The Rules of the Scottish Land Court Order 2014

• (c) the court has, at any time, and on such conditions as it may specify, appointed a different period.

• (3) On receipt of the account the auditor is to send a copy of it to the party found liable in expenses and is to intimate to that party that any challenge to the account must—

• (a) be by written submission lodged with the auditor within 4 weeks after intimation under this paragraph;

• (b) identify each item challenged; and

• (c) state concisely on what grounds the challenge is made.

• (4) On receipt of any such written submissions the auditor is to send a copy of them to the party entitled to expenses and to invite that party to answer them, in writing, within 2 weeks after receipt of the copy.

• (5) On receipt of answers under paragraph (4) the auditor is to send a copy of them to the party found liable in expenses.

• (6) The auditor may, on cause shown, extend the periods specified in type=start slip=2016-08-01 time=1472135073179paragraphs (3) and (4)type=end slip=2016-08-01 time=1472135073179.

• (7) Where—

• (a) no submissions are lodged within the period mentioned in paragraph (3)(a) or such extended period as the auditor may allow;

• (b) submissions are so lodged but no answers are lodged within the period mentioned in paragraph (4) or such extended period as the auditor may allow; or

• (c) submissions and answers are duly lodged under paragraphs (3)(a) and (4) or within such extended period or periods as the auditor may have allowed,

the auditor is to proceed to tax the account taking into consideration any submissions and answers timeously lodged.

• (8) In taxing the account the auditor may consider whether any item of account has been properly charged even where that item has not been challenged and may add to the account any item which she considers might properly have been included in the account.

Diet of taxation

97

• (1) The auditor of court may at any time fix a diet of taxation in substitution for all or part of the procedures provided for in rule 96(3) to (7).

• (2) Where a diet of taxation is fixed under paragraph (1), the party found liable in expenses must, no later than 2 weeks before the diet, by written submission to the auditor identify any item of expenses challenged, stating concisely on what grounds the challenge is made.

• (3) A party who lodges a written submission type=start slip=2016-08-01 time=1472135108867under paragraph (2) musttype=end slip=2016-08-01 time=1472135108867 send a copy of that submission to the party found entitled to expenses.

• (4) At taxation the party found liable in expenses is not entitled to be heard in relation to any item unless intimation has been given in terms of paragraph (3), but the auditor may allow the party to be heard if satisfied that failure to give such intimation arose because of mistake, oversight or other excusable cause.

Report on taxation and objections

98

• (1) After the account has been taxed, the(4) auditor is to prepare a report on the taxation, stating the amount of the expenses as taxed, and is to send a copy of the report to the parties.

• (2) Where a party has, in a written submission or at a diet of taxation, requested the auditor to give written reasons as to any matter, the report is to include a statement of those reasons.

• (3) Within 1 week after receiving a copy of the report a party who considers the auditor has erred in any respect may request the auditor to reconsider any matter and provide such material in support of such request as will enable the auditor properly to reconsider the matter.

• (4) Within 3 weeks after receiving a copy of the report a party who considers that the auditor has erred on a point of law may lodge a note of objection in that regard with the Principal Clerk.

• (5) Any such note must set out the party’s objection together with either—

• (a) a statement of the grounds of objection; or

• (b) a request that the auditor be required to submit a statement in relation to such matters as may be specified in the note (being matters relevant to what is contained, as respects the point of law, in the report).

• (6) The court is to make such order for further procedure as respects a type=start slip=2016-08-01 time=1472135136273note of objection lodgedtype=end slip=2016-08-01 time=1472135136273 under paragraph (4) as it thinks fit.

Fees allowed at taxation

99

• (1) The fees allowed to solicitors at taxation are to accord with those for the time being payable in ordinary actions in the sheriff court except in so far as the court may, as regards a particular case, order otherwise.

• (2) The auditor may, if satisfied that it is in the interests of justice and fairness, allow interest on outlays incurred more than 18 months prior to the date of the order awarding expenses, at such rate or rates as the auditor considers appropriate.

Rights of audience, duties of representatives etc.

Rights of audience etc.

100

• (1) A party who is a natural person is entitled to act and appear on the party’s own behalf.

• (2) A party is entitled to be represented (either or both)—

• (a) by a solicitor;

• (b) by an advocate.

• (3) A party may, with the permission of the court, be represented by—

• (a) a member of the party’s family as defined in section 71 of the Agricultural Holdings (Scotland) Act 2003 unless the court is satisfied that it would not be consistent with the just disposal of the case in accordance with rule 1;

• (b) any other person where the court is satisfied that the person is likely to be able to present the party’s case efficiently and to assist the court in reaching a just result in accordance with rule 1.

• (4) Representation permitted under paragraph (3) may, if the court thinks fit, be confined to representation (either or both)—

• (a) during a stage in proceedings;

• (b) for a purpose,

specified by the court.

Party to be satisfied as to assertions in written pleadings

101

It is the duty of any person by whom a party is represented to ensure—

• (a) that the party has had the opportunity to consider any assertions of fact in the party’s application, answers, replies, objections or other written pleadings; and

• (b) that the party is satisfied that those assertions are accurate and not misleading.

General provisions

Postponement or adjournment

102

A sitting or hearing may be postponed or adjourned by the court to—

• (a) a time or date and time fixed by it; or

• (b) a date and time to be fixed by it.

Language and special requirements

103

• (1) Subject to the following provisions of this rule, the proceedings of the court are to be conducted in English.

• (2) A party may employ Gaelic in any part of the proceedings if the party—

• (a) requests to do so; and

• (b) gives reasonable notice in that regard to the court,

unless the court is satisfied that it would be unjust or unfair to grant the request.

• (3) Where the court grants such request, it is to make such arrangements for the attendance at the proceedings of an interpreter as appear to it to be appropriate.

• (4) A party or witness who is unable to understand English or who has difficulty in understanding it must, as soon as is reasonably practicable, advise the court of that fact.

• (5) The court on being so advised (or on becoming aware of that fact other than on receiving such advice), is to make such arrangements for the attendance at the proceedings of an interpreter as appear to it to be appropriate.

• (6) Where by reason of the mental or physical disability of a person who is a party, witness or representative it is necessary or desirable that special arrangements be made in relation to the attendance of the person at the proceedings, the person must, as soon as is reasonably practicable, advise the court of that fact.

• (7) The court on being so advised (or on becoming aware of that fact other than on receiving such advice), is to make such arrangements in relation to that attendance as appear to it to be appropriate.

Fees

104

• (1) There must be paid to the court, as and when required by the Principal Clerk, the fee for lodging an application and such other fees as may be specified in the Table of Fees.

• (2) The Principal Clerk—

• (a) is entitled to refuse to accept an application or motion in relation to which paragraph (1) is not complied with; but

• (b) may accept it subject to the condition that if the appropriate fee is not paid within 1 week after such acceptance—

• (i) an application which is an initial application is to be deemed not to have been made; and

• (ii) any other application and any motion may be so deemed.

• (3) The court may at its own instance sist at any time a case in respect of which a fee is outstanding.

• (4) A fee may be paid in any way approved by the Principal Clerk; and such approval may be intimated by way of practice note, via the court’s website or individually to a party.

Lodging by electronic communication

105

• (1) Applications, pleadings, productions and any other documents capable of being—

• (a) transmitted and received in legible form by electronic means; and

• (b) readily converted to hard copy by the recipient,

may be lodged with the court by such means.

• (2) Any document lodged with the court by electronic means must also be provided to the court in hard copy.

• (3) Where reasonably practicable, the contents of any documents lodged with the court in hard copy are also to be provided to the court in electronic form. (3)

Provision of copies

106

• (1) Where a party lodges with the court any document which requires to be intimated to another party or other parties, the party lodging the document must also provide to the court sufficient hard copies of the document for one to be sent by the Principal Clerk to each of the other parties.

• (2) Where a party has failed, following a request from the Principal Clerk, to provide sufficient hard copies of a document which requires to be intimated to allow one to be sent to each of the other parties, the Principal Clerk may—

• (a) return the document to the party who lodged it and advise that party that the document will not be intimated until the requisite number of hard copies has been provided; or

• (b) if practicable, have sufficient hard copies of the document made for the purposes of intimation.

• (3) Where the Principal Clerk instructs copies to be made in accordance with paragraph (2)(b), the party lodging the document shall be liable to pay the fee for copying as prescribed by the Table of Fees.

• (4) Where a document has been lodged by electronic means, and the Principal Clerk is satisfied that intimation of the document to the appropriate parties may satisfactorily be achieved by electronic means, she may dispense with the requirement for intimation copies to be provided, but the principal hard copy of the document must still be provided in accordance with rule 105(2).

Intimation

107

• (1) Subject to the provisions of these rules, intimation of an application, or of anything required to be intimated in the proceedings as respects any case, is to be effected by the Principal Clerk.

• (2) But the court or the Principal Clerk may direct that anything required to be intimated in respect of a case is intimated by a party or parties direct to the other party or parties, and may specify the manner by which and the time within which such intimation is to be effected.

• (3) Where the Principal Clerk is satisfied that the application or other item, and the copies provided or made in accordance with rule 106, are in proper form and that the appropriate fee has been paid, the Principal Clerk is to intimate the application or other item (including in the intimation a copy of the order of the court as to when and how any response is to be made) by sending to each of the appropriate recipients one of the copies—

• (a) by a registered post service or by a postal service which provides for delivery to be recorded and seeks to effect delivery no later than the next working day in all or the majority of cases;

• (b) where the recipient has provided details of a document exchange system of which the recipient is a member, by means of that system; or

• (c) by electronic communication.

• (4) But intimation by electronic communication is to be used only where the Principal Clerk is satisfied that arrangements are in place for the communication to be—

• (a) received in legible form; and

• (b) kept by the recipient in a form capable of being used for subsequent reference,

and for its receipt to be electronically or otherwise acknowledged.

• (5) Where intimation is by a postal service, the envelope within which the intimation is contained is to bear on its outside a label, firmly attached and clearly visible, stating “This envelope contains an intimation from the Scottish Land Court. If delivery cannot be effected it is requested that the envelope be returned without delay to the Principal Clerk, Scottish Land Court, 126 George Street, Edinburgh EH2 4HH.”.

• (6) In any application where neither the respondent’s address nor the address of any agent or factor acting for the respondent is known to, or readily ascertainable by, the applicant the court may allow or direct the applicant to intimate the application, or other item required to be intimated,—

• (a) by publication of an advertisement, in such form as the court may order, in a newspaper circulating—

• (i) in the district in which the land to which the application relates is situated, or in which the last known address of the respondent is situated; or

• (ii) in such other place as the court may order, or

• (b) in such other manner as the court may order.

• (7) For the purpose of these rules, anything posted is to be taken to be sent on the day of posting, anything sent through a document exchange is to be taken to be sent on the day it was left at the document exchange and anything sent by electronic communication is to be taken to be sent on the day of transmission.

• (8) Any period which, in terms of these rules or in terms of an order of the court, is to run from intimation is to be taken to run from the end of the day after intimation is sent.

• (9) Subject to paragraphs (10) and (11), intimation of anything to a landlord is effected by sending it—

• (a) to the landlord; or

• (b) to the landlord’s factor, solicitor or other agent if that factor, solicitor or agent is the person to whom rent for the land to which the application relates is normally paid.

• (10) Where in any application a party is represented in the proceedings by a solicitor, factor or other agent, then unless and until the other parties and the Principal Clerk are notified that the solicitor, factor or agent has ceased to act for the party intimation to the party may be effected by intimation to the representative at that person’s office or place of business.

• (11) Intimation of anything to a body corporate, partnership or other unincorporated body is effected by sending it, under the name or description which the body or partnership ordinarily uses—

• (a) to the principal office or place of business of the body or partnership; or

• (b) if that principal office or place of business is not in Scotland, either to that principal office or place of business or to any office or place within Scotland (including the office of a clerk, secretary or representative) where the body or partnership carries on business.

• (12) In any application relating to a common grazing, if the total number of relevant persons exceeds 10 the court may direct that, rather than for there to be intimation in any other way, the applicant is to intimate the application, or the applicant or any other party is to intimate any proceedings in the application—

• (a) by publication of an advertisement, in such form as the court may order, in a newspaper circulating in the district in which the land to which the application relates is situated; or

• (b) in such other manner (which may include intimation to the clerk of the grazings committee) as the court thinks fit.

• (13) For the purposes of paragraph (12), a relevant person is one—

• (a) named as a respondent or as a person who may have an interest to respond; or

• (b) to whom the court considers intimation would be appropriate.

Dispensing with intimation

108

• (1) A respondent in an application or any person made a party to it may agree to dispense with intimation in the proceedings.

• (2) Any such agreement must be—

• (a) by signed endorsement on the application;

• (b) by formal minute lodged with the court;

• (c) by statement in open court; or

• (d) by letter—

• (i) to the person whose motion or request to the court would, but for the agreement, require to be intimated; or

• (ii) to the Principal Clerk.

Evidence of intimation

109

• (1) Where intimation is made by advertisement under paragraph (6)(a) or (12)(a) of rule 107, a copy of the page on which the advertisement was published is to be lodged with the court as soon after the advertisement has appeared as is reasonably practicable, and such copy is sufficient evidence of intimation provided that it contains the name of the newspaper and the date of publication.

• (2) In relation to intimation effected in accordance with rule 107(3)(a) or ordered by the court to be effected by a postal service the relevant receipt of the postal service for a delivery certified by the Principal Clerk (or otherwise proved) to have contained a true copy of the application or thing intimated is sufficient proof of intimation having been effected at the time at which the delivery would ordinarily have taken place.

• (3) In relation to intimation effected in accordance with rule 107(3)(b), a certificate by the Principal Clerk that a copy of the item requiring intimation was left at the document exchange for the recipient on the date of certification is to be taken to be sufficient proof of intimation having been effected no later than the end of the next day on which the item would ordinarily have been available for collection by the recipient.

• (4) In relation to intimation effected in accordance with rule 107(3)(c), a certificate by the Principal Clerk that a copy of the item requiring intimation was sent to the recipient’s email address on the date of certification is to be taken to be sufficient proof of intimation having been effected no later than the end of the next day following the date of transmission.

• (5) Intimation is to be taken to have been made to the person to whom it was intended to be made if it was addressed to the person at the last known residence, place of business or email address of the person (unless it is proved that it was not made to the person).

Insufficiency or irregularity in intimation

110

• (1) If—

• (a) there has been an insufficiency or irregularity in intimation to a person and that person has not appeared in court or lodged objections, answers or other pleadings; and

• (b) it seems to the court expedient that intimation to that person should be made anew or in some other or further manner than is provided for in rule 107,

the court may grant authorisation or make a direction accordingly.

• (2) Any such authorisation or direction of the court may include provision for intimation—

• (a) by sheriff officers in accordance with the procedures of the sheriff court; or

• (b) by any other person in a manner authorised by the court and on such conditions as the court thinks fit.

Orders etc. of the court

111

• (1) Every order of the court is to be—

• (a) in writing; and

• (b) signed or otherwise authenticated by a clerk or member,

unless it is an order made in the course of a hearing and regulating procedure in the case.

• (2) Any member of the court or the Principal Clerk may sign an order which—

• (a) appoints—

• (i) answers, replies, objections, minutes, statements or other pleadings; or

• (ii) documents or articles founded on by a party,

to be lodged with the Principal Clerk,

• (b) directs service to be made, or notice or intimation to be given, to a party;

• (c) grants an unopposed motion for an order requiring a (c)witness or haver to attend at a specified time and place for the purpose of (either or both)—

• (i) giving evidence;

• (ii) producing documents or articles;

• (d) fixes or alters the date of a sitting;

• (e) requires borrowed productions to be returned; or

• (f) is a record of an order pronounced in the course of a sitting.

• (3) Any member of the court may sign an order—

• (a) in an unopposed application; or

• (b) which—

• (i) gives effect to a joint minute for parties; or

• (ii) allows an application or appeal, or a motion for rehearing in an application or appeal, to be, by consent of all parties, amended, abandoned or withdrawn.

• (4) Where an order comprising a finding or determination of the court is not signed by all members of the court which heard the case it must be signed by at least one member and certified by a clerk or member as having been agreed by all non-signing members.

• (5) Where a member of the court which heard a case dissents from a finding or determination of that court, the member may by note appended to the order in question record such dissent.

• (6) Where the court which made an order is satisfied—

• (a) that the order does not accurately reflect the intention of the court; and

• (b) that no party who has acted in the reasonable belief that the order was correct would be materially prejudiced were the order changed so that it did so reflect that intention,

the court may, at its own instance or on the motion of a party, change the order accordingly.

• (7) An extract or copy of an order of the court is, if it is required for the purposes of any proceedings (whether before a court of law or otherwise), to be authenticated by the signature of—

• (a) a member of the court; or

• (b) the Principal Clerk,

and is to be sealed with the seal of the court before being issued.

• (8) type=start slip=2016-08-01 time=1472135198758type=end slip=2016-08-01 time=1472135198758The Principal Clerk, on being satisfied that a person requesting an extract of an order of the court has a proper interest to receive it, is to issue that extract to the person free of charge.

• (9) Such an extract may include a warrant for execution in the terms “and the court grants warrant for all lawful execution hereon”.

• (10) Paragraphs (8) and (9) do not apply to an order as regards which the time limit for lodging an appeal has not yet expired.

Payments into court

112

• (1) Any sum of money which a party desires, or is ordered, to pay into court for any purpose is to be—

• (a) consigned in the hands of the Principal Clerk; and

• (b) held by the Principal Clerk subject to the directions of the court,

in the same manner as in an ordinary action in the sheriff court.

• (2) No money so consigned is to be paid or uplifted without either—

• (a) leave of the court; or

• (b) the consent in writing of all interested parties.

Time limits

113

Subject to any express provision in these rules the court may set such time limits as it considers appropriate for compliance with any order it makes.

Non-compliance with a rule or order

114

• (1) If a party fails to comply with a rule or order of the court, the court may—

• (a) in the event of failure by an applicant, dismiss the case or make such finding in favour of the respondent as it thinks appropriate;

• (b) in the event of failure by a respondent, repel any pleas, objections or claims made by the respondent and grant the application or make an order in favour of the applicant as it thinks appropriate; or

• (c) relieve the party from the consequences of the failure if the court considers it reasonable to do so, on such terms and conditions as to expenses or otherwise as it considers just.

• (2) Where the court so relieves a party under paragraph (1)(c) it may pronounce such order as it thinks fit to enable the case to proceed as if the failure had not occurred.

• (3) But the court is not to relieve a party, under paragraph (1)(c), from the consequences of a failure to comply with the time limits imposed by type=start slip=2016-08-01 time=1472135248118rule 64(3) ortype=start slip=2016-08-01 time=1472135275853 rule 83(1) unless satisfied that the failure is wholly attributable to some cause outwith the control of the party.

Extension of time and taking procedural step out of time

115

• (1) Where it is competent to do so, (1)a party may request the court for—

• (a) an extension of time; or

• (b) permission to take a procedural step out of time.

• (2) type=end slip=2016-08-01 time=1472135275853The court maytype=start slip=2016-08-01 time=1472135297166 grant or refuse such a request without hearing the other party.

• (3) Where granting such a request the court may make such order as to expenses as it considers just and proportionate to mark the failure to comply.

Calculation of time

116

Where any period of time specified in these rules or in any order of the court ends on a day which is a Saturday or Sunday or on a day which is not a working day for the court, the period is to be taken as expiring at the end of the first working day thereafter.

Transition and citation

Transitional provision

117

The Principal Clerk shall give such directions in relation to any individual case or type of case as appear necessary to allow a smooth transition to use of these rules and, in particular, may excuse compliance with such provision of these rules as may appear to conflict with the reasonable expectations of parties as to procedure in respect of cases which commenced before the coming into effect of these rules.

Citation

118

These rules may be cited as the Rules of the Scottish Land Court 2014.

Signed

JAMES M. McGHIE — RODERICK J. MacLEOD — DAVID J. HOUSTON — ANGUS MacDONALD — JOHN A. SMITH — 13th August 2014

ROSEANNA CUNNINGHAM — Authorised to sign by the Scottish Ministers

19th August 2014

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

These Rules govern the practice and procedure to be followed in the Scottish Land Court with type=end slip=2016-08-01 time=1472135297166effect from 22nd Septembertype=start slip=2016-08-01 time=1472135322354 2014. They replace the previous Rules which are revoked.

Rule 1 sets out the overriding purpose of the rules.

Rule 2 contains interpretation provisions.

Rules 3 to 13 make general provision regarding the making of applications and their acceptance by the court, the amendment, clarification and further specification of matters referred to in applications, the conjoining of applications and the appointment of a curator ad litem to a party in a case or a solicitor or advocate to assist the court.

Rules 14 and 15 deal with answers or responses and with the adjustment of pleadings.

Rules 16 and 17 provide for the making of procedural orders in specific cases.

Rule 18 deals with the delegation of cases to a divisional court.

Rules 19 to 46 make provision about miscellaneous matters relating to hearings and the taking of evidence, including the fixing of dates, preparation and lodging of material in advance of a proof, witnesses and witness statements, appointment of commissioners, reporters and assessors, and inspection of land or buildings by the court.

Rule 47 provides for the court to determine a case without a hearing.

Rule 48 provides for the court itself to obtain information relevant to a case if it thinks fit.

Rules 49 to 51 type=end slip=2016-08-01 time=1472135322354provide for the exhibitiontype=start slip=2016-08-01 time=1472135371058 or borrowing of the process of an application and for the retention or return of documents after a case is finished.

Rules 52 and 53 deal with sisting of cases and inactive cases.

Rules 54 to 57 provide for a party to be restored to a case and for orders to be recalled in certain circumstances.

Rules 58 to 63 make provision regarding appeals to the court from the decisions of other bodies, such as the Crofting Commission.

Rules 64 to 73 make provision regarding appeals from decisions of a divisional court.

Rules 74 to 81 provide for the re-hearing of a case in whole or part in specified circumstances.

Rules 82 to 87 make provision regarding appeals from the court to the Court of Session.

Rules 88 to 95 deal with expenses, including the expenses of party litigants and charges for skilled persons.

Rules 96 to 99 deal with the taxation of accounts of expenses by the auditor of court.

Rules 100 and 101 deal with rights of audience and the duties of representatives.

Rules 102 to 116 deal with general matters including payment of fees, lodging of documents by electronic communication, the provision of copies, intimation, the signing and authentication of orders, non-compliance with orders and the calculation of time limits.

Rule 117 contains transitional provisions and rule 118 provides for citation.

Footnotes

[^f00001]: 1993 c.45. Paragraph 12 of Schedule 1 has been amended by the Crofting Reform etc. Act 2007 (asp 7) section 34(7)(a). The functions of the Secretary of State and the Treasury were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).

[^f00002]: S.I. 1992/2656.

[^f00003]: S.I. 1996/680.