Legalize / United Kingdom / Statutory-Instrument

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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

PDF Download

articles Not indexed

Reform history JSON API

(k) an application required to be made to the Inner House under any enactment.

Form of petitions

14.4

(1) A petition shall be in Form 14.4.

(2) A petition shall include–

(a) a statement of facts in numbered paragraphs setting out the facts and circumstances on which the petition is founded; ...

(b) a prayer setting out the orders sought ; and

(c) the name, designation and address of the petitioner and a statement of any special capacity in which the petitioner is presenting the petition

(3) In a petitio n presented under an enactment, the statement of facts shall expressly refer to the relevant provision under the authority of which the petition is presented.

(4) Where a petition is one to which the Civil Jurisdiction and Judgments Act 1982[^f00021] applies, the statement of facts shall include averments stating–

(a) the ground of jurisdiction of the court, unless jurisdiction would arise only if the respondent prorogated the jurisdiction of the court without contesting jurisdiction;

(b) unless the court has exclusive jurisdiction, whether or not there is an agreement prorogating the jurisdiction of a court in another country; and

(c) whether or not there are proceedings involving the same cause of action in subsistence between the parties in a country to which the convention in Schedule 1 or 3C to that Act[^f00022] applies and the date any such proceedings commenced.

(5) The prayer of a petition shall crave warrant for such intimation, service and advertisement as may be necessary having regard to the nature of the petition, or as the petitioner may seek; and the name, address and capacity of each person on whom service of the petition is sought shall be set out in a schedule annexed to, and referred to in, the prayer of the petition.

(6) Where it is sought in a petition–

(a) to dispense with intimation, service or advertisement, or

(b) to shorten or extend the period of notice,

the appropriate order shall be craved in the prayer, and the grounds on which the order is sought shall be set out in the statement of facts.

First order in petitions

14.5

(1) Subject to paragraph (2), on a petition being lodged, the court shall, without a motion being enrolled for that purpose, pronounce an interlocutor for such intimation, service and advertisement as may be necessary.

(2) Where a petitioner seeks–

(a) to dispense with intimation, service or advertisement on any person, or

(b) any interim order,

he shall apply by motion for such order as appears appropriate.

(3) On disposing of a motion under paragraph (2), the court shall make such order as it thinks fit.

Period of notice for lodging answers

14.6

(1) Subject to any other provision in these Rules, the period of notice for lodging answers to a petition shall be–

(a) in the case of service, intimation or advertisement within Europe, 21 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(b) in the case of service or intimation furth of Europe under rule 16.2(2)(d) or (e) (service by an huissier etc. or personally), 21 days from whichever is the later of the date of execution of service or the giving of intimation;

(c) in the case of service or intimation furth of Europe other than under sub-paragraph (b), or advertisement furth of Europe, 42 days from whichever is the later of the date of execution of service, the giving of intimation or the publication of the advertisement;

(d) in the case of service by advertisement under rule 16.5 (service where address of person is not known), 6 months from the date of publication of the advertisement.

(2) An application may be made by motion to shorten or extend the period of notice.

(3) Where a motion under paragraph (2) is made in a petition at the time that an order for intimation, service or advertisement is made under rule 14.5 (first order in petitions), the decision of the court on the motion shall be final and not subject to review.

Intimation and service of petitions

14.7

(1) A petition shall be intimated–

(a) on the walls of the court; and

(b) in such other manner as the court thinks fit.

(2) A copy of the petition shall be served on every person, specified in the petition or by the court as a person on whom the petition is to be served, with a citation in Form 14.7 attached to it.

(3) A petition to the court in exercise of its parens patriae jurisdiction shall not be intimated on the walls of the court.

Procedure where answers lodged

14.8

Where answers to a petition have been lodged, the petitioner shall, within 28 days after the expiry of the period of notice, apply by motion for such further procedure as he seeks, and the court shall make such order for further procedure as it thinks fit.

Unopposed petitions

14.9

(1) Subject to paragraph (2), where the period of notice has expired without answers being lodged, the court shall, on the motion of the petitioner, after such further procedure and inquiry into the grounds of the petition, if any, as it thinks fit, dispose of the petition.

(2) Where–

(a) the prayer of the petition seeks an order directed against a person,

(b) service of the petition has been made on that person furth of the United Kingdom under rule 16.2, and

a certified copy of the interlocutor granting the order shall be served forthwith by the petitioner on that person.

(3) The court may, on the motion of a person to whom paragraph (2) applies, recall the interlocutor and allow answers to be lodged if–

(a) that person–

(i) without any fault on his part, did not have knowledge of the petition in suffieient time to lodge answers;

(ii) has disclosed a prima facie answer to the petition on the merits; and

(iii) has enrolled the motion for recall within a reasonable time after he had knowledge of the petition; and

(b) the motion is enrolled before the expiry of one year from the date of the interlocutor sought to be recalled.

(4) The recall of an interlocutor under paragraph (3) shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that interlocutor.

(5) The provisions of this rule are without prejudice to the power of the court to make any interim appointment or order at any stage of the cause.

CHAPTER 15 — APPLICATIONS BY MINUTE OR NOTE

Applications by minute

15.1

(1) Subject to paragraph (6) and to any other provision in these Rules, this rule applies to any application to the court by minute in a cause.

(2) A minute shall–

(a) include a crave, a statement of facts and appropriate pleas-in-law; and

(b) be lodged in the process of the cause to which it relates.

(3) On lodging a minute, the minuter shall enrol a motion, as appropriate–

(a) for a warrant for service of the minute on a person who has not entered the process of the cause;

(b) where the cause is not a depending cause, for service of the minute on parties to that cause;

(d) to dispense with service on, or intimation to, a person; and

(e) for an order for any answers to the minute to be lodged in process within the period of notice.

(4) A notice in Form 15.1 shall be attached to the minute to be served or intimated under paragraph (3).

(5) After the expiry of the period of notice, the court shall, on the motion of any party, after such further procedure, if any, as it thinks fit, determine the application.

(6) This rule shall not apply to–

(a) a minute of abandonment;

(b) a minute of amendment;

(d) a minute of transference; ...

(e) a minute of objection to a minute of transference; or

(f) a minute to dismiss a claim under rule 21A.

Applications by note

15.2

(1) Subject to paragraph (4) and to any other provision in these Rules, this rule applies to any application to the court by note in a cause.

(2) A note shall–

(a) include a statement of facts and a prayer; and

(b) be lodged in the process of the cause to which it relates.

(3) The following provisions of Chapter 14 (petitions) shall, with the necessary modifications and the modification mentioned below, apply to a note under this rule as they apply to a petition:–

rule 14.5 (first order in petitions),

rule 14.6 (period of notice for lodging answers),

rule 14.7 (intimation and service of petitions) with the substitution in paragraph (2) of that rule of the words “a notice in Form 15.2” for the words a “a citation in form 14.7”,

rule 14.8 (procedure where answers lodged),

rule 14.9 (unopposed petitions).

(4) This rule shall not apply to–

(a) a note to the Extractor; or

(b) a note of objection.

CHAPTER 16 — SERVICE, INTIMATION AND DILIGENCE

Methods and manner of service

16.1

(1) Subject to any other provision in these Rules or any other enactment, service of a document required under these Rules on a person shall be executed–

(a) in the case of an individual–

(i) personally, by tendering the document and any citation or notice, as the case may be, to that individual;

(ii) by leaving the document and any citation or notice, as the case may be, in the hands of a person, or failing which, depositing it, in a dwelling place where the person executing service, after due enquiry, has reasonable grounds for believing that that individual resides but is not available;

(iii) by leaving the document and any citation or notice, as the case may be, in the hands of a person at, or depositing it in, a place of business where the person executing service, after due enquiry, has reasonable grounds for believing that that individual carries on business; or

(iv) by posting the document and any citation or notice, as the case may be, to the known dwelling place of that individual;

(b) in the case of any other person–

(i) by leaving the document and any citation or notice, as the case may be, in the hands of an individual at, or depositing it in, the registered office, other official address or a place of business, of that other person, in such a way that it is likely to come to the attention of that other person; or

(ii) by posting the document and any citation or notice, as the case may be, to the registered office, other official address or a place of business, of that other person.

(2) Service of a principal writ on a person whose known residence is the same as that of the party on whose behalf service is to be executed shall be executed personally.

(3) Subject to paragraph (4), where service has been executed, the party on whose behalf service has been executed shall attach to the document served and lodge in process–

(a) a certificate of service as required by these Rules;

(b) a copy of any notice or advertisement ordered to be published; and

(4) In relation to a petition or note, where service has been executed by a petitioner or noter, he shall attach the documents required by paragraph (3)(a) and (b) to a copy of the petition or note, as the case may be, marked “Execution Copy” and certified a true copy.

Service furth of United Kingdom

16.2

(1) Subject to any other enactment, this rule applies to service of a document on a person on whom service is to be executed in a country furth of the United Kingdom.

(2) Service under this rule may be executed by any of the following methods of service, if, and in a manner, permitted under a convention providing for service in that country or by the laws of that country:–

(a) by post to the known residence, registered office or place of business, as the case may be, of the person on whom service is to be executed;

(b) through the central, or other appropriate, authority of that country, at the request of the Scottish Ministers;

(c) through a British consular office in that country, at the request of the Secretary of State for Foreign, Commonwealth and Development Affairs;

(d) by an huissier, other judicial officer or competent official of that country, at the request of a messenger-at-arms, a party or his agent; or

(e) personally by the party executing service or his authorised agent tendering the document and the citation (if any) to the person on whom service is to be executed.

(3) Where service is to be executed through a central, or other appropriate, authority at the request of the Scottish Ministers, the party executing service shall—

(a) send a copy of the document, with a request for service by the method indicated in the request, to the Scottish Ministers; and

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

(3A) Where service is to be executed through a British consular officer at the request of the Secretary of State for Foreign, Commonwealth and Development Affairs, the party executing service shall—

(a) send a copy of the document, with a request for service by the method indicated in the request, to the Secretary of State for Foreign, Commonwealth and Development Affairs; and

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

(4) Where service is to be executed by an huissier, other judicial officer or competent official at the request of a messenger-at-arms–

(a) the messenger-at-arms shall send a copy of the document with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

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

(5) Where service has been executed personally by the party executing service or his authorised agent–

(a) the execution of service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address); and

(b) the person who executed service shall complete a certificate of service in Form 16.2.

(6) Where service is executed by a method mentioned in paragraph (2)(a) or (e), the party executing service shall lodge in process a certificate by a person qualified in the law of the country, or a duly accredited representative of the country, in which service was executed stating that the method of service used is permitted by the law of that country.

Service by messenger-at-arms

16.3

(1) Service by a method mentioned in rule 16.1(1)(a)(i), (ii) or (iii), or (b)(i), shall be executed by a messenger-at-arms who shall–

(a) explain the purpose of service to any person on whom he executes service;

(b) complete a citation or notice, as the case may be, and a certificate of service in Form 16.3; and

(2) Such service shall be witnessed by one witness who shall sign the certificate of service (which shall state his name, occupation and address).

(3) Where service is executed by a method mentioned in rule 16.1(1)(a)(ii) or (iii), or (b)(i), the document and the citation or notice of intimation, as the case may be, shall be placed in an envelope (bearing the notice specified in rule 16.4(2)) and sealed by the messenger-at-arms.

(4) Subject to paragraph (4A), a messenger-at-arms shall, when he executes service of a document, have in his possession–

(a) in the case of service of a copy of a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is, and

(b) where an interlocutor has been pronounced allowing service of the document, a certified copy of that interlocutor,

which he shall show, if required, to the person on whom he executes service.

(4A) Where the firm which employs the messenger-at-arms has in its possession—

(a) the principal writ or a certified copy of it, it shall be competent for the messenger-at-arms to execute service of the document without having that writ or certified copy in his possession, in which case he shall, if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the principal writ or certified copy to the person;

(b) a certified copy of the interlocutor, it shall be competent for the messenger-at-arms to execute service of the document if he has in his possession a facsimile copy of the certified copy interlocutor which he shall show, if required, to the person on whom he executes service.

(5) The certificate of service required under paragraph (1) shall include the full name and designation of any person in whose hands any document and the citation or notice, as the case may be, were left.

(6) In the application of this rule to service in England and Wales, reference to a messengers-at-arms shall be construed as a reference to a person entitled to serve Senior Courts writs; and in the application of this rule to service in Northern Ireland, reference to a messenger-at-arms shall be construed as a reference to a person entitled to serve Court of Judicature writs.

Service by post

16.4

(1) This rule applies to service of a document by post but is subject to rule 61.2(3) and (4) (order as respects intimation of petition for appointment of judicial factor).

(2) Service by post shall be executed by–

(a) a messenger-at-arms, or

(b) an agent,

posting a copy of the document to be served with any citation or notice, as the case may be, by registered post or the first class recorded delivery service addressed to the person on whom service is to be executed and having on the face of the envelope a notice in the following terms:– “This envelope contains a citation to, or intimation from, the Court of Session. If delivery of the letter cannot be made it must be returned immediately to the Deputy Principal Clerk of Session, Court of Session, 2 Parliament Square, Edinburgh EH1 1RQ.”.

(3) Where English is not an official language of the country in which service is to be executed, a translation in an official language of that country of the notice required under paragraph (2) shall appear on the face of the envelope.

(4) The person executing service of a document shall complete–

(a) a citation or notice, as the case may be; and

(b) a certificate of service in Form 16.4.

(5) Where a document is served by a registered post service, a receipt of posting by the operator of that service shall be attached to the certificate of service

(6) The date of execution of service shall be deemed to be the day after the date of posting.

(7) Subject to rule 16.11 (no objection to regularity of service or intimation), the execution of service by post shall be valid unless the person on whom service was sought to have been made proves that the envelope and its contents were not tendered or left at his address.

Service where address of person is not known

16.5

(1) Where the residence of the person to be served with a document is not known and cannot reasonably be ascertained or service on that person cannot be executed under rule 16.1 (methods and manner of service) or 16.2 (service furth of United Kingdom), the party who wishes to execute service may apply by motion–

(a) for an order for service by the publication of an advertisement in a specified newspaper circulating in the area of the last known residence of that person or elsewhere; or

(b) on special cause shown, for an order to dispense with service; and

(2) On enrolling such a motion, a copy of the document to be served shall be lodged with the Deputy Principal Clerk who shall retain it for a period of three years and from whom it may be uplifted by the person for whom it is intended.

(3) Where an intelocutor has been pronounced ordering publication of an advertisement under this rule–

(a) the advertisement shall be in Form 16.5; and

(b) publication of the advertisement shall have effect as if service of the document had been executed on the date of publication.

(4) Where an interlocutor has been pronounced dispensing with service under this rule–

(a) service of the document shall be deemed to have been executed on the date of the interlocutor; and

(b) the period of notice shall be dispensed with.

(5) A motion under paragraph (1) made before calling shall be heard in chambers.

(6) Where publication of an advertisement has been made under this rule, there shall be lodged in process–

(a) a copy of the newspaper containing the advertisement; or

(b) a certificate of publication by the publisher stating the date of publication and the text of the advertisement.

Translations of documents served or advertised abroad

16.6

(1) Subject to rule 16.2A, where English is not an official language of the country in which a document is to be served, the document shall be accompanied by a translation in an official language of that country.

(2) An advertisement authorised under rule 16.5 (service where address of person is not known) to be published in a newspaper in a country in which English is not an official language of that country shall be in an official language of that country.

(3) With any certificate of service, or advertisement under rule 16.5, in a language other than English there shall be lodged a translation in English.

(4) A translation under this rule shall be certified as correct by the translator; and the certificate shall include his full name, address and qualifications.

Intimation of documents

16.7

(1) Subject to rule 16.8 (intimation on a warrant to intimate), rule 16.9 (written intimation) and any other provision in these Rules, where intimation of a document is to be given under these Rules to any person, the intimation shall be given–

(a) personally, by tendering the document and the notice of intimation (if any) to that person; or

(b) by registered post or the first class recorded delivery service–

(i) in the case of an individual, addressed to the known, or last known, dwelling place or a place of business of that individual; or

(ii) in the case of any other person, addressed to the registered office, other official address or a place of business of that person.

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach to the principal writ or lodge in process, as the case may be–

(a) certificate of intimation in Form 16.7;

(b) a copy of any notice of intimation which was intimated; and

Intimation on a warrant to intimate

16.8

(1) Where intimation of a document is to be given to a person for whom a warrant to intimate has been obtained, the intimation shall be made in the same manner as service of a document; and the following rules shall, with the necessary modifications, apply to that intimation as they apply to service of a document:–

rule 16.1 (methods and manner of service),

rule 16.2 (service furth of United Kingdom),

rule 16.2A (service under the Council Regulation),

rule 16.3 (service by messenger-at-arms),

rule 16.4 (service by post),

rule 16.5 (serv ice where address of person is not known),

rule 16.6 (translations of documents served or advertised abroad).

(2) Where intimation has been given in accordance with paragraph (1), the party on whose behalf intimation has been given shall attach a copy of any notice of intimation to the certificate of intimation.

Written intimation

16.9

Where a provision in these Rules requires written intimation to be given to a person, that intimation may be made by first class post or other means of delivery to that person.

Acceptance of service or intimation and dispensing with period of notice

16.10

(1) An agent may accept service or intimation of a document on behalf of the person on whom service is to be executed or to whom intimation is to be given and may dispense with any period of notice.

(2) A person on whom service of a document is executed or to whom intimation of a document is given may dispense with any period of notice as respects him in relation to that document.

(3) Where a period of notice is dispensed with under paragraph (1) or (2), it shall be deemed to expire on the day on which the party on whose behalf service is executed or intimation is given receives written intimation that the period of notice has been dispensed with.

No objection to regularity of service or intimation

16.11

(1) A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation of a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation.

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

Excution of diligence

16.12

(1) This rule applies to–

(a) the execution of any diligence on a warrant, act or decree of the court other than–

(i) an arrestment to which rule 16.13 (arrestment of ships and arrestment in rem of cargo on board ship) applies; or

(ii) an arrestment to which rule 16.14(1) (arrestment in rem of cargo landed or transhipped) applies; and

(b) diligence in execution of a writ registered for execution in the Books of Council and Session.

(2) Subject to the following paragraphs of this rule, the execution of any diligence by virtue of these Rules on a person shall be executed by a messenger-at-arms in the same manner as service of a document is permitted under rule 16.1(1)(a)(i), (ii) or (iii) or (b)(i) (methods and manner of service); and, where appropriate, the following provisions of Part I (service and intimation) shall, with the necessary modifications, apply to the execution of diligence as they apply to service of a document:–

rule 16.3(1) to (4) (service by messenger-at-arms),

rule 16.4(2)(a), (3), (6) and (7) (service by post).

(3) In the application under this rule, by virtue of paragraph (2), of–

(a) sub-paragraph (b) of paragraph (1) of rule 16.3 (completion of citation or notice and certificate of service) for the reference to Form 16.3 in that sub-paragraph there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15 (forms for diligence); and

(b) sub-paragraph (b) of paragraph (4) of rule 16.4 (completion of citation or notice and certificate of service), for the reference to Form 16.4 in that sub-paragraph, there shall be substituted a reference to the appropriate form of certificate of execution in rule 16.15.

(4) The execution of such diligence on–

(a) an individual who is resident furth of Scotland,

(b) a person who has no registered office, other official address or a place of business in Scotland,

(d) a person on whom service cannot be executed in a manner permitted under paragraph (2),

shall be executed edictally by a messenger-at-arms leaving or depositing the appropriate schedule mentioned in rule 16.15. at the office of the Extractor.

(5) Where the execution of diligence is made edictally under paragraph (4), a copy of the schedule left at the office of the Extractor shall be sent by a messenger-at-arms by registered post or the first class recorded delivery service to the place furth of Scotland where the person on whom diligence is executed edictally resides, has his registered office, official address or place of business, as the case may be, or such last known place.

(6) A messenger-at-arms executing diligence shall have in his possession–

(a) in the case of diligence on a warrant in a principal writ, the principal writ or a copy of it certified as correct by the agent for the party whose writ it is,

(b) in the case of diligence on a warrant in an interlocutor, a certified copy of that interlocutor, or

(c) in the case of diligence on an extract of an act or a decree, or a document registered in the Books of Council and Session, the extract,

which he shall show, if required, to any person on whom he executes diligence.

(7) The party on whose behalf diligence has been executed in a cause depending before the court shall attach the certificate of execution to the document containing the warrant for diligence.

Arrestment of ships and arrestment in rem of cargo on board ship

16.13

(1) An arrestment of a ship in rem or on the dependence, or an arrestment in rem of cargo on board ship, may be executed on any day by a messenger-at-arms who shall affix the schedule of arrestment–

(a) to the mainmast of the ship;

(b) to the single mast of the ship; or

(2) In the execution of an arrestment of a ship on the dependence, the messenger-at-arms shall, in addition to complying with paragraph (1), mark the initials “ER” above the place where the schedule of arrestment is fixed.

(3) On executing an arrestment under paragraph (1), the messenger-at-arms shall deliver a copy of the schedule of arrestment and a copy of the certificate of execution of it to the master of the ship, or other person on board in charge of the ship or cargo, as the case may be, as representing the owners or demise charterers of, or parties interested in, the ship or the owners of the cargo, as the case may be.

(4) Where the schedule of arrestment and the copy of the certificate of execution of it cannot be delivered as required under paragraph (3)–

(a) the certificate of execution shall state that fact; and

(b) either–

(i) the arrestment shall be executed by serving it on the harbour master of the port where the ship lies; or

(ii) where there is no harbour master, or the ship is not in a harbour, the pursuer shall enrol a motion for such further order as to intimation and advertisement, if any, as may be necessary.

(5) A copy of the schedule of arrestment and a copy of the certificate of excution of it shall be delivered by the messenger-at-arms to the harbour master, if any, of any port where the ship lies.

(6) In this rule, “ship” has the meaning assigned in section 48(f) of the Administration of Justice Act 1956[^f00023].

Arrestment of cargo

16.14

(1) An arrestment of cargo on board a ship shall be executed by a messenger-at-arms who shall serve the schedule of arrestment on—

(a) the master of the ship;

(b) any other person in charge of the ship or cargo; or

(2) Where the schedule of arrestment cannot be executed in accordance with paragraph(1), the arrestment may be executed as provided for in rule 16.13(4) and (5).

(3) A person who has an interest in a ship or cargo which is the subject of an arrestment under this rule may apply by motion for a warrant authorising the movement of the ship or cargo and rule 13.11 shall apply to such a motion.

Forms for diligence

16.15

(1) In the execution of diligence, the following forms shall be used:–

(a) in the case of —

(i) an arrestment to found jurisdiction (other than the arrestment of a ship), a schedule in Form 16.15-A and a certificate of execution in Form 16.15-H;

(ii) an arrestment of a ship to found jurisdiction, a schedule in Form 16.15-AA and a certificate of execution in Form 16.15-HH;

(b) Subject to sub-paragraph (e), in the case of an arrestment on the dependence, a schedule in Form 16.15–B and a certificate of execution in Form 16.15–H;

(c) in the case of an arrestment in rem of a ship, cargo or other maritime res to enforce a maritime hypothec or lien, a schedule in Form 16.15-C and a certificate of execution in Form 16.15 I

(d) in the case of an arrestment in rem of a ship to enforce a non-pecuniary claim, a schedule in Form 16.15–D and a certificate of execution in Form 16.15–I;

(e) in the case of an arrestment on the dependence of

(i) a cargo on board a ship, a schedule in Form 16.15-B;

(ii) a ship, a schedule in Form 16.15-BB, and a certificate of execution in Form 16.15-J;

(f) subject to paragraph (g), in the case of an arrestment in execution, ... a certificate of execution in form 16.15–H;

(g) in the case of an earnings arrestment, or a current maintenance arrestment, within the meaning of Part III of the Debtors (Scotland) Act 1987[^f00024], a schedule in Form 30 (in respect of an earnings arrestment), or Form 34 (in respect of a current maintenance arrestment), and a certificate of execution in Form 60, in the Schedule to the Act of Sederunt (Proceedings in the Sheriff Court under the Debtors (Scotland) Act 1987) 1988[^f00025];

(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) in the case of the execution of a charge for payment of money, a charge in Form 16.15—G and a certificate of execution in Form 16.15.–K; and

(j) in the case of an attachment, a schedule in form 3, and a report of attachment in form 8, in Appendix 1 of Schedule 1 to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002.

(k) in the case of an interim attachment, a schedule in Form 2a, and a report of attachment in Form 2b, in Appendix 1 of Schedule 1 to the Act of Sederunt (Debt Arrangement and Attachment (Scotland) Act 2002) 2002;

(2) Where two or more of the arrestments mentioned in paragraph (1)(a), (b), (c) and (d) are to be executed, they may be combined in one schedule of arrestment.

CHAPTER 17 — APPEARANCE IN ACTIONS

Entering appearance

17.1

(1) Appearance in an action shall be entered within 3 days after the date on which the summons has called by the defender requesting a clerk of session in the appropriate section of the General Department to mark on the summons–

(a) the names of the counsel, or other person having a right of audience, and the agent acting for him; or

(b) that he appears for himself.

(2) On entering appearance, the defender shall give written intimation to the pursuer that appearance has been entered.

(3) On entering appearance, the defender shall have the right to borrow any production which has been lodged in process.

Appearance not to imply acceptance of jurisdiction

17.2

The entering of appearance shall not imply acceptance of the jurisdiction of the court.

CHAPTER 18 — DEFENCES AND ANSWERS

Form and lodging of defences

18.1

(1) Defences to an action shall consist of–

(a) numbered answers corresponding to the articles of the condescendence annexed to the summons; and

(b) appropriate pleas-in-law.

(2) Subject to rule 46.6 (ship collisions and preliminary acts), defences to an action shall be lodged in process within 7 days after the date on which the summons has called, or, if the seventh day is in vacation, on the next day on which a summons may be called.

Contesting jurisdiction

18.2

(1) Where a defender seeks to contest the jurisdiction of the court, he may–

(a) lodge defences relating both to jurisdiction and the substantive issues of the action without submitting to the jurisdiction of the court; or

(b) lodge defences relating only to the question of jurisdiction in the first instance.

(2) Where a defender lodges defences under paragraph (1)(b) and is unsuccessful in contesting jurisdiction, the court shall allow the defender to amend his defences to defend on the substantive issues of the action within such period as the court thinks fit.

Answers

18.3

(1) This rule applies to answers lodged to a petition, counterclaim, minute or note.

(2) Answers shall consist of–

(a) numbered answers corresponding to the paragraphs of the statement of facts in the writ to which they apply; and

(b) appropriate pleas-in-law.

(3) Answers may be lodged at any time within the period of notice specified in the interlocutor calling for answers.

CHAPTER 19 — DECREES IN ABSENCE

Decrees in absence

19.1

(1) This rule applies to any action other than an action in which the court may not grant decree without evidence.

(2) Where a defender–

(a) fails to enter appearance in accordance with rule 17.1(1), or

(b) having entered appearance, fails to lodge defences in accordance with rule 18.1(2),

the pursuer may apply by motion for decree in absence against him.

(3) A motion enrolled under paragraph (2) shall specify–

(a) the decree sought; and

(b) where appropriate, whether expenses are sought–

(i) as taxed by the Auditor; or

(ii) as elected by the pursuer in accordance with paragraph (3A).

(3A) Where the pursuer elects to claim expenses comprising—

(a) the inclusive charge set out in Part 1 of Table 1 in schedule 2 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and

(b) outlays not exceeding £471.50 (excluding value added tax),

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

(4) Where a motion has been enrolled under paragraph (2), the court shall grant decree in absence in terms of all or any of the conclusions of the summons–

(a) subject to such restrictions, if any, as may be set out in a minute appended to the summons and signed by the pursuer;

(b) if satisfied that it has jurisdiction;

(d) where the summons was served on the defender furth of Scotland, if satisfied about service on the defender–

(i) in a case to which the Civil Jurisdiction and Judgments Act 1982[^f00026] applies, as required by Article 20(2) or (3) of the convention in Schedule 1, or 3C, or Article 20(2) of Schedule 4, to that Act[^f00027], as the case may be;

(ii) in a case in which service has been executed on the defender under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters dated 15th November 1965[^f00028], as required by Article 15 of that convention; or

(iii) in a case in which service has been executed on the defender under a convention between the United Kingdom and the country in which service was executed, as required by the provisions of that convention.

(5) In an undefended action in which a defender is designed as resident or carrying on business furth of the United Kingdom and has no known solicitor in Scotland, the court shall, in the interlocutor granting decree in absence against him, supersede extract of that decree for such period beyond 7 days as it thinks fit to allow for the number of days required in the ordinary course of post for the transmission of a letter from Edinburgh to the residence, registered office, other official address or place of business, as the case may be, of that defender and the transmission of an answer from there to Edinburgh.

(6) Where a copy of the summons has been served on the defender furth of the United Kingdom under rule 16.2 and decree in absence is pronounced against him as a result of his failure to enter appearance, a certified copy of the interlocutor granting decree shall be served on him forthwith by the pursuer.

(7) Where a decree in absence on which a charge may be made has been granted after personal service of a summons on the defender or after the defender has entered appearance, and–

(a) the decree has not been recalled,

(b) the decree has been extracted,

(d) 60 days have elapsed since the expiry of the charge,

that decree shall have effect as a decree in foro contentioso

Recall of decrees in absence

19.2

(1) A decree in absence may not be reclaimed against.

(2) A defender may, not later than–

(a) 7 days after the date of a decree in absence against him, or

(b) the last day of the period for which extract of the decree has been superseded,

apply by motion for recall of the decree and to allow defences to be received.

(3) Where a defender enrols a motion under paragraph (2), he shall–

(a) at the same time lodge defences in process;

(b) have paid the sum of £25 to the pursuer; and

(4) On compliance by the defender with paragraphs (2) and (3), the court shall recall the decree against him and allow the defences to be received; and the action shall proceed as if the defences had been lodged timeously.

(5) Where a summons has been served on a defender furth of the United Kingdom under rule 16.2 and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the motion of that defender, recall the decree and allow defences to be received if–

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

(b) he has disclosed a prima facie defence to the action on the merits; and

(c) the motion is enrolled within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of the decree;

and, where that decree is recalled, the action shall proceed as if the defences had been lodged timeously.

(6) On enrolling a motion under paragraph (5), the defender shall lodge defences in process.

(7) The recall of a decree under this rule shall be without prejudice to the validity of anything already done or transacted, of any contract made or obligation incurred, or of any appointment made or power granted, in or by virtue of that decree.

CHAPTER 20 — DECREES BY DEFAULT

Decrees where party in default

20.1

(1) Without prejudice to the power of the court to grant decree by default in other circumstances, where a party fails to attend before the Lord Ordinary on the calling of a cause–

(a) on the By Order Roll,

(b) on the Procedure Roll,

(d) for jury trial,

that party shall be in default.

(2) Where a pursuer is in default under paragraph (1)(a), (c) or (d), the court may grant decree by default against him with expenses.

(3) Where a pursuer is in default under paragraph (1)(b), the court may grant decree of dismissal with expenses.

(4) Where a defender is in default under paragraph (1), the court may grant decree by default against him with expenses.

(5) Where a third party is in default under paragraph (1), the court may grant decree by default against him with expenses or make such finding or order as it thinks fit.

CHAPTER 21 — SUMMARY DECREES

Application of this Chapter

21.1

This Chapter applies to any action other than–

(a) a family action within the meaning of rule 49.1(1);

(b) an action of multiplepoinding;

(d) an action under the Presumption of Death (Scotland) Act 1977[^f00029].

Applications for summary decree

21.2

(1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences while the action is depending before the court, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or a part of it, disclosed in the defences.

(2) In applying for summary decree, the pursuer may move the court–

(a) to grant decree in terms of all or any of the conclusions of the summons;

(b) to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(3) The pursuer shall–

(a) intimate a motion under paragraph (1) by registered post or the first class recorded delivery service to every other party not less than 14 days before the motion is enrolled; and

(b) on enrolling the motion, lodge in process–

(i) a copy of each letter of intimation; and

(ii) a certificate of intimation by post in Form 16.4 in respect of each letter of intimation.

(4) On a motion under paragraph (1), the court may–

(a) if satisfied that there is no defence to the action disclosed or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or

(b) Ordain any party, or a partner, director, officer or office-bearer of, any party–

(i) to produce any relevent document or article; or

(ii) to lodge an affidavit in support of any assertion of fact made in the pleadings or at the Bar.

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

Application of summary decree to counterclaims etc.

21.3

(1) Where a defender has lodged a counterclaim–

(a) he may apply by motion for summary decree against the pursuer on that counterclaim on the ground that there is no defence to the counterclaim, or a part of it, disclosed in the answers to it; and

(b) paragraphs (2) to (5) of rule 21.2 shall, with the necessary modifications, apply to a motion by a defender under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

(2) Where a defender or third party has made a claim against another defender or third party who has lodged defences or answers, as the case may be–

(a) he may apply by motion for summary decree against that other defender or third party on the ground that there is no defence to his claim, or a part of it, disclosed in the defences or answers, as the case may be; and

(b) paragraphs (2) to (5) of rule 21.2 shall, with the necessary mofifications, apply to a motion by a defender or third party under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

CHAPTER 22 — MAKING UP AND CLOSING RECORDS

Making up open records

22.1

–

(1) Subject to any other provision in these rules—

(a) where defences have been lodged, the pursuer in an action shall, within fourteen days after the date on which the time for lodging defences expired or on which the defences were lodged (whichever date was the earlier); or

(b) where in a cause a party is ordered by the court to make up an open record he shall within such period as is specified by the court,

lodge two copies of the open record in process; and on being given, in accordance with rule 22.2(1), a date for the commencement of the adjustment period and a date on which it shall close, he shall forthwith send a copy of the open record (endorsed in pursuance of that rule) to every other party.

(2) Where the pursuer, petitioner, noter or minuter, as the case may be, fails to comply with the requirements of paragraph (1), the defender or other party may apply by motion for decree of dismissal.

(3) An open record shall consist of the pleadings of the parties and the interlocutors pronounced in the action or cause.

Adjustment Roll

22.2

–

(1) On an open record being lodged in process the Assistant Clerk of Session shall endorse it, and the interlocutor sheet, with a stamp so as to show the date of lodging, a date on which the adjustment period shall commence (which shall be a date determined by the Deputy Principal Clerk of Session, being ordinarily the first Wednesday which occurs at least three days after the date of lodging but which may be such later date as the Deputy Principal Clerk of Session considers appropriate) and a date on which that period shall end and the record shall close (which shall be the date eight weeks after that on which the adjustment period commences); but this paragraph is without prejudice to paragraph (3).

(2) During the adjustment period parties may adjust their respective pleadings and shall intimate any such adjustments to one another.

(3) At any time during the adjustment period the court may, on the motion of any party, pronounce an interlocutor—

(a) closing the record; or

(b) extending the period of adjustment to such date as the court thinks fit, on which date the record shall close.

(4) On enrolling a motion under paragraph (3), a party shall make available for the use of the court a copy of the open record (endorsed in pursuance of paragraph (1)) showing the adjustments, if any, as at the date of enrolment.

(5) An endorsement in pursuance of paragraph (1) may be corrected or altered by the Deputy Principal Clerk of Session at any time before the date for the time being shown in the endorsement as the date on which the record shall close.

(6) An endorsement which cannot be corrected or altered under paragraph (5) may, on cause shown, be corrected by the Lord Ordinary at any time.

Closing records

22.3

(1) The pursuer shall, within four weeks after the date on which the record is closed—

(a) send a copy of the closed record to the defender and to every other party; and

(b) lodge three copies of the closed record in process,

and if there is failure to do so the defender or any other party may apply by motion for decree of dismissal.

(2) A closed record shall consist of the pleadings of the parties and the interlocutors pronounced in the action or cause (endorsed in pursuance of rule 22.2(1)).

(5) The pursuer shall, on lodging the copies of the closed record as required by paragraph (1)(b), enrol a motion craving the court–

(a) where parties have agreed on further procedure, of consent–

(i) to appoint the cause to the Procedure Roll for consideration of all the preliminary pleas of parties or such of the pleas as may be specified;

(ii) to allow to parties a preliminary proof on specified matters or in respect of specified pleas;

(iii) to allow to parties a proof before answer of their respective averments under reservation of such preliminary pleas as may be specified;

(iv) to allow a proof;

(v) to allow issues for jury trial; or

(vi) to make some other specified order; or

(b) where parties have been unable to agree on further procedure, to appoint the cause to the By Order (Adjustment) Roll.

(6) In a cause which is one of more than one cause arising out of the same cause of action, the court may, on or after pronouncing an interlocutor ordering further procedure under paragraph (5)–

(a) on the motion of a party to that cause, and

(b) after hearing parties to all those causes,

appoint that cause or any other of those causes to be the leading cause and to sist the other causes pending the determination of the leading cause.

(7) In this rule, “pursuer” includes petitioner, noter or minuter, as the case may be.

Orders for notes of argument

22.4

(1) Where a cause has been appointed to the Procedure Roll, a party seeking to have a preliminary plea sustained shall–

(a) lodge in process a concise note of argument consisting of numbered paragraphs stating the grounds on which he proposes to submit that the preliminary plea should be sustained,

(b) lodge a copy of the note with the Keeper of the Rolls, and

(2) The note shall be lodged and sent in accordance with paragraph (1) within 28 days after the date of the interlocutor appointing the cause to the Procedure Roll unless the court, at its own instance or on the motion of a party, orders that the note be lodged and sent within a different period.

CHAPTER 23 — MOTIONS

Interpretation of this Chapter

23.1

In this Chapter, unless the context otherwise requires, “party” includes any person entitled under these Rules to enrol a motion or to whom intimation of a motion is required to be made by these Rules or the court.

Enrolment of motions

23.2

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A motion may be enrolled–

(a) by lodging it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, at the appropriate department of the Office of Court during its normal office hours;

(b) subject to paragraph (3), by posting it in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court; or

(c) subject to paragraph (4), by sending it by facsimile transmission in Form 23.2, with any document which requires to be lodged with or which accompanies the motion, to the appropriate department of the Office of Court.

(3) A motion may not be enrolled under paragraph (2)(b) where a fee is payable with that motion unless–

(a) the motion is enrolled by an agent who has a Court of Session account; or

(b) is accompanied by a cheque from the agent for the fee.

(4) A motion may not be enrolled under paragraph (2)(c) where–

(a) a document which requires to be lodged with, or which accompanies, the motion–

(i) is a step of process which requires to be or is signed;

(ii) is an open or closed record, reclaiming print, appeal print or appendix;

(iii) consists of more than four pages (including the backing sheet); or

(iv) does not fall within a class of documents prescribed by the Lord President by direction as a document which may be sent by facsimile transmission in support of a motion of a category, and on such conditions, prescribed by that direction;

(b) a fee is payable with that motion unless the motion is enrolled by an agent who has a Court of Session account; or

(c) it falls within a category of motions prescribed by the Lord President by direction as unsuitable for enrolment by facsimile transmission.

(5) On receipt of a motion lodged, sent by post or transmitted by facsimile under paragraph (2), a clerk of session shall attach the motion to the motion sheet.

(6) A motion sent by post or facsimile transmission under paragraph fi (2) shall be treated as enrolled when it is received in the appropriate department of the Office of Court.

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intimation of motions

23.3

(1) Subject to paragraph (2) and any other provision in these Rules, the party enrolling a motion in a cause where–

(a) appearance has been entered by a defender under rule 17.1(1),

(b) defences, a minute or answers have been lodged by a party, or

shall give written intimation of his intention to make such enrolment, and of the terms of the motion, to every such party.

(2) The requirement under paragraph (1) to give written intimation of a motion to a party shall not apply where that party–

(a) having entered appearance, fails to lodge defences within the period for lodging those defences;

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

(3) Such intimation shall be made so as to reach the other party not later than 12.30 p.m. on the day before enrolment, except where–

(a) the other party concerned in the motion consents to a shorter period of intimation;

(b) the period of intimation is otherwise provided in these Rules; or

(4) Where a motion is enrolled under rule 23.2 after the lapse of one year from the date of the last interlocutor in the cause, written intimation shall be given to every other party not less than 14 days before the date of enrolment.

(5) Where written intimation of a motion has been given under this rule, the party enrolling the motion shall state that this has been done on the motion in Form 23.2.

Opposition to motions

23.4

(1) Where a party seeks to oppose a motion enrolled under rule 23.2, he shall–

(a) not later than the day and time as the Lord President shall prescribe by direction for the lodging of notices of opposition to motions, lodge a notice of his opposition in Form 23.4 at the appropriate department of the Office of Court during its normal office hours;

(b) post a notice of opposition in Form 23.4 to the appropriate department of the Office of Court; or

(c) send by facsimile transmission a notice of opposition in Form 23.4 to the appropriate department of the Office of Court.

(2) Opposition to a motion sent by post or facsimile transmission under paragraph (1)(b) or (c) shall be treated as lodged when the notice of opposition is received in the appropriate department of the Office of Court.

(3) On receipt of a notice of opposition lodged, sent by post or facsimile transmission under paragraph (1), a clerk of session shall attach the notice to the motion sheet.

(4) A party who opposes a motion under this rule shall give written intimation of his opposition to every other party so as to reach such other party not later than 12.30 p.m. on the day on which the opposition is lodged or treated as lodged.

(5) Where written intimation of opposition to a motion has been given under this rule, the party who has given such intimation shall state that this has been done on the notice of opposition in Form 23.4.

(6) Where a motion is opposed under this rule, the entry in the rolls in respect of that motion shall be starred.

23.5

Where a party seeks to consent to a motion enrolled under rule 23.2, he may–

(a) endorse the motion with his consent;

(b) post a notice of consent in Form 23.5 to the appropriate department of the Office of Court; or

(c) send by facsimile transmission a notice of consent in Form 23.5 to the appropriate department of the Office of Court.

Hearing of motions

23.6

(1) Subject to the rules mentioned in paragraph (2), the day of publication on the walls of the court and of the hearing of a motion enrolled under this Part on any day shall be determined in accordance with such provisions as the Lord President shall prescribe by direction.

(2) The rules referred to in paragraph (1) are:–

rule 23.7 (motions ... in vacation),

rule 23.8 (motions by pursuer before calling or petitioner before first order),

rule 23.9 (motions where caveat lodged),

rule 23.10 (motions by defender or other person before calling).

(3) A motion enrolled in a cause in the Outer House shall be heard by the Lord Ordinary.

(4) A motion enrolled in a cause in the Inner House shall be heard in the Single Bills by a Division of the Inner House.

Motions in session outwith a term or in vacation

23.7

(1) A motion which is to be heard by the Lord Ordinary ... in vacation by the vacation judge, shall not appear in the rolls.

(2) A party enrolling such a motion shall be informed at the time of enrolment whether or not any appearance is required.

(3) Any such motion which is opposed in accordance with rule 23.4 shall require appearance for the party whose motion it is.

(4) On the afternoon of the day preceding each sitting ... of the vacation judge there shall be published on the walls of the court a list of unopposed motions for which appearance is required followed by a list of opposed motions, each in alphabetic order.

(5) Motions before ... the vacation judge shall be called for hearing in the order in which they appear in the list published under paragraph (4).

Motions by pursuer before calling or petitioner before first order

23.8

(1) A motion enrolled by a pursuer in an action before the calling of the summons or by a petitioner before an order under rule 14.5(1)(a) (order for intimation, service and advertisement in petitions) has been made–

(a) shall, subject to any other provision in these Rules, be brought as soon as reasonably practicable by the Keeper of the Rolls, or a clerk of session instructed by him, before the Lord Ordinary sitting in court or in chambers; and

(b) shall not require to be published in the rolls.

(2) On enrolling such a motion, the pursuer or petitioner, as the case may be, shall be informed whether or not appearance is required.

Motions where caveat lodged

23.9

Where a motion in respect of which a caveat has been lodged is enrolled, the Keeper of the Rolls shall–

(a) fix a hearing of the motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b) inform the parties concerned of the date and time of the hearing.

Motions by defender or other person before calling

23.10

(1) A motion enrolled in an action before the calling of the summons by a person other than the pursuer shall be intimated forthwith by the Deputy Principal Clerk to the pursuer.

(2) The Keeper of the Rolls shall–

(a) fix a hearing of such a motion before the Lord Ordinary sitting in court or in chambers as soon as reasonably practicable; and

(b) inform the parties concerned of the date and time of the hearing.

Statutory applications by motion

23.11

Unless otherwise provided in these Rules or any other enactment, an application to the court under any other enactment in fi a cause depending before the court shall be made by motion.

Expenses of motions

23.12

Where a motion is called for hearing in the Motion Roll or Single Bills and is dropped, the Auditor shall, in taxing any expenses found due to the party on whose behalf the motion was enrolled, disallow the expenses occasioned by the motion unless he is satisfied that the motion was properly enrolled and properly dropped.

Conditions attached to granting of motions

23.13

Where the court grants a motion in whole or in part, it may do so subject to such conditions, if any, as to expenses or otherwise as it thinks fit.

Appearance by solicitor for certain motions

23.14

(1) A solicitor shall have a right of audience before the court in respect of a motion which is heard in chambers under any of the following rules:–

rule 23.8 (motions by pursuer before calling or petitioner before first order),

rule 23.9 (motions where caveat lodged),

rule 23.10 (motions by defender or other person before calling).

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CHAPTER 24 — AMENDMENT OF PLEADINGS

Powers of court

24.1

(1) In any cause the court may, at any time before final judgment, allow an amendment mentioned in paragraph (2).

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

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

(i) the sum sued for in a summons is increased or restricted; or

(ii) a different remedy from that originally concluded for or craved is sought;

(b) an amendment which may be necessary–

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

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

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

(iv) to add the name of an additional pursuer, a petitioner or person whose concurrence is necessary;

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

(vi) to direct conclusions against a third party brought into an action under Chapter 26 (third party procedure);

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

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

Applications to amend

24.2

(1) Subject to paragraph (2), a party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, enrol a motion–

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

(b) to allow–

(i) amendment in terms of the minute of amendment and, where appropriate, to grant an order under rule 24.3(1) or (2) (service of amended pleadings); or

(ii) in any other case, where the minute of amendment may require to be answered, any other party to lodge answers within a specified period or such period as the court thinks fit.

(2) Where the amendment proposed is of a minor and formal nature, the party seeking to amend may enrol a motion to allow amendment in the terms set out in the motion.

(3) Where the court has pronounced an interlocutor allowing a minute of amendment to be received and answered, then–

(a) where answers have been lodged, unless the court otherwise orders parties may adjust the minute of amendment and answers within 4 weeks after the date on which answers were lodged or, where more than one set of answers have been lodged, the latest date on which answers were lodged;

(b) the party who has lodged the minute of amendment shall–

(i) where answers have been lodged, within 14 days after the expiry of the period for adjustment of the minute of amendment and answers or any continuation of it, or

(ii) where no answers have been lodged, within 14 days after the expiry of the period for lodging answers or any prorogation of it,

enrol a motion to amend the writ or other pleadings in terms of the minute of amendment and answers (if any) or for other further procedure, as the case may be.

(4) Where a party fails to enrol a motion under paragraph (3)(b), the court shall appoint the cause to be put out on the By Order Roll and, having heard parties on that roll, may–

(a) if moved to do so, allow the amendment;

(b) make such order as to further procedure as it thinks fit; and

(5) Where a party to a cause before the Inner House enrols a motion to amend a record in terms of a minute of amendment and answers (if any), he shall at the same time enrol for an order for further procedure ; and if it is reasonably practicable to do so, the party shall specify the nature of such further procedure.

Service of amended pleadings

24.3

(1) In an undefended action where no appearance has been entered or in an unopposed petition or note, unless the amendment is formal in character, the court shall–

(a) order that a copy of the principal writ as amended be served on a specified person; and

(b) allow that person to lodge defences or answers, as the case may be, within such period as the court thinks fit.

(2) Where an amendment under rule 24.1(2)(d) (all parties not, or wrong person, called) has been made–

(a) the court shall order that a copy of the pleadings as so amended be served by the party who made the amendment on that additional or substitute party with a notice in Form 24.3 specifying the date by which defences or answers, as the case may be, must be lodged; and

(b) the party who made the amendment shall lodge in process–

(i) a copy of the pleadings as amended;

(ii) a copy of the notice mentioned in sub-paragraph (a);

(iii) a copy of the interlocutor ordering service; and

(iv) a certificate of service.

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

Expenses and conditions of amendment

24.4

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

Effect of amendment on diligence

24.5

Where an amendment has been allowed, the amendment shall–

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

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

CHAPTER 25 — COUNTERCLAIMS

Counterclaims

25.1

(1) In any action other than a family action within the meaning of rule 49.1(1) or an action of multiplepoinding, a defender may lodge a counterclaim against a pursuer–

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

(b) in respect of any matter–

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

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

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

(2) A counterclaim may be lodged in process–

(a) at any time before the record is closed; or

(b) at any later stage, with leave of the court and subject to such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) A counterclaim shall be headed “Counterclaim for the defender” and shall contain–

(a) conclusions, stated in accordance with the appropriate short style, if any, in Form 13.2–B which, if the counterclaim had been made in a separate action, would have been appropriate in the summons in that separate action;

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

Warrants for diligence on counterclaims

25.2

(1) A defender who lodges a counterclaim may apply by motion for authority for diligence by—

(a) inhibition on the dependence of the action;

(b) arrestment on the dependence of the action where there is a conclusion for the payment of money;

(d) dismantling a ship.

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

(3) A certified copy of an interlocutor granting authority for inhibition under this rule may be registered with a certificate of execution in the Register of Inhibitions and Adjudications.

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

Answers to counterclaims

25.3

(1) Answers to a counterclaim may be lodged by a pursuer–

(a) where the counterclaim is lodged before the record is closed, within 14 days after the date on which the counterclaim is lodged; or

(b) in any other case, within the period appointed by the interlocutor allowing the counterclaim to be received.

(2) Where answers to a counterclaim have been lodged, the court may, on the motion of the pursuer or defender, allow such period for adjustment as it thinks fit.

Effect of abandonment of action

25.4

(1) The right of a pursuer to abandon his action under rule 29.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition, or in consequence, of such abandonment shall not include the expenses of the counterclaim.

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

Proof or jury trial of counterclaims

25.5

(1) Where a proof or jury trial is allowed between parties to an action, the court may allow any counterclaim to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action as it thinks fit.

(2) Where evidence is led in a counterclaim separately from the evidence in the action, the evidence in one cause shall, so far as competent and relevant, be evidence in the other cause.

Interlocutors in respect of counterclaims

25.6

A decree or other interlocutor which could have been pronounced in a separate action brought to enforce the conclusions stated in a counterclaim may be pronounced in respect of the counterclaim.

CHAPTER 26 — THIRD PARTY PROCEDURE

Applications for third party notice

26.1

(1) Where, in an action, a defender claims that–

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

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

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

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

he may apply by motion for an order for service of a third party notice on that other person in Form 26.1–A for the purpose of convening that other person as a third party to the action.

(2) Where–

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

(b) a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form 26.1–B (notice by pursuer) or Form 26.1–C (notice by third party), as the case may be, in the same manner as a defender under that paragraph; and rules 26.2 to 26.7 shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

Averments where order for service of third party notice sought

26.2

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

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

(b) appropriate pleas-in-law.

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

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

(b) appropriate pleas-in-law,

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

Warrants for diligence on third party notice

26.3

(1) A defender who applies for an order for service of a third party notice may apply by motion for authority for—

(a) arrestment to found jurisdiction; or

(b) diligence by—

(i) inhibition on the dependence of the action;

(ii) arrestment on the dependence of the action where there is a conclusion for the payment of money;

(iii) arrestment in rem; or

(iv) dismantling a ship.

(2) A certified copy of an interlocutor granting a motion under paragraph (1) shall be sufficient authority for execution of the arrestment to found jurisdiction or, as the case may be, the diligence.

(3) A certified copy of an interlocutor granting authority for inhibition under this rule may be registered with a certificate of execution in the Register of Inhibitions and Adjudications.

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

Service on third party

26.4

(1) A third party notice shall be served on the third party within such period as the court shall specify in the interlocutor allowing service of that notice.

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

(3) There shall be served with a third party notice–

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

(b) a copy of the interlocutor allowing service of the notice, and

(4) The defender who served the third party notice shall lodge in process–

(a) a copy of the third party notice;

(b) a copy of the interlocutor allowing service of it; and

Answers to third party notice

26.5

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

(2) Answers for a third party shall include–

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

(b) where a separate statement of facts has been lodged by the defender under rule 26.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

Consequences of failure to lodge answers

26.6

(A1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(1) Where a third party fails to lodge answers, the defender may apply by motion for such finding, order or decree against the third party as may be appropriate to give effect to the claim in the third party notice.

(1A) Where a minute of amendment under rule 26.2(2) has been lodged, the defender may not apply by motion under paragraph (1) unless, at or before the date on which he makes that application, he applies by motion to amend the pleadings in terms of the minute of amendment.

(2) Where such a finding, order or decree is pronounced by the court, rule 19.2 (recall of decrees in absence) shall, with the necessary modifications, apply to that finding, order or decree as it applies to recall of a decree in absence by a defender.

Procedure following answers

26.7

(1) Within 14 days after the date on which answers are lodged by the third party, the defender who has served the third party notice shall–

(a) make up an open record incorporating the pleadings of all parties;

(b) deliver four copies of that record to every other party; and

(2) When an open record is lodged in process under paragraph (1), the action shall be put out on the Adjustment Roll and the court shall pronounce an interlocutor continuing the action on that roll for 6 weeks.

(3) Where a proof or jury trial is necessary between parties to the action, the court may allow the action so far as directed against the third party to proceed to proof or jury trial, as the case may be, before, at the same time as or after, the action between the pursuer and the defender as the court thinks fit.

(4) Where a third party challenges the case pled by the pursuer, he may appear at the proof or jury trial of the pursuer’s case and lead evidence as if he were a defender; and such evidence, so far as competent and relevant, shall be evidence for or against the pursuer or for or against the defender, as the case may be, and shall be available to all the parties in the action.

(5) Subject to the preceding provisions of this Chapter and unless the context otherwise requires, the other provisions of these Rules in relation to actions shall, with the necessary modifications, apply as between the defender and a third party or the pursuer and a third party, as the case may be, as they apply to the action between the pursuer and defender.

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.