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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

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(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.

CHAPTER 27 — DOCUMENTS FOUNDED ON OR ADOPTED IN PLEADINGS

Lodging of documents founded on or adopted

27.1

(1) Any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him–

(a) when founded on or adopted in a summons, at the time of lodging the summons for calling;

(b) when founded on or adopted in a petition, note, application, minute, defences, counterclaim or answers, at the time of lodging that writ; and

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

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

Consequences of failure to lodge documents founded on or adopted

27.2

Where a party fails to lodge a document in accordance with rule 27.1(1), he may be found liable in the expenses of any order for the production or recovery of it obtained by any other party.

CHAPTER 28 — PROCEDURE ROLL

Hearings on procedure roll

28.1

(1) When a cause calls on the Procedure Roll and no counsel, other person having a right of audience or party attends, the Lord Ordinary may pronounce an interlocutor dismissing or refusing the cause, as the case may be, and finding no expenses due to or by any party.

(2) An interlocutor pronounced under paragraph (1) may, if reclaimed, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

(3) The court, after hearing parties on the Procedure Roll, may dispose of all or any of the preliminary pleas and may–

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

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

(d) allow issues for jury trial; or

(e) make such other order as it thinks fit.

(4) Where a cause has been appointed to the Procedure Roll, parties may, of consent, apply by motion to withdraw the cause from that roll and for any order which might have been pronounced at the hearing of the cause on that roll.

CHAPTER 29 — ABANDONMENT

Abandonment of actions

29.1

(1) A pursuer may abandon an action by lodging a minute of abandonment in process and–

(a) consenting to decree of absolvitor; or

(b) seeking decree of dismissal.

(2) The court shall not grant decree of dismissal under paragraph (1)(b) unless–

(a) full judicial expenses have been paid to the defender, and to any third party against whom the pursuer has directed any conclusions, within 28 days after the date of intimation of the report of the Auditor on the taxation of the account of expenses of that party; and

(b) where abandonment is made in a proof or jury trial, the minute of abandonment is lodged before avizandum is made in the proof or the charge to the jury by the presiding judge has begun in the jury trial, as the case may be.

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

Application of abandonment of actions to counterclaims

29.2

Rule 29.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of an action.

Abandonment of petitions, minutes and notes

29.3

(1) A petition, minute or note may be abandoned by the petitioner, minuter or noter, as the case may be–

(a) enrolling a motion for abandonment of the cause; and

(b) intimating the motion to every person who lodged answers.

(2) The court may grant a motion under paragraph (1) subject to such conditions as to expenses or otherwise, if any, as it thinks fit.

CHAPTER 30 — WITHDRAWAL OF AGENTS

Intimation of withdrawal of agent to court

30.1

(1) This rule applies where an agent withdraws from acting on behalf of a party.

(2) The agent must intimate withdrawal by letter to the Deputy Principal Clerk and every other party.

(3) That letter must specify the last known address of the party.

(4) Where any previously fixed hearing is to take place within 14 days from the date of the withdrawal, the agent must confirm in the letter that they have taken all reasonable steps to—

(a) notify the party of the hearing date;

(b) advise the party that they must attend the hearing or arrange representation at the hearing to state whether or not they intend to proceed; and

(c) advise the party that a failure to attend or be represented at the hearing may result in the court granting decree or making another finding or order.

(5) The Deputy Principal Clerk must lodge the letter in process.

Intimation to party whose agent has withdrawn

30.2

(1) The court shall, on the motion of any other party or, where there is no other party, at its own instance , pronounce an interlocutor ordaining the party whose agent has withdrawn from acting to intimate to the Deputy Principal Clerk within 14 days (or such other period as the court, on cause shown, thinks fit) after service of the notice as required by paragraph (2) whether or not he intends to proceed, under certification that if he fails to intimate whether or not he intends to proceed, the court may grant such decree or make such order or finding as it thinks fit.

(2) The party who enrolled a motion under paragraph (1) , or the court where there is no other party, shall forthwith serve a notice in Form 30.2 ... to the party whose agent has withdrawn from acting.

Consequences of failure to intimate intention to proceed

30.3

Where a party on whom a notice ... has been served under rule 30.2(2) fails to intimate to the Deputy Principal Clerk within the period specified in the notice that he intends to proceed, the court shall, on the motion of any other party where a certificate of service of the notice has been lodged in process, grant such decree, order or finding as it thinks fit.

CHAPTER 31 — MINUTES OF SIST AND TRANSFERENCE

Minutes of sist

31.1

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

(2) Intimation of such an application shall be made to each party.

Minutes of transference

31.2

(1) Where a party dies or comes under legal incapacity while a cause is depending before the court and the provisions of rule 31.1 (minutes of sist) are not invoked, any other party may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate.

(1A) Where—

(a) a question of liability is the subject of proceedings before the court; and

(b) the effect of any statutory transfer while the cause is depending before the court is to transfer the liability if proved to a person other than an existing party to the cause,

any party to the proceedings may apply to the court by minute to have the cause transferred in favour of or against, as the case may be, the person to whom the liability has been transferred.

(2) Where a minute of transference has been lodged in process, the court shall pronounce an interlocutor–

(a) granting warrant for service of a copy of the minute of transference, a copy of the pleadings (including any adjustments and amendments) and a copy of that interlocutor on such person; and

(b) allowing such person to lodge a minute of objection to the minute of transference within such period as the court thinks fit.

CHAPTER 32 — TRANSMISSION AND REMIT OF CAUSES

Remits to sheriff court

32.1

(1) An application by a party under section 93 of the Act of 2014 (remit of cases from the Court of Session) (remit from court to sheriff) shall be made by motion.

(2) Where an action is remitted to a sheriff ... , the Deputy Principal Clerk shall, within 4 days after the interlocutor remitting the cause has been pronounced, transmit the process to the sheriff clerk of the sheriff court specified in the interlocutor.

(3) When transmitting a process under paragraph (2), the Deputy Principal Clerk shall–

(a) give written intimation of the transmission to the parties; and

(b) certify on the interlocutor sheet that such written intimation has been given.

(4) Failure by the Deputy Principal Clerk to comply with paragraph (3) shall not affect the validity of a remit made under paragraph (1).

Transmissions on contingency

32.2

(1) An application under section 33 of the Act of 1988²⁷ (transmission from sheriff on ground of contingency) shall be made–

(a) by motion at the instance of a party to the cause depending before the court; or

(b) by minute at the instance of any other person having an interest (including a party to the cause depending before the sheriff).

(2) A copy of the pleadings and the interlocutors in the cause depending before the sheriff, certified by the sheriff clerk, shall be lodged with any motion enrolled or any minute lodged under paragraph (1).

(3) A decision made on an application under paragraph (1) may not be reclaimed; but where an application has been refused, a subsequent application may be made where there has been a change of circumstances.

Intimation of receipt of process transmitted from sheriff court

32.3

On receipt of a process transmitted by a sheriff clerk by virtue of an order made under any enactment to remit a cause to the court, the Deputy Principal Clerk shall–

(a) write the date of receipt on the interlocutor sheet of the sheriff court process; and

(b) give written intimation of that date to each party.

Lodging of process and motion for further procedure

32.4

(1) Within 14 days after the date of receipt of the sheriff court process, the party who sought the remit must make up and lodge in the General Department a process incorporating the sheriff court process.

(2) Where that party has already lodged a process under rule 32.2A(b), the party must incorporate the sheriff court process in that process within the same period.

(3) When the party who sought the remit has complied with paragraph (1) or (2)—

(a) that party must apply by motion for an order for such further procedure as that party thinks fit,

(b) the cause is to proceed as if it had been an action in the court initiated by a summons.

(4) A motion under paragraph (3)(a) is to be disposed of by the Lord Ordinary.

Reponing against failure to comply with rule 32.4(1) or (2)

32.5

(1) Where the party who sought the remit fails to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), that party may apply by motion to be reponed within 7 days after the expiry of the period specified in rule 32.4(1).

(2) Paragraph (3) applies where the failure mentioned in paragraph (1) is a failure to lodge a process under rule 32.4(1), or incorporate a process in accordance with rule 32.4(2).

(3) The party enrolling a motion under paragraph (1) must, on enrolling that motion—

(a) lodge a process in accordance with rule 32.4(1), or, as the case may be, incorporate a process under rule 32.4(2);

(b) apply by motion for an order for such further procedure as that party thinks fit.

(4) A motion under paragraph (1) is to be granted only on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Insistence in remit by another party

32.6

Where the party who sought the remit has failed to comply with the requirements of rule 32.4(1), (2), or (3)(a) (lodging of process and motion for further procedure), any other party to the cause may, within 7 days after the expiry of the period specified in rule 32.4(1), comply with the requirements of those paragraphs and insist in the remit.

Re-transmission to sheriff clerk

32.7

Where, on the expiry of 21 days after the date of receipt of the process referred to in rule 32.3 (intimation of receipt of process transmitted from sheriff court), no motion has been enrolled under rule 32.5(1) (reponing against failure to comply with rule 32.4) and no motion has been enrolled under rule 32.6 (insistence in remit by another party), the remit shall be deemed to be abandoned and the Deputy Principal Clerk shall–

(a) write on the interlocutor sheet the words “Re-ransmitted in respect that the remit has been abandoned.”;

(b) add his signature and the date; and

CHAPTER 33 — CAUTION AND SECURITY

Application of this Chapter

33.1

Subject to any other provisions in these Rules, this Chapter applies to–

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

(b) security for expenses ordered to be given under section 136 of the Representation of the People Act 1983²⁸ in an election petition.

Form of applications

33.2

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

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

Orders to find caution or other security

33.3

Subject to section 726(2) of the Companies Act 1985²⁹ (order on company to find caution), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

Methods of finding caution or giving security

33.4

(1) A person ordered–

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

(b) to consign a sum of money into court, shall do so by consignation under the Court of Session Consignations (Scotland) Act 1895³⁰ in the name of the Accountant of Court.

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

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

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

(5) A bond of caution or consignation receipt lodged in process shall be accompanied by a copy of it.

Cautioners and guarantors

33.5

A bond of caution or other security shall be given only by a person authorised to carry on a regulated activity under section 31 of the Financial Services and Markets Act 2000.

Form of bonds of caution and other securities

33.6

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

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

Sufficiency of caution or security and objections

33.7

(1) The Deputy Principal Clerk shall satisfy himself that any bond of caution or other document, lodged in process under rule 33.4(3), is in proper form.

(2) A party who is dissatisfied with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 33.10 (failure to find caution or give security).

Juratory caution

33.8

(1) Where a pursuer in an action with a conclusion for suspension is ordered to find caution or give other security, he may offer to do so by juratory caution.

(2) Such an offer shall be made–

(a) at the time the order for caution or other security is made; or

(b) by enrolling a motion within the period allowed for finding caution or giving other security, as the case may be, or any prorogation of it, for the appointment of a commissioner.

(3) Where such an offer is made, the court shall–

(a) appoint a commissioner to take the deposition of the pursuer at a time and place to be fixed by the commissioner;

(b) ordain the pursuer to give notice of at least 7 days of the time and place so fixed by the commissioner to every other party to the action; and

(c) where the offer has been made by motion under paragraph (2)(b), prorogate the time for finding caution or giving other security, as the case may be, by such period as it thinks fit.

(4) At the time and place fixed by the commissioner in accordance with paragraph (3)(a), the pursuer shall be examined as to the nature and extent of his whole estate wheresoever situated and the other parties to the action shall be entitled to cross-examine him.

(5) After his examination, the pursuer shall send to the Deputy Principal Clerk–

(a) a bond of caution;

(b) a full inventory of his whole estate;

(c) a declaration attached to the inventory, stating that he will not dilapidate or dispose of any of his property or uplift any of the debts due to him, without the authority of the court (under pain of imprisonment or being otherwise punished as being guilty of fraud) or the consent of the party entitled to the benefit of the caution until the interlocutor disposing of the subject-matter of the action has become final and, where he has been found liable to pay any sum, including expenses, 12 weeks (and any further period that the court, on the motion of any party, may grant) have passed since the interlocutor became final;

(d) the vouchers of any debts due to the pursuer;

(e) the title deeds of any heritable property belonging to the pursuer, so far as in his possession or under his control; and

(f) where required by the party entitled to the benefit of the caution–

(i) a standard security in favour of such party over any heritable property belonging to the pursuer, and

(ii) as assignation of all debts or other rights due to the pursuer,

prepared at the expense of the pursuer.

(6) Subject to rule 33.12(1) (bond of caution or consignation receipt transmitted to Accountant of Court), the Deputy Principal Clerk shall retain any documents lodged under paragraph (5) of this rule until further order of the court.

Insolvency or death of cautioner or guarantor

33.9

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

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

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

(d) is a company and–

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

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

(iii) a voluntary arrangement (within the meaning assigned by section 1(1) of the Insolvency Act 1986³¹) has been approved under Part I of that Act,

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

Failure to find caution or give security

33.10

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

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

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

Interlocutors authorising uplifting of consignation receipts

33.11

An interlocutor authorising a party to uplift a consignation receipt from the Accountant of Court shall state the name of the person entitled to any interest which has accrued on the sum consigned.

Accountant of Court

33.12

(1) A bond of caution or a consignation receipt lodged in any process shall be transmitted by the party lodging it, after the Deputy Principal Clerk has complied with rule 33.7(1), to the Accountant of Court.

(2) A bond of caution may be uplifted from the Accountant of Court on exhibition to him of the interlocutor granting discharge.

(3) A consignation receipt may be uplifted from the Accountant of Court on exhibition to him of a certified copy of the interlocutor authorising it.

(4) The form of book to be kept by the Accountant of Court under section 4 of the Court of Session Consignations (Scotland) Act 1895 (consignations to be entered in books kept by Accountant of Court) shall be in Form 33.12.

CHAPTER 34 — REPORTS TO INNER HOUSE

Report by Lord Ordinary to Inner House

34.1

(1) The Lord Ordinary may, at any stage of a cause on intimation to the parties, report the cause or any incidental matter which arises in the course of it, to the Inner House for a ruling.

(2) The Lord Ordinary shall give effect to the ruling of a Division of the Inner House on a report to the Inner House unless the Division decides the cause or incidental matter itself or remits to the Lord Ordinary with directions to proceed in a particular way.

Fixing hearings for reports

34.2

(1) Where the Lord Ordinary reports a cause, or any incidental matter in a cause, under rule 34.1(1) to the Inner House, each party shall, within 7 days after the date on which the report of the Lord Ordinary is issued, inform the Keeper of the Rolls of the estimate of counsel or other person having a right of audience of the duration of the hearing before the Inner House.

(2) If a party fails to comply with paragraph (1), the Keeper of the Rolls may put the cause out on the By Order Roll before a Division of the Inner House.

(3) Where, at any time after an estimate has been given to the Keeper of the Rolls under paragraph (1), a party’s estimate of the likely length of the hearing alters materially, that party shall inform the Keeper of the Rolls of the new estimated length.

(4) On the basis of the information provided to him under this rule, the Keeper of the Rolls shall–

(a) put the cause out for hearing before a Division of the Inner House in the Single Bills or on the Summar Roll as he thinks fit; and

(b) give written intimation of the date of the hearing to each party.

Disposal of reports

34.3

(1) On considering the report of the Lord Ordinary and hearing parties, the Inner House may–

(a) dispose of the cause or matter reported to it; or

(b) remit to the Lord Ordinary with such directions as it thinks fit.

(2) The decision of the Inner House on a report to it under rule 34.1(1) shall be final.

(3) The Inner House may determine any question of expenses in respect of the matter reported to it or may reserve any such question.

(4) An interlocutor pronounced by the Lord Ordinary in obedience to directions given under paragraph (1) shall be deemed to be an interlocutor of the Inner House.

CHAPTER 35 — RECOVERY OF EVIDENCE

Application and interpretation of this Chapter

35.1

(1) This Chapter applies to the recovery of any evidence in a cause depending before the court.

(2) In this Chapter, “the Act of 1972” means the Administration of Justice (Scotland) Act 1972³².

Applications for commission and diligence for recovery of documents or for orders under section 1 of the Act of 1972

35.2

(1) An application by a party for–

(a) a commission and diligence for the recovery of a document, or

(b) an order under section 1 of the Act of 1972³³,

shall be made by motion.

(2) At the time of enrolling a motion under paragraph (1), a specification of–

(a) the document or other property sought to be inspected, photographed, preserved, taken into custody, detained, produced, recovered, sampled or experimented on or with, as the case may be, or

(b) the matter in respect of which information is sought as to the identity of a person who might be a witness or a defender,

shall be lodged in process.

(3) A copy of the specification lodged under paragraph (2) and the motion made under paragraph (1) shall be intimated by the applicant to–

(a) every other party;

(b) in respect of an application for an order under section 1(1) of the Act of 1972, any third party haver; and

(i) the Advocate General for Scotland (in a case where the document or other property sought is in the possession of either a public authority exercising functions in relation to reserved matters within the meaning of Schedule 5 to the Scotland Act 1998, or a cross-border public authority within the meaning of section 88(5) of that Act); or

(ii) the Lord Advocate (in any other case),

and if there is any doubt, both.

(4) Where the Lord Ordinary grants a motion made under paragraph (1), in whole or in part, in an action before calling of the summons, he may order the applicant to find such caution or give such other security as he thinks fit.

(5) The decision of the Lord Ordinary on a motion under paragraph (1) in an action before calling of the summons shall be final and not subject to review.

(6) The Advocate General for Scotland or the Lord Advocate or both, as appropriate, may appear at the hearing of any motion under paragraph (1).

Optional procedure before executing commission and diligence

35.3

(1) Subject to rule35.3A (optional procedure where there is a party litigant), this rule applies where a party has obtained a commission and diligence for the recovery of a document on an application under rule35.2(1)(a).

(2) Such a party may, at any time before executing the commission and diligence against a haver, serve on the haver an order in Form 35.3-A (in this rule referred to as “the order”).

(3) The order and a copy of the specification referred to in rule 35.2(2), as approved by the court, shall be served on the haver or his known agent and shall be complied with by the haver in the manner and within the period specified in the order.

(4) Not later than the day after the date on which the order, and any document recovered, is received from a haver by the party who obtained the order, that party—

(a) shall give written intimation of that fact in Form 35.3-B to the Deputy Principal Clerk and every other party; and

(b) shall—

(i) if the document has been sent by post, send a written receipt for the document in Form 35.3-C to the haver; or

(ii) if the document has been delivered by hand, give a written receipt in Form 35.3-C to the person delivering the document.

(5) Where the party who has recovered any such document does not lodge it in process within 14 days of receipt of it, he shall—

(a) forthwith give written intimation to every other party that that party may borrow, inspect or copy the document within 14 days after the date of that intimation; and

(b) in so doing, identify the document.

(6) Where any party, who has obtained any such document under paragraph (5), wishes to lodge the document in process, he shall—

(a) lodge the document within 14 days after receipt of it; and

(b) at the same time, send a written receipt for the document in Form 35.3-D to the party who obtained the order.

(7) Where—

(a) no party wishes to lodge or borrow any such document under paragraph (5), the document shall be returned to the haver by the party who obtained the order within 14 days after the expiry of the period specified in sub-paragraph (a) of that paragraph; or

(b) any such document has been uplifted by another party under paragraph (5) and that party does not wish to lodge it in process, the document shall be returned to the haver by that party within 21 days after the date of receipt of it by him.

(8) Any such document lodged in process shall be returned to the haver by the party lodging it within 14 days after the expiry of any period allowed for appeal or reclaiming or, where an appeal or reclaiming motion has been marked, from the disposal of any such appeal or reclaiming motion.

(9) If any party fails to return any such document as provided for in paragraph (7) or (8), the haver shall be entitled to apply by motion (whether or not the cause is in dependence) for an order that the document be returned to him and for the expenses occasioned by that motion.

(10) The party holding any such document (being the party who last issued a receipt for it) shall be responsible for its safekeeping during the period that the document is in his custody or control.

(11) If the party who served the order is not satisfied that—

(a) full compliance has been made with the order, or

(b) adequate reasons for non-compliance have been given,

he may execute the commission and diligence under rule 35.4.

(12) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the court may, on the motion of the party who served the order, direct that that party shall be allowed to inspect the book and take copies of any entries falling within the specification.

(13) Where any question of confidentiality arises in relation to a book directed to be inspected under paragraph (12), the inspection shall be made, and any copies shall be taken, at the sight of the commissioner appointed in the interlocutor granting the commission and diligence.

(14) The court may, on cause shown, order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

Execution of commission and diligence for recovery of documents

35.4

(1) The party who seeks to execute a commission and diligence for recovery of a document obtained on an application under rule 35.2(1)(a) shall–

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) fix a diet for the execution of the commission in consultation with every other party;

(d) be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) The interlocutor granting such a commission and diligence shall be sufficient authority for citing a haver to appear before the commissioner.

(3) A haver shall be cited to appear at a commission for the recovery of documents by service on him of a citation in Form 35.4–A–

(a) by registered post or the first class recorded delivery service; or

(b) personally, by messenger-at-arms.

(4) A certificate of citation of a haver–

(a) under paragraph (3)(a) shall be in Form 35.4-B; and

(b) under paragraph (3)(b) shall be in Form 35.4–C.

(5) There shall be served on the haver with the citation a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

(6) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a haver cited to appear at a commission for that party.

(7) The parties and the haver shall be entitled to be represented by counsel or other person having a right of audience, or an agent, at the execution of the commission.

(8) At the commission, the commissioner shall–

(a) administer the oath de fideli administratione to the clerk and shorthand writer appointed for the commission; and

(b) administer to the haver the oath in Form 35.4-D, or, where the haver elects to affirm, the affirmation in Form 35.4-E.

(9) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(10) Not later than the day after the date on which such a report, any document recovered and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to the parties that he has received them.

(11) No party, other than the party who served the order, may uplift such a document until after the expiry of 7 days after the date of intimation under paragraph (10).

(12) Where the party who served the order fails to uplift such a document within 7 days after the date of intimation under paragraph (10), the Deputy Principal Clerk shall give written intimation of that failure to every other party.

(13) Where no party has uplifted such a document within 14 days after the date of intimation under paragraph (12), the Deputy Principal Clerk shall return it to the haver.

(14) Where a party who has uplifted such a document does not wish to lodge it, he shall return it to the Deputy Principal Clerk who shall–

(a) give written intimation of the return of the document to every other party; and

(b) if no other party uplifts the document within 14 days of the date of intimation, return it to the haver.

Execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972

35.5

(1) An order under section 1(1) of the Act of 1972 for the production or recovery of a document or other property shall grant a commission and diligence for the production or r⅔ ecovery of that document or other property.

(2) Rule 35.3 (optional procedure before executing commission and diligence) and rule 35.4 (execution of commission and diligence for recovery of documents) shall apply to an order to which paragraph (1) applies as they apply to a commission and diligence for the recovery of a document.

Execution of orders for inspection etc. of documents or other property under section 1(1) of the Act of 1972

35.6

(1) An order under section 1(1) of the Act of 1972 for the inspection or photographing of a document or other property, the taking of samples or the carrying out of any experiment thereon or therewith, shall authorise and appoint a specified person to photograph, inspect, take samples of, or carry out any experiment with or on, any such document or other property, as the case may be, subject to such conditions, if any, as the court thinks fit.

(2) A certified copy of the interlocutor granting such an order shall be sufficient authority for the person specified to execute the order.

(3) When such an order is executed, the party who obtained the order shall serve on the haver a certified copy of the interlocutor granting it, a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the pleadings (including any adjustments and amendments).

Execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972

35.7

(1) An order under section 1(1) of the Act of 1972 for the preservation, custody and detention of a document or other property shall grant a commission and diligence for the detention and custody of that document or other property.

(2) The party who has obtained an order under paragraph (1) shall–

(a) provide the commissioner with a copy of the specification, a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) be responsible for the fees of the commissioner and his clerk; and

(3) The report of the execution of the commission and diligence, any document or other property taken by the commissioner and an inventory of such property, shall be sent by the commissioner to the Deputy Principal Clerk for the further order of the court.

Confidentiality

35.8

(1) Where confidentiality is claimed for any document or other property sought to be recovered under any of the following rules, such document or other property shall, where practicable, be enclosed in a sealed packet:–

rule 35.3 (optional procedure before executing commission and diligence),

rule35.3A (optional procedure where there is a party litigant),

rule 35.4 (execution of commission and diligence for recovery of documents),

rule 35.5 (execution of orders for production or recovery of documents or other property under section 1(1) of the Act of 1972),

rule 35.7 (execution of orders for preservation etc. of documents or other property under section 1(1) of the Act of 1972)

(2) A motion to have such a sealed packet opened up or such recovery allowed may be made by–

(a) the party who obtained the commission and diligence; or

(b) any other party after the date of intimation by the Deputy Principal Clerk under rule 35.3(5) or 35.4(12) (intimation of failure to uplift documents).

(3) In addition to complying with rule 23.3 (intimation of motions), the party enrolling such a motion shall intimate the terms of the motion to the person claiming confidentiality by registered post or the first class recorded delivery service.

(4) The person claiming confidentiality may oppose a motion made under paragraph (2).

Warrants for production of original documents from public records

35.9

(1) Where a party seeks to obtain from the keeper of any public record production of the original of any register or deed in his custody for the purposes of a cause, he shall apply to the court by motion.

(2) Written intimation of a motion under paragraph (1) shall be given to the keeper of the public record concerned at least 2 days before the motion is enrolled.

(3) Where it appears to the court that it is necessary for the ends of justice that a motion under this rule should be granted, authority shall be given to such keeper, on production of a certified copy of the interlocutor granting the motion, to produce or exhibit, as the case may be, the original register or deed to the court.

(4) The expense of the production or exhibition of such an original register or deed shall be met, in the first instance, by the party who applied by motion under paragraph (1).

Warrants for transmission of processes

35.10

(1) A party who seeks to lodge in process any process in the custody of the Keeper of the Records, or any process depending or which depended in any inferior court in Scotland, may apply by motion to the court for a warrant to authorise and direct the Keeper of the Records or the clerk of the inferior court, as the case may be, on production of a certified copy of the interlocutor granting the motion, to transmit that process to the Deputy Principal Clerk.

(2) A party who enrols a motion under paragraph (1) shall give written intimation of the motion to the Keeper of the Records or the clerk of the inferior court, as the case may be, at least 2 days before the motion is enrolled.

(3) The Deputy Principal Clerk shall grant a receipt for any process transmitted to him under an order made under paragraph (1) and lodge it in the process of the cause.

(4) No process transmitted under paragraph (1) may be borrowed.

(5) After a process transmitted under paragraph (1) ceases to be required, the Deputy Principal Clerk shall return it to the Keeper of the Records or the clerk of the inferior court, as the case may be.

Commissions for examination of witnesses

35.11

(1) This rule applies to a commission–

(a) to take the evidence of a witness on a ground mentioned in section 10(b) of the Act of 1988³⁴;

(b) in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis; or

(c) on special cause shown, to take the evidence of a witness on a ground other than one referred to in sub-paragraph (a) or (b).

(2) An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the court.

(2A) A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder.

(3) Where a motion under paragraph (2) is made in an action before calling of the summons–

(a) the applicant shall give written intimation of the motion to every other person named in the instance; and

(b) the decision of the Lord Ordinary shall be final and not subject to review.

(4) The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commissioner.

(5) A witness shall be cited to give evidence at a commission by service on him of a citation in Form 35.11–A–

(a) by registered post or the first class recorded delivery service; or

(b) personally, by a messenger-at-arms.

(6) The certificate of citation of a witness–

(a) under paragraph (5)(a) shall be in Form 35.11–B; and

(b) under paragraph (5)(b) shall be in Form 35.11–C.

(7) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited to appear at a commission for that party.

(8) At the commission, the commissioner shall–

(a) administer the oath de fideli administratione to the clerk and any shorthand writer appointed for the commission; and

(b) administer to the witness the oath in Form 35.4-D, or, where the witness elects to affirm, the affirmation in Form 35.4–E.

(9) In a cause involving the collision of ships, such an application shall be granted on condition, where necessary, that the applicant shall, at least 24 hours before the evidence is taken, lodge in process a preliminary act which the commissioner shall be entitled to open before the witness is examined.

(10) Where a commission is granted for the examination of a witness, the court may, on the motion of any party and on cause shown, dispense with interrogatories.

Commissions on interrogatories

35.12

(1) Where interrogatories have not been dispensed with, the party who obtained the commission to examine a witness under rule 35.11 shall lodge draft interrogatories to be adjusted at the sight of the clerk of court.

(2) Any other party may lodge cross-interrogatories to be adjusted at the sight of the clerk of court.

(3) The interrogatories and any cross-interrogatories, when adjusted, shall be extended and returned to the clerk of court for approval.

(4) The party who has obtained the commission shall–

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amendments), the approved interrogatories and any cross-interrogatories and a certified copy of the interlocutor of his appointment;

(b) instruct the clerk; and

(5) The commissioner shall, in consultation with the parties, fix a diet for the execution of the commission to examine the witness.

(6) The executed interrogatories, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(7) Not later than the day after the date on which the executed interrogatories, any document and an inventory of that document, are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(8) The party who obtained the commission to examine the witness shall lodge in process–

(a) the report of the commission; and

(b) the executed interrogatories and any cross-interrogatories.

Commissions without interrogatories

35.13

(1) Where interrogatories have been dispensed with, the party who has obtained a -commission to examine a witness under rule 35.11 shall–

(a) provide the commissioner with a copy of the pleadings (including any adjustments and amendments) and a certified copy of the interlocutor of his appointment;

(b) fix a diet for the execution of the commission in consultation with the commissioner and every other party;

(d) be responsible, in the first instance, for the fees of the commissioner, his clerk and any shorthand writer.

(2) All parties shall be entitled to be present and represented by counsel or other person having a right of audience, or agent, at the execution of the commission.

(3) The report of the execution of the commission, any document produced by the witness and an inventory of that document, shall be sent by the commissioner to the Deputy Principal Clerk.

(4) Not later than the day after the date on which such report, any document and an inventory of that document are received by the Deputy Principal Clerk, he shall give written intimation to each party that he has received them.

(5) The party who obtained the commission to examine the witness shall lodge the report in process.

Evidence taken on commission

35.14

(1) Subject to the following paragraphs of this rule and to all questions of relevancy and admissibility, evidence taken on commission under rule 35.12 or 35.13 may be used as evidence at any proof or jury trial of the cause.

(2) Any party may object to the use of such evidence at a proof or jury trial; and the objection shall be determined by the court.

(3) Such evidence shall not be used at a proof or jury trial if the witness becomes available to attend the diet of proof or jury trial, as the case may be.

(4) A party may use such evidence in accordance with the preceding paragraphs of this rule notwithstanding that it was obtained at the instance of another party.

Letters of request

35.15

(1) This rule applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of the kind specified in paragraph (2), being evidence obtainable within the jurisdiction of that court or tribunal, for the purposes of a cause depending before the Court of Session.

(2) An application to which paragraph (1) applies may be made in relation to a request–

(a) for the examination of a witness,

(b) for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be,

(d) for the taking and testing of samples of blood from any person, or

(e) for any other order for obtaining evidence,

for which an order could be obtained in the Court of Session.

(3) Such an application shall be made by minute in Form 35.15—A with a proposed letter of request in Form 35.15—B.

(4) It shall be a condition of granting a letter or request that the agent for the applicant, or the party litigant, as the case may be, shall be personally liable, in the first instance, for the whole expenses which may become due and payable in respect of the letter of request to the court or tribunal obtaining the evidence and to any witness or haver who may be examined for the purpose; and he shall consign into court such sum in respect of such expenses as the court thinks fit.

(5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory–

(a) where English is an official language, or

(b) in relation to which the Deputy Principle Clerk certifies that no translation is required,

then the applicant shall, before the issue of the letter of request, lodge in process a translation of that letter and any interrogatories and cross-interrogatories into the official language of that court or tribunal.

(6) The letter of request when issued, any interrogatories and cross-interrogatories adjusted as required by rule 35.12 and the translations (if any), shall be forwarded by the Deputy Principal Clerk to such person and in such manner as the Lord president may direct.

CHAPTER 36 — PROOFS

Hearing parts of proof separately

36.1

(1) In any cause, the court may–

(a) at its own instance, or

(b) on the motion of any party,

order that proof on liability or any other specified issue be heard separately from proof on any other issue and determine the order in which the proofs shall be heard.

(2) The court shall pronounce such interlocutor as it thinks fit at the conclusion of the first proof of any cause ordered to be heard in separate parts under paragraph (1).

Citation of witnesses

36.2

(1) A witness shall be cited for a proof by service on him of a citation in Form 36.2–A–

(a) by registered post or the first class recorded delivery service, by the agent for the party on whose behalf he is cited; or

(b) personally, by a messenger-at-arms.

(2) A certified copy of the interlocutor allowing a proof shall be sufficient warrant to a messenger-at-arms to cite a witness on behalf of a party.

(3) A certificate of citation of a witness–

(a) under paragraph (1)(a) shall be in Form 36.2–B; and

(b) under paragraph (1)(b) shall be in Form 36.2–C.

(4) The agent for a party, or a party litigant, as the case may be, shall be personally liable, in the first instance, for the fees and expenses of a witness cited by him to appear at a proof.

(5) Where a party to a cause is a party litigant, he shall–

(a) not later than 12 weeks before the diet of proof, apply to the court by motion to fix caution for the expenses of witnesses in answering a citation in such sum as the court considers reasonable having regard to the number of witnesses he proposes to cite and the period for which they may be required to attend court; and

(b) before instructing a messenger-at-arms to cite a witness, find the caution which has been fixed.

(6) A party litigant who does not intend to cite all the witnesses referred to in his application under paragraph (5)(a) may apply by motion for variation of the amount of caution.

Lodging productions

36.3

(1) Where a proof has been allowed, all productions which are intended to be used at the proof shall be lodged in process not later than 28 days before the diet of proof.

(2) A production which is not lodged in accordance with paragraph (1) shall not be used or put in evidence at a proof unless–

(a) by consent of parties; or

(b) with the leave of the court on cause shown and on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Copy productions

36.4

(1) A copy of every documentary production, marked with the appropriate number of process of the principal production, shall be lodged for the use of the court at a proof not later than 48 hours before the diet of proof.

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