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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

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(a) in the case of a petition under paragraph (1)(a), the productions of the Secretary of State; and

(b) in the case of a petition under paragraph (1)(b), the productions of the Secretary of State and a copy of the TEO.

(5) Subject to rule 107.6, the following documents must be lodged with a petition under paragraph (1)(c)—

(a) the productions of the affected person in support of the application;

(b) a copy of the notice under section 4 of the 2015 Act of the imposition of the TEO; and

Initial diets

107.3

(1) On receipt of a petition under rule 107.2, the Deputy Principal Clerk must allocate an initial diet for the court’s consideration to begin.

(2) The Deputy Principal Clerk must notify the date and time of an initial diet to the Secretary of State and, unless the Lord Ordinary orders otherwise, the affected person, any legal representative of the affected person and any special advocate.

(3) The affected person must, not later than the date of the initial diet, lodge with the Deputy Principal Clerk and serve on the Secretary of State a copy of any answers and productions that are to be founded upon by the affected person at the initial diet.

(4) Where a special advocate is appointed for the purposes of the initial diet, the special advocate must lodge with the Deputy Principal Clerk and serve on the Secretary of State a copy of any answers that are to be founded upon by the special advocate at the initial diet.

(5) At the initial diet, the parties present must state their proposals for further procedure in respect of the petition and the interlocutor of the court must include such order for further procedure as the court thinks fit.

(6) Where an initial diet has been held in the absence of the affected person the Deputy Principal Clerk must serve a copy of the interlocutor of the court on that person.

Appointment of special advocates

107.4

(1) Subject to paragraph (2), the Secretary of State must give notice to the Advocate General upon—

(a) making any application or reference under section 3(1)(b) or paragraph 3(1) of schedule 2 of the 2015 Act respectively;

(b) making any motion in respect of TEO proceedings or appeal proceedings;

(d) being served with a note of appeal, reclaiming motion or other application in respect of TEO proceedings or appeal proceedings.

(2) Paragraph (1) applies unless—

(a) the Secretary of State does not intend to—

(i) oppose the appeal, reclaiming motion or other application; or

(ii) make an application under rule 107.6(3); or

(b) a special advocate has already been appointed to represent the interest of the affected person in the proceedings.

(3) Where notice is given to the Advocate General under paragraph (1), the Advocate General may appoint a special advocate to represent the interests of the affected person in the proceedings.

(4) Where there are any TEO proceedings or appeal proceedings but no special advocate has been appointed, the affected person or the Secretary of State may at any time request the Advocate General to appoint a special advocate.

(5) On the appointment of any special advocate, the Advocate General must intimate the name of the special advocate to the Deputy Principal Clerk in writing.

(6) The special advocate may address the court in any TEO proceedings or appeal proceedings from which the affected person (and any legal representative of the affected person) is excluded.

Special advocates: further provision

107.5

(1) A special advocate upon whom material has been served under rule 107.6(7)(a) must not communicate about the TEO proceedings or appeal proceedings or any matter connected with such proceedings except in accordance with this rule or with the authority of the court.

(2) The special advocate may, without the authority of the court, communicate about the TEO proceedings or appeal proceedings with—

(a) the court;

(b) the Secretary of State or any person acting for the Secretary of State;

(d) any other person, except for the relevant party or his or her legal representative, with whom it is necessary for administrative purposes for the special advocate to communicate about matters not connected with the substance of the proceedings.

(3) The special advocate may apply by motion for authority to communicate with any relevant party to the proceedings or his or her legal representative or with any other person about the proceedings or a matter connected to the proceedings.

(4) A notice of any opposition to a motion under paragraph (3) must be intimated to the special advocate and the relevant party.

(5) The relevant party must not communicate with a special advocate upon whom material has been served under rule 107.6(7) other than in writing and through a legal representative.

(6) The special advocate may, without the authority of the court, send a written acknowledgement of receipt of a communication under paragraph (5).

Permission not to disclose relevant material etc.

107.6

(1) In this rule, “relevant material” means—

(a) material on which the Secretary of State relies;

(b) material which adversely affects the Secretary of State’s case; and

(2) Subject to paragraph (3), the Secretary State must lodge all relevant material as productions.

(3) The Secretary of State may apply by motion for permission not to disclose relevant material.

(4) The Secretary of State is not required to disclose to the affected person any relevant material which is the subject of an application under paragraph (3).

(5) Subject to paragraph (6), the Secretary of State must not rely upon any relevant material which is the subject of an application under paragraph (3) unless a special advocate has been appointed.

(6) Paragraph (5) does not apply in respect of an initial diet where the court has ordered the Deputy Principal Clerk not to notify the affected person of the date and time of the initial diet.

(7) Where the Secretary of State makes an application under paragraph (3) and a special advocate has been appointed, the Secretary of State must lodge with the Deputy Principal Clerk and serve on the special advocate—

(a) the relevant material;

(b) a statement of the reasons for the application for permission not to disclose the relevant material; and

(c) if and to the extent that it is possible to do so without disclosing information contrary to the public interest, a summary of the relevant material which can be served on the affected person.

(8) On the making of an application under paragraph (3), the court must, unless paragraph(9) applies, direct the Deputy Principal Clerk to allocate a diet for a hearing of the application and the Deputy Principal Clerk must intimate the date and time in writing to the Secretary of State and to any special advocate appointed under rule 107.4.

(9) This paragraph applies where—

(a) the special advocate gives notice that he or she does not oppose an application under paragraph (3);

(b) the court has previously considered an application by the Secretary of State for prohibition of disclosure of the same or substantially the same matters, and is satisfied that it would be just to prohibit disclosure without a hearing; or

(10) An application under paragraph (3) must be considered in the absence of the affected person and his or her legal representative.

(11) The court must grant the application under paragraph (3) where it considers that the disclosure of the material would be contrary to the public interest.

(12) On granting an application under paragraph (3), the court must order the Secretary of State to serve upon every relevant party (and their legal representatives) a copy of the summary lodged under paragraph (7)(c) unless the court considers that the summary contains information or other material the disclosure of which would be contrary to the public interest.

(13) Paragraph (14) applies where the court—

(a) does not grant permission to the Secretary of State to withhold relevant material; or

(b) requires the Secretary of State to provide a relevant party to the proceedings with a summary of relevant material that is withheld.

(14) In a case where the Secretary of State elects not to disclose the relevant material or (as the case may be) not to provide the summary—

(a) if the court considers that the relevant material or anything that is required to be summarised might adversely affect the Secretary of State’s case or support the case of a relevant party to the proceedings, the court may direct that the Secretary of State is not to rely on such points in the proceedings or is to make such concessions or take such other steps as the court may specify; or

(b) in any other case, the court must ensure that the Secretary of State does not rely in the proceedings on the material or (as the case may be) on what is required to be summarised.

Anonymity

107.7

(1) The Secretary of State or the affected person may apply for an order requiring anonymity for the affected person—

(a) in TEO proceedings or appeal proceedings, by motion;

(b) where there are no TEO proceedings or appeal proceedings, by lodging a petition with the Deputy Principal Clerk.

(2) The reference in this rule to an order requiring anonymity for the affected person is to be construed in accordance with paragraph 6(3) of schedule 3 of the 2015 Act.

Exclusion from diets or hearings etc.

107.8

(1) If the court considers it necessary for the affected person and his or her legal representative, or any other relevant party, to be excluded from a diet or hearing or part of a diet or hearing to secure that information is not disclosed contrary to the public interest, it must—

(a) make an order in that respect; and

(b) conduct the diet or hearing, or that part of it from which the affected person and his or her legal representative or other relevant party are excluded, in private.

(2) The court may otherwise order a diet or hearing to be conducted in private if it thinks fit.

(3) When the court issues an opinion in any proceedings to which this Chapter applies, the court may withhold any or part of its reasons if and to the extent that it is not possible to give reasons without disclosing information contrary to the public interest.

(4) Where an opinion of the court does not include the full reasons for its decision—

(a) the court must prepare a separate opinion including those reasons; and

(b) the Deputy Principal Clerk must serve that separate opinion on the Secretary of State and the special advocate.

Recording of TEO and appeal proceedings

107.9

(1) TEO proceedings and appeal proceedings must be recorded.

(2) The record of proceedings must include—

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

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

(3) Any transcript of the record of the proceedings must only be made on the direction of the court and must be subject to such order as to the cost of the transcript as the court thinks fit.

(4) The court may make such alterations to a transcript of the record of the proceedings as appear to it to be necessary after hearing the parties; and where such alterations are made, the court must authenticate the alterations.

Interpretation of this Chapter

Pursuers’ offers

Making of offer

Form of offer

Disclosure of offers

Acceptance of offers

Late acceptance of offers

34A.7

(1) This rule applies to the determination of a motion under rule 34A.6(4) where the court is satisfied that a defender lodged a minute of acceptance after the appropriate date.

(2) On the pursuer’s motion the court must, except on cause shown—

(a) allow interest on any sum decerned for from the date on which the pursuer’s offer was made; and

(b) find the defender liable for payment to the pursuer of a sum calculated in accordance with rule 34A.9.

(3) Where the court is satisfied that more than one defender lodged a minute of acceptance after the appropriate date the court may find those defenders liable to contribute to payment of the sum referred to in paragraph (2)(b) in such proportions as the court thinks fit.

(4) Where the court makes a finding under paragraph (2)(b), the pursuer may apply for decerniture for payment of the sum as so calculated no later than 21 days after the later of—

(a) the date of the Auditor’s report of the taxation of the pursuer’s account of expenses; and

(b) the date of the interlocutor disposing of a note of objection.

Non-acceptance of offers

34A.8

(1) This rule applies where—

(a) a pursuer’s offer has been made, and has not been withdrawn;

(b) the offer has not been accepted;

(i) the court has pronounced judgment; or

(ii) in the case of a jury trial, the verdict of the jury has been applied;

(d) the judgment or verdict, in so far as relating to the conclusions of the summons specified in the pursuer’s offer, is at least as favourable in money terms to the pursuer as the terms offered; and

(e) the court is satisfied that the pursuer’s offer was a genuine attempt to settle the proceedings.

(2) For the purpose of determining if the condition specified in paragraph (1)(d) is satisfied, interest awarded in respect of the period after the lodging of the pursuer’s offer is to be disregarded.

(3) On the pursuer’s motion the court must, except on cause shown, decern against the defender for payment to the pursuer of a sum calculated in accordance with rule 34A.9.

(4) No such motion may be enrolled after the expiry of 21 days after the later of—

(a) the date of the Auditor’s report of the taxation of the pursuer’s account of expenses; and

(b) the date of the interlocutor disposing of a note of objection.

(5) Where more than one defender is found liable to the pursuer in respect of a conclusion specified in the offer, the court may find those defenders liable to contribute to payment of the sum referred to in paragraph (3) in such proportions as it thinks fit.

Extent of defender’s liability

34A.9

The sum that may be decerned for under rule 34A.7(2)(b) or rule 34A.8(3) is a sum corresponding to half the charges allowed on taxation of the pursuer’s account of expenses, in so far as those charges are attributable to the relevant period, or in so far as they can reasonably be attributed to that period.

CHAPTER 86A — APPLICATIONS IN COMPETITION PROCEEDINGS

Interpretation of this Chapter

86A.1

In this Chapter—

“the 1998 Act” means the Competition Act 1998;

“competition authority” has the meaning given by paragraph 3(1) of schedule 8A of the 1998 Act;

“competition proceedings” has the meaning given by paragraph 2(4) of schedule 8A of the 1998 Act;

“the Directive” means Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union as amended from time to time; and

“investigation materials” has the meaning given by paragraph 3(3) of schedule 8A of the 1998 Act.

Recovery of evidence

86A.2

(1) This rule applies where a party in competition proceedings makes an application under rule 35.2(1) for—

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

(b) an order under section 1 of the Administration of Justice (Scotland) Act 1972.

(2) The applicant must intimate a copy of the motion made under rule 35.2(1) and the specification lodged under rule 35.2(2) to the Advocate General for Scotland.

(3) An application in relation to a document or other evidence that is in the possession of a competition authority must contain a statement that there is no person, other than the competition authority, reasonably able to provide the document or evidence sought.

(4) An application in relation to the investigation materials of a competition authority must contain a statement that the investigation to which those materials relate has closed.

(5) In deciding whether to grant an application made under this rule, the court must take into account Article 5(3), and, where the document or other evidence sought is in the possession of a competition authority, Article 6(4), of the Directive.

Applications in relation to alleged cartel leniency statement or settlement submission

86A.3

(1) An application by a party under—

(a) paragraph 4(7) of schedule 8A of the 1998 Act for a determination by the court as to whether information is a cartel leniency statement; or

(b) paragraph 5(3) of schedule 8A of the 1998 Act for a determination by the court as to whether a document is a settlement submission,

must be made by motion.

(2) A party enrolling a motion under paragraph (1) must intimate that motion to—

(a) the Advocate General for Scotland; and

(b) the author (where known) of the document or information in question.

(3) The hearing of a motion enrolled under paragraph (1) must be held in private and only the persons mentioned in paragraph (2)(a) and (b) may appear at that hearing.

Applications for leave under section 1 of the Vexatious Actions (Scotland) Act 1898

4.2ZA

(1) This rule applies where a person (“the applicant”) who is the subject of an order under section 1 (power of Court of Session to prohibit institution of action without leave) of the Vexatious Actions (Scotland) Act 1898 seeks leave under that section to institute legal proceedings.

(2) The applicant must apply for leave by letter addressed to the Deputy Principal Clerk.

(3) The letter must—

(a) state the full name and address of the applicant;

(b) be accompanied by a copy of the document by which it is proposed to institute legal proceedings;

(d) set out details of any previous application for leave which relates to any extent to the same matter (including, in particular, the outcome of such applications).

(4) The Deputy Principal Clerk must—

(a) in a case where the applicant has previously submitted an application for leave in relation to the same matter and that application has been refused, reject the application and notify the applicant accordingly;

(b) otherwise, place the application before a Lord Ordinary.

(5) The Lord Ordinary may, without a hearing, make an order granting or refusing the leave sought.

(6) The interlocutor of the Lord Ordinary is to be sent to the applicant by letter at the address given in the application.

(7) An interlocutor of a Lord Ordinary granting leave to institute legal proceedings constitutes permission to proceed without a signature under rule 4.2(5) (signature of documents).

Lodgings of processes

Steps of process

Productions

Intimation of steps of process

Lodging of documents in Inner House causes

Copies of documents for use of court

Documents ordered or allowed to be lodged

Receipt of documents

Documents not to be borrowed

Borrowing and returning documents

Finally extracted processes not to be borrowed

Lost documents

Outer House interlocutors

Inner House interlocutors

Inner House interlocutors relating to procedural business

Intimation of withdrawal of agent

Case management hearing

49.32A

(1) When defences are lodged, the court must fix a date for a case management hearing.

(2) The date fixed for the case management hearing must be not less than 4 weeks and not more than 8 weeks after the date on which defences were lodged.

(3) At the case management hearing, each party must address the court on—

(a) any matters that are capable of agreement;

(b) the matters that are in dispute between the parties;

(d) any documents likely to be relevant to the matters in dispute;

(e) any valuations that are likely to be required;

(f) any expert evidence that is likely to be required;

(g) whether steps require to be taken to give a child an opportunity to express views;

(h) whether steps require to be taken to investigate any facts or circumstances relating to a child;

(i) the estimated duration of the proof;

(j) further procedure;

(k) any other issues that the court considers appropriate.

(4) At the case management hearing, the court may—

(a) order and fix a date for a further case management hearing;

(b) order and fix a date for a pre-proof hearing not less than 6 weeks and not more than 8 weeks before the date fixed for the proof;

Pre-proof hearing

49.32B

(1) The purpose of a pre-proof hearing is to ascertain, so far as is reasonably practicable, whether the cause is likely to proceed to proof on the date fixed.

(2) Where the court appoints a pre-proof hearing, the parties must provide the court with sufficient information to enable it to conduct the hearing as provided for in this rule.

(3) At the pre-proof hearing, the court must consider—

(a) the state of preparation of the parties;

(b) whether the proof has been fixed for an appropriate number of days;

(d) whether special measures will be required for the purposes of taking the evidence of any vulnerable witnesses;

(e) whether a live link may be required.

(4) At the pre-proof hearing, the court may—

(a) discharge the proof and fix a new date for it;

(b) continue the pre-proof hearing;

(d) direct how evidence is to be given by expert witnesses;

(e) make an order authorising the use of special measures for the purposes of taking the evidence of any vulnerable witnesses;

(f) make an order authorising the use of a live link;

(g) make such other orders as it considers appropriate to secure the expeditious progress of the cause.

Adjustment and further procedure

Late appearance by defenders

Session of the court

Vacation

Holiday dates, periods and vacation sitting days

Motions ... in vacation

Determination of applications

58A.6

(1) Unless the Lord Ordinary or, as the case may be, the procedural judge otherwise directs—

(a) an application for a protective expenses order is to be determined in chambers without appearance;

(b) the motion is not to be starred; and

(2) Unless granting an unopposed application, the Lord Ordinary or, as the case may be, the procedural judge must give brief reasons in writing.

Terms of protective expenses orders

58A.7

(1) A protective expenses order must—

(a) limit the applicant’s liability in expenses to the respondent to the sum of £5,000, or such other sum as may be justified on cause shown; and

(b) limit the respondent’s liability in expenses to the applicant to the sum of £30,000, or such other sum as may be justified on cause shown.

(2) Where the applicant is the respondent in proceedings mentioned in rule 58A.1(1)(a)—

(a) paragraph (1)(a) applies as if the reference to the applicant’s liability in expenses to the respondent was a reference to the applicant’s liability in expenses to the appellant; and

(b) paragraph (1)(b) applies as if the reference to the respondent’s liability in expenses to the applicant was a reference to the appellant’s liability in expenses to the applicant.

(3) In paragraph (1), “the respondent” means—

(a) all parties that lodge answers in an application to the supervisory jurisdiction of the court; and

(b) all respondents in an appeal under statute.

Expenses protection in reclaiming motions

58A.8

(1) Paragraph (2) applies where—

(a) the court has made a protective expenses order in relation to proceedings in the Outer House; and

(b) a decision of the Lord Ordinary is reclaimed at the instance of a party whose liability in expenses is limited in accordance with rule 58A.7(1)(b).

(2) Subject to any review of the protective expenses order by the Inner House, the limits on the parties’ liability in expenses set by the order include liability for expenses occasioned by the reclaiming motion.

(3) Paragraphs (4) and (5) apply for the purposes of any other reclaiming motion from a decision of the Lord Ordinary in proceedings mentioned in rule 58A.1(1)(b) or (c).

(4) A party who would have been entitled to apply for a protective expenses order in the Outer House proceedings (whether or not the party did so apply) may apply for a protective expenses order in relation to the reclaiming motion in which event rule 58A.3(4) or, as the case may be, rule 58A.4(4) applies to the application.

(5) The application must be made, except on cause shown, no later than is reasonably practicable after the reclaiming motion has been marked.

Expenses of application

58A.9

(1) Paragraph (2) applies where, in proceedings in which an application for a protective expenses order has been refused—

(a) the applicant is found liable for payment of expenses; and

(b) the expenses for which the applicant has been found liable comprise or include the expenses occasioned by the application.

(2) On the motion of the applicant the court must, other than on exceptional cause shown, limit the applicant’s total liability in expenses, in so far as occasioned by the application, to the sum of £500.

Election by the appropriate Minister not to disclose material or to provide summary

Replacement office-holders and liquidators: block transfer orders

74.3A

(1) This rule applies to an application under—

(a) rule 4.2(1) of the Insolvency (CVAA) Rules (application for a block transfer order);

(b) rule 6.2(1) of the Insolvency (RWU) Rules (application for block transfer order); and

(2) An application mentioned in paragraph (1) must be made by petition.

(3) Paragraph (4) applies where an application includes the name of one or more sheriff court petition.

(4) The Deputy Principal Clerk must notify the sheriff clerk of every sheriff court listed in the application that an application has been made.

(5) Where the court grants an application, it may order the replacement office-holder or the replacement liquidator, as the case may be, to be appointed in any or all of the cases listed in the application.

(6) Where the court pronounces an interlocutor granting a block transfer order—

(a) the Deputy Principal Clerk must send a certified copy of that interlocutor to the replacement office-holder or, as the case may be, the replacement liquidator;

(b) the court may direct that a copy of the interlocutor is—

(i) to be put in the process of every Court of Session petition where the replacement office-holder or, as the case may be, the replacement liquidator has been appointed;

(ii) to be sent to the sheriff clerk to be put in the process of every sheriff court petition where the replacement office-holder or, as the case may be, the replacement liquidator has been appointed; and

(c) the court may make such orders as it thinks fit for the intimation and advertisement of the appointment of the replacement office-holder or, as the case may be, the replacement liquidator.

(7) In this rule the “office-holder” means a supervisor, nominee or administrator.

Decision making

74.3B

(1) An application—

(a) for an order under rule 5.12(1) of the Insolvency (CVAA) Rules or rule 8.12(1) of the Insolvency (RWU) Rules (notice of decision procedure by advertisement only);

(b) for directions under rule 8.18(4) of the Insolvency (RWU) Rules (application for directions about decision procedure);

(c) for a direction under rule 5.22 of the Insolvency (CVAA) Rules or rule 8.23 of the Insolvency (RWU) Rules (adjournment by chair);

(d) for a direction under rule 5.33(3)(b) or 5.40(3)(b) of the Insolvency (CVAA) Rules or rule 8.36(3)(b) or 8.44(3)(b) of the Insolvency (RWU) Rules (direction as to validity of meeting with excluded person present);

(e) for directions under rule 5.35(9) or 5.42(9) of the Insolvency (CVAA) Rules or rule 8.38(9) or 8.46(9) of the Insolvency (RWU) Rules (application to court for directions about action of appropriate person),

must be made by petition or, where a previous application or appeal to the court in relation to any moratorium, company voluntary arrangement, liquidation, administration or receivership of the company has been made, by note in the process of that petition.

(2) An appeal under rule 5.32 of the Insolvency (CVAA) Rules or rule 8.35 of the Insolvency (RWU) Rules (appeals against decisions about creditors’ voting rights and majorities) must be made by petition or, where a previous application or appeal to the court in relation to any moratorium, company voluntary arrangement, liquidation, administration or receivership of the company has been made, by note in the process of that petition.

Report of meetings and decisions to approve arrangement

Notice of termination or implementation of arrangement

Appeals against valuation of debts

74.28A

(1) An appeal under rule 7.23(4) of the Insolvency (RWU) Rules (appeal against valuation of debt by liquidator) against a valuation under paragraph (2)(a) of that rule must be made by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

(2) A note under paragraph (1) must be served on the liquidator.

Removal of liquidator

Appeals and applications in relation to outlays and remuneration of liquidator

Applications under section 176A of the Act of 1986

Application to appoint a special manager

Determinations of accounting periods

74.31A

An application for a determination of the court under rule 7.31(2)(c)(ii) of the Insolvency (RWU) Rules (determination of accounting period by the court) must be made by the liquidator by note or, in a voluntary winding up where no previous application or appeal to the court has been made, by petition.

Specific applications – voluntary winding up

74.31B

An application to the court for—

(a) the appointment or removal and appointment of a liquidator under section 108 of the Act of 1986 (appointment or removal of liquidator by the court);

(b) sanction under section 110(3)(b) of the Act of 1986 (sanction for payment of compensation to liquidator);

(d) an order under rule 3.5(6) or 4.23(7) of the Insolvency (RWU) Rules (order of court to change liquidator’s default date of release);

(e) authorisation under rule 3.15(4) or 4.33(4) of the Insolvency (RWU) Rules (realisation of the company’s heritable property);

(f) approval under rule 4.7(5) of the Insolvency (RWU) Rules (approval for payment to liquidator of expenses of statement of affairs),

must be made by petition or, where a previous application to the court in relation to a voluntary winding up has been made, by note in the process of that petition.

Other applications – voluntary winding up

74.31C

An application under the Act of 1986 or any subordinate legislation made under that Act in relation to a voluntary winding up not mentioned in this Part must be—

(a) where no previous application to the court in relation to a voluntary winding up has been made, by petition; or

(b) where a petition for such an application has been lodged, by note in the process of that petition.

Other applications – winding up by the court

Replacement liquidators: block transfer orders

Approval of the voluntary winding up of a bank or building society

Interest on expenses

42.4A

(1) At any time before extract of a decree for payment of expenses as taxed by the Auditor the court may, on the application of the party to whom expenses are payable, grant decree against the party decerned against for payment of interest on the taxed expenses, or any part thereof, from a date no earlier than 28 days after the date on which the account of expenses was lodged.

(2) Paragraph (1) is without prejudice to the court’s other powers in relation to expenses.

Modification or disallowance of expenses

Modification of expenses awarded against assisted persons

Taxation of solicitors' own accounts

Remuneration of reporters

42.18

(1) This rule applies where any matter in a cause is remitted by the court, at its own instance or on the motion of a party, to a reporter or other person to report to the court.

(2) The party liable to the reporter or other person for payment of that person’s fee, and reimbursement of that person’s outlays, is—

(a) where the court makes the remit at its own instance, the party so ordained by the court;

(b) where the court makes the remit on the motion of a party, that party.

(3) The solicitor for the liable party is personally liable in the first instance for payment of such fee and outlays.

(4) This rule applies subject to—

(a) any other provision in these Rules;

(b) any order of the court; or

Transfer of application for forfeiture of property from the sheriff: proceeds of crime

32.8

(1) This rule applies to an application under—

(a) paragraph 10G(1)(b) of schedule 1 of the Anti-terrorism, Crime and Security Act 2001 for the forfeiture of property which has been transferred to the court by the sheriff under paragraph10J(1) of that schedule;

(b) section 303O(1)(b) of the Proceeds of Crime Act 2002 for the forfeiture of property which has been transferred to the court by the sheriff under section 303R(1) of that Act.

(c) article 213L(1) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 for the forfeiture of property which has been transferred to the court by the sheriff under article 213O(1) of that Order.

(2) Within 14 days after the date of receipt by the Scottish Ministers of written notice of the transfer from the sheriff clerk, the Scottish Ministers must apply to the court by motion for an order for further procedure.

(3) The application is to proceed as if it had been an action initiated by petition.

(4) On applying for an order for further procedure under paragraph (2), the Scottish Ministers must make up and lodge in the General Department a process incorporating the sheriff court process.

Applications for a recovery order – heritable property

76.36A

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

Unexplained wealth orders and interim freezing orders

76.37B

(1) An application under the following provisions must be made by petition—

(a) section 396A of the Act of 2002 (unexplained wealth orders);

(b) section 396J of the Act of 2002 (application for interim freezing order) but only if the application is made at the same time as an application for an unexplained wealth order.

(d) article 46I of the POCA Order of 2013 (unexplained wealth order: application for interim freezing order) but only if the application is made at the same time as an application under article 46A of that Order.

(2) An application under the following provisions must be made by note in process—

(a) section 396I of the Act of 2002 (supplementary);

(b) section 396J of the Act of 2002 (application for interim freezing order) but only if the application is made after the court has made an unexplained wealth order;

(d) section 396S of the Act of 2002 (compensation).

(e) article 46H of the POCA Order of 2013 (supplementary);

(f) article 46I of the POCA Order of 2013 but only if the application is made after the court has made an order under article 46A of that Order;

(g) article 46J of the POCA Order of 2013 (variation and discharge of interim freezing order);

(h) article 46R of the POCA Order of 2013 (compensation).

(3) An application under the following provisions must be made by motion—

(a) section 396N of the Act of 2002 (arrestment of property affected by interim freezing order);

(b) section 396O of the Act of 2002 (inhibition of property affected by interim freezing order) but only if the application is made after the court has made an interim freezing order;

(d) article 46M of the POCA Order of 2013 (arrestment of property affected by interim freezing order);

(e) article 46N of the POCA Order of 2013 (inhibition of property affected by interim freezing order) but only if the application is made after the court has made an order under article 46I of that Order;

(f) article 46Q (supervision of article 46O receiver and variations).

(4) An application under the following provisions may be made by petition, if made at the same time as an application for an interim freezing order or, if made at any time afterwards, by note in process—

(a) section 396Q of the Act of 2002 (powers of receivers appointed under section 396P);

(b) section 396P of the Act of 2002 (receivers in connection with interim freezing orders).

(4A) An application under the following provisions may be made by petition, if made at the same time as an application for an order under article 46I of the POCA Order of 2013 or, if made at any time afterwards, by note in process—

(a) article 46P of the POCA Order of 2013 (powers of receivers appointed under article 46O);

(b) article 46O of the POCA Order of 2013 (receivers in connection with interim freezing orders).

(5) At the hearing of a motion under paragraph (3) the court may order that the application be made by note; and, in such a case, must make an order for the lodging of answers to the note in process within such period as the court thinks fit.

Warrants and forms for intimation to a child and for seeking a child’s views

49.8A

(1) Subject to paragraph (2), in an action which includes a conclusion for a section11 order in respect of a child who is not a party to the action, the pursuer must—

(a) include in the condescendence of the summons averments setting out the reasons why it is appropriate to send Form 49.8A to the child;

(b) when the summons is presented for signeting—

(i) apply by motion for a warrant for intimation and the seeking of the child’s views in Form49.8A, specifying the articles of condescendence in the summons which contain the reasons for the request;

(ii) submit a draft Form49.8A, showing the details that the pursuer proposes to include when the form is sent to the child.

(2) Where the pursuer considers that it would be inappropriate to send Form 49.8A to the child (for example, where the child is under 5 years of age), the pursuer must—

(a) when the summons is presented for signeting, apply by motion for the court to dispense with intimation and the seeking of the child’s views in Form 49.8A, specifying the articles of condescendence in the summons which contain the reasons for the request;

(b) include in the condescendence of the summons averments setting out the reasons why it is inappropriate to send Form 49.8A to the child.

(3) The court must be satisfied that the draft Form 49.8A submitted under paragraph(1)(b) has been drafted appropriately.

(4) The court may dispense with intimation and the seeking of views in Form49.8A or make any other order it considers appropriate.

(5) An order granting warrant for intimation and the seeking of the child’s views in Form49.8A under this rule must—

(a) state that the Form 49.8A must be sent in accordance with rule 49.8A(6);

(b) be signed by the Lord Ordinary.

(6) The Form 49.8A must be sent in accordance with—

(a) rule 49.20 (views of the child – undefended actions), where the action is undefended;

(b) rule 49.20A (views of the child – section 11 order sought by pursuer only), where the action is defended and a section 11 order is sought by the pursuer only;

(c) rule 49.20B (views of the child – section 11 order sought by defender only), where a section 11 order is sought by the defender only; or

(d) rule 49.20C (views of the child – section 11 orders sought by both pursuer and defender), where a section 11 order is sought by both parties.

Intimation where relevant association

Productions in action of divorce, dissolution of civil partnership, or where section 11 order may be made

Execution of service on, or intimation to, local authority

Notice of actions by advertisement

Service in cases of mental disorder of defender

Notices in certain actions of divorce or separation

Notices in certain actions of dissolution of civil partnership or separation of civil partners

Orders for intimation by the court

Interested persons entering process

Appointment of curators ad litem to defenders

Applications for sist

Applications for sist in actions involving civil partnerships

Views of the child – undefended actions

Views of the child – section 11 order sought by pursuer only

49.20A

(1) This rule applies to defended actions in which only the pursuer seeks a section 11 order and warrant has been granted for intimation and the seeking of the child’s views in Form49.8A.

(2) The pursuer must—

(a) no later than 14 days after defences are lodged, send the child the Form49.8A that was submitted and approved under rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views);

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

Views of the child – section 11 order sought by defender only

49.20B

(1) This rule applies to defended actions in which only the defender seeks a section11 order and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The defender must—

(a) no later than 14 days after warrant to intimate to the child is granted under rule49.31(7) (defences in family actions), send the child the Form 49.8A that was submitted and approved under rule49.31;

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

Views of the child – section 11 orders sought by both pursuer and defender

49.20C

(1) This rule applies to defended actions in which section11 orders are sought by both the pursuer and the defender and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The pursuer must—

(a) no later than 14 days after defences are lodged, send the child the Form 49.8A that was submitted and approved under rule 49.8A (warrants and forms for intimation to a child and for seeking a child’s views), amended so as also to narrate the section11 order sought by the defender;

(b) on the same day—

(i) lodge a certificate of intimation in Form 49.8B;

(ii) send the defender a copy of the Form 49.8A that was sent to the child;

Views of the child – the court’s role

49.20D

(1) In a family action, in relation to any matter affecting a child, where that child has—

(a) returned a Form 49.8A to the court; or

(b) otherwise indicated to the court a wish to express views,

the court must not grant any order unless an opportunity has been given for the views of that child to be obtained or heard.

(2) Where the court is considering making an interim section 11 order before the views of the child have been obtained or heard, the court must consider whether, and if so how, to seek the child’s views in advance of making the order.

(3) Where a child has indicated a wish to express views, the court must order any steps to be taken that it considers appropriate to obtain or hear the views of that child.

(4) The court must not grant an order in a family action, in relation to any matter affecting a child who has expressed views, unless the court has given due weight to the views expressed by that child, having regard to the child’s age and maturity.

(5) In any action in which a section 11 order is sought, where Form 49.8A has not been sent to the child concerned or where it has been sent but the court considers that the passage of time requires it to be sent again, the court may at any time order any party to—

(a) send the Form 49.8A to that child within a specified timescale;

(b) on the same day, lodge—

(i) a copy of the Form 49.8A that was sent to the child;

(ii) a certificate of intimation in Form 49.8C.

Reports by local authorities under section 49(2) of the Act of 1975

Child welfare reporters

Appointment of local authority to report on a child

Referral to family mediation ...

Applications for orders to disclose whereabouts of children

Applications in relation to removal of children

Intimation to local authority before supervised contact order

Joint minutes

Expenses of curator ad litem appointed to a child

Corrected gender recognition certificates

Applications for postponement of decree under section 3A of the Act of 1976

Warrants for intimation to child and permission to seek views relating to section 11 order

Views of the child – unopposed minutes relating to a section11 order

49.42A

(1) This rule applies to minutes which include a crave after final decree for, or the variation or recall of, a section11 order in respect of which no answers are lodged and warrant has been granted for intimation and the seeking of the child’s views in Form49.8A.

(2) The minuter must—

(a) send the child the Form 49.8A that was submitted and approved under rule 49.42 (warrants for intimation to child and permission to seek views relating to section11 order);

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

(3) Except on cause shown, the court must not determine the minute in the period of 28days following the date on which the Form 49.8A was sent to the child.

Views of the child – craves relating to a section 11 order sought by minuter only

49.42B

(1) This rule applies where answers have been lodged in respect of a minute after final decree and a crave for, or the variation or recall of, a section11 order is sought by the minuter only and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The minuter must—

(a) no later than 14 days after answers are lodged, send the child the Form 49.8A that was submitted and approved under rule 49.42 (warrants for intimation to child and permission to seek views relating to section 11 order);

(b) on the same day, lodge a certificate of intimation in Form 49.8B;

Views of the child – craves relating to a section11 order sought by both minuter and respondent

49.42C

(1) This rule applies where answers have been lodged in respect of a minute after final decree and craves for, or the variation or recall of, a section11 order are sought by both the minuter and the respondent and warrant has been granted for intimation and the seeking of the child’s views in Form 49.8A.

(2) The minuter must—

(a) no later than 14 days after answers are lodged, send the child the Form 49.8A that was submitted and approved under rule 49.42 (warrants for intimation to child and permission to seek views relating to section 11 order), amended so as also to narrate the section11 order sought by the respondent;

(b) on the same day—

(i) lodge a certificate of intimation in Form 49.8B;

(ii) send the respondent a copy of the Form 49.8A that was sent to the child;

Applications after decree relating to aliment

Applications after decree by persons over 18 years for aliment

Warrants and forms for intimation to a child and for seeking a child’s views

Lodging of closed record etc.

Debates

Fixing a case management hearing

Exchange of information by parties

Lodging of statements of proposals and joint minutes

Case management hearing

42A.7

(1) At the case management hearing, after considering the written statements lodged by the parties under rule 42A.6(2)(a), the Lord Ordinary is to determine whether the action should be sent to proof on the whole or any part of the action.

(2) Before making a determination under paragraph (1), the Lord Ordinary is to—

(a) hear from the parties, with a view to ascertaining—

(i) the matters in dispute between the parties;

(ii) the readiness of the parties to proceed to proof;

(b) without prejudice to the generality of sub-paragraph (a), hear from the parties with a view to ascertaining—

(i) whether reports, in draft form, of skilled persons have been exchanged;

(ii) the nature and extent of the dispute between skilled persons;

(iii) whether there are any facts that have been agreed between the parties, upon which skilled persons can comment;

(iv) the extent to which agreement can be reached between the parties on the relevant literature upon which skilled persons intend to rely;

(v) whether there has been a meeting between skilled persons, or whether such a meeting would be useful and, if so, at what stage of the action;

(vi) where a meeting between skilled persons has taken place, the form of the report which is to be produced following that meeting;

(vii) whether a proof on a particular issue would allow scope for the matter to be resolved;

(viii) whether all witness statements have been exchanged;

(ix) whether any party is experiencing difficulties in obtaining precognition facilities;

(x) whether all relevant records have been recovered and whether there is an agreed bundle of records;

(xi) whether there is a relevant case that is supported by evidence of skilled persons;

(xii) if there is no evidence of skilled persons to support a relevant case, whether such evidence is necessary;

(xiii) whether there is a relevant defence to any or all of the case supported by evidence of skilled persons;

(xiv) if there is no evidence of skilled persons to support a relevant defence, whether such evidence is necessary;

(xv) whether causation of some or all of the injuries is the main area of dispute and, if so, the position of the respective skilled persons;

(xvi) if, following the exchange of valuations, in draft form, a significant disparity is shown, whether the parties should be asked to provide an explanation for such disparity;

(xvii) whether a further joint minute, other than the joint minute provided for in rule42A.6(2)(b), has been considered;

(xviii) whether any of the heads of damage can be agreed;

(ixx) whether any orders would facilitate the resolution of the case or the narrowing of the scope of the dispute;

(xx) whether a pre-trial meeting should be fixed;

(xxi) whether amendment, other than updating, is anticipated;

(xxii) the time required for proof.

(3) Where the action is sent to proof, the Lord Ordinary must—

(a) fix a date for the hearing of the proof;

(b) fix a pre-proof timetable in accordance with rule 42A.8.

(4) The Lord Ordinary may fix a further case management hearing—

(a) on the motion of any party;

(b) at the Lord Ordinary’s own instance.

Pre-proof timetable

42A.8

(1) Subject to paragraph (4), the pre-proof timetable mentioned in rule42A.7(3)(b) must contain provision for the following—

(a) no later than 6 months before the proof—

(i) a date for a further case management hearing;

(ii) the last date for the lodging of—

(aa) a valuation;

(ab) vouchings, with the exception of those records which are included, or are to be included, in the joint bundle of productions,

by the pursuer;

(b) no later than 5 months before the proof, the last date for the lodging of—

(i) a valuation;

(ii) vouchings, with the exception of those records which are included, or are to be included, in the joint bundle of productions,

by the defender;

(i) witness lists;

(ii) productions, including a paginated joint bundle of productions, and a list of the contents of the paginated joint bundle of productions, in final form;

(iii) a core bundle of productions, and list of productions that comprise the core bundle of productions,

by the parties;

(d) no later than 3 months before the proof, the last date for the pre-trial meeting;

(e) no later than 2 months before the proof, a date for a further case management hearing.

(2) Rule 43.10(1), (2)(b) and (5) (pre-trial meetings) applies to a pre-trial meeting held under this Chapter as it applies to a pre-trial meeting held under Chapter 43 (actions of damages for, or arising from, personal injuries).

(3) Prior to the case management hearing mentioned in paragraph (1)(e)—

(a) the pursuer must lodge in process a joint minute of the pre-trial meeting in Form43.10 (minute of pre-trial meeting);

(b) the parties must lodge in process any other joint minutes.

(4) At any time the Lord Ordinary may, at the Lord Ordinary’s own instance or on the motion of a party—

(a) fix a further case management hearing;

(b) vary the pre-proof timetable,

where the Lord Ordinary considers that the efficient determination of the action would be served by doing so.

Non-compliance by parties in the exchange of information

42A.9

Where a party fails to comply with a requirement provided by any of the following rules—

(a) 42A.5(2);

(b) 42A.5(3)(a) to (d),

then that party may, on the motion of any other party, be ordained to appear before the court to provide an explanation as to why they failed to comply, and the court has the power to make any such order as appears appropriate in the circumstances.

Power to make orders

42A.10

(1) Following the fixing of a case management hearing under rule 42A.7(4) or 42A.8(4)(a), or the variation of the pre-proof timetable under rule 42A.8(4)(b), the Lord Ordinary may make such orders as the Lord Ordinary thinks necessary to secure the efficient determination of the action.

(2) In particular, the Lord Ordinary may make orders to resolve any matters arising or outstanding from the written statements lodged by parties under rule 42A.6(2)(a) or the pre-proof timetable fixed under rule 42A.7(3)(b).

Interim orders

Representations

Electronic signing and transmission of certain documents

62.102

(1) This rule applies in relation to a document which is to be given to, or issued by, the Keeper of the Registers under this Chapter, other than a document of a type mentioned in paragraph 1(4) of schedule 4 of the Coronavirus (Scotland) Act 2020.

(2) An electronic signature fulfils any requirement (however expressed) that the document be signed.

(3) The document may be—

(a) given to the Keeper by transmitting it to the Keeper electronically,

(b) issued to a person by the Keeper by—

(i) transmitting it to the person electronically, or

(ii) transmitting it (electronically or otherwise) to a solicitor engaged to act on the person's behalf in relation to the document.

(4) For the purposes of paragraph (3)(a), the document may be transmitted by a means (and in a form) which is specified on the Keeper’s website as being acceptable for those purposes.

(5) For the purposes of paragraph (3)(b)—

(a) electronic transmission of a document by the Keeper to another person (“the recipient”) must be effected in a way that the recipient has indicated to the Keeper that the recipient is willing to receive the document,

(b) the recipient’s indication of willingness to receive a document in a particular way may be—

(i) specific to the document in question or generally applicable to documents of that kind,

(ii) expressed specifically to the Keeper or generally (for example on a website),

(iii) inferred from the recipient having previously been willing to receive documents from the Keeper in that way and not having indicated unwillingness to do so again,

(c) the Keeper’s uploading of a document to an electronic storage system from which the recipient is able to download the document may constitute electronic transmission of the document from the Keeper to the recipient.

(6) In this rule—

“document” includes a copy of a document,

“electronic signature” is to be construed in accordance with section 7(2) of the Electronic Communications Act 2000 (electronic signatures and related certificates), but includes a version of an electronic signature which is reproduced on a paper document,

“the Keeper’s website” means the website maintained by, or on behalf of, the Keeper of the Registers of Scotland with the domain name ros.gov.uk.

CHAPTER 109 — CARE HOMES: EMERGENCY INTERVENTION ORDERS

Interpretation and application of this Chapter

109.1

(1) In this Chapter—

“the 2010 Act” means the Public Services Reform (Scotland) Act 2010 as modified by paragraph 17 (emergency intervention orders) of schedule 1 of the Coronavirus (Scotland) (No.2) Act 2020;

“emergency intervention order” has the meaning given by section 65A(2) (care homes: emergency intervention orders) of the 2010 Act;

(2) This Chapter applies in relation to applications made under section 65A of the 2010 Act.

Applications under section 65A of the 2010 Act

109.2

(1) An application for an emergency intervention order under section 65A(1) of the 2010 Act must be made by petition.

(2) An interim order under section 65A(3) of the 2010 Act must be sought by prayer in the petition for the emergency intervention order.

(3) An application under section 65A(13) of the 2010 Act for variation, extension or revocation of an emergency intervention order must be made by note in the process for the emergency intervention order to which it relates.

(4) An application under section 65A(14) of the 2010 Act for variation or recall of an interim order granted under section 65A(3) of that Act must be made by motion.

Moratoriums - general

74.3C

(1) A moratorium to be obtained by lodging the relevant documents in court must be—

(a) lodged in the Petition Department; and

(b) marked by the clerk of session receiving them with the time and date on which they are lodged and a certified copy provided to the directors.

(2) An application to the court for a moratorium must be made—

(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition; or

(b) in all other cases, by petition.

(3) Paragraph (1) applies to—

(a) the obtaining of an extension of a moratorium under sections A10 (extension by directors without creditor consent) or A11 (extension by directors with creditor consent); and

(b) the termination of a moratorium by the monitor under section A38(1) (termination of moratorium by monitor),

of the Act of 1986, as it does to the obtaining of a moratorium.

(4) Paragraph (5) applies to an application to the court under—

(a) section A13 (extension by court on application of directors);

(b) section A21(1) (restrictions on enforcement and legal proceedings);

(d) section A32(1) (disposal of hire-purchase property);

(e) section A37 (application by monitor for directions);

(f) section A39(1) or (2) (replacement of monitor or appointment of additional monitor);

(g) section A42(1) (challenge to monitor’s actions);

(h) rules under section A43(1) (challenges to monitor remuneration in insolvency proceedings);

(i) section A44(1) (challenge to directors’ actions),

of the Act of 1986.

(5) Where this paragraph applies, an application to the court must be made—

(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition;

(b) where the application for the moratorium was made by petition, by note in the process of that petition; or

Moratoriums – regulated companies

74.3D

An application under any of the following sections of the Act of 1986 in relation to a regulated company is to be intimated to the appropriate regulator (as those persons are defined in section A49(13) of that Act (regulated companies: modifications to this Part))—

(a) section A31(1);

(b) section A32(1);

(d) section A42(1);

(e) section A44(1).

Moratoriums – challenge to monitor’s remuneration

74.3E

An application to the court under paragraph 80 of schedule 4 of the Act of 2020 (challenge to monitor’s remuneration) must be made—

(a) where the company is in administration or being wound-up by the court, by note in the process of those insolvency proceedings; or

(b) in all other cases, by petition.

CHAPTER 26A — GROUP PROCEDURE

Interpretation and application of this Chapter

26A.1

(1) In this Chapter—

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

“group” has the meaning provided in section 20(2) of the Act;

“group member” means a person who, along with one or more other persons, expressly consents to the group proceedings to be brought on his or her behalf;

“group proceedings” has the meaning provided in section 20(1) of the Act;

“group register” is a record, in Form 26A.15, of those persons who are group members;

“representative party” has the meaning provided in section 20(2) of the Act.

(2) In rules 26A.6, 26A.7, 26A.9, 26A.11 and 26A.15 “applicant” has the meaning given in rule 26A.5(1).

(3) This Chapter applies to group proceedings as provided for by Part 4 of the Act.

Disapplication of certain rules

26A.2

(1) The requirement in rule 4.1(4) (form, size, etc., of documents forming the process) for a step in process to be folded lengthwise does not apply in proceedings to which this Chapter applies.

(2) An open record is not to be made up in, and Chapter 22 (making up and closing records) does not apply to, proceedings to which this Chapter applies unless otherwise ordered by the Lord Ordinary.

(3) The following rules do not apply to proceedings to which this Chapter applies—

(a) rule 6.2 (fixing and allocation of diets in Outer House);

(b) rule 36.3 (lodging productions).

Procedure in group proceedings

26A.3

(1) Subject to the other provisions of this Chapter, the procedure in proceedings to which this Chapter applies is to be such as the Lord Ordinary is to order or direct.

(2) All proceedings in the Outer House to which this Chapter applies are to be heard or determined on such dates and at such times as are fixed by the Lord Ordinary.

(3) The fixing of a hearing for a specified date and time in proceedings to which this Chapter applies does not affect the right of any party to apply by motion at any time under these rules.

Motions under this Chapter

26A.4

(1) Chapter 23 (motions) applies to motions under this Chapter.

(2) Motions under this Chapter may be intimated and enrolled in accordance with Part 2 of Chapter 23.

Application to be a representative party

26A.5

(1) An application by a person (the “applicant”) under section 20(3)(b) of the Act to be a representative party to bring group proceedings is to be made by motion, in Form 26A.5.

(2) On a motion being enrolled under paragraph (1), the application is to be brought before a Lord Ordinary on the first available day after being made, for an order for—

(a) intimation and service of the application on the defender and such other person as the Lord Ordinary thinks fit within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(b) such advertisement as the Lord Ordinary thinks fit to take place within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(c) any person on whom the application has been served, to lodge answers and any relevant documents, if so advised, within 21 days after the date of service, or within such other period as the Lord Ordinary thinks fit.

(3) A person served with the application who intends to participate in the decision as to whether authorisation should be given must lodge answers within the period ordered for the lodging of answers.

(4) Where answers are lodged under paragraph (2)(c) a hearing must be fixed.

(5) The applicant and any person who has lodged answers must be given at least 7 days’ notice of a hearing ordered under paragraph (4).

(6) Where application for permission to bring proceedings is being made under rule26A.9(1) at the same time as an application is made under paragraph (1) then paragraphs(7) and (8) apply.

(7) The applicant must, at the same time as making the applications under this rule and rule 26A.9(1), lodge in the General Department—

(a) the summons by which it is proposed to institute proceedings;

(b) a group register in Form 26A.15; and

(c) all relevant documents in the applicant’s possession which are necessary for the court to determine whether or not to give permission.

(8) The applicant must, at the same time as lodging papers in the General Department under paragraph(7), serve those papers on the defender.

(9) Evidence of service in accordance with Chapter 16 must be provided to the General Department within 14 days from the date of service.

Application by more than one person to be a representative party

26A.6

(1) This rule applies where—

(a) more than one application made under rule26A.5(1) is received by the court from more than one applicant in connection with the same issues (whether of fact or law) which may be subject to group proceedings; and

(b) the Lord Ordinary has not determined the first received application at the point a subsequent application is received.

(2) A hearing on the applications must be fixed by the court.

(3) The applicants must be given at least 7 days’ notice of a hearing fixed under paragraph(2).

Determination of an application by a person to be a representative party

26A.7

(1) An applicant may be authorised under section 20(3)(b) of the Act to be a representative party in group proceedings only where the applicant has satisfied the Lord Ordinary that the applicant is a suitable person who can act in that capacity should such authorisation be given.

(2) The matters which are to be considered by the Lord Ordinary when deciding whether or not an applicant is a suitable person under paragraph (1) include—

(a) the special abilities and relevant expertise of the applicant;

(b) the applicant’s own interest in the proceedings;

(c) whether there would be any potential benefit to the applicant, financial or otherwise, should the application be authorised;

(d) confirmation that the applicant is independent from the defender;

(e) demonstration that the applicant would act fairly and adequately in the interests of the group members as a whole, and that the applicant’s own interests do not conflict with those of the group whom the applicant seeks to represent; and

(f) the demonstration of sufficient competence by the applicant to litigate the claims properly, including financial resources to meet any expenses awards (the details of funding arrangements do not require to be disclosed).

(3) The Lord Ordinary may refuse an application made by an applicant seeking authorisation to be given under section 20(3)(b) of the Act where the applicant has not satisfied the Lord Ordinary that the applicant is a suitable person, in terms of paragraphs (1) and (2), to act in that capacity.

(4) Authorisation given under paragraph (1) endures until the group proceedings finish or until permission is withdrawn.

Replacement of a representative party

26A.8

(1) A representative party may apply to the court, by motion in Form 26A.8, seeking the permission of the court to authorise, in place of that party, another person as the representative party, who may or may not be a group member.

(2) A group member may apply to the court, by motion in Form 26A.8, seeking the permission to authorise the replacement of the representative party with another person, who may or may not be a group member.

(3) On a motion being enrolled in terms of paragraph (1) or (2), the application is to be brought before a Lord Ordinary on the first available day after being made, for an order for—

(a) intimation and service of the application on—

(i) the defender;

(ii) in the case of an application made under paragraph (2), the representative party;

(iii) the group members; and

(iv) such other person as the Lord Ordinary thinks fit,

in a manner which the Lord Ordinary thinks most appropriate in the circumstances, within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(b) such advertisement as the Lord Ordinary thinks fit to take place within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(c) any person on whom the application has been served, to lodge answers and any relevant documents, if so advised, within 21 days after the date of service, or within such other period as the Lord Ordinary thinks fit.

(4) A person served with an application under this rule who intends to participate in the decision as to whether permission should be given must lodge answers within the period ordered for the lodging of answers.

(5) Subject to paragraphs (6) and (7), the Lord Ordinary may—

(a) where satisfied it is appropriate to do so, decide to proceed without holding a hearing;

(b) fix a date for the hearing of the application;

(c) require further information from the representative party, the proposed replacement representative party or the group members before making any further order.

(6) Where—

(a) in the case of an application made under paragraph (2), the representative party;

(b) in the case of an application made under paragraph (1) or (2), a group member,

has lodged answers in opposition to the application then paragraph (7) applies.

(7) A hearing on the application and the answers lodged thereto must be fixed by the court.

(8) Where a hearing on the application is fixed by the court, it must give—

(a) the applicant;

(b) the defender;

(d) the person who is to replace the representative party; and

(e) the group members,

an opportunity to be heard before considering whether to grant the application or not.

(9) Subject to paragraph (10), the Lord Ordinary may grant an application made under paragraph (2) only where it appears to the Lord Ordinary that the representative party is not able to represent the interests of the group members adequately.

(10) No application made under paragraph (1) or (2) may be granted unless the Lord Ordinary is satisfied that—

(a) the person who is to replace the representative party is a suitable person who can act in that capacity should such authorisation be given, having regard to the matters mentioned in rule 26A.7(2); and

(b) the best interests of the group members are met.

(11) Where the Lord Ordinary makes an order authorising a person to be a representative party under section 20(3)(b) of the Act in place of a person who had previously been so authorised, the newly authorised representative party must, as soon as practicable and no later than 14 days after the date on which the order is made, inform all other parties and the group members of the order.

(12) The Lord Ordinary may, when making an order under this rule, make any such order as the Lord Ordinary thinks fit.

Application for permission

26A.9

(1) An application for permission to bring group proceedings under section20(5) of the Act is to be made by the representative party or, as the case may be, the applicant by motion, in Form 26A.9.

(2) On a motion being enrolled in terms of paragraph (1), the application is to be brought before a Lord Ordinary on the first available day after being made, for an order for—

(a) intimation and service of the application on the defender and such other person as the Lord Ordinary thinks fit within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(b) such advertisement as the Lord Ordinary thinks fit to take place within 7 days of the date of the order, or within such other period as the Lord Ordinary thinks fit;

(c) any person on whom the application has been served, to lodge answers and any relevant documents, if so advised, within 21 days after the date of service, or within such other period as the Lord Ordinary thinks fit.

(3) The representative party or, as the case may be, the applicant must lodge in the General Department—

(a) the summons by which it is proposed to institute proceedings;

(b) a group register in Form 26A.15; and

(c) all relevant documents in their possession which are necessary for the court to determine whether or not to give permission,

at the same time as making an application for permission under paragraph (1).

(4) The representative party or, as the case may be, the applicant must, at the same time as lodging papers in the General Department under paragraph (3), serve those papers on the defender.

(5) Evidence of service in accordance with Chapter 16 must be provided to the General Department within 14 days from the date of service.

(6) A person served with the application who intends to participate in the decision as to whether permission should be given must lodge answers within the period ordered for the lodging of answers.

Application for permission: further provision

26A.10

(1) If a party seeks any of the orders mentioned in paragraph (3), that party must apply by motion.

(2) The Lord Ordinary must have regard to the need for the fair and efficient determination of the action when making any such order.

(3) The orders are—

(a) dispensing with intimation, service or advertisement;

(b) adjusting the period for intimation, service or advertisement;

(d) an interim order; or

(e) a sist, on cause shown.

(4) A sist must be for no longer than 28 days, but can be renewed.

(5) The representative party must, within 7 days of the date of the interlocutor, notify the Scottish Legal Aid Board of a sist for legal aid.

The permission stage

26A.11

(1) Within 14 days of the expiry of the period within which answers may be lodged the Lord Ordinary may—

(a) if satisfied that it is appropriate to do so, make an order giving permission for group proceedings to be brought under section 20(5) of the Act without holding a hearing;

(b) require further information from any of the parties before making any further order; or

(2) The Keeper of the Rolls must notify—

(a) the representative party or, as the case may be, the applicant; and

(b) any person who has lodged answers,

of the date and time of any hearing fixed under paragraph (1)(c).

(3) The parties must be given at least 7 days’ notice of a hearing fixed under paragraph(1)(c).

(4) At a hearing fixed under paragraph (1)(c), the Lord Ordinary may—

(a) grant the application (including the giving of permission subject to conditions or only on particular grounds); or

(b) refuse the application.

(5) The circumstances in which permission to bring proceedings to which this Chapter applies may be refused by the Lord Ordinary are as follows—

(a) the criteria set out in section 20(6)(a) or (b) (or both (a) and (b)) of the Act have not been met;

(b) it has not been demonstrated that there is a prima facie case;

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