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Act of Sederunt (Sheriff Appeal Court Rules) 2021

Type Scottish-Statutory-Instrument

Publication 2021-12-09

Last updated 2025-01-01

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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(a) sustain or repel any objection in the note of objection or remit the account of expenses to the auditor of court for further consideration;

(b) find any party liable in the expenses of the procedure on the note of objection.

Decree for expenses in name of solicitor

20.6

The Court may allow a decree for expenses to be extracted in the name of the solicitor who conducted the appeal.

Expenses of curator ad litem appointed to a respondent

20.7

(1) This rule applies where a curator ad litem is appointed to any respondent to an appeal.

(2) The appellant is responsible in the first instance for the payment of the expenses of a curator ad litem mentioned in paragraph (3).

(3) Those expenses are any fees of the curator ad litem and any outlays incurred by the curator from the date of appointment until any of the following steps occur—

(a) the lodging of a minute stating that the curator does not intend to lodge answers to the note of appeal;

(b) the lodging of answers by the curator, or the adoption of answers that have already been lodged; or

CHAPTER 21 — QUALIFIED ONE-WAY COSTS SHIFTING

Application and interpretation of this Chapter

21.1

(1) This Chapter applies in civil proceedings, where either or both—

(a) an application for an award of expenses is made to the Court;

(b) such an award is made by the Court.

(2) Where this Chapter applies—

(a) rules 10.1(5) and (6);

(b) any common law rule entitling a pursuer to abandon an appeal, to the extent that it concerns expenses,

are disapplied.

(3) In this Chapter—

“the 2018 Act” means the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018[^f00018];

“the applicant” has the meaning given in rule 21.2(1), and “applicants” is construed accordingly;

“civil proceedings” means civil proceedings to which section 8 of the 2018 Act (restriction on pursuer’s liability for expenses in personal injury claims) applies.

Application for an award of expenses

21.2

(1) Where civil proceedings have been brought by a pursuer, another party to the action (“the applicant”) may make an application to the Court 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 2018 Act;

(b) paragraph (2) of this rule.

(2) The grounds specified in this paragraph, which are exceptions to section 8(2) of the 2018 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;

Award of expenses

21.3

(1) Subject to paragraph (2), the determination of an application made under rule 21.2(1) is at the discretion of the Court.

(2) Where, having determined an application made under rule 21.2(1), the Court makes an award of expenses against the pursuer on the ground specified in rule21.2(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, who lodged 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 Court 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 sum in terms of rule 20.1(2), that such sum 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 Court, failing agreement between the applicants, must apportion the award of expenses recoverable under the tender procedure between them.

(3) In the event that the Court makes an award of expenses against the pursuer on the ground specified in rule 21.2(2)(c), the Court may make such orders in respect of expenses, subject to such conditions, if any, as it considers appropriate.

Procedure

21.4

(1) An application under rule 21.2(1)—

(a) must be made by motion, in writing;

(b) may be made at any stage in the case prior to the granting of an order disposing of the expenses of the appeal.

(2) Where an application under rule 21.2(1) is made, the Court may make such orders as it 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;

(d) fixing a hearing.

Award against legal representatives

21.5

Section 8(2) of the 2018 Act does not prevent the Court from making an award of expenses against a pursuer’s legal representative in terms of section 11 (awards of expenses against legal representatives) of that Act.

PART 6 — INCIDENTAL PROCEDURE: SPECIAL PROCEDURES

CHAPTER 22 — COMPATIBILITY QUESTIONS AND DEVOLUTION ISSUES

Interpretation

22.1

In this Chapter—

“the 2024 Act” means the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024;

“compatibility question” has the meaning given by section 31(1) of the 2024 Act;

“devolution issue” means a devolution issue under—Schedule 6 of the Scotland Act 1998;Schedule 10 of the Northern Ireland Act 1998;Schedule 9 of the Government of Wales Act 2006,

and any reference to Schedule 6, Schedule 10 or Schedule 9 is a reference to that Schedule in that Act;

“relevant authority” means—in respect of a compatibility question, the Commissioner for Children and Young People in Scotland, the Lord Advocate and the Scottish Commission for Human Rights;in any other case, the Advocate General for Scotland and—in the case of a devolution issue within the meaning of Schedule 6, the Lord Advocate;in the case of a devolution issue within the meaning of Schedule 10, the Attorney General for Northern Ireland, and the First Minister and deputy First Minister acting jointly;in the case of a devolution issue within the meaning of Schedule 9, the Counsel General to the Welsh Government.

Raising a devolution issue

22.2

(1) A compatibility question or devolution issue is raised by specifying a compatibility question or devolution issue in Form 22.2.

(2) A compatibility question or devolution issue in Form 22.2 is to be lodged—

(a) by an appellant, when the note of appeal is lodged;

(b) by a respondent, when answers to the note of appeal are lodged,

unless the Court allows an appellant or a respondent to raise a compatibility question or devolution issue at a later stage in proceedings.

(3) An application to allow a compatibility question or devolution issue to be raised after the note of appeal has been lodged or answers to the note of appeal have been lodged, as the case may be, is to be made by motion.

(4) The party raising a compatibility question or devolution issue must specify, in sufficient detail to enable the Court to determine whether a compatibility question or devolution issue arises—

(a) the facts and circumstances;

(b) the contentions of law,

on the basis of which it is alleged that the compatibility question or devolution issue arises in the appeal.

(5) The Court may not determine a compatibility question or devolution issue unless permission has been given for the compatibility question or devolution issue to proceed.

Raising a devolution issue: intimation and service

22.3

(1) This rule applies to the intimation of—

(a) a compatibility question on a relevant authority under section 34(1) of the 2024 Act;

(b) a devolution issue on a relevant authority under—

(i) paragraph 5 of Schedule 6;

(ii) paragraph 23 of Schedule 10;

(iii) paragraph 14(1) of Schedule 9.

(2) When a compatibility question or devolution issue is raised, the party raising it must intimate it to the relevant authority unless the relevant authority is a party to the appeal.

(3) Within 14 days after intimation, the relevant authority may give notice to the Clerk that it intends to take part in the appeal as a party, as the case may be, under—

(a) section 34(2) of the 2024 Act;

(b) paragraph 6 of Schedule 6;

(d) paragraph 14(2) of Schedule 9.

Raising a devolution issue: permission to proceed

22.4

(1) When a compatibility question or devolution issue is raised, the Clerk must fix a hearing and intimate the date and time of that hearing to the parties.

(2) Within 14 days after the Clerk intimates the date and time of the hearing, each party must lodge a note of argument.

(3) That note of argument must summarise the submissions the party intends to make on the question of whether a compatibility question or, as the case may be, devolution issue arises in the appeal.

(4) At the hearing, the procedural Appeal Sheriff must determine whether a compatibility question or, as the case may be, devolution issue arises in the appeal.

(5) Where the procedural Appeal Sheriff determines that a compatibility question or devolution issue arises, the procedural Appeal Sheriff must grant permission for the compatibility question or devolution issue to proceed.

(6) Where the procedural Appeal Sheriff determines that no compatibility question or devolution issue arises, the procedural Appeal Sheriff must refuse permission for the compatibility question or devolution issue to proceed.

(7) At the hearing the procedural Appeal Sheriff may make any order, including an order concerning expenses.

(8) In this rule, “party” includes a relevant authority that has given notice to the Clerk that it intends to take part in the appeal as a party, and “parties” is construed accordingly.

Participation by the relevant authority

22.5

(1) Paragraph (2) applies where a relevant authority has given notice to the Clerk that it intends to take part in the appeal as a party.

(2) Within 7 days after permission to proceed is given, the relevant authority must lodge a minute containing the relevant authority’s written submissions in respect of the compatibility question or devolution issue.

Reference to the Inner House or Supreme Court

22.6

(1) This rule applies—

(a) to the reference of a compatibility question to the Inner House of the Court of Session for determination under section 35(1) of the 2024 Act;

(b) where the Court has been required by the Lord Advocate to refer a compatibility question to the Supreme Court under section 36 of the 2024 Act;

(i) paragraph 7 of Schedule 6;

(ii) paragraph 25 of Schedule 10;

(iii) paragraph 15 of Schedule 9;

(d) where the Court has been required by a relevant authority to refer a devolution issue to the Supreme Court under—

(i) paragraph 33 of Schedule 6;

(ii) paragraph 33 of Schedule 10;

(iii) paragraph 29 of Schedule 9.

(2) The Court is to make an order concerning the drafting and adjustment of the reference.

(3) The reference must specify—

(a) the questions for the Inner House or the Supreme Court;

(b) the addresses of the parties;

(i) the facts of the case, including any relevant findings of fact;

(ii) the main issues in the case and contentions of the parties with regard to them;

(d) the relevant law including the relevant provisions of the 2024 Act or, as the case may be, the Scotland Act 1998, the Northern Ireland Act 1998 or the Government of Wales Act 2006;

(e) the reasons why an answer to the questions is considered necessary for the purpose of disposing of the proceedings.

(4) The reference must have annexed to it—

(a) a copy of all orders made in the appeal;

(b) a copy of any judgments in the proceedings.

(5) When the reference has been drafted and adjusted, the Court is to make and sign the reference.

(6) The Clerk must—

(a) send a copy of the reference to the parties to the proceedings;

(b) certify on the back of the principal reference that sub-paragraph (a) has been complied with.

Reference to the Inner House or Supreme Court: further procedure

22.7

(1) On a reference being made, the appeal must, unless the Court orders otherwise, be sisted until the compatibility question or devolution issue has been determined.

(2) Despite a reference being made, the Court continues to have the power to make any interim order required in the interests of the parties.

(3) The Court may recall a sist for the purpose of making such interim orders.

(4) On a reference being made the Clerk must send the principal copy of the reference to either (as the case may be)—

(a) the Deputy Principal Clerk of the Court of Session; or

(b) the Registrar of the Supreme Court (together with 7 copies).

(5) Unless the Court orders otherwise, the Clerk must not send the principal copy of the reference where an appeal against the making of the reference is pending.

(6) An appeal is to be treated as pending either—

(a) until the expiry of the time for making that appeal; or

(b) where an appeal has been made, until that appeal has been determined.

Reference to the Inner House or Supreme Court: procedure following determination

22.8

(1) This rule applies where either the Inner House of the Court of Session or the Supreme Court has determined a compatibility question or devolution issue.

(2) Upon receipt of the determination, the Clerk must place a copy of the determination before the Court.

(3) The Court may, on the motion of any party or otherwise, order such further procedure as may be required.

(4) Where the Court makes an order other than on the motion of a party, the Clerk must intimate a copy of the order on all parties to the appeal.

CHAPTER 23 — PRELIMINARY REFERENCES TO THE CJEU – CITIZENS’ RIGHTS

Interpretation of this Chapter

23.1

In this Chapter, “reference” means a reference to the European Court for a preliminary ruling under Article 158 of the Agreement between the European Union and the European Atomic Energy Community and the United Kingdom of Great Britain and Northern Ireland on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community[^f00028].

Applications for a reference

23.2

(1) An application for a reference by a party is to be made by motion.

(2) The Court may make a reference of its own accord.

Preparation of reference

23.3

(1) Where the Court decides that a reference is to be made, it must make an order specifying—

(a) by whom the reference is to be drafted and adjusted;

(b) the periods within which the reference is to be drafted and adjusted.

(2) A reference is to be drafted in Form 23.3 unless the Court directs otherwise when it makes an order under paragraph (1).

(3) In drafting and adjusting the reference, parties are to have regard to the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings issued by the European Court[^f00029].

(4) When the reference has been drafted and any adjustments required by the Court have been made, the Court must make and sign the reference.

(5) When the reference is made, the Clerk must notify the parties.

Transmission of reference to European Court

23.4

A copy of the reference is to be certified by the Clerk and sent to the Registrar of the European Court.

Sist of appeal

23.5

(1) When a reference is made, the Court is to sist the appeal until the European Court determines the reference, unless the Court orders otherwise.

(2) Where an appeal is sisted under paragraph (1), the Court may recall the sist for the purposes of making an interim order.

CHAPTER 24 — STATUTORY INTERVENERS

Application and interpretation of this Chapter

24.1

(1) This Chapter applies to interventions in proceedings by 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 such a person to seek to be sisted as a party to proceedings by virtue of any enactment conferring title and interest on it to do so.

Applications to intervene

24.2

(1) An application for leave to intervene is to be made in Form 24.2.

(2) Such an application must be lodged in the process of the appeal to which it relates.

(3) When an application is lodged, rule 5.2(1) applies as if the applicant were a party.

(4) The parties may request a hearing on the application within 14 days after the application is lodged.

(5) Where a hearing is requested—

(a) the Court must appoint a date and time for a hearing;

(b) the Clerk must notify the date and time of the hearing to the parties and the applicant.

(6) Where no hearing is requested, the Court may appoint a date and time for a hearing of its own accord and the Clerk must notify the date and time of the hearing to the parties and the applicant.

Applications to intervene: determination

24.3

(1) The Court may determine an application for leave to intervene without a hearing, unless a hearing is fixed under rule 24.2(5) or (6).

(2) Where an enactment requires that the Court be satisfied that intervention is likely to assist the Court, it may grant leave to intervene only if it is so satisfied.

(3) Where the Court grants leave to intervene, it may impose any conditions that it considers desirable in the interests of justice.

(4) In particular, the Court may make provision about any additional expenses incurred by the parties as a result of the intervention.

(5) When an application is determined, the Clerk must notify the parties and the applicant of the outcome.

Invitations to intervene

24.4

(1) An invitation from the Court to intervene is to be in Form 24.4.

(1A) Where an enactment requires that the Court be satisfied that intervention is likely to assist the Court, it may invite an intervention only if it is so satisfied.

(2) The Clerk must send a copy of Form 24.4 to the parties to the proceedings and to the invitee.

(3) When the Clerk sends a copy of Form 24.4 to the invitee, the Clerk must also send—

(a) a copy of the note of appeal and any answers to it;

(b) the appeal print, if it is available;

(4) Where the Court invites the invitee to intervene, it may impose any conditions that it considers desirable in the interests of justice.

(5) In particular, the Court may make provision about any additional expenses incurred by the parties as a result of the intervention.

Form of intervention

24.5

(1) An intervention is to be by way of written submission.

(2) A written submission (including any appendices) must not exceed 5,000 words.

(3) The intervener must lodge the written submission within such time as the Court may direct.

(4) In exceptional circumstances, the Court may allow—

(a) a written submission exceeding 5,000 words to be made;

(b) an oral submission to be made.

(5) Where the Court allows an oral submission to be made, it must appoint a date and time for the submission to be made.

(6) The Clerk must notify that date and time to the parties and the intervener.

CHAPTER 25 — PROOF

Taking proof in the course of an appeal

25.1

(1) If it is considered necessary, proof or additional proof may be ordered—

(a) by the procedural Appeal Sheriff at a procedural hearing;

(b) by the Court in the course of an appeal hearing.

(2) Where the procedural Appeal Sheriff orders that proof or additional proof is to be taken—

(a) the procedural Appeal Sheriff must appoint a date and time for a hearing for that to be done;

(b) so far as reasonably practicable, the hearing is to be before the procedural Appeal Sheriff who made the order.

(3) Where the Court orders that proof or additional proof is to be taken, the Court must—

(a) remit the proof to be taken before any Appeal Sheriff;

(b) appoint a date and time for a hearing for that to be done;

(4) Where a hearing is fixed under this rule, the Clerk must notify the date and time of the hearing to the parties.

Preparation for proof

25.2

(1) Where a proof or additional proof is ordered, the Appeal Sheriff before whom it is to be taken must make an order specifying—

(a) the witnesses whose evidence is to be taken;

(b) how those witnesses are to be cited to the hearing.

(2) An order under paragraph (1) may include provision as to liability for the fees and expenses of a witness.

Conduct of proof

25.3

A proof is to be taken continuously so far as possible, but the Appeal Sheriff may adjourn the hearing from time to time.

Administration of oath or affirmation to witnesses

25.4

(1) The Appeal Sheriff is to administer the oath to a witness in Form 25.4-A unless the witness elects to affirm.

(2) Where a witness elects to affirm, the Appeal Sheriff must administer the affirmation in Form25.4-B.

Recording of evidence

25.5

(1) The evidence given at a hearing is to be recorded, unless the parties agree to dispense with the recording of evidence and the Appeal Sheriff considers that it is appropriate to do so.

(2) The evidence must be recorded by—

(a) a shorthand writer to whom the oath de fideli administratione has been administered in connection with the Court; or

(b) by tape recording or other mechanical means approved by the Court.

(3) In the first instance, the solicitors for the parties are personally liable to pay, in equal shares—

(a) the fees of a shorthand writer; or

(b) the fee payable for recording evidence by tape recording or other mechanical means.

(4) The record of evidence is to include—

(a) any objection taken to a question or to the line of evidence;

(b) any submission made in relation to such an objection;

Transcripts of evidence

25.6

(1) A transcript of the record of the evidence is to be made only where the Appeal Sheriff orders it to be made.

(2) In the first instance, the solicitors for the parties are personally liable, in equal shares, for the cost of making the transcript.

(3) The transcript provided for the use of the Court must 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 person who transcribed the record.

(4) The Appeal Sheriff may alter the transcript where the Appeal Sheriff considers it necessary to do so, but only after hearing parties on the proposed alterations.

(5) Where the Appeal Sheriff alters the transcript, the Appeal Sheriff must authenticate the alterations.

(6) The transcript may only be borrowed from process on cause shown.

(7) Where a transcript is required for the purpose of an appeal but the Appeal Sheriff has not directed that it be made—

(a) the appellant may request a transcript from the shorthand writer or the person in whose possession the recording of the evidence is;

(b) in the first instance, the solicitor for the appellant is liable for the cost of the transcript;

(d) any party may obtain a copy by paying the fee of the person who made the transcript.

Recording objections where recording of evidence dispensed with

25.7

Where the recording of evidence has been dispensed with under rule 25.5(1), a party may request that the Appeal Sheriff record in the report of the proof—

(a) any objection taken to a question or to the line of evidence;

(b) any submission made in relation to such an objection; and

CHAPTER 26 — VULNERABLE WITNESSES

Application and interpretation of this Chapter

26.1

(1) This Chapter applies where a proof or an additional proof is ordered to be taken under rule 25.1(1).

(2) In this Chapter—

“the 2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004[^f00032];

“child witness notice” has the meaning given by section 12(2) of the 2004 Act (orders authorising the use of special measures for vulnerable witnesses);

“review application” means an application under section 13(1)(a) of the 2004 Act (review of arrangements for vulnerable witnesses);

“vulnerable witness application” has the meaning given by section 12(6) of the 2004 Act (orders authorising the use of special measures for vulnerable witnesses).

Form of notices and applications

26.2

(1) A child witness notice is to be made in Form 26.2–A.

(2) A vulnerable witness application is to be made in Form 26.2–B.

(3) A review application is to be made—

(a) in Form 26.2–C; or

(b) orally, if the Court grants leave.

Determination of notices and applications

26.3

(1) When a notice or application under this Chapter is lodged, the Court may require any of the parties to provide further information before determining the notice or application.

(2) The Court may—

(a) determine the notice or application by making an order under section 12(1) or (6) or 13(2) of the 2004 Act without holding a hearing;

(b) fix a hearing at which parties are to be heard on the notice or application before determining it.

(3) The Court may make an order altering the date of the proof in order that the notice or application may be determined.

Determination of notices and applications: supplementary orders

26.4

Where the Court determines a notice or application under this Chapter and makes an order under section 12(1) or (6) or 13(2) of the 2004 Act, the Court may make further orders to secure the expeditious disposal of the appeal.

Intimation of orders

26.5

(1) Where the Court makes an order—

(a) fixing a hearing under rule 26.3(2)(b);

(b) altering the date of a proof or other hearing under rule 26.3(3); or

the Clerk must intimate the order in accordance with this rule.

(2) Intimation must be given to—

(a) every party to the proceedings;

(b) any other person named in the order.

(3) Intimation must be made—

(a) on the day that the hearing is fixed or the order is made;

(b) in the manner ordered by the Court.

Taking of evidence by commissioner: preparatory steps

26.6

(1) This rule applies where the Court authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act (taking of evidence by a commissioner).

(2) The commission is to proceed without interrogatories unless the Court otherwise orders.

(3) The order of the Court authorising the special measure is sufficient authority for citing the vulnerable witness to appear before the commissioner.

(4) The party who cited the vulnerable witness—

(a) must give the commissioner—

(i) a certified copy of the order of the Court appointing the commissioner;

(ii) a copy of the appeal documents;

(iii) where rule 26.7 applies, the approved interrogatories and cross-interrogatories;

(b) must instruct the clerk to the commission;

(5) The commissioner is to fix a hearing at which the commission will be carried out.

(6) The commissioner must consult the parties before fixing the hearing.

(7) An application by a party for leave to be present in the room where the commission is carried out is to be made by motion.

(8) In this rule, “appeal documents” means any of the following documents that have been lodged in process by the time the use of the special measure is authorised—

(a) the note of appeal and answers;

(b) where there is a cross-appeal, the grounds of appeal and answers;

(d) the notes of argument.

Taking of evidence by commissioner: interrogatories

26.7

(1) This rule applies where the Court—

(a) authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act; and

(b) orders that interrogatories are to be prepared.

(2) The party who cited the vulnerable witness must lodge draft interrogatories in process.

(3) Any other party may lodge cross-interrogatories.

(4) The parties may adjust their interrogatories and cross-interrogatories.

(5) At the expiry of the adjustment period, the parties must lodge the interrogatories and cross-interrogatories as adjusted in process.

(6) The Court is to resolve any dispute as to the content of the interrogatories and cross-interrogatories, and approve them.

(7) When the Court makes an order for interrogatories to be prepared, it is to specify the periods within which parties must comply with the steps in this rule.

Taking of evidence by commissioner: conduct of commission

26.8

(1) The commissioner must administer the oath de fideli administratione to the clerk.

(2) The commissioner is to administer the oath to the vulnerable witness in Form 25.4-A unless the witness elects to affirm.

(3) Where the witness elects to affirm, the commissioner must administer the affirmation in Form 25.4-B.

Taking of evidence by commissioner: lodging and custody of video record and documents

26.9

(1) The commissioner must lodge the video record of the commission and any relevant documents with the Clerk.

(2) When the video record and any relevant document are lodged, the Clerk must notify every party—

(a) that the video record has been lodged;

(b) whether any relevant documents have been lodged;

(3) The video record and any relevant documents must be kept by the Clerk.

(4) Where the video record has been lodged—

(a) the name and address of the vulnerable witness and the record of the witness’s evidence are to be treated as being in the knowledge of the parties;

(b) the parties need not include—

(i) the name of the witness in any list of witnesses; or

(ii) the record of evidence in any list of productions.

CHAPTER 27 — USE OF LIVE LINKS

Interpretation

27.1

In this Chapter—

“evidence” means the evidence of—the party; ora person who has been or may be cited to appear before the court as a witness;

“live link” means—a live television link; orwhere the Court gives permission in accordance with rule 27.2(4), an alternative arrangement;

“submission” means any oral submission which would otherwise be made to the Court by a party or that party’s representative, including an oral submission in support of a motion.

Application for use of live link

27.2

(1) A party may apply to the Court to use a live link to make a submission or to give evidence.

(2) An application to use a live link is to be made by motion.

(3) Where a party seeks to use a live link other than a live television link, the motion must specify the proposed arrangement.

(4) The Court must not grant a motion to use a live link other than a live television link unless the proposed arrangement meets the requirements in paragraph (5).

(5) The requirements are that the person using the live link is able to—

(a) be seen and heard, or heard without being seen, in the courtroom; and

(b) see and hear, or hear without seeing, the proceedings in the courtroom.

CHAPTER 28 — REPORTING RESTRICTIONS

Application and interpretation of this Chapter

28.1

(1) This Chapter applies to orders which restrict the reporting of proceedings.

(2) In this Chapter “interested person” means a person—

(a) who has asked to see any order made by the Court which restricts the reporting of proceedings, including an interim order; and

(b) whose name is included on a list kept by the Lord President for the purposes of this Chapter.

Interim orders

28.2

(1) Where the Court is considering making an order, the Court must first make an interim order.

(2) The Clerk must immediately send a copy of the interim order to any interested person.

(3) The Court must specify in the interim order why the Court is considering making an order.

Representations

28.3

(1) An interested person who would be directly affected by the making of an order must be given an opportunity to make representations to the Court before the order is made.

(2) Representations must—

(a) be made in Form 28.3;

(b) include reasons why an urgent hearing is necessary, if an urgent hearing is sought;

(c) be lodged no later than 2 days after the interim order is sent to interested persons in accordance with rule 28.2(2).

(3) If representations are made—

(a) the Court must appoint a date and time for a hearing—

(i) on the first suitable court day; or

(ii) where the Court considers that an urgent hearing is necessary, at an earlier date and time;

(b) the Clerk must—

(i) notify the date and time of the hearing to the parties to the proceedings and any person who has made representations;

(ii) send a copy of the representations to the parties.

(4) Where no interested person makes representations in accordance with paragraph (3), the Clerk must put the interim order before the Court in chambers in order that the Court may resume consideration of whether to make an order.

(5) Where the Court, having resumed consideration, makes no order, it must recall the interim order.

(6) Where the Court recalls an interim order, the Clerk must immediately notify any interested person.

Notification of reporting restrictions

28.4

Where the Court makes an order, the Clerk must immediately—

(a) send a copy of the order to any interested person;

(b) arrange for the publication of the making of the order on the Scottish Courts and Tribunals Service website.

Applications for variation or revocation

28.5

(1) A person aggrieved by an order may apply to the Court for its variation or revocation.

(2) An application is to be made in Form 28.5.

(3) When an application is made—

(a) the Court must appoint a date and time for a hearing;

(b) the Clerk must—

(i) notify the date and time of the hearing to the parties to the proceedings and the applicant;

(ii) send a copy of the application to the parties.

(4) The hearing is, so far as reasonably practicable, to be before the Appeal Sheriff or Appeal Sheriffs who made the order.

PART 7 — SPECIAL APPEAL PROCEEDINGS

CHAPTER 29 — APPLICATION FOR NEW JURY TRIAL OR TO ENTER JURY VERDICT

Application of this Chapter

29.1

This Chapter applies to an application—

(a) for a new trial under section 69(1) of the 2014 Act (application for new trial);

(b) to enter a verdict under section 71(2) of the 2014 Act (verdict subject to opinion of the Sheriff Appeal Court).

Form of application for new trial

29.2

(1) An application for a new trial is to be made in Form 29.2.

(2) Such an application must be made within 7 days after the date on which the jury have returned their verdict.

(3) The application must specify the grounds on which the application is made.

(4) When an application for a new trial is lodged, the party lodging it must also lodge—

(a) a print containing—

(i) the pleadings in the sheriff court process;

(ii) the interlocutors in the sheriff court process;

(iii) the issues and counter-issues;

(b) the verdict of the jury;

Application for new trial: restrictions

29.3

(1) An application for a new trial which specifies the ground in section 69(2)(a) of the 2014 Act (misdirection by sheriff) may not be made unless the procedure in rule 36B.8 of the Ordinary Cause Rules 1993 (exceptions to sheriff’s charge)[^f00033] has been complied with.

(2) An application for a new trial which specifies the ground in section 69(2)(b) of the 2014 Act (undue admission or rejection of evidence) may not be made unless objection was taken to the admission or rejection of evidence at the trial and recorded in the notes of evidence under the direction of the sheriff presiding at the trial.

(3) An application for a new trial which specifies the ground in section 69(2)(c) of the 2014 Act (verdict contrary to evidence) may not be made unless it sets out in brief specific numbered propositions the reasons the verdict is said to be contrary to the evidence.

Applications out of time

29.4

(1) An application to allow an application for a new trial to be lodged outwith the period specified in rule 29.2(2) is to be included in the application made under rule 29.2(1).

(2) Where the procedural Appeal Sheriff allows such an application, the application for a new trial is to be received on such conditions as to expenses or otherwise as the procedural Appeal Sheriff thinks fit.

Timetable in application for new trial

29.5

(1) The Clerk must issue a timetable in Form 29.5 when an application is lodged under rule 29.2(1).

(2) When the Clerk issues a timetable, the Clerk must also fix a procedural hearing to take place after completion of the procedural steps specified in paragraph (4).

(3) The timetable specifies—

(a) the dates by which parties must comply with those procedural steps; and

(b) the date and time of the procedural hearing.

(4) The procedural steps are the steps mentioned in the first column of the following table, provision in respect of which is found in the rule mentioned in the second column—

Procedural step	Rule
Referral of question about competency of application	29.7(3)
Lodging of appendices to print	29.9(1)
Giving notice that the applicant considers appendix unnecessary	29.10(1)
Lodging of notes of argument	29.11(1)
Lodging of estimates of duration of hearing of application for new trial	29.12

Sist of application for new trial and variation of timetable

29.6

(1) Any party may apply by motion to—

(a) sist the application for a new trial for a specified period;

(b) recall a sist;

(2) An application is to be determined by the procedural Appeal Sheriff.

(3) An application to sist the application for a new trial or to vary the timetable may only be granted on special cause shown.

(4) The procedural Appeal Sheriff may—

(a) grant the application;

(b) refuse the application; or

(c) make an order not sought in the application, where the procedural Appeal Sheriff considers that doing so would secure the expeditious disposal of the appeal.

(5) Where the procedural Appeal Sheriff makes an order sisting the application for a new trial, the Clerk must discharge the procedural hearing fixed under rule 29.5(2).

(6) When a sist is recalled or expires, the Clerk must—

(a) issue a revised timetable in Form 29.5;

(b) fix a procedural hearing.

(7) Where the procedural Appeal Sheriff makes an order varying the timetable, the Clerk must—

(a) discharge the procedural hearing fixed under rule 29.5(2);

(b) issue a revised timetable in Form 29.5;

Questions about competency of application

29.7

(1) A question about the competency of an application for a new trial may be referred to the procedural Appeal Sheriff by a party, other than the applicant.

(2) A question is referred by lodging a reference in Form 29.7.

(3) A question may be referred within 7 days after the date on which the application for a new trial was lodged.

(4) Where a reference is lodged, the Clerk must fix a hearing and intimate the time and date of that hearing to the parties.

(5) Within 7 days after the date on which the reference is lodged, each party must lodge a note of argument.

(6) That note of argument must—

(a) give fair notice of the submissions the party intends to make on the question of competency;

(b) comply with the requirements in rule 29.11(3).

(7) Paragraphs (4) and (5) of rule 29.11 apply to a note of argument lodged under paragraph (5).

Questions about competency: determination

29.8

(1) At a hearing on the competency of an application for a new trial, the procedural Appeal Sheriff may—

(a) refuse the application as incompetent;

(b) find the application to be competent;

(d) refer the question of competency to the Court.

(2) The procedural Appeal Sheriff may make an order as to the expenses of the reference.

(3) Where the question of competency is referred to the Court, it may—

(a) refuse the application as incompetent;

(b) find the application to be competent; or

(4) The Court may make an order as to the expenses of the reference.

Appendices to print: contents

29.9

(1) The applicant must lodge an appendix to the print mentioned in rule 29.2(4)(a) no later than 7 days before the procedural hearing, unless rule 29.10(1) is complied with.

(2) The appendix must contain—

(a) any document lodged in the sheriff court process that is founded upon in the application for a new trial;

(b) the notes of evidence from the trial, if it is sought to submit them for consideration by the Court.

(3) Where the sheriff’s note has not been included in the print and it subsequently becomes available, the applicant must—

(a) include it in the appendix where the appendix has not yet been lodged; or

(b) lodge a supplementary appendix containing the sheriff’s note.

(4) The parties must—

(a) discuss the contents of the appendix;

(b) so far as possible, co-operate in making up the appendix.

Appendices to print considered unnecessary

29.10

(1) Where the applicant considers that it is not necessary to lodge an appendix, the applicant must, no later than 7 days before the procedural hearing—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every respondent.

(2) Where the applicant complies with paragraph (1), the respondent may apply by motion for an order requiring the applicant to lodge an appendix.

(3) An application under paragraph (2) must specify the documents or notes of evidence that the respondent considers should be included in the appendix.

(4) In disposing of an application under paragraph (2), the procedural Appeal Sheriff may—

(a) grant the application and make an order requiring the applicant to lodge an appendix;

(b) refuse the application and make an order requiring the respondent to lodge an appendix; or

(5) Where the procedural Appeal Sheriff makes an order requiring the applicant or the respondent to lodge an appendix, that order must specify—

(a) the documents or notes or evidence to be included in the appendix;

(b) the time within which the appendix must be lodged.

Notes of argument

29.11

(1) The parties must lodge notes of argument no later than 7 days before the procedural hearing.

(2) A note of argument must summarise briefly the submissions the party intends to develop at the hearing of the application for a new trial.

(3) A note of argument must—

(a) state, in brief numbered paragraphs, the points that the party intends to make;

(b) after each point, identify by means of a page or paragraph reference the relevant passage in any notes of evidence or other document on which the party relies in support of the point;

(i) state the proposition of law that the authority demonstrates;

(ii) identify the page or paragraph references for the parts of the authority that support the proposition;

(d) cite only one authority for each proposition of law, unless additional citation is necessary for a proper presentation of the argument.

(4) Where a note of argument has been lodged and the party lodging it subsequently becomes aware that an argument in the note is not to be insisted upon, that party must—

(a) give written notice of that fact to the Clerk;

(b) intimate that notice to every other party.

(5) Where a party wishes to advance an argument at a hearing that is not contained in that party’s note of argument, the party must apply by motion for leave to advance the argument.

Estimates of duration of hearing of application for new trial

29.12

The parties must lodge estimates of the duration of any hearing required to dispose of the application for a new trial in Form 29.12 no later than 7 days before the procedural hearing.

Procedural hearing

29.13

(1) At the procedural hearing, the procedural Appeal Sheriff must ascertain the state of preparation of the parties, so far as reasonably practicable.

(2) The procedural Appeal Sheriff may—

(a) determine that parties are ready to proceed to a hearing of the application for a new trial; or

(b) determine that further procedure is required.

(3) Where the procedural Appeal Sheriff determines that parties are ready to proceed—

(a) the procedural Appeal Sheriff must fix a hearing of the application for a new trial;

(b) the Clerk is to intimate the date and time of that hearing to the parties;

(c) the procedural Appeal Sheriff may make an order specifying further steps to be taken by the parties before the hearing.

(4) Where the procedural Appeal Sheriff determines that further procedure is required, the procedural Appeal Sheriff—

(a) must make an order to secure the expeditious disposal of the appeal;

(b) may direct the Clerk to fix a further procedural hearing and intimate the date and time of that hearing to parties.

Application to enter jury verdict

29.14

(1) This rule applies to an application under section 71(2) of the 2014 Act (verdict subject to opinion of the Court).

(2) Such an application is to be made in Form 29.14.

(3) When an application is lodged, the party lodging it must also lodge—

(a) a print containing—

(i) the pleadings in the sheriff court process;

(ii) the interlocutors in the sheriff court process;

(iii) the issues and counter-issues;

(b) the verdict of the jury;

(4) Unless the procedural Appeal Sheriff otherwise directs—

(a) it is not necessary for the purposes of such a motion to print the notes of evidence;

(b) but the notes of the sheriff presiding at the trial may be produced at any time if required.

(5) The procedural Appeal Sheriff may refer an application referred to in paragraph (1) to the Court in cases of complexity or difficulty.

CHAPTER 30 — APPEALS FROM SUMMARY CAUSES

Application of this Chapter

30.1

This Chapter applies to an appeal under section 38 of the Sheriff Courts (Scotland) Act 1971 (appeal in summary causes)[^f00034] arising from the decision of a sheriff in proceedings under the Summary Cause Rules 2002[^f00035].

Transmission of appeal

30.2

(1) Within 4 days after the sheriff has signed the stated case, the sheriff clerk must—

(a) send the parties a copy of the stated case;

(b) transmit to the Clerk—

(i) the stated case;

(ii) all documents and productions in the case.

(2) On receipt of the stated case, the Clerk must fix a hearing and intimate the date, time and place of that hearing to the parties.

Transmission of appeal: time to pay direction

30.3

(1) Within 4 days after the sheriff states in writing the reasons for the sheriff’s original decision in accordance with rule 25.4(4) of the Summary Cause Rules 2002 (appeal in relation to time to pay direction), the sheriff clerk must transmit to the Clerk—

(a) the appeal in Form 33 of the Summary Cause Rules 2002[^f00036];

(b) the sheriff’s written reasons for the sheriff’s original decision.

(2) On receipt of those documents, the Clerk must fix a hearing and intimate the date, time and place of that hearing to the parties.

Hearing of appeal

30.4

(1) Any party may apply by motion for the question of liability for expenses to be heard after the Court gives its decision on the appeal.

(2) At the hearing, a party may only raise questions of law of which notice has not been given if the Court permits the party to do so.

(3) The Court may permit a party to amend any question of law or to add any new question of law.

(4) Where the Court grants permission under paragraph (2) or (3), it may do so on such conditions as to expenses or otherwise as the Court thinks fit.

Determination of appeal

30.5

(1) At the conclusion of the hearing, the Court may either give its decision orally or reserve judgment.

(2) Where the Court reserves judgment, it must give its decision in writing within 28 days.

(3) The President of the Sheriff Appeal Court may vary the period in paragraph (2).

(4) The Court may—

(a) adhere to or vary the decision appealed against;

(b) recall the decision and substitute another decision for it; or

(5) The Court may not remit the matter to the sheriff in order that further evidence may be led.

Appeal to the Court of Session: certification

30.6

(1) This rule applies where the Court has determined an appeal arising from the decision of a sheriff in proceedings under the Summary Cause Rules 2002.

(2) An application under section 38(b) of the Sheriff Courts (Scotland) Act 1971 (appeal in summary causes) for a certificate that a cause is suitable for appeal to the Court of Session is to be made in Form 30.6.

(3) Such an application must be lodged within 14 days after the date on which the Court gave its decision on the appeal.

(4) An application may only be disposed of after the procedural Appeal Sheriff has heard parties on it.

CHAPTER 31 — APPEALS FROM SIMPLE PROCEDURE

Appeals from Simple Procedure

31.1

Part 16 of the Simple Procedure Rules[^f00037] applies to an appeal of a decision made under the simple procedure.

CHAPTER 32 — APPEALS BY STATED CASE UNDER PART 15 OF THE CHILDREN’S HEARINGS (SCOTLAND) ACT 2011

Application and interpretation of this Chapter

32.1

(1) This Chapter applies to an appeal by stated case under section 163(1) (appeals to sheriff principal and Court of Session: children’s hearings etc.), 164(1) (appeals to sheriff principal and Court of Session: relevant persons), 165(1) (appeals to sheriff principal and Court of Session: contact and permanence orders) and 167(1) (appeals to sheriff principal: section166) of the Children’s Hearings (Scotland) Act 2011[^f00038].

(2) In this Chapter, “parties” means the parties specified in rule 3.59(2) of the Act of Sederunt (Child Care and Maintenance Rules) 1997 (appeals: applications for stated case)[^f00039].

Transmission of appeal

32.2

(1) Within 4 days after the sheriff has signed the stated case, the sheriff clerk must—

(a) send the parties a copy of the stated case;

(b) transmit to the Clerk—

(i) the stated case;

(ii) all documents and productions in the case.

(2) On receipt of the stated case, the Clerk must fix a hearing and intimate the date, time and place of that hearing to the parties.

Hearing of appeal

32.3

(1) At the hearing, a party may only raise questions of law or procedural irregularities of which notice has not been given if the Court permits the party to do so.

(2) Where the Court grants permission, it may do so on such conditions as to expenses or otherwise as the Court thinks fit.

Determination of appeal

32.4

(1) At the conclusion of the hearing, the Court may either give its decision orally or reserve judgment.

(2) Where the Court reserves judgment, it must give its decision in writing within 28 days.

(3) The President of the Sheriff Appeal Court may vary the period in paragraph (2).

Leave to appeal to the Court of Session

32.5

(1) This rule applies to applications for leave to appeal to the Court of Session under sections 163(2), 164(2) or 165(2) of the Children’s Hearings (Scotland) Act 2011.

(2) An application is to be made in Form 32.5.

(3) Such an application must be lodged within 7 days after the date on which the Court gave its decision on the appeal.

(4) On receipt of an application, the Clerk must—

(a) fix a hearing to take place before the procedural Appeal Sheriff no later than 14 days after the application is received;

(b) intimate the date, time and place of that hearing to the parties.

CHAPTER 33 — APPEALS UNDER PART 4 OF THE AGE OF CRIMINAL RESPONSIBILITY (SCOTLAND) ACT 2019

Application of this Chapter

33.1

This Chapter applies to an appeal against the decision of a sheriff under section38(3), 46(3) and 67(3) of the Age of Criminal Responsibility (Scotland) Act 2019[^f00040].

Form of appeal

33.2

(1) An appeal is made by lodging a note of appeal in Form 33.2.

(2) Rule 6.2(2)(a) to (c) and (g) to (h) applies for the purpose of making an appeal under this rule.

Hearing of appeal

33.3

On receipt of the appeal, the Clerk must fix forthwith a hearing to take place within 3working days (within the meaning of section 76 of the Age of Criminal Responsibility (Scotland) Act 2019) and intimate the date, time and place of that hearing to—

(a) the constable who applied for the order to which the decision relates;

(b) the child or person acting on behalf of the child to whom the decision relates;

Determination of appeal

33.4

(1) At the conclusion of the hearing, the Court may either give its decision orally or reserve judgment.

(2) Where the Court reserves judgment, it must give its decision in writing within 28 days.

(3) The President of the Sheriff Appeal Court may vary the period in paragraph (2).

CHAPTER 34 — ANCILLARY PROVISIONS

Revocation

34.1

Act of Sederunt (Sheriff Appeal Court Rules) 2015[^f00041] is revoked.

Consequential amendment

34.2

(1) The Simple Procedure Rules are amended in accordance with this paragraph.

(2) In rule 16.4(8) (what will the Sheriff Appeal Court do with an appeal?)[^f00042], for “Act of Sederunt (Sheriff Appeal Court Rules) 2015” substitute “Act of Sederunt (Sheriff Appeal Court Rules) 2021”.

Saving provision

34.3

(1) Subject to paragraphs (2) to (4), Act of Sederunt (Sheriff Appeal Court Rules) 2015 (“the 2015 Rules”) is saved in so far as it applies to any proceedings commenced before the coming into force of this Act of Sederunt.

(2) Rules 21.1 and 21.5 of the 2015 Rules are saved in respect of appeals in which a reference to the European Court is made before IP completion day.

(3) In paragraph (2), “reference” has the meaning given in rule 21.1 of the 2015 Rules.

(4) Paragraph (1) does not apply to rules 21.2 to 21.4 of the 2015 Rules.

Transitional provision

34.4

The Appeal Sheriff may direct that this Act of Sederunt applies to any proceedings commenced before the coming into force of this Act of Sederunt but only after giving the parties an opportunity to be heard.

SCHEDULE 1 — ADMINISTRATIVE PROVISIONS

Quorum of the Court

1

(1) The quorum of the Court for the types of business specified in sub-paragraph (3) is one Appeal Sheriff but more than one Appeal Sheriff may sit where the Court considers that to be appropriate.

(2) The quorum of the Court for any other business is three Appeal Sheriffs but more than three Appeal Sheriffs may sit where the Court considers that to be appropriate.

(3) The types of business are—

(a) relieving a party from the consequences of a failure to comply with a provision in these Rules under rule 2.1(1);

(b) making an order to secure the expeditious disposal of the appeal under rule 3.2(2);

(d) granting an application for lay support under rule 4.5;

(e) ordering otherwise where a party is to intimate to every other party under rule 5.2;

(f) disposing of an application for leave to receive an appeal out of time under rule 6.4(2);

(g) a hearing fixed under rule 6.7;

(h) a hearing fixed under rule 6.8;

(i) a hearing fixed under Chapter 8;

(j) disposing of an application to abandon an appeal under rule 10.1;

(k) disposing of an application for permission to appeal to the Court of Session under rule12.2(1), where the decision in respect of which permission to appeal is sought was made by one Appeal Sheriff;

(l) a peremptory hearing under rule 18.4;

(m) disposing of an application for sanction for the employment of counsel, unless the application seeks sanction in respect of appearing at a hearing before more than one Appeal Sheriff;

(n) ordering caution or giving security under rule 19.3;

(o) ordering caution or giving security under rule 19.4;

(p) ordering further caution to be found or further security to be given under rule 19.8(2);

(q) granting a motion for a finding that a person is in default under rule 19.9(1);

(r) granting decree for expenses as taxed under rule 20.4(3);

(s) disposing of a note of objections under rule 20.5(7), where the order allowing expenses was made by one Appeal Sheriff;

(t) allowing decree for expenses to be extracted in the name of the solicitor who conducted the appeal under rule 20.6;

(u) disposing of an application to allow a devolution issue to be raised after the note of appeal has been lodged or answers to the note of appeal have been lodged under rule22.2(3);

(v) making an order concerning the drafting and adjustment of a reference to the Inner House of the Court of Session or to the Supreme Court under rule 22.6(3);

(w) making and signing a reference under rule 22.6(6);

(x) ordering a sist under rule 22.7;

(y) ordering further procedure under rule 22.8;

(z) appointing a hearing under rule 24.2(5);

(aa) determining an application under rule 24.3;

(bb) making an order under rule 24.5;

(cc) ordering a party to provide further information under Chapter 26;

(dd) determining an application to use a live link under Chapter 27;

(ee) making an interim order under Chapter 28;

(ff) a hearing fixed under Chapter 30;

(gg) a hearing fixed by virtue of Chapter 31;

(hh) a hearing fixed under Chapter 33;

(ii) disposing of an application for authority to address the Court in Gaelic or to give oral evidence in Gaelic under paragraph 5 of this schedule;

(jj) any business where the Rules provide for that business to be disposed of by the procedural Appeal Sheriff.

Procedural Appeal Sheriff

2

(1) Every Appeal Sheriff is a procedural Appeal Sheriff.

(2) Where the Court considers it appropriate to do so, the Court may dispose of any business where the Rules provide for that business to be disposed of by the procedural Appeal Sheriff.

Signature of interlocutors etc.

3

(1) Any order made by the Court under these Rules is to be contained in an interlocutor.

(2) An interlocutor must be signed in accordance with sub-paragraphs (3) to (5).

(3) Where the Court is constituted by more than one Appeal Sheriff when an order is made, the interlocutor must be signed by either—

(a) the Appeal Sheriff who presided over the Court when the order was made; or

(b) in the event of the death, disability or absence of that Appeal Sheriff, the next senior Appeal Sheriff who sat on that occasion, after such consultation with the other Appeal Sheriffs who sat as may be necessary.

(4) Where the Court is constituted by one Appeal Sheriff, the interlocutor must be signed by that Appeal Sheriff.

(5) Where the Clerk determines an unopposed motion in writing in accordance with rule 13.7(1), the interlocutor must be signed by the Clerk unless the procedural Appeal Sheriff directs otherwise.

(6) The Clerk may sign any other interlocutor if directed to do so by the procedural Appeal Sheriff.

(7) A direction under sub-paragraph (6) need not be in writing.

(8) An interlocutor signed in accordance with sub-paragraphs (5) and (6) is to be treated for all purposes as if it had been signed by an Appeal Sheriff.

(9) An extract of an interlocutor which is not signed in accordance with the provisions of this rule is void and has no effect.

(10) An interlocutor may, on cause shown, be corrected or altered at any time before extract by either—

(a) the Appeal Sheriff who signed it;

(b) in the event of the death, disability or absence of that Appeal Sheriff, by any other Appeal Sheriff; or

Decrees, extracts and execution

4

(1) In this paragraph, “decree” includes any order or interlocutor which may be extracted.

(2) A decree may be extracted at any time after whichever is the later of—

(a) the expiry of the period within which an application for leave to appeal may be made, if no such application is made;

(b) the date on which leave to appeal is refused, if there is no right to appeal from that decision;

(d) the date on which an appeal is finally disposed of.

(3) A party may apply by motion to the procedural Appeal Sheriff to allow an extract to be issued earlier than a date referred to in sub-paragraph (2).

(4) Nothing in this paragraph affects the power of the Court to supersede extract.

(5) Where execution may follow on an extract decree, the decree is to include the warrant for execution specified in sub-paragraph (6).

(6) That warrant is “This extract is warrant for all lawful execution hereon.”.

(7) Where interest is included in, or payable under, a decree, the rate of interest is 8 per cent a year unless otherwise stated.

Use of Gaelic

5

(1) This paragraph applies where the use of Gaelic by a party has been authorised by the sheriff in the proceedings out of which an appeal arises.

(2) That party may apply by motion for authority to address the Court in Gaelic at—

(a) an appeal hearing fixed under rule 7.9(3)(a) or rule 8.2(1)(a);

(b) a hearing under rule 30.4.

(3) Where proof or additional proof is ordered in accordance with rule 25.1 and that party wishes to give oral evidence in Gaelic, the party may apply by motion for authority to do so.

(4) Where the Court grants authority under sub-paragraph (2) or (3), an interpreter must be provided by the Court.

SCHEDULE 2 — FORMS

Signed

CJM SUTHERLAND — Lord President — I.P.D. — 2021-12-09

Explanatory note

(This note is not part of the Act of Sederunt)

EXPLANATORY NOTE

This Act of Sederunt (“the Rules”) consolidates and restates the Act of Sederunt (Sheriff Appeal Court Rules) 2015 (S.S.I. 2015/356) with modifications. It makes provision about the procedure to be followed in appeals to the Sheriff Appeal Court in civil proceedings.

Appeals may be made from a decision of the sheriff under section 110 of the Courts Reform (Scotland) Act 2014 (“the 2014 Act”). Additionally, applications for a new trial (section 69(1) of the 2014 Act) or to enter a jury verdict (section 71(2) of the 2014 Act) may be made to the Sheriff Appeal Court following a jury trial in the sheriff court. The Rules also make provision about appeals from summary causes under section 38 of the Sheriff Courts (Scotland) Act 1971 and provide that Part 16 of the Simple Procedure Rules applies to an appeal of a decision made under the simple procedure.

The Rules come into force on 6th January 2022.

Part 1 – preliminary matters

Part 1 makes provision about the commencement, citation, application and interpretation of the Rules. It also deals with the computation of time periods, administrative provisions and the forms to be used.

Part 2 – general provisions

Part 2 makes provision about general matters which apply to any proceedings under the Rules. Chapters 2 and 3 deal with failures to comply with the Rules, providing for applications for relief and sanctions respectively.

Chapter 4 deals with representation and support before the Sheriff Appeal Court. It contains provision about legal representation, applications for lay representation and support, and the functions, conditions and duties applicable to lay representatives and lay supporters.

Chapter 5 makes provision about intimation and lodging of documents, including provision for intimation and lodging by electronic means in certain circumstances.

Part 3 – initiation and progress of an appeal

Part 3 makes provision about how an appeal is to be brought, including specifying the form of the note of appeal. Chapters 6 and 7 do not apply to applications for a new trial or to enter a jury verdict, or appeals from summary causes: bespoke provision is made instead in Part 7. Chapter 6 includes a mechanism for initial case management of appeals by the procedural Appeal Sheriff, with appeals being appointed to the procedure before three Appeal Sheriffs in Chapter 7, or the procedure before one Appeal Sheriff in Chapter 8.

Chapter 7 sets out the procedure before three Appeal Sheriffs. A timetable is issued, fixing a procedural hearing under rule 7.9 and regulating the dates by which parties must comply with various procedural steps. At the procedural hearing, the procedural Appeal Sheriff may fix an appeal hearing if parties are ready to proceed, or order further procedural steps to be taken. The procedural Appeal Sheriff may transfer an appeal to Chapter 8 procedure if the procedural Appeal Sheriff considers that Chapter 7 procedure is no longer appropriate.

Chapter 8 deals with appeals that are appointed to the procedure before one Appeal Sheriff. Instead of following the procedure in Chapter 7, an appeal hearing is fixed once the appeal has been appointed to Chapter 8 procedure. The procedural Appeal Sheriff may remit an appeal to Chapter 7 procedure if the procedural Appeal Sheriff considers that Chapter 8 procedure is no longer appropriate.

Part 4 – disposal of an appeal

Part 4 makes provision about how an appeal may come to an end. Chapter 9 deals with applications to refuse an appeal due to delay, Chapter 10 deals with abandonment of an appeal, Chapter 11 provides for applications to remit an appeal to the Court of Session, and Chapter 12 concerns applications for permission to appeal to the Court of Session against a decision of the Sheriff Appeal Court.

Part 5 – incidental procedure: standard procedures

Part 5 makes provision about incidental procedure that is relatively commonly encountered in appeal proceedings. In particular, Chapters 13 to 15 deal with motions. Written motions may be made by email in accordance with Chapter 14, or by other means in accordance with Chapter 15. Chapter 16 makes provision about minutes, including specific rules for minutes of sist and transference (rule 16.5) and applications to enter process as a respondent where the appeal has not been intimated to that person (rule 16.6).

Chapter 17 provides that applications to amend pleadings are to be made by motion. This includes amendment of the sheriff court pleadings (rule 17.1) and amendment of the appeal documents (rule 17.2).

Chapter 18 sets out the procedure to be followed when a party’s solicitors withdraw from acting, including the fixing of a peremptory hearing so that the party’s intentions may be ascertained.

Chapter 19 makes provision about applications for caution and security.

Chapter 20 makes provision about expenses. Provision is also made for the payment of the expenses of a curator ad litem appointed to a respondent (rule 20.7).

Part 6 – incidental procedure: special procedures

Part 6 makes provision about more unusual forms of incidental procedure.

Chapter 21 sets out the procedure to be followed in relation to Qualified One-Way Costs Shifting in appeals to which section 8 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 applies.

Chapter 22 sets out the procedure to be followed where a party wishes to raise a devolution issue for the first time in the course of an appeal.

Chapter 23 specifies how applications for a preliminary reference to the Court of Justice of the European Union are to be made, and how references are to be prepared and transmitted to that Court.

Chapter 24 concerns interventions by the Commission for Equality and Human Rights and the Scottish Commission for Human Rights. It makes provision about applications to intervene and about invitations to the Scottish Commission for Human Rights to intervene in proceedings.

Chapters 25 and 26 make provision about how proof may be taken by the Sheriff Appeal Court. Chapter 25 sets out the procedure for doing so, while Chapter 26 makes provision in terms of the Vulnerable Witnesses (Scotland) Act 2004 for the purposes of such a proof.

Chapter 27 deals with applications to make submissions or give evidence by live link.

Chapter 28 contains the procedure to be followed when the Sheriff Appeal Court is contemplating making an order which restricts the reporting of proceedings.

Part 7 – special appeal proceedings

Part 7 makes provision for appeals which do not follow Chapter 7 procedure or Chapter 8 procedure.

Chapter 29 applies to applications for a new trial under section 69(1) of the 2014 Act, or to enter a verdict under section 71(2). The procedure in Chapter 29 is closely related to that in Chapter 7, although rule 29.14 makes bespoke provision for applications under section 71(2).

Chapter 30 applies to appeals under section 38 of the Sheriff Courts (Scotland) Act 1971 (appeal in summary causes). A stated case is requested and prepared under the relevant provisions of Act of Sederunt (Summary Cause Rules) 2002. It is then transmitted to the Sheriff Appeal Court (rule 30.2) and a hearing is fixed. Rule 30.4 specifies how such a hearing is to be conducted. A party who wishes to appeal the decision of the Sheriff Appeal Court (in a summary cause) must obtain a certificate that the cause is suitable for appeal to the Court of Session (rule 30.6).

Chapter 31 provides that part 16 of the Simple Procedure Rules applies to an appeal of a decision made under the simple procedure.

Chapter 32 applies to appeals by stated case under Part 15 of the Children’s Hearings (Scotland) Act 2011. A stated case is requested and prepared under Part IX of Chapter 3 of the Act of Sederunt (Child Care and Maintenance Rules) 1997. It is then transmitted to the Sheriff Appeal Court (rule 32.2) and a hearing is fixed. Rule 32.3 specifies how such a hearing is to be conducted. A party who wishes to appeal the decision of the Sheriff Appeal Court must obtain leave to appeal to the Court of Session (rule 32.5).

Chapter 33 applies to appeals under Part 4 of the Age of Criminal Responsibility (Scotland) Act 2019. It provides that an appeal to the Sheriff Appeal Court under section 38(1), section 46(1) and section 67(1) of the Age of Criminal Responsibility (Scotland) Act 2019 is made by lodging a note of appeal in Form 33.2.

Chapter 34 revokes Act of Sederunt (Sheriff Appeal Court Rules) 2015 (“the 2015 instrument”). It also saves the 2015 instrument in respect of any appeals which were commenced and not concluded before 6th January 2022 with specific saving in relation to references to the Court of Justice of the European Union. Transitional provision is also made to allow an Appeal Sheriff to direct that this Act of Sederunt applies to proceedings commenced before 6th January 2022.

Schedule 1 – administrative provisions

Schedule 1 contains administrative provisions about the Sheriff Appeal Court. In particular, paragraph 1 specifies the quorum of the Court for different types of business. The quorum is three Appeal Sheriffs (but more than three Appeal Sheriffs may sit where the Court considers that to be appropriate), unless the business is of a type listed in sub-paragraph (3) when the quorum is one Appeal Sheriff (but more than one Appeal Sheriff may sit where the Court considers that to be appropriate).

Paragraph 2 specifies that every Appeal Sheriff is a procedural Appeal Sheriff, and that where the Rules provide for business to be dealt with by a procedural Appeal Sheriff, the Court may dispose of that business where it considers it appropriate to do so.

Paragraphs 3 and 4 contain technical provision about the signature of interlocutors, and decrees, extracts and execution.

Paragraph 5 makes provision for the use of Gaelic in certain circumstances.

Schedule 2 – forms

Schedule 2 contains the forms referred to in rule 1.6.

Footnotes

[^f00001]: 2013 asp 3. Section 4 was amended by the Courts Reform (Scotland) Act 2014 (asp 18), schedule 5, paragraph 31(3) and by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2), schedule 1, paragraph 1(4).

[^f00002]: 2006 asp 16. Section 14 was amended by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2), schedule 2, paragraph 12, S.S.I. 2013/211 and S.S.I. 2015/402.

[^f00003]: 2014 asp 18.

[^f00004]: 1980 c.46.

[^f00005]: 1971 c.58. Section 38 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73), section18(4). It was also partly repealed by the Courts Reform (Scotland) Act 2014 (asp 18), schedule 5, paragraph 6(2) which has effect subject to transitional provision specified in S.S.I. 2016/291.

[^f00006]: 2011 asp 1. Section 164 was amended by the Children (Scotland) Act 2020 (asp 16), section 26(3). Sections 163, 164, 165 and 167 are prospectively amended by the Children (Scotland) Act 2020, section 27(3) to (6).

[^f00007]: 2019 asp 7.

[^f00008]: The Ordinary Cause Rules 1993 are in Schedule 1 of the Sheriff Courts (Scotland) Act 1907 (c.51). Schedule 1 was substituted by S.I. 1993/1956 and was last amended by S.S.I. 2021/226. Rule 33.81 was amended by S.S.I. 2015/419.

[^f00009]: Rule 33A.74 was inserted by S.S.I. 2005/638 and amended by S.S.I. 2015/419.

[^f00010]: 1995 c.36. Section 11 was amended by the Family Law (Scotland) Act 2006 (asp 2), section 24; the Adoption and Children (Scotland) Act 2007 (asp 4), section 107, schedule 2, paragraph 9(2) and schedule 3, paragraph 1; the Human Fertilisation and Embryology Act 2008 (c.22), Schedule 6, paragraph 52; the Children (Scotland) Act 2020 (asp 16), section 15(2); S.S.I. 2001/36; S.S.I. 2005/42; S.S.I. 2016/21 and S.I. 2018/1413.

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