted under Schedule 3 to the Domicile and Matrimonial Proceedings Act 1973 ^F903... or the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19th October 1996.

3 Where—

a such proceedings are continuing;

b the action before the sheriff is defended; and

c either—

i the initial writ does not contain the statement referred to in paragraph (2)(a), or

ii the particulars mentioned in paragraph (2)(b) as set out in the initial writ 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).

33 Averments where section 11 order sought¶

1 A party to a family action, who makes an application in that 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 section 11 order is sought;

b in any other family action—

i the averments mentioned in 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.

c where the party seeks an order such as is mentioned in any of paragraphs (a) to (e) of subsection (2) of that section, an averment that no permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007) is in force in respect of the child

2 Where such other proceedings are continuing or have taken place and the averments of the applicant for such a 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 party 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.

33 Averments where identity or address of person not known¶

In a family action, where the identity or address of any person referred to in rule 33.7 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.

33 Averments about maintenance orders¶

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 ^M34Debtors (Scotland) Act 1987) has been granted in favour of or against that party or of any other person in respect of whom the order is sought.

33 Averments where aliment or financial provision sought¶

1 In this rule—

“the Act of 1991” means the ^M35Child Support Act 1991;
“child” has the meaning assigned in section 55 of the Act of 1991;
“crave relating to aliment” means—
1. for the purposes of paragraph (2), a crave for decree of aliment in relation to a child or for recall or variation of such a decree; and
2. for the purposes of paragraph (3), a crave 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 calculation”” has the meaning assigned in section 54 of the Act of 1991.

2 A family action containing a crave relating to aliment and 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 calculation under section 11 of that Act (maintenance assessments) is in force;

ii the date of the maintenance calculation;

iii the amount and frequency of periodical payments of child support maintenance fixed by the maintenance calculation; 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 sheriff 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 calculation referred to in sub-paragraph (a).

3 A family action containing a crave relating to aliment, and 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 where the action is lodged for warranting before 7th April 1997, the grounds on which the sheriff retains jurisdiction.

4 In an action for declarator of non-parentage or illegitimacy—

a the initial writ shall include an article of condescendence stating whether the pursuer previously has been alleged to be the parent in an application for a maintenance calculation under section 4, 6 or 7 of the Act of 1991 (applications for maintenance calculation); 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 sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

33.6ZA Averments where divorce sought on ground of issue of interim gender recognition certificate¶

1 This rule applies to an action of divorce in which divorce is sought on the ground that an interim gender recognition certificate has been issued to either party.

2 In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ—

a where the pursuer is the party to whom the interim gender recognition certificate was issued, whether or not the Gender Recognition Panel has issued a full gender recognition certificate to the pursuer, and

b where the defender is the party to whom the interim gender recognition certificate was issued, whether—

i since the issue of the interim gender recognition certificate, the pursuer has made a statutory declaration consenting to the marriage continuing, and

ii the Gender Recognition Panel has given the pursuer notice of the issue of a full gender recognition certificate to the defender.

33.6A Application by survivor for provision on intestacy¶

1 In an action for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy), the pursuer shall call the deceased’s executor as a defender.

2 An application under section 29(9) of the Act of 2006 for variation of the date or method of payment of the capital sum shall be made by minute in the process of the action to which the application relates.

3 Words and expressions used in this rule shall have the same meaning as in section 29 of the Act of 2006.

33 Warrants and forms for intimation¶

1 Subject to paragraph (5) and rule 33.7A (warrants and forms for intimation to a child and for seeking a child’s views), in the initial writ in a family action, the pursuer shall include a crave for 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 person who is a child of the family (as defined in section 12(4)(a) of the Act of 1995) ^F639... 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, and a notice of intimation in Form F1 shall be attached to the copy of the initial writ intimated to any such person;

b in an action of divorce 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 initial writ 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 initial writ 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,

and a notice of intimation in Form F2 shall be attached to the copy of the initial writ intimated to any such person;

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) an (ii), unless the address of such person is not known to the pursuer and cannot reasonably be ascertained, ^F509...

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

iii any person holding the office of guardian or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000,

and a notice of intimation in Form F3 shall be attached to the copy of the initial writ intimated to any such person;

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 ^M36Matrimonial Proceedings (Polygamous Marriages) Act 1972 is sought, and

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

to any such additional spouse, and a notice of intimation in Form F4 shall be attached to the initial writ intimated to any such person;

e in an action of divorce , separation or declarator of nullity of marriage where the sheriff may make a section 11 order in respect of a child—

i who is in the care of a local authority, to that authority and a notice of intimation in Form F5 shall be attached to the initial writ intimated to that authority;

ii who, being a child of one party to the marriage, 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, and a notice of intimation in Form F5 shall be attached to the initial writ intimated to that third party; or

iii in respect of whom a third party in fact exercises care or control, to that third party, and a notice of intimation in Form F6 shall be attached to the initial writ intimated to that third party;

f in an action where the pursuer craves a section 11 order, to any parent or guardian of the child who is not a party to the action, and a notice of intimation in Form F7 shall be attached to the initial writ intimated to any such parent or guardian;

^F452g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F852h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

i in an action where the pursuer makes an application for an order under section 8(1)(aa) of the ^M37Act of 1985 (transfer of property) and—

i the consent of a third party to such a transfer is necessary by virtue of an obligation, enactment or rule of law, or

ii the property is subject to a security,

to the third party or creditor, as the case may be, and a notice of intimation in Form F10 shall be attached to the initial writ intimated to any such person;

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,

and a notice of intimation in Form F11 shall be attached to the initial writ intimated to any such person; ^F135. . .

k in an action where the pursuer makes an application for an order under the ^M38Act of 1981—

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,

and a notice of intimation in Form F12 shall be attached to the initial writ intimated to any such person ;

l in an action where the pursuer makes an application for an order under section 8(1)(ba) of the ^M39Act of 1985 (orders under section 12A of the Act of 1985 for pension lump sum), to the person responsible for the pension arrangement, and a notice of intimation in Form F12A shall be attached to the initial writ intimated to any such person. ; ^F592...

m in an action where a pursuer makes an application for an order under section 8(1)(baa) of the Act of 1985 (pension sharing orders), to the person responsible for the pension arrangement and a notice of intimation in Form F12B shall be attached to the initial writ intimated to any such person

n in an action where a pursuer makes an application for an order under section 8(1)(bab) of the Act of 1985 (pension compensation sharing order), to the Board of the Pension Protection Fund, and a notice of intimation in Form F12C shall be attached to the initial writ intimated to that Board; and

o in an action where a pursuer makes an application for an order under section 8(1)(bb) of the Act of 1985 (an order under section 12B(2) of the Act of 1985 for pension compensation), to the Board of the Pension Protection Fund and a notice of intimation in Form F12D shall be attached to the initial writ intimated to that Board.

p in an action where a pursuer makes an application for an order under section 29(2) of the Act of 2006 (application by survivor for provision on intestacy) to any person having an interest in the deceased’s net estate, and a notice of intimation in Form F12E shall be attached to the initial writ intimated to any such person.

2 Expressions used in—

a paragraph (1)(k) which are also used in the Act of 1981; and

b paragraph (1)(p) which are also used in section 29 of the Act of 2006,

shall have the same meanings as in that Act or section, as the case may be.

3 A notice of intimation under paragraph (1) shall be on a period of notice of 21 days unless the sheriff otherwise orders; but the sheriff shall not order a period of notice of less than 2 days.

^F4614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Where the address of a person mentioned in paragraph (1)(b), (d), (e), (f), ^F850... (i), (j) , (k) , (l) , (m) or (p) or a child mentioned in rule 33.7A(1) is not known and cannot reasonably be ascertained, the pursuer shall include a crave in the initial writ to dispense with intimation; and the sheriff may grant that crave or make such other order as he 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 lodge a motion for a warrant for intimation to that person or to dispense with such intimation.

^F8537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33.7A Warrants and forms for intimation to a child and for seeking a child’s views¶

1 Subject to paragraph (2), in an action which includes a crave for a section 11 order in respect of a child who is not a party to the action, the pursuer must—

a include in the initial writ a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

b when presenting the initial writ for warranting, submit a draft Form F9, showing the details that the pursuer proposes to include when the form is sent to the child.

2 Where the pursuer considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the pursuer must include in the initial writ—

a a crave to dispense with intimation and the seeking of the child’s views in Form F9;

b averments setting out the reasons why it is inappropriate to send Form F9 to the child.

3 The sheriff must be satisfied that the draft Form F9 submitted under paragraph (1)(b) has been drafted appropriately.

4 The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

5 An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must—

a state that the Form F9 must be sent in accordance with rule 33.7A(6);

b be signed by the sheriff.

6 The Form F9 must be sent in accordance with—

a rule 33.19 (views of the child – undefended actions), where the action is undefended;

b rule 33.19A (views of the child – section 11 order sought by pursuer only), where the action is defended and a section 11 order is sought by the pursuer only;

c rule 33.19B (views of the child – section 11 order sought by defender only), where a section 11 order is sought by the defender only; or

d rule 33.19C (views of the child – section 11 orders sought by both pursuer and defender), where a section 11 order is sought by both parties.

33 Intimation where alleged association¶

1 In a family action where the pursuer founds upon an association between the defender and another named person, the pursuer shall, immediately after the expiry of the period of notice, lodge a motion for an order for intimation to that person or to dispense with such intimation

2 In determining a motion under paragraph (1), the sheriff may—

a make such order for intimation as he thinks fit; or

b dispense with intimation; and

c where he dispenses with intimation, order that the name of that person be deleted from the condescendence of the initial writ.

3 Where intimation is ordered under paragraph (2), a copy of the initial writ and an intimation in Form F13 shall be intimated to the named person.

4 In paragraph (1), “^F540... association” means sodomy, incest or any homosexual relationship.

33 Productions in action of divorce or where a section 11 order or order for financial provision may be made¶

Unless the sheriff otherwise directs—

a in an action of divorce or declarator of nullity of marriage, a warrant for citation shall not be granted without there being produced with the initial writ an extract of the relevant entry in the register of marriages or an equivalent document; and

b in a family action which includes a crave for a section 11 order, a warrant for citation shall not be granted without there being produced with the initial writ an extract of the relevant entry in the register of births or an equivalent document.

c in an action which includes a crave for an order for financial provision, the pursuer must lodge a completed Form F13A signed by the pursuer with the initial writ or minute of amendment as the case may be.

33 Productions in action of divorce on ground of issue of interim gender recognition certificate¶

1 This rule applies where, in an action of divorce, the ground on which decree of divorce may be granted is that an interim gender recognition certificate has, after the date of the marriage, been issued to either party to the marriage.

2 Unless the sheriff otherwise directs, a warrant for citation shall not be granted without there being produced with the initial writ–

a where the pursuer is the subject of the interim gender recognition certificate, the interim gender recognition certificate or, failing that, a certified copy of the interim gender recognition certificate; or

b where the pursuer is the spouse of the person who is the subject of the interim gender recognition certificate, a certified copy of the interim gender recognition certificate.

3 For the purposes of this rule, a certified copy of an interim gender recognition certificate shall be a copy of that certificate sealed with the seal of the Gender Recognition Panels and certified to be a true copy by an officer authorised by the President of Gender Recognition Panels.

33 Application for corrected gender recognition certificate¶

An application for a corrected gender recognition certificate under section 6 of the Gender Recognition Act 2004 by–

a the person to whom a full gender recognition certificate has been issued; or

b the Secretary of State,

shall be made by minute in the process of the action pursuant to which the full gender recognition certificate was issued.

33 Warrant of citation¶

The warrant of citation in a family action shall be in Form F14.

33 Form of citation and certificate¶

1 Subject to rule 5.6 (service where address of person is not known), citation of a defender shall be in Form F15, which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form F26.

2 The certificate of citation shall be in Form F16 which shall be attached to the initial writ.

33 Intimation to local authority¶

1 In any family action where the pursuer craves a residence order in respect of a child, the sheriff may, if the sheriff thinks fit, order intimation to the local authority in which area the pursuer resides; and such intimation shall be in Form F8.

2 Where an order for intimation is made under paragraph (1), intimation to that local authority shall be given within 7 days after the date on which an order for intimation has been made.

33 Service in cases of mental disorder of defender¶

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, citation shall be executed by registered post or the first class recorded delivery service addressed to the medical officer in charge of that hospital or institution; and there shall be included with the copy of the initial writ—

a a citation in Form F15;

b any notice required by rule 33.14(1);

c a request in Form F17;

d a form of certificate in Form F18 requesting the medical officer to—

i deliver and explain the initial writ, citation and any notice or form of notice of consent required under rule 33.14(1) personally to the defender; or

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

e a stamped envelope addressed for return of that certificate to the pursuer or his solicitor, if he has one.

2 The medical officer referred to in paragraph (1) shall send the certificate in Form F18 duly completed to the pursuer or his solicitor, as the case may be.

3 The certificate mentioned in paragraph (2) shall be attached to the certificate of citation.

4 Where such a certificate bears that the initial writ has not been delivered to the defender, the sheriff may, at any time before decree—

a order such further medical inquiry, and

b make such order for further service or intimation,

as he thinks fit.

33 Notices in certain actions of divorce or separation¶

1 In the following actions of divorce or separation there shall be attached to the copy of the initial writ served on the defender—

a in an action relying on section 1(2)(d) of the ^M40Act of 1976 (no cohabitation for one year with consent of defender to decree)—

i which is an action of divorce, a notice in form F19 and a notice of consent in form F20;

ii which is an action of separation, a notice in Form F21 and a form of notice of consent in form F22;

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

i which is an action of divorce, a notice in Form F23;

ii which is an action of separation, a notice in Form F24;

c in an action relying on section 1(1)(b) of the Act of 1976 (grounds for divorce: interim gender recognition certificate), a notice in Form F24A.

2 The certificate of citation of an initial writ in an action mentioned in paragraph (1) shall state which notice or form mentioned in paragraph (1) has been attached to the initial writ.

^F14033 Orders for intimation¶

1 Except in relation to intimation to a child in Form F9, in any family action, the sheriff may, at any time–

a ^F856... order intimation to be made on such person as he thinks fit;

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

c dispense with intimation, where he considers that such dispensation is appropriate.

^F8572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Where a party makes a crave or averment in a family action which, had it been made in an initial writ, would have required a warrant for intimation under rule 33.7, that party shall include a crave in his writ for a warrant for intimation or to dispense with such intimation; and rule 33.7 shall, with the necessary modifications, apply to a crave for a warrant under this paragraph as it applies to a crave for a warrant under that rule.

33 Appointment of curators ad litem to defenders¶

1 This rule applies to a family action where it appears to the court that the defender has a mental disorder.

2 In an action to which this rule applies, the sheriff shall , after the expiry of the period for lodging a notice of intention to defend—

a appoint a curator ad litem to the defender;

b make an order requiring the curator ad litem to lodge in process a report, based on medical evidence, stating whether or not, in the opinion of a suitably qualified medical practitioner, the defender is incapable of instructing a solicitor to represent the defender’s interests.

3 Within 7 days after the appointment of a curator ad litem under paragraph (2)(a), the pursuer shall send to him—

a a copy of the initial writ and any defences (including any adjustments and amendments) lodged; and

b a copy of any notice in Form G5A sent to the curator ad litem by the sheriff clerk.

4 On lodging a report under paragraph (2)(b), the curator ad litem must intimate that this has been done to—

a the pursuer; and

b the solicitor for the defender, if known.

5 Within 14 days after the report required under paragraph (2)(b) has been lodged, the curator ad litem must lodge in process one of the writs mentioned in paragraph (6).

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

a a notice of intention to defend;

b defences to the action;

c a minute adopting defences already lodged; and

d 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 At such intervals as the curator ad litem considers reasonable having regard to the nature of the defender’s mental disorder, the curator ad litem must review whether there appears to have been any change in the defender’s capacity to instruct a solicitor, in order to ascertain whether it is appropriate for the appointment to continue.

8A If it appears to the curator ad litem that the defender may no longer be incapable, the curator ad litem must by motion seek the sheriff’s permission to obtain an opinion on the matter from a suitably qualified medical practitioner.

8B If the motion under paragraph (8A) is granted, the curator ad litem must lodge in process a copy of the opinion as soon as possible.

8C Where the opinion concludes that the defender is not incapable of instructing a solicitor, the curator ad litem must seek discharge from appointment by minute.

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 incapable of instructing a solicitor, he is discharged.

33 Applications for sist¶

An application for a sist, or the recall of a sist, under Schedule 3 to the ^M41Domicile and Matrimonial Proceedings Act 1973 shall be made by written motion.

33 Notices of consent to divorce or separation¶

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 one year with consent of defender to decree) are relied on, the defender wishes to consent to the grant of decree of divorce or separation he shall do so by giving notice in writing in Form F20 (divorce) or Form F22 (separation), as the case may be, to the sheriff 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 initial writ 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 sheriff 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 sheriff clerk shall intimate the terms of the letter to the pursuer.

5 On receipt of any intimation under paragraph (4), 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 initial writ, lodge a motion for the action to be sisted.

6 If no such motion is lodged, 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.

33 Views of the child – undefended actions¶

1 This rule applies to undefended actions in which a section 11 order is sought and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The pursuer must—

a following the expiry of the period of notice, send the child the Form F9 that was submitted and approved under rule 33.7A (warrants and forms for intimation to a child and for seeking a child’s views);

b lodge with the minute for decree a certificate of intimation in Form F9A;

c not send the child a copy of the initial writ.

3 Except on cause shown, the sheriff must not grant decree in the period of 28 days following the date on which the Form F9 was sent to the child.

33.19A Views of the child – section 11 order sought by pursuer only¶

1 This rule applies to defended actions in which only the pursuer seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The pursuer must—

a no later than 14 days after the notice of intention to defend is lodged, send the child the Form F9 that was submitted and approved under rule 33.7A (warrants and forms for intimation to a child and for seeking a child’s views);

b on the same day, lodge a certificate of intimation in Form F9A;

c not send the child a copy of the initial writ, the notice of intention to defend or the defences.

33.19B Views of the child – section 11 order sought by defender only¶

1 This rule applies to defended actions in which only the defender seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The defender must—

a no later than 14 days after the notice of intention to defend is lodged, send the child the Form F9 that was submitted and approved under rule 33.34 (notice of intention to defend and defences etc.);

b on the same day, lodge a certificate of intimation in Form F9A;

c not send the child a copy of the initial writ, the notice of intention to defend or the defences.

33.19C Views of the child – section 11 orders sought by both pursuer and defender¶

1 This rule applies to defended actions in which section 11 orders are sought by both the pursuer and the defender and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The pursuer must—

b on the same day—

i lodge a certificate of intimation in Form F9A;

ii send the defender a copy of the Form F9 that was sent to the child;

c not send the child a copy of the initial writ, the notice of intention to defend or the defences.

33.19D Views of the child – the sheriff’s role¶

1 In a family action, in relation to any matter affecting a child, where that child has—

a returned a Form F9 to the sheriff clerk; or

b otherwise indicated to the court a wish to express views,

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

2 Where the sheriff is considering making an interim section 11 order before the views of the child have been obtained or heard, the sheriff must consider whether, and if so how, to seek the child’s views in advance of making the order.

3 Where a child has indicated a wish to express views, the sheriff must order any steps to be taken that the sheriff considers appropriate to obtain or hear the views of that child.

4 The sheriff must not grant an order in a family action, in relation to any matter affecting a child who has expressed views, unless the sheriff has given due weight to the views expressed by that child, having regard to the child’s age and maturity.

5 In any action in which a section 11 order is sought, where Form F9 has not been sent to the child concerned or where it has been sent but the sheriff considers that the passage of time requires it to be sent again, the sheriff may at any time order either party to—

a send the Form F9 to that child within a specified timescale;

b on the same day, lodge—

i a copy of the Form F9 that was sent to the child;

ii a certificate of intimation in Form F9B.

^F14333 Recording of views of the child¶

1 This rule applies where a child expresses a view on a matter affecting him whether expressed personally to the sheriff or to a person appointed by the sheriff for that purpose or provided by the child in writing.

2 The sheriff, or the person appointed by the sheriff, shall record the views of the child in writing; and the sheriff may direct that such views, and any written views, given by a child shall–

a be sealed in an envelope marked “Views of the child–confidential”;

b be kept in the court process without being recorded in the inventory of process;

c be available to a sheriff only;

d not be opened by any person other than a sheriff; and

e not form a borrowable part of the process.

33 Child welfare reporters¶

1 At any stage of a family action the sheriff may, in relation to any matter affecting a child, appoint a person (referred to in this rule as a “child welfare reporter”)—

a to seek the views of the child and to report any views expressed by the child to the court; or

b to undertake enquiries and to report to the court.

2 A child welfare reporter may only be appointed under paragraph (1)(b) where the sheriff is satisfied that the appointment—

a is in the best interests of the child; and

b will promote the effective and expeditious determination of an issue in relation to the child.

3 An interlocutor appointing a child welfare reporter must—

a specify a date by which the report is to be submitted to the court;

b include a direction as to the fees and outlays of the child welfare reporter;

c where the appointment is under paragraph (1)(a), specify the issues in respect of which the child’s views are to be sought and include a direction as to whether a copy of the report is to be provided to the parties under paragraph (9)(d); ^F885...

d where the appointment is under paragraph (1)(b), specify the enquiries to be undertaken, and the issues requiring to be addressed in the report ; and

e where the appointment is under paragraph (1)(b) and seeking the views of the child forms part of the enquiries to be undertaken, include a direction as to whether the views of the child should be recorded in a separate report and, if so, whether a copy of that report is to be provided to the parties under paragraph (9)(d).

4 An interlocutor complies with subparagraph (c) or (d) of paragraph (3) if the issues or, as the case may be the enquiries, referred to in that subparagraph are specified in an annex to the interlocutor in Form F44.

5 Where the sheriff has appointed a child welfare reporter with a view to the report being considered at an assigned hearing, the date specified in accordance with paragraph (3)(a) must be a date no less than three clear days before that hearing, excluding any day on which the sheriff clerk’s office is not open for civil court business, unless cause exists for specifying a later date.

6 On appointing a child welfare reporter the sheriff may also—

a make such further order as may be required to facilitate the discharge of the child welfare reporter’s functions;

b direct that a party to the proceedings is to be responsible for providing the child welfare reporter with copies of such documents lodged in the process as may be specified; and

c give the child welfare reporter directions.

7 The direction referred to in paragraph (3)(b) must assign liability for payment of the child welfare reporter’s fees and outlays in the first instance, and require that liability to be borne—

a in equal shares by—

i the pursuer,

ii any defender who has lodged a notice of intention to defend, and

iii any minuter who has been granted leave to enter the process; or

b by one or more parties to the proceedings on such other basis as may be justified on cause shown.

8 On the granting of an interlocutor appointing a child welfare reporter the sheriff clerk must—

a give the child welfare reporter—

i a certified copy of the interlocutor, and

ii sufficient information to enable the child welfare reporter to contact the solicitor for each party to the proceedings, or any party not represented by a solicitor; and

b intimate the name and address of the child welfare reporter to any local authority to which intimation of the proceedings has been made.

9 A child welfare reporter appointed under this rule must—

a where the appointment is under paragraph (1)(a)—

i seek the child’s views on the specified issues, and

ii prepare a report for the court reporting any such views;

b where the appointment is under paragraph (1)(b)—

i undertake the specified enquiries, and

ii prepare a report for the court having regard to the specified issues;

c send the report to the sheriff clerk by the date specified; and

d unless otherwise directed, send a copy of the report to each party to the proceedings by that date.

10 A child welfare reporter may—

a apply to the sheriff clerk to be given further directions by the sheriff;

b bring to the attention of the sheriff clerk any impediment to the performance of any function arising under this rule.

11 Where a child welfare reporter acts as referred to in paragraph (10), the sheriff may, having heard parties, make any order or direction that could competently have been made under paragraph (6).

33.21A Appointment of local authority to report on a child¶

1 This rule applies where the sheriff appoints a local authority to investigate and report to the court on the circumstances of a child and on the proposed arrangements for the care and upbringing of the child.

2 The following provisions of rule 33.21 apply as if the reference to the child welfare reporter was a reference to the local authority appointed by the sheriff—

a paragraph (3)(a) and (b);

b paragraph (6)(a) and (b);

c paragraph (7); and

d paragraph (8).

3 On completion of the report referred to in paragraph (1), the local authority must—

a send the report to the sheriff clerk; and

b unless otherwise directed by the sheriff, send a copy of the report to each party to the proceedings.

33 Referral to family mediation¶

1 In any family action, where the sheriff considers it appropriate to do so, the sheriff may, at any stage of the action, refer the action, or part thereof, to a mediator accredited to a specified family mediation organisation.

2 The sheriff must have particular regard to any averments of domestic abuse when considering the appropriateness of referring the action, or part thereof, to a mediator under paragraph (1).

3 In this rule “any family action” means any action to which the Civil Evidence (Family Mediation) (Scotland) Act 1995 applies.

^F14433 Child Welfare Hearing¶

1 Where–

a on the lodging of a notice of intention to defend in a family action in which the initial writ seeks or includes a crave for a section 11 order, a defender wishes to oppose any such crave or order, or seeks the same order as that craved by the pursuer,

b on the lodging of a notice of intention to defend in a family action, the defender seeks a section 11 order which is not craved by the pursuer, or

c in any other circumstances in a family action, the sheriff considers that a Child Welfare Hearing should be fixed and makes an order (whether at his own instance or on the motion of a party) that such a hearing shall be fixed,

the sheriff clerk shall fix a date and time for a Child Welfare Hearing to be heard either at the same time as the Initial Case Management Hearing or on the first suitable court date occurring not sooner than 21 days and not later than 49 days after the last date for lodging of the notice of intention to defend, unless the sheriff directs the hearing to be held on an earlier date.

2 On fixing the date for the Child Welfare Hearing, the sheriff clerk must—

a if the Child Welfare Hearing is to be heard at the same time as the Initial Case Management Hearing, intimate the date on which both hearings will take place to the parties in Form G5A; or

b if the Child Welfare Hearing is to be heard at a different time from the Initial Case Management Hearing, intimate the date of the Child Welfare Hearing to the parties in Form F41.

3 The fixing of the date of the Child Welfare Hearing shall not affect the right of a party to make any other application to the court whether by motion or otherwise.

4 At the Child Welfare Hearing (which may be held in private), the sheriff shall seek to secure the expeditious resolution of disputes in relation to the child by ascertaining from the parties the matters in dispute and any information relevant to that dispute, and may–

a order such steps to be taken, or

b make such order, if any, or

c order further procedure,

as he thinks fit.

5 All parties (including a child who has indicated his wish to attend) shall, except on cause shown, attend the Child Welfare Hearing personally.

6 It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the Child Welfare Hearing.

33 Applications for orders to disclose whereabouts of children¶

1 An application for an order under section 33(1) of the ^M42Family Law Act 1986 (which relates to the disclosure of the whereabouts of a child) shall be made by motion.

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

33 Applications in relation to removal of children¶

1 An application for leave under ^M43section 51(1) of the Act of 1975 (authority to remove a child from the care and possession of the applicant for 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) shall be made—

a by a party to the action, by motion; or

b by a person who is not a party to the action, by minute.

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 ^M44Child Abduction and Custody Act 1985(declarator that removal of child from United Kingdom was unlawful) shall be made—

a in an action depending before the sheriff—

1 by a party, in the initial writ, 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.

33 Intimation to local authority before supervised contact order¶

Where the sheriff, at his own instance or on the motion of a party, is considering making a contact order or an interim contact order subject to supervision by the social work department of a local authority, he shall ordain the party moving for such an order to intimate to the chief executive of that local authority (where not already 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 sheriff to order that 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 sheriff has determined—

i notify the sheriff clerk whether it intends to make representations to the sheriff; and

ii where it intends to make representations in writing, ^F493... do so within that period.

33 Joint minutes¶

Where any parties have reached agreement in relation to—

a a section 11 order,

b aliment for a child, ^F643...

c an order for financial provision, or

d an order under section 28 or 29 of the Act of 2006.

a joint minute may be entered into expressing that agreement; and, subject to rule 33.19(3) (no order before views of child expressed),the sheriff may grant decree in respect of those parts of the joint minute in relation to which he could otherwise make an order, whether or not such a decree would include a matter for which there was no crave.

33 Affidavits¶

The sheriff may accept evidence by affidavit at any hearing for an order or interim order.

33 Applications for postponement of decree under section 3A of the Act of 1976¶

An application under section 3A(1) (application for postponement of decree where religious impediment to marry exists) or section 3A(4) (application for recall of postponement) of the Act of 1976 shall be made by minute in the process of the action to which the application relates.

UNDEFENDED FAMILY ACTIONS¶

PART II

33 Evidence in certain undefended family actions¶

1 This rule—

a subject to sub-paragraph (b), applies to all family actions in which no notice of intention to defend has been lodged, other than a family action—

i for a section 11 order or for aliment;

ii of affiliation and aliment;

iii for financial provision after an overseas divorce or annulment within the meaning of Part IV of the ^M45Matrimonial and Family Proceedings Act 1984; or

iv for an order under the ^M46Act of 1981;

v for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of section 7(9) of the Domicile and Matrimonial Proceedings Act 1973;

vi for an order under section 28 or 29 of the Act of 2006;

vii for declarator of recognition, or non-recognition, of a relevant foreign decree within the meaning of paragraph 1 of Schedule 1B to the Domicile and Matrimonial Proceedings Act 1973, or of a judgment to which paragraph 2(1)(b) of that Schedule refers.

b applies to a family action in which a curator ad litem has been appointed under rule 33.16 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 sheriff so directs;

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

2 Unless the sheriff otherwise directs, evidence shall be given by affidavit.

3 Unless the sheriff otherwise directs, evidence relating to the welfare of a child shall be given by affidavit, at least one affidavit being emitted 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.

33 Procedure for decree in actions under rule 33.28¶

1 In an action to which rule 33.28 (evidence in certain undefended family actions) applies, the pursuer shall at any time after the expiry of the period for lodging a notice of intention to defend—

a lodge in process the affidavit evidence; and

b endorse a minute in Form F27 on the initial writ.

2 The sheriff may, at any time after the pursuer has complied with paragraph (1), without requiring the appearance of parties—

a grant decree in terms of the motion for decree; or

b remit the cause for such further procedure, if any, including proof by parole evidence, as the sheriff thinks fit.

33 Extracts of undefended decree¶

In an action to which rule 33.28 (evidence in certain undefended family actions) applies, the sheriff clerk shall, after the expiry of 14 days after the grant of decree under rule 33.29 (procedure for decree in actions under rule 33.28), issue to the pursuer and the defender an extract decree.

33 Procedure in undefended family actions for section 11 order¶

1 Where no notice of intention to defend has been lodged in a family action for a section 11 order, any proceedings in the cause shall be dealt with by the sheriff in chambers.

2 In an action to which paragraph (1) applies, decree may be pronounced after such inquiry as the sheriff thinks fit.

33 No recording of evidence¶

It shall not be necessary to record the evidence in any proof in a family action which is not defended.

33 Disapplication of Chapter 15¶

Other than rule 15.1(1),Chapter 15 (motions) shall not apply to a family action in which no notice of intention to defend has been lodged , or to a family action in so far as it proceeds as undefended.

33 Late appearance and application for recall by defenders¶

1 In a cause mentioned in rule 33.1(a) to (g) or (n) to (q) or rule 33.7A(1) (warrants and forms for intimation to a child and for seeking a child’s views), the sheriff may, at any stage of the action before the granting of final decree, make an order with such conditions, if any, as he thinks fit–

a directing that a defender who has not lodged a notice of intention to defend be treated as if he had lodged such a notice and the period of notice had expired on the date on which the order was made; or

b allowing a defender who has not lodged a notice of intention to defend 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 sheriff makes an order under paragraph (1), the pursuer may recall a witness already examined or lead other evidence whether or not he closed his proof before that order was made.

3 Where no order under paragraph (1) has been sought by a defender who has not lodged a notice of intention to defend and decree is granted against him, the sheriff may, on an application made within 14 days of the date of the decree, and with such conditions, if any, as he thinks fit, make an order recalling the decree.

4 Where the sheriff makes an order under paragraph (3), the cause shall thereafter proceed as if the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree was recalled.

4A Where the sheriff makes an order under paragraph (1) or (3), the sheriff must order any steps to be taken that the sheriff considers appropriate to obtain or hear the views of the child in relation to any section 11 order sought by the defender.

5 An application under paragraph (1) or (3) shall be made by note setting out the proposed defence and explaining the defender's failure to appear.

6 An application under paragraph (1) or (3) shall not affect any right of appeal the defender may otherwise have.

7 A note lodged in an application under paragraph (1) or (3) shall be served on the pursuer and any other party.

DEFENDED FAMILY ACTIONS¶

PART III

33.33B General provisions¶

1 Chapters 9 (standard procedure in defended causes) and 10 (additional procedure) do not apply to a family action in which a notice of intention to defend has been lodged in accordance with rule 33.34 (notice of intention to defend and defences etc.).

2 Subject to paragraph (3), a family action in which a notice of intention to defend has been lodged must follow the procedure set out in this Part of this Chapter.

3 The sheriff may, in exceptional circumstances, of the sheriff’s own motion or on the motion of a party, disapply any rule mentioned in this Part of this Chapter.

33 Notice of intention to defend and defences etc.¶

1 This rule applies where the defender in a family action seeks—

a to oppose any crave in the initial writ;

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; ^F648...

iii a section 11 order; ^F649...

iv an order for financial provision under section 28 or 29 of the Family Law (Scotland) Act 2006; or

c an order—

i under section 16(1)(b) or (3) of the ^M47Act of 1985 (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 a notice of intention to defend in Form F26 before the expiry of the period of notice and, at the same time, send a copy to the pursuer; and

b make any claim or seek any order referred to in paragraph (1), as the case may be, in those defences by setting out in his defences—

i craves;

ii averments in the answers to the condescendence in support of those craves; and

iii appropriate pleas-in-law.

^F8843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 Where a defender opposes a crave for an order for financial provision or makes a claim in accordance with paragraph (1)(b)(ii), the defender must lodge a completed Form F13A signed by the defender with the defences, minute of amendment or answers as the case may be.

4A Subject to paragraph (4B), where a defender intends to make an application for a section 11 order in respect of a child who is not a party to the action ^F947... the defender must—

a include in the notice of intention to defend a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

b when lodging the notice of intention to defend, submit a draft Form F9, showing the details that the defender proposes to include when the form is sent to the child.

4B Where the defender considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the defender must include in the notice of intention to defend—

a a crave to dispense with intimation and the seeking of the child’s views in Form F9;

b averments setting out the reasons why it is inappropriate to send Form F9 to the child.

4C The sheriff must be satisfied that the draft Form F9 submitted under paragraph (4A)(b) has been drafted appropriately.

4D The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

4E An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must —

a state that the Form F9 must be sent to the child in accordance with rule 33.19B (views of the child – section 11 order sought by defender only);

b be signed by the sheriff.

33 Abandonment by pursuer¶

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.

33 Attendance of parties at Case Management Hearings¶

All parties must, except on cause shown, attend personally case management hearings under rules 33.36J (Initial Case Management Hearing) and 33.36P (Full Case Management Hearing).

33.36A Fixing of date and time for Initial Case Management Hearing¶

1 On the lodging of a notice of intention to defend under rule 33.34 (notice of intention to defend and defences etc.), the sheriff clerk must fix a date and time for an Initial Case Management Hearing which date must be on the first suitable court day occurring not sooner than 21 days and not later than 49 days after the last date for the lodging of the notice of intention to defend.

2 In cases involving a crave for a section 11 order the sheriff must have regard to holding the Initial Case Management Hearing and the Child Welfare Hearing at the same time.

3 On fixing the date for Initial Case Management Hearing, the sheriff clerk must—

a intimate forthwith to the parties in Form G5A—

i the last date for lodging defences;

ii the date for the return of the initial writ;

iii the date of the Initial Case Management Hearing;

iv whether the Child Welfare Hearing is to be held at the same time with the Initial Case Management Hearing;

b prepare an interlocutor addressing all of the matters in sub-paragraph (a) for the sheriff to sign.

4 The fixing of the date of the Initial Case Management Hearing does not affect the right of a party to make any incidental application to the court.

33.36B Alteration of date and time for Initial Case Management Hearing¶

1 Subject to paragraph (2), at any time before the date and time fixed under rule 33.36A (fixing of date and time for Initial Case Management Hearing) or under this rule, the sheriff may of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

a discharge the Initial Case Management Hearing or, where fixed, the Child Welfare Hearing or both, as the case may be; and

b fix a new date and time for either the Initial Case Management Hearing or the Child Welfare Hearing or both, as the case may be.

2 The date and time of any hearing to be fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing, but must be fixed for a date within the period specified in rule 33.36A(1) or the first available court date thereafter.

3 Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

a fix a date, time and place for the parties to be heard;

b prepare an interlocutor recording those dates, times and places for the sheriff to sign.

4 The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

5 On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

a that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

b the last date for lodging defences, if appropriate;

c the last date for adjustment, if appropriate;

d the new date and time fixed for any hearing under paragraph (1)(b).

6 Any reference in these Rules to the Initial Case Management Hearing, the Child Welfare Hearing or a continuation of either, includes a reference to an Initial Case Management Hearing or Child Welfare Hearing for which a date and time has been fixed under this rule.

33.36C Return of initial writ¶

Subject to rule 33.36D (lodging of pleadings before Initial Case Management Hearing) the pursuer must return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days of the expiry of the period of notice and in accordance with the date intimated on Form G5A.

33.36D Lodging of pleadings before Initial Case Management Hearing¶

Where any hearing, whether by motion or otherwise, is fixed before the Initial Case Management Hearing, each party must lodge in process a copy of the party’s pleadings, or, where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

33.36E Process folder¶

1 On receipt of the notice of intention to defend, the sheriff clerk must prepare a process folder which must include—

a interlocutor sheets;

b duplicate interlocutor sheets;

c a production file;

d a motion file;

e an inventory of process.

2 Any productions or part of process lodged in a cause must be placed in the process folder.

33.36F Defences¶

1 Where a notice of intention to defend has been lodged, the defender must lodge defences within 14 days after the expiry of the period of notice.

2 Defences must be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and must have appended a note of the pleas-in-law of the defender.

3 Defences which include a counterclaim must commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and must include—

a answers to the condescendence of the initial writ;

b a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences;

c appropriate pleas-in-law.

33.36G Implied admissions¶

Every statement of fact made by a party must be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party will be deemed to have admitted that statement of fact.

33.36H Sisting¶

1 The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, sist the action until a specified date.

2 Where the action is sisted, the sheriff clerk must—

a prepare an interlocutor specifying the reason for the sist and the date specified in paragraph (1) for the sheriff to sign;

b fix a date for a review of sist hearing for not later than 30 days following the expiration of the sist;

c intimate the date of the review of sist hearing to each party.

3 Where a cause has been sisted, any period for adjustment before the sist is to be reckoned as a part of the period for adjustment.

33.36I Open record¶

The sheriff may, at any time before the closing of the record in a family action, of the sheriff’s own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

33.36J Initial Case Management Hearing¶

1 At the Initial Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from parties the matters in dispute and information about any other matter referred to in paragraph (3).

2 It is the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

3 At the Initial Case Management Hearing each party must address the court on—

a any matters that are capable of agreement;

b the matters that are in dispute between the parties;

c any matters of potential complexity or difficulty;

d any valuations that are likely to be required;

e any expert or skilled witness evidence that is likely to be required and the scope for joint instruction;

f whether additional steps require to be taken to give a child an opportunity to express the child’s view;

g whether steps require to be taken to investigate any facts or circumstances relating to a child;

h the suitability of the action for referral to mediation;

i whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

j the scope for use of affidavits and other documents in place of oral evidence;

k the extent to which the parties have complied with any orders made by the court;

l the number and availability of witnesses;

m the content, volume and form of productions;

n the requirement for access to IT equipment to view productions;

o whether sanction is sought for the employment of counsel;

p the progress of any legal aid application.

4 At the Initial Case Management Hearing, the sheriff must fix a date and time for a Full Case Management Hearing which date must be on the first suitable court day occurring—

a in cases involving a crave for a section 11 order only, not sooner than 16 weeks and not later than 24 weeks after the last date for the lodging of defences;

b in all other cases, not sooner than 20 weeks and not later than 24 weeks after the last date for the lodging of defences.

5 Following the Initial Case Management Hearing the sheriff clerk must intimate forthwith to the parties in Form G6B—

a the last date for lodging a note of the basis for any preliminary pleas;

b the last date for adjustment;

c the last date for lodging a copy of the record;

d the date of the Full Case Management Hearing.

33.36K Alteration of date and time for Full Case Management Hearing¶

1 Subject to paragraph (2), at any time before the date and time fixed under rule 33.36J (Initial Case Management Hearing) or under this rule, the sheriff may, of the sheriff’s own motion, on the motion of any party or on the joint motion of the parties—

a discharge the Full Case Management Hearing; and

b fix a new date and time for a Full Case Management Hearing.

2 The date and time of any hearing to be fixed under paragraph (1)(b) may be earlier or later than the date and time fixed for the discharged hearing, but must be fixed for a date within the relevant period specified in rule 33.36J(4) or the first available court date thereafter.

3 Where the sheriff is considering making an order under paragraph (1) of the sheriff’s own motion and in the absence of the parties, the sheriff clerk must—

a fix a date, time and place for the parties to be heard;

b prepare an interlocutor recording those dates, times and places for the sheriff to sign.

4 The sheriff may discharge a hearing fixed under paragraph (3) on the joint motion of the parties.

5 On the discharge of a hearing under paragraph (1)(a) or paragraph (4), the sheriff clerk must forthwith intimate to all parties—

a that the hearing has been discharged under paragraph (1)(a) or, as the case may be, paragraph (4);

b the last date for lodging a note of basis of preliminary pleas, if appropriate;

c the last date for adjustment, if appropriate;

d the last date for lodging a copy of the record, if appropriate;

e the new date and time fixed for the hearing under paragraph (1)(b).

6 Any reference in these Rules to the Full Case Management Hearing includes a reference to a Full Case Management Hearing for which a date and time has been fixed under this rule.

33.36L Pre-Hearing Meeting¶

1 In advance of the Full Case Management Hearing the parties must hold a pre-hearing meeting, at which parties must—

a discuss settlement of the action;

b agree, so far as is possible, the matters which are not in dispute between them;

c discuss the information referred to in rule 33.36P(3) (Full Case Management Hearing).

2 Not later than 2 days before the Full Case Management Hearing the pursuer must lodge with the court a joint minute of the pre-hearing meeting, signed by both parties, addressing the points in rule 33.36P(3) or explain to the sheriff why such a minute has not been lodged.

3 If a party is not present during the pre-hearing meeting, that party’s representative must be able to contact the party during the meeting and be in full possession of all relevant facts.

33.36M Adjustment of pleadings¶

1 Parties may adjust their pleadings until 14 days before the date of the Full Case Management Hearing or any continuation of it.

2 Any adjustments must be exchanged between parties and not lodged in process.

3 Parties are responsible for maintaining a record of adjustments made during the period for adjustment.

4 No adjustments are permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

33.36N Record for Full Case Management Hearing¶

1 The pursuer must, at the end of the period for adjustment referred to in rule 33.36M(1) (adjustment of pleadings) and before the Full Case Management Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record.

2 Not later than 2 days before the Full Case Management Hearing, the pursuer must lodge a certified copy of the record in process.

3 Where the Full Case Management Hearing is continued under rule 33.36P(7), and further adjustment or amendment is made to the record, a copy of the record as adjusted or amended, certified by the pursuer, must be lodged in process not later than 2 days before the Full Case Management Hearing so continued.

33.36O Exchange of lists of witnesses¶

1 Not later than 7 days before the Full Case Management Hearing, each party must—

a intimate to every other party a list of witnesses, including any skilled witnesses, on whose evidence they intend to rely at proof;

b lodge a copy of that list in process.

2 A party who seeks to rely on the evidence of a person not on the list intimated under paragraph (1)(a) must, if any other party objects to such evidence being admitted, seek leave of the sheriff to admit that evidence; and such leave may be granted on such conditions, if any, as the sheriff thinks fit.

3 The list of witnesses intimated under paragraph (1)(a) must include—

a the name, occupation (where known) and address of each witness;

b a summary of up to 50 words on the matters to which each witness is expected to speak;

c details of whether the witness is considered to be a vulnerable witness within the meaning of section 11(1) of the Act of 2004 and whether any child witness notice under section 12(2) of that Act or vulnerable witness application under section 12(6) of that Act has been lodged in respect of that witness.

33.36P Full Case Management Hearing¶

1 At the Full Case Management Hearing the sheriff must seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3).

2 It is the duty of the parties to provide the sheriff with sufficient information to enable the sheriff to conduct the hearing as provided for in this rule.

3 At the Full Case Management Hearing each party must address the court on—

a any matters that are capable of agreement;

b the matters that are in dispute between the parties;

c any matters of potential complexity or difficulty;

d any valuations that are likely to be required;

e any expert or skilled witness evidence that is likely to be required and the scope for joint instruction;

f whether additional steps require to be taken to give a child an opportunity to express the child’s views;

g whether steps require to be taken to investigate any facts or circumstances relating to a child;

h the suitability of the action for referral to mediation;

i whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

j the scope for use of affidavits and other documents in place of oral evidence;

k the extent to which the parties have complied with any orders made by the court;

l the number and availability of witnesses;

m the content, volume and form of productions;

n the requirement for access to IT equipment to view productions;

o whether sanction is sought for the employment of counsel;

p the progress of any legal aid application.

4 After having heard parties at the Full Case Management Hearing the sheriff must close the record, fix a pre-proof hearing in accordance with Chapter 28A (pre-proof hearing) and—

a appoint the action to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such matters as the sheriff thinks fit;

b consider any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of the proof, the lodging of a joint minute of admissions or agreement, or such other matters as the sheriff thinks fit; or

c consider any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which if established following debate would lead to decree in favour of any party, or to limitation of proof to any substantial degree.

5 The diet fixed under paragraph (4)—

a is to be assigned for the appropriate number of days for resolution of the issues with reference to the information provided under paragraph (3) and subject to paragraph (6);

b may only be extended or varied on exceptional cause shown and subject to such orders (including awards of expenses) as the sheriff considers appropriate.

6 The sheriff may make such orders as thought fit to ensure compliance with this rule and the expeditious resolution of the issues in dispute, including—

a restricting the issues for proof;

b the scope for instruction of a joint expert or a meeting between skilled persons;

c excluding specified documents, reports or witnesses from proof;

d fixing other hearings;

e awarding expenses.

7 The sheriff may, on cause shown, of the sheriff’s own motion or on the motion of any party, allow a continuation of the Full Case Management Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter.

8 On closing the record—

a where there are no adjustments made since the lodging of the record under rule 33.36N (record for Full Case Management Hearing), that record becomes the closed record;

b where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

33.36Q Judicial continuity¶

Where possible, the same sheriff is to preside at—

a the Initial Case Management Hearing;

b the Full Case Management Hearing;

c the pre-proof hearing;

d where fixed, any—

i Child Welfare Hearing;

ii proof;

iii proof before answer;

iv debate.

33 Decree by default¶

1 In a family action in which the defender has lodged a notice of intention to defend, where a party fails—

a to lodge, or intimate the lodging of, any production or part of process,

b to implement an order of the sheriff within a specified period, ^F338...

c to appear or be represented at any diet, , or

d otherwise to comply with any requirement imposed upon that party by these Rules

that party shall be in default.

2 Where a party is in default under paragraph (1), the sheriff may—

a where the family action is one mentioned in rule 33.1(a) to (h) or (n) to (p), allow that action to proceed as undefended under Part II of this Chapter; or

b where the family action is one mentioned in rule 33.1(1)(i) to (m) or (q), grant decree as craved; or

c grant decree of absolvitor; or

d dismiss the family action or any claim made or order sought; or

da make such other order as he thinks fit to secure the expeditious progress of the cause; and

e award expenses.

3 Where no party appears at a diet in a family action, the sheriff may dismiss that action.

4 In a family action, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process, or for intimating or implementing any order.

APPLICATIONS AND ORDERS RELATING TO CHILDREN IN CERTAIN ACTIONS¶

PART IV

33 Application and interpretation of this Part¶

^F160. . .This Part applies to an action of divorce , separation or declarator of nullity of marriage.

^F1612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 Applications in actions to which this Part applies¶

1 An application for an order mentioned in paragraph (2) shall be made—

a by a crave in the initial writ 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 a section 11 order; and

b an order for aliment for a child.

^F16333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F16633 Applications in depending actions by motion¶

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 a residence order or a contact order,

shall be made by motion.

33 Applications after decree relating to a section 11 order¶

1 An application after final decree for, or for the variation or recall of, a section 11 order or in relation to the enforcement of such an order shall be made by minute in the process of the action to which the application relates.

2 Where a minute has been lodged under paragraph (1), any party may apply by motion for any interim order which may be made pending the determination of the application.

33.44A Warrants for intimation to child and permission to seek views¶

1 Subject to paragraph (2), when lodging a minute under rule 14.3 (lodging of minutes) which includes a crave after final decree for, or the variation or recall of, a section 11 order in respect of a child who is not a party to the action, the minuter must—

a include in the minute a crave for a warrant for intimation and the seeking of the child’s views in Form F9;

b when lodging the minute, submit a draft Form F9, showing the details that the minuter proposes to include when the form is sent to the child.

2 Where the minuter considers that it would be inappropriate to send Form F9 to the child (for example, where the child is under 5 years of age), the minuter must include in the minute—

a a crave to dispense with intimation and the seeking of the child’s views in Form F9;

b averments setting out the reasons why it is inappropriate to send Form F9 to the child.

3 The sheriff must be satisfied that the draft Form F9 submitted under paragraph (1)(b) has been drafted appropriately.

4 The sheriff may dispense with intimation and the seeking of views in Form F9 or make any other order that the sheriff considers appropriate.

5 An order granting warrant for intimation and the seeking of the child’s views in Form F9 under this rule must—

a state that the Form F9 must be sent in accordance with rule 33.44A(6);

b be signed by the sheriff.

6 The Form F9 must be sent in accordance with—

a rule 33.44B (views of the child – unopposed minutes relating to a section 11 order), where the minute is unopposed;

b rule 33.44C (views of the child – craves relating to a section 11 order sought by minuter only), where the minute is opposed and a section 11 order is sought by the minuter only; or

c rule 33.44D (views of the child – craves relating to a section 11 order sought by both minuter and respondent), where a section 11 order is sought by both the minuter and the respondent.

33.44B Views of the child – unopposed minutes relating to a section 11 order¶

1 This rule applies to minutes which include a crave after final decree for, or the variation or recall of, a section 11 order in respect of which no notice of opposition or answers are lodged and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The minuter must—

a send the child the Form F9 that was submitted and approved under rule 33.44A (warrants for intimation to child and permission to seek views);

b on the same day, lodge a certificate of intimation in Form F9A;

c not send the child a copy of the minute.

3 Except on cause shown, the sheriff must not determine the minute in the period of 28 days following the date on which the Form F9 was sent to the child.

33.44C Views of the child – craves relating to a section 11 order sought by minuter only¶

1 This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and a crave for, or the variation or recall of, a section 11 order is sought by the minuter only and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The minuter must—

a no later than 14 days after the notice of opposition or answers are lodged, send the child the Form F9 that was submitted and approved under rule 33.44A (warrants for intimation to child and permission to seek views);

b on the same day, lodge a certificate of intimation in Form F9A;

c not send the child a copy of the minute, the notice of opposition or answers.

33.44D Views of the child – craves relating to a section 11 order sought by both minuter and respondent¶

1 This rule applies where a notice of opposition or answers have been lodged in respect of a minute after final decree and craves for, or the variation or recall of, a section 11 order are sought by both the minuter and the respondent and warrant has been granted for intimation and the seeking of the child’s views in Form F9.

2 The minuter must—

b on the same day—

i lodge a certificate of intimation in Form F9A;

ii send the respondent a copy of the Form F9 that was sent to the child;

c not send the child a copy of the minute, the notice of opposition or answers.

33 Applications after decree relating to aliment¶

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 minute in the process of the action to which the application relates.

2 Where a minute has been lodged under paragraph (1), any party may lodge a motion for any interim order which may be made pending the determination of the application.

33 Applications after decree by persons over 18 years for aliment¶

1 A person—

a to whom an obligation of aliment is owed under section 1 of the ^M48Act of 1985,

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 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.

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 minute in the process of the action to which the application relates.

ORDERS RELATING TO FINANCIAL PROVISION¶

PART V

33 Application and interpretation of this Part¶

1 This Part applies to an action of divorce.

2 In this Part, “incidental order” has the meaning assigned in section 14(2) of the Act of 1985.

33 Applications in actions to which this Part applies¶

1 An application for an order mentioned in paragraph (2) shall be made—

a by a crave in the initial writ 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 ^M49Act of 1981 (transfer or vesting of tenancy).

33 Applications in depending actions relating to incidental orders¶

1 In an action depending before the sheriff to which this Part applies—

a the pursuer or defender, notwithstanding rules 33.34(2) (application by defender for order for financial provision) and 33.48(1)(a) (application for order for financial provision in initial writ or defences), may apply by motion for an incidental order; and

b the sheriff shall not be bound to determine such a motion if he considers that the application should properly by by a crave in the initial writ or defences, as the case may be.

2 In an action depending before the sheriff 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 minute in the process of the action to which the application relates.

33 Applications relating to interim aliment¶

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.

33 Applications relating to orders for financial provision¶

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 transfer 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), ^F613...

v section 14(1) (incidental orders), 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 minute in the process of the action to which the application relates.

2 Where a minute is lodged under paragraph (1), any party may lodge a motion for any interim order which may be made pending the determination of the application.

3 An application under–

a paragraph (5) of section 12A of the Act of 1985 ^F171 (recall or variation of order in respect of a pension lump sum), ^F231. . .

b paragraph (7) of that section (variation of order in respect of pension lump sum to substitute trustees or managers), ^F594...

ba section 12B(4) of the Act of 1985 (recall or variation of a capital sum order), or

c section 28(10) or 48(9) of the Welfare Reform and Pensions Act 1999 ^F233,

shall be made by minute in the process of the action to which the application relates.

33 Pension Protection Fund notification¶

1 In this rule–

“assessment period” shall be construed in accordance with section 132 of the Pensions Act 2004 ^F280;
“pension arrangement” shall be construed in accordance with the definition in section 27 of the Act of 1985; and
“valuation summary” shall be construed in accordance with the definition in Schedule 2 to the Pension Protection Fund (Provision of Information) Regulations 2005 ^F281.

2 This rule applies where a party at any stage in the proceedings applies for an order under section 8 or section 16 of the Act of 1985.

3 Where the party against whom an order referred to in paragraph (2) is sought has received notification in compliance with the Pension Protection Fund (Provision of Information) Regulations 2005 or does so after the order is sought–

a that there is an assessment period in relation to his pension arrangement; or

b that the Board of the Pension Protection Fund has assumed responsibility for all or part of his pension arrangement,

he shall comply with paragraph (4).

4 The party shall–

a lodge the notification; and

b obtain and lodge as soon as reasonably practicable thereafter–

i a valuation summary; and

ii a forecast of his compensation entitlement.

5 Subject to paragraph (6), the notification referred to in paragraph (4)(a) requires to be lodged–

a where the notification is received before the order is sought, within 7 days of the order being sought;

b where the notification is received after the order is sought, within 7 days of receiving the notification.

6 Where an order is sought against the defender before the defences are lodged, and the notification is received before that step occurs, the notification shall be lodged with the defences.

7 At the same time as lodging documents under paragraph (4), copies shall be sent to the other party to the proceedings.

33 Applications after decree relating to agreements and avoidance transactions¶

An application for an order—

a under section 16(1)(a) or (3) of the Act of 1985 (setting aside or varying agreements 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.

APPLICATIONS RELATING TO AVOIDANCE TRANSACTIONS¶

PART VI

33 Form of applications¶

1 An application for an order under section 18 of the Act of 1985 (which relates to avoidance transactions) by a party to an action shall be made by including in the initial writ, defences or minute, as the case may be, appropriate craves, averments and pleas-in-law.

2 An application for an order under section 18 of the Act of 1985 after final decree in an action, shall be made by minute in the process of the action to which the application relates.

FINANCIAL PROVISION AFTER OVERSEAS DIVORCE OR ANNULMENT¶

PART VII

33 Interpretation of this Part¶

In this Part—

“the Act of 1984” means the ^M50Matrimonial and Family Proceedings Act 1984;
“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.

33 Applications for financial provision after overseas divorce or annulment¶

1 An application under ^M51section 28 of the Act of 1984 for an order for financial provision after a divorce or annulment in an overseas country shall be made by initital writ.

2 An application for an order in an action to which paragraph (1) applies made before final decree under—

a section 13 of the ^M52Act of 1981(transfer of tenancy of matrimonal home),

b section 29(4) of the Act of 1984 for interim periodical allowance, or

c section 14(4) of the Act of 1985 (variation or recall of incidental order),

shall be made by motion.

3 An application for an order in an action to which paragraph (1) applies made after final decree under—

a section 12(4) of the Act of 1985 (variation of date or method of payment of capital sum or date of transfer of property),

b section 13(4) of the Act of 1985 (variation, recall, backdating or conversion of periodical allowance), or

c section 14(4) of the Act of 1985 (variation or recall of incidental order),

shall be made by minute in the process of the action to which the application relates.

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 trustees or managers),

shall be made by minute in the process of the action to which the application relates.

5 Where a minute has been lodged under paragraph (3), any party may apply by motion for an interim order pending the determination of the application.

ACTIONS OF ALIMENT¶

PART VIII

33 Interpretation of this Part¶

In this Part, “action of aliment” means a claim for aliment under section 2(1) of the Act of 1985.

33 Undefended actions of aliment¶

1 Where a motion for decree in absence under Chapter 7 (undefended causes) is lodged in an action of aliment, the pursuer shall, on lodging 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 sheriff requires the appearance of parties, the sheriff clerk shall fix a hearing.

33 Applications relating to aliment¶

1 An application for, or for variation of, an order for interim aliment in a depending action of aliment shall be made by motion.

2 An application after final decree for the variation or recall of an order for aliment in an action of aliment shall be made by minute in the process of the action to which the application relates.

3 A person—

a to whom an obligation of aliment is owed under section 1 of the ^M53Act of 1985,

b in whose favour an order for aliment while 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.

4 An application for interim aliment pending the determination of an application under paragraph (2) or (3) shall be made by motion.

5 Where a decree has been pronounced in an application under paragraph (2) or (3), any application for variation or recall of any such decree shall be made by minute in the process of the action to which the application relates.

33 Applications relating to agreements on aliment¶

1 Subject to paragraph (2) and rule 33A.53, an application under section 7(2) of the Act of 1985 (variation or termination of agreement on aliment) shall be made by summary application.

2 In a family action in which a crave for aliment may be made, an application under section 7(2) of the Act of 1985 shall be made by a crave in the initial writ or in defences, as the case may be.

APPLICATIONS FOR ORDERS UNDER SECTION 11 OF THE CHILDREN (SCOTLAND) ACT 1995.¶

PART IX

^F17733 Application of this Part¶

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.

33 Form of applications¶

Subject to any other provision in this Chapter, an application for a section 11 order shall be made—

a by an action for a section 11 order;

b by a crave in the initial writ 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.

^F18033 Defences in action for a section 11 order¶

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

^F181e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 Applications relating to interim orders in depending actions¶

An application, in an action depending before the sheriff to which this Part applies, for, or for the variation or recall of, ^F345. . . an interim residence order or an interim contact order shall be made—

a by a party to the action, by motion; or

b by a person who is not a party to the action, by minute.

^F18333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 Applications after decree¶

1 An application after final decree for variation or recall of a section 11 order shall be made by minute in the process of the action to which the application relates.

2 Where a minute has been lodged under paragraph (1), any party may apply by motion for an interim order pending the determination of the application.

3 Rules 33.44A (warrants for intimation to child and permission to seek views) to 33.44D (views of the child – craves relating to a section 11 order sought by both minuter and respondent) apply (with the necessary modifications) to the seeking of the child’s views in relation to a minute lodged in accordance with this rule.

33 Application for leave¶

1 Where leave of the court is required under section 11(3)(aa) of the Act of 1995 for the making of an application for a contact order under that section, the applicant must lodge along with the initial writ a written application in the form of a letter addressed to the sheriff clerk stating—

a the grounds on which leave is sought;

b whether or not the applicant has applied for legal aid.

2 Where the applicant has applied for legal aid he must also lodge along with the initial writ written confirmation from the Scottish Legal Aid Board that it has determined, under regulation 7(2)(b) of the Civil Legal Aid (Scotland) Regulations 2002 ^M82, that notification of the application should be dispensed with or postponed pending the making by the sheriff of an order for intimation under paragraph (4)(b).

3 Subject to paragraph (4)(b), an application under paragraph (1) shall not be served or intimated to any party.

4 The sheriff shall consider an application under paragraph (1) without hearing the applicant and may—

a refuse the application and pronounce an interlocutor accordingly; or

b if he is minded to grant the application order the applicant—

i to intimate the application to such persons as the sheriff considers appropriate; and

ii to lodge a certificate of intimation in, as near as may be, Form G8.

5 If any person who receives intimation of an application under paragraph (4)(b) wishes to be heard he shall notify the sheriff clerk in writing within 14 days of receipt of intimation of the application.

6 On receipt of any notification under paragraph (5) the sheriff clerk shall fix a hearing and intimate the date of the hearing to the parties.

7 Where an application under paragraph (1) is granted, a copy of the sheriff's interlocutor must be served on the defender along with the warrant of citation.

ACTIONS UNDER THE MATRIMONIAL HOMES (FAMILY PROTECTION) (SCOTLAND) ACT 1981¶

PART X

33 Interpretation of this Part¶

Unless the context otherwise requires, words and expressions used in this Part which are also used in the ^M54Act of 1981 have the same meaning as in that Act.

33 Form of applications¶

1 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 crave in the initial writ 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 any action mentioned in paragraph (a) or (b), by minute in that action.

2 An application under section 7(1) (dispensing with consent of non-entitled spouse to a dealing) or section 11 (application in relation to poinding) shall, unless made in a depending family action, be made by summary application.

33 Defenders¶

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) (dispensing with consent of non-entitled spouse to a dealing), or 8(1) (payment from non-entitled spouse in respect of loan), of the Act of 1981, both spouses; ^F346. . .

c where the application is made under section 18 of the Act of 1981 ^M55(occupancy rights of cohabiting couples), or is one to which that section applies, the other partner. ; and

d where the application is made under section 18A of the Act of 1981 ^M83(application for domestic interdict), the other partner.

33 Applications by motion¶

1 An application under any of the following provisions of the Act of 1981 shall be made by motion in the process of the depending action to which the application relates:—

a section 3(4) (interim order for regulation of rights of occupancy, etc.);

b section 4(6) (interim order suspending occupancy rights);

c section 7(1) (dispensing with consent of non-entitled spouse to a dealing);

d ^F348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

e the proviso to section 18(1) ^F185 (extension of period of occupancy rights).

2 Intimation of a motion under paragraph (1) shall be given—

a to the other spouse or partner, as the case may be;

b where the motion is under paragraph (1)(a), (b) or (e) 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 33.7(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 33.15 (order for intimation by sheriff).

33 Applications by minute¶

1 An application for an order under—

a section 5 of the Act of 1981 (variation and recall of orders regulating occupancy rights and of exclusion order), or

b ^F349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

shall be made by minute.

2 A minute under paragraph (1) shall be intimated—

a to the other spouse or partner, as the case may be;

b where 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

33 Sist of actions to enforce occupancy rights¶

Unless the sheriff 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.

33^F350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SIMPLIFIED DIVORCE APPLICATIONS¶

PART XI

33 Application and interpretation of this Part¶

1 This Part applies to an application for divorce by a party to a marriage made in the manner prescribed in rule 33.74 (form of applications) if, but only if—

a that party relies on the facts set out in section 1(2)(d) (no cohabitation for one year with consent of defender to decree), or section 1(2)(e) (no cohabitation for two years) or section 1(1)(b) (issue of interim gender recognition certificate) ^F356, of the ^M56Act of 1976;

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; ^F354. . .

f neither party to the marriage suffers from mental disorder ; and.

g neither party to the marriage applies for postponement of decree under section 3A of the Act of 1976 ^M85(postponement of decree where impediment to religious marriage exists).

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).

33 Form of applications¶

1 A simplified divorce application in which the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for one year with consent of defender to decree) are relied on shall be made in Form F31 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 F31 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 two years) are relied on shall be made in Form F33 and shall only be of effect if it is signed by the applicant.

3 A simplified divorce application in which the facts set out in section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate) are relied on shall be made in Form F33A and shall only be of effect if signed by the applicant.

33 Lodging of applications¶

The applicant shall send a simplified divorce application to the sheriff clerk with—

a an extract or certified copy of the marriage certificate; ^F360. . .

b the appropriate fee. ; and

c in an application under section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate), the interim gender recognition certificate or a certified copy within the meaning of rule 33.9A(3).

33 Citation and intimation¶

1 This rule is subject to rule 33.77 (citation where address not known).

2 It shall be the duty of the sheriff clerk to cite any person or intimate any document in connection with a simplified divorce application.

3 The form of citation—

a in an application relying on the facts in section 1(2)(d) of the Act of 1976 shall be in Form F34; ^F362. . .

b in an application relying on the facts in section 1(2)(e) of the Act of 1976 shall be in Form F35.

c in an application relying on the facts in section 1(1)(b) of the Act of 1976 shall be in Form F35A.

4 The citation or intimation required by paragraph (2) shall be made–

a by the sheriff clerk by registered post or the first class recorded delivery service in accordance with rule 5.3 (postal service or intimation);

b on payment of an additional fee, by a sheriff officer in accordance with rule 5.4(1) to (4) (service within Scotland by sheriff officer); or

c where necessary, by the sheriff clerk in accordance with rule 5.5 (service on persons furth of Scotland).

5 Where citation or intimation is made in accordance with paragraph (4)(c), the translation into an official language of the country in which service is to be executed required by rule 5.5(6) shall be provided by the party lodging the simplified divorce application.

33 Citation where address not known¶

1 In a simplified divorce application in which the facts in section 1(2)(e) of the Act of 1976 (no cohabitation for two years) or section 1(1)(b) of the Act of 1976 (grounds of divorce: issue of interim gender recognition certificate) are relied on and the address of the other party to the marriage is not known and cannot reasonably be ascertained—

a citation shall be executed by displaying a copy of the application and a notice in Form F36 on the walls of court on a period of notice of 21 days; and

b intimation shall be made 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 other party to the marriage who has reached that age, unless the address of such person is not known and cannot reasonably be ascertained.

2 Intimation to a person referred to in paragraph (1)(b) shall be given by intimating a copy of the application and a notice of intimation in Form F37.

33 Opposition to applications¶

1 Any person on whom service or intimation of a simplified divorce application has been made may give notice by letter sent to the sheriff clerk that he challenges the jurisdiction of the court or opposes the grant of decree of divorce and giving the reasons for his opposition to the application.

2 Where oposition to a simplified divorce application is made under paragraph (1), the sheriff shall dismiss the application unless he is satisfied that the reasons given for the opposition are frivolous.

3 The sheriff clerk shall intimate 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.

33 Evidence¶

Parole evidence shall not be given in a simplified divorce application.

33 Decree¶

1 The sheriff may grant decree in terms of the simplified divorce application on the expiry of the period of notice if such application has been properly served provided that, when the application has been served in a country to which the ^M57Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15 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 that Convention have been complied with.

2 The sheriff clerk shall, not sooner than 14 days after the granting of decree in terms of paragraph (1), issue to each party to the marriage an extract of the decree of divorce in Form F38.

33 Appeals¶

1 Any appeal against an interlocutor granting decree of divorce under rule 33.80 (decree) may be made, within 14 days after the date of decree, by sending a letter to the court giving reasons for the appeal.

2 Within 4 days after receiving an appeal, the sheriff clerk must transmit to the Clerk of the Sheriff Appeal Court—

a the appeal;

b all documents and productions in the simplified divorce application.

3 On receipt of the appeal, the Clerk of the Sheriff Appeal Court is to fix a hearing and intimate the date, time and place of that hearing to the parties.

33 Applications after decree¶

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 made in an action of divorce shall be made by minute.

VARIATION OF COURT OF SESSION DECREES¶

PART XII

33 Application and interpretation of this Part¶

1 This Part applies to an application to the sheriff for variation or recall of any order to which section 8 of the ^M58Act of 1966(variation of certain Court of Session orders) applies.

2 In this Part, the “Act of 1966” means the Law Reform (Miscellaneous Provisions) (Scotland) Act 1966.

33 Form of applications and intimation to Court of Session¶

1 An application to which this Part applies shall be made by initial writ.

2 In such an application there shall be lodged with the initial writ a copy of the interlocutor, certified by a clerk of the Court of Session, which it is sought to vary.

3 Before lodging the initial writ, a copy of the initial writ certified by the pursuer or his solicitor shall be lodged, or sent by first class recorded delivery post to the Deputy Principal Clerk of Session to be lodged in the process of the cause in the Court of Session in which the original order was made.

4 The pursuer or his solicitor shall attach a certificate to the initial writ stating that paragraph (3) has been complied with.

5 The sheriff may, on cause shown, prorogate the time for lodging the certified copy of the interlocutor required under paragraph (2).

33 Defended actions¶

1 Where a notice of intention to defend has been lodged and no request is made under rule 33.87 (remit of applications to Court of Session), the pursuer shall within 14 days after the date of the lodging of a notice of intention to defend or within such other period as the sheriff may order, lodge in process the following documents (or copies) from the process in the cause in the Court of Session in which the original order was made:—

a the pleadings;

b the interlocutor sheets;

c any opinion of the court; and

d any productions on which he seeks to found.

2 The sheriff may, on the joint motion of parties made at any time after the lodging of the documents mentioned in paragraph (1)—

a dispense with proof;

b whether defences have been lodged or not, hear the parties; and

c thereafter, grant decree or otherwise dispose of the cause as he thinks fit.

33 Transmission of process to Court of Session¶

1 Where decree has been granted or the cause otherwise disposed of—

a and the period for making an appeal has elapsed without an appeal being made, or

b after the determination of the cause on any appeal,

the sheriff clerk shall transmit to the Court of Session the sheriff court process and the documents from the process of the cause in the Court of Session which have been lodged in the sheriff court process.

2 A sheriff court process transmitted under paragraph (1) shall form part of the process of the cause in the Court of Session in which the original order was made.

33 Remit of applications to Court of Session¶

1 A request for a remit to the Court of Session under section 8(3) of the Act of 1966 shall be made by motion.

2 The sheriff shall, in respect of any such motion, order that the cause be remitted to the Court of Session; and, within four days after the date of such order, the sheriff clerk shall transmit the whole sheriff court process to the Court of Session.

3 A cause remitted to the Court of Session under paragraph (2) shall form part of the process of the cause in the Court of Session in which the original order was made.

CHILD SUPPORT ACT 1991¶

PART XIII

33 Interpretation of this Part¶

^F190. . . In this Part—
“the Act of 1991” means the ^M59Child Support Act 1991;
“child” has the meaning assigned in section 55 of the Act of 1991;
“maintenance calculation” has the meaning assigned in section 54 of the Act of 1991.

33 Restriction of expenses¶

Where the Secretary of State is named as a defender in an action for declarator of nonparentage or illegitimacy, and the Secretary of State does not defend the action, no expenses shall be awarded against the Secretary of State.

33 Effect of maintenance calculations¶

The sheriff clerk shall, on receiving notification that a maintenance calculation 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 intelocutor sheet relating to that order a certificate, in Form F39 or F40, as the case may be.

33 Effect of maintenance calculations on extracts relating to aliment¶

1 Where an order relating to aliment is affected by a maintenance calculation, any extract of that order issued by the sheriff clerk shall be endorsed with the following certificate:—

“A maintenance calculation having been made under the Child Support Act 1991 on (insert date), this order, in so far as it relates to the making or securing of periodical payments to or for the benefit of (insert name(s) of child/children), ceases to have effect from (insert date two days after the date on which the maintenance calculationwas made)”.

2 Where an order relating to aliment has ceased to have effect on the making of a maintenance calculation, and that maintenance calculation is later cancelled or ceases to have effect, any extract of that order issued by the sheriff clerk shall be endorsed also with the following certificate:—

“The jurisdiction of the child support officer under the Child Support Act 1991 having terminated on (insert date), this order, in so far as it relates to (insert name(s) of child/children), again shall have effect as from (insert date of termination of child support officer’s jurisdiction)”.

33.91A Applications to recall or vary an interdict¶

An application under section 32L(11)(b) of the Act of 1991 (orders preventing avoidance) for the variation or recall of an order for interdict is to be made by minute in the process of the action to which the application relates.

REFERRALS TO PRINCIPAL REPORTER¶

^F683PART XIV

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MANAGEMENT OF MONEY PAYABLE TO CHILDREN¶

PART XV

33Where the sheriff 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 in the process of the cause in which the order under section 13 of that Act was made.

ACTION OF DECLARATOR OF RECOGNITION OR NON-RECOGNITION OF A FOREIGN DECREE¶

PART XVI

33.96 Action of declarator in relation to certain foreign decrees¶

1 This rule applies to an action for declarator of recognition, or non-recognition, of a decree of divorce, nullity or separation granted outwith the United Kingdom, the Channel Islands or the Isle of Man.

2 In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ—

a the court, tribunal or other authority which granted the decree;

b the date of the decree of divorce, annulment or separation to which the action relates;

c the date and place of the marriage to which the decree of divorce, nullity or separation relates;

d the basis on which the court has jurisdiction to entertain the action;

e whether to the pursuer’s knowledge any other proceedings whether in Scotland or in any other country are continuing in respect of the marriage to which the action relates or are capable of affecting its validity or subsistence; and

f 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; and

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

3 Where—

a such proceedings are continuing;

b the action before the sheriff is defended; and

c either—

i the initial writ does not contain the statement referred to in paragraph (2)(e), or

ii the particulars mentioned in paragraph (2)(f) as set out in the initial writ 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)(f).

4 Unless the sheriff otherwise directs, a declarator of recognition, or non-recognition, of a decree under this rule shall not be granted without there being produced with the initial writ—

a the decree in question or a certified copy of the decree;

b the marriage extract or equivalent document to which the action relates.

5 Where a document produced under paragraph (4)(a) or (b) is not in English it shall, unless the sheriff otherwise directs, be accompanied by a translation certified by a notary public or authenticated by affidavit.

6 For the purposes of this rule, proceedings are continuing at any time after they have commenced and before they are finally disposed of.

CHAPTER 33A CIVIL PARTNERSHIP ACTIONS¶

GENERAL PROVISIONS¶

PART I

33A Interpretation of this Chapter¶

1 In this Chapter, “civil partnership action” means–

a an action of dissolution of civil partnership;

b an action of separation of civil partners;

c an action or application for an order under Chapter 3 or Chapter 4 of Part 3 of the Act of 2004;

d an application for a declarator or other order under section 127 of the Act of 2004;

e an action or application for financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004;

f an action for declarator of nullity of civil partnership.

2 In this Chapter, unless the context otherwise requires–

“the Act of 1985” means the Family Law (Scotland) Act 1985 ^M68;
“the Act of 1995” means the Children (Scotland) Act 1995 ^M69;
“the Act of 2004” means the Civil Partnership Act 2004 ^M70;
“civil partnership” has the meaning assigned in section 1(1) of the Act of 2004;
“contact order” has the meaning assigned in section 11(2)(d) of the Act of 1995;
“Gender Recognition Panel” is to be construed in accordance with Schedule 1 to the Gender Recognition Act 2004 ^M71;
“incapable” means incapable, by reason of mental disorder, of—
1. acting;
2. making decisions;
3. communicating decisions;
4. understanding decisions; or
5. retaining the memory of decisions,
but a person is not incapable by reason only of a lack of deficiency in a faculty of communication where that lack or deficiency can be made good by human or mechanical aid (whether of an interpretative nature or otherwise);
“interim gender recognition certificate” means the certificate issued under section 4 of the Gender Recognition Act 2004;
“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ^M72;
“mental disorder” has the meaning assigned in section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 ^M73;
“order for financial provision” means, except in Part VII of this Chapter (financial provision after overseas proceedings as provided for in Schedule 11 to the Act of 2004), an order mentioned in section 8(1) of the Act of 1985;
“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;
“relevant interdict” has the meaning assigned in section 113(2) of the Act of 2004;
“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 ^M74.

3 For the purposes of rules 33A.2 (averments in actions of dissolution of civil partnership or separation of civil partners about other proceedings) and 33A.3 (averments where section 11 order sought) and, in relation to proceedings in another jurisdiction, Part XIII of this Chapter (sisting of civil partnership actions in Scotland), proceedings are continuing at any time after they have commenced and before they are finally disposed of.

33A Averments in certain civil partnership actions about other proceedings¶

1 This rule applies to an action of dissolution or declarator of nullity of civil partnership or separation of civil partners.

2 In an action to which this rule applies, the pursuer shall state in the condescendence of the initial writ–

a whether to his knowledge any proceedings are continuing in Scotland or in any other country in respect of the civil partnership to which the initial writ 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 before the sheriff should be sisted under Part XIII of this Chapter.

3 Where–

a such proceedings are continuing;

b the action before the sheriff is defended; and

c either–

i the initial writ does not contain the statement referred to in paragraph (2)(a); or

ii the particulars mentioned in paragraph (2)(b) as set out in the initial writ 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).

33A Averments where section 11 order sought¶

1 A party to a civil partnership action who makes an application in that action for a section 11 order in respect of a child shall include in his pleadings–

a where that action is an action of dissolution or declarator of nullity of civil partnership or separation of civil partners, 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 section 11 order is sought;

b in any other civil partnership action–

i the averments mentioned in 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 civil partnership of either 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 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 party to the civil partnership 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 101(7) of the Act of 2004.

33A Averments where identity or address of person not known¶

In a civil partnership action, where the identity or address of any person referred to in rule 33A.7 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.

33A Averments about maintenance orders¶

In a civil partnership 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 ^F246) has been granted in favour of or against that party or of any other person in respect of whom the order is sought.

33A Averments where aliment or financial provision sought¶

1 In this rule–

“the Act of 1991” means the Child Support Act 1991 ^F247;
“child” has the meaning assigned in section 55 of the Act of 1991;
“crave relating to aliment” means–
1. for the purposes of paragraph (2), a crave for decree of aliment in relation to a child or for recall or variation of such a decree; and
2. for the purposes of paragraph (3), a crave 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 calculation” has the meaning assigned in section 54 of the Act of 1991.

2 A civil partnership action containing a crave relating to aliment and to which section 8(6), (7), (8), or (10) of the Act of 1991 ^F248 (top up maintenance orders) applies shall–

a include averments stating, where appropriate–

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

ii the date of the maintenance calculation;

iii the amount and frequency of periodical payments of child support maintenance fixed by the maintenance calculation; and

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

3 A civil partnership action containing a crave relating to aliment, and 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; or

b that the child is not a child within the meaning of section 55 of that Act.

4 A civil partnership 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 sheriff on cause shown otherwise directs, be accompanied by any document issued by the Secretary of State to the parties intimating that decision.

33A Warrants and forms for intimation¶

1 Subject to paragraph (5) and rule 33A.7A (warrants and forms for intimation to a child and for seeking a child’s views), in the initial writ in a civil partnership action, the pursuer shall include a crave for 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 person who was a child of the family (within the meaning of section 101(7) of the Act of 2004) and 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, and a notice of intimation in Form CP1 shall be attached to the copy of the initial writ intimated to any such person;

b 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 any person who holds the office of guardian, or continuing or welfare attorney to the defender under or by virtue of the Adults with Incapacity (Scotland) Act 2000 ^M75,

and a notice of intimation in Form CP2 shall be attached to the copy of the initial writ intimated to any such person;

c in an action of dissolution or declarator of nullity of civil partnership or separation of civil partners where the sheriff may make a section 11 order in respect of a child–

i who is in the care of a local authority, to that authority and a notice of intimation in Form CP3 shall be attached to the initial writ intimated to that authority;

ii who, being a child of one party to the civil partnership, has been accepted as a child of the family by the other party to the civil partnership and who is liable to be maintained by a third party, to that third party, and a notice of intimation in Form CP3 shall be attached to the initial writ intimated to that third party; or

iii in respect of whom a third party in fact exercises care or control, to that third party, and a notice of intimation in Form CP4 shall be attached to the initial writ intimated to that third party;

d in an action where the pursuer craves a section 11 order, to any parent or guardian of the child who is not a party to the action, and a notice of intimation in Form CP5 shall be attached to the initial writ intimated to any such parent or guardian;

^F458e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F865f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

g in an action where the pursuer makes an application for an order under section 8(1)(aa) of the Act of 1985 ^M76 (transfer of property) and–

i the consent of a third party to such a transfer is necessary by virtue of an obligation, enactment or rule of law, or

ii the property is subject to a security,

to the third party or creditor, as the case may be, and a notice of intimation in Form CP8 shall be attached to the initial writ intimated to any such person;

h 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,

and a notice of intimation in Form CP9 shall be attached to the initial writ intimated to any such person;

i in an action where the pursuer makes an application for an order under Chapter 3 of Part 3 of the Act of 2004, where the application is under section 102(1)(e), 102(4)(a), 103(1), 103(2), 104, 107 or 112 of that Act, and the entitled civil partner is a tenant or occupies the family home by permission of a third party, to the landlord or the third party, as the case may be and a notice of intimation in Form CP10 shall be attached to the initial writ intimated to any such person;

j in an action where the pursuer makes an application for an order under section 8(1)(ba) of the Act of 1985 ^M77 (orders under section 12A of the Act of 1985 for pension lump sum), to the person responsible for the pension arrangement, and a notice of intimation in Form CP11 shall be attached to the initial writ intimated to any such person; ^F596...

k in an action where a pursuer makes an application for an order under section 8(1)(baa) of the Act of 1985 ^M78 (pension sharing orders), to the person responsible for the pension arrangement and a notice of intimation in Form CP12 shall be attached to the initial writ intimated to any such person.

l in an action where a pursuer makes an application for an order under section 8(1)(bab) of the Act of 1985 (pension compensation sharing order), to the Board of the Pension Protection Fund, and a notice of intimation in Form CP12A shall be attached to the initial writ intimated to that Board; and

m in an action where a pursuer makes an application for an order under section 8(1)(bb) of the Act of 1985 (an order under section 12B(2) of the Act of 1985 for pension compensation), to the Board of the Pension Protection Fund and a notice of intimation in Form CP12B shall be attached to the initial writ intimated to that Board.

2 Expressions used in paragraph (1)(i) which are also used in Chapter 3 of Part 3 of the Act of 2004 have the same meaning as in that Chapter.

3 A notice of intimation under paragraph (1) shall be on a period of notice of 21 days unless the sheriff otherwise orders; but the sheriff shall not order a period of notice of less than 2 days.

^F4394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 Where the address of a person mentioned in paragraph (1)(c), (d), ^F866... (g), (h), (i), (j) or (k) or a child mentioned in rule 33A.7A(1) is not known and cannot reasonably be ascertained, the pursuer shall include a crave in the initial writ to dispense with intimation; and the sheriff may grant that crave or make such other order as he thinks fit.

6 Where the identity or address of a person to whom intimation of a civil partnership 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 lodge a motion for a warrant for intimation to that person or to dispense with such intimation.

^F8687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33A.7A Warrants and forms for intimation to a child and for seeking a child’s views¶