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

• (c) it has not been demonstrated that it is a more efficient administration of justice for the claims to be brought as group proceedings rather than by separate individual proceedings;

• (d) it has not been demonstrated that the proposed proceedings have any real prospects of success.

• (6) Where permission is refused (or permission is granted subject to conditions or only on particular grounds), the Lord Ordinary must give reasons for the decision.

Grant of permission

26A.12

• (1) Where the Lord Ordinary gives permission for group proceedings to be brought the Lord Ordinary is to make an order which—

• (a) states the name and designation of the representative party;

• (b) defines the group and the issues (whether of fact or law) which are the same as, or similar or related to, each other raised by the claims;

• (c) requires the lodging, by the representative party, of a group register;

• (d) specifies the procedure which must be followed for a person to be a group member;

• (e) specifies the period of time in which claims may be brought by persons in the group proceedings;

• (f) specifies that group members may withdraw their consent to being bound by the group proceedings;

• (g) specifies the procedure which must be followed by a group member to withdraw their claim from the group proceedings; and

• (h) requires such advertisement of the permission to bring group proceedings to take place—

• (i) within 7 days of the date of the order; and

• (ii) thereafter, within the period during which persons may opt-in to the proceedings,

as the Lord Ordinary thinks fit.

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

The permission stage: appeals

26A.13

An appeal against the granting or refusing of permission (including the granting of permission either subject to conditions or only on particular grounds) for group proceedings to be brought is made by reclaiming motion.

Opt-in proceedings – notices

26A.14

• (1) A person gives consent for their claim to be brought in group proceedings by sending notice to that effect to the representative party in Form 26A.14-A.

• (2) A group member withdraws their consent for their claim to be brought in group proceedings by sending notice to that effect to the representative party in Form 26A.14-B.

• (3) A notice under paragraph (1) or (2) may be sent either—

• (a) by first class post; or

• (b) where paragraph (4) applies, by email.

• (4) This paragraph applies where the representative party has confirmed consent to—

• (a) a prospective group member;

• (b) a group member,

to receiving a notice under paragraph (1) or (2) by electronic means, and has provided an email address to such persons for that purpose.

• (5) In this rule a “representative party” includes a person who has made or, as the case may be, is to make an application seeking the authorisation of the court under section20(3)(b) of the Act to be a representative party in group proceedings.

Opt-in proceedings – group register

26A.15

• (1) A group register is to be in Form 26A.15.

• (2) Subject to paragraph (4), paragraph (3) applies where, following the lodging in the General Department and the service upon the defender of a group register under rule 26A.5(7)(b) and (8) or, as the case may be, rule26A.9(3)(b) and (4), the membership of the group of persons on whose behalf proceedings are to be, or have been, brought changes following either, or both—

• (a) the addition into the group of a new group member;

• (b) the withdrawal from the group of a group member.

• (3) The representative party or, as the case may be, the applicant must—

• (a) lodge in the General Department; and

• (b) at the same time, serve on the defender,

a revised group register, in Form 26A.15, as soon as possible and no later than 21days following the representative party’s or, as the case may be, the applicant’s receipt of any notice made under rule 26A.14.

• (4) Where the Lord Ordinary grants an application made under rule 26A.16(1) or 26A.17(1) the representative party must—

• (a) lodge in the General Department; and

• (b) at the same time, serve on the defender,

a revised group register, in Form 26A.15, as soon as possible and no later than 21 days following the grant of the application by the Lord Ordinary.

• (5) The representative party or, as the case may be, the applicant must, at the same time as lodging in the General Department and serving on the defender a revised group register, inform all group members of the changes to the membership of the group of persons.

• (6) The lodging of a group register in the General Department and the service on a defender under rule 26A.5(8), 26A.9(4) or paragraph (3) or (4) of this rule, may be by first class post or by electronic means.

• (7) The group register is to be considered by the court at all hearings of the proceedings.

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

Opt-in proceedings – late application

26A.16

• (1) This rules applies where, following the allowance of proof, a person sends notice under rule 26A.14(1) in Form 26A.14-A, to the representative party seeking their claim to be brought in the group proceedings.

• (2) Application is to be made by the representative party by motion in Form 26A.16.

• (3) On a motion being enrolled under paragraph (2), the application is to be brought before the 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 14 days after the date of service, or within such other period as the Lord Ordinary thinks fit.

• (3) A person served with an application made under paragraph (2) who intends to participate in the decision as to whether the application should be granted must lodge answers within the period ordered for the lodging of answers.

• (4) A motion enrolled under paragraph (2) is to be granted only—

• (a) after giving the defender the opportunity to be heard;

• (b) on cause shown; and

• (c) on such conditions, if any, as to the expenses or otherwise as the Lord Ordinary thinks fit.

Opt-in proceedings – late withdrawal of consent for a claim to be brought in the proceedings or where, following withdrawal, there would be less than two pursuers

26A.17

• (1) This rule applies where a group member sends notice under rule26A.14(2), in Form 26A.14-B, to the representative party either (or both)—

• (a) after the commencement of any proof;

• (b) where there would, should that person’s claim not be brought in the proceedings, be less than two persons having a claim in the proceedings.

• (2) Application is to be made by the representative party by motion in Form 26A.17.

• (3) On a motion being enrolled in terms of paragraph (2), the application is to be brought before the 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 14 days after the date of service, or within such other period as the Lord Ordinary thinks fit.

• (4) A motion enrolled under paragraph (2) is to be granted only—

• (a) after giving the defender an opportunity to be heard; and

• (b) on such conditions, if any, as to expenses or otherwise as the Lord Ordinary thinks fit.

Commencement of group proceedings

26A.18

• (1) The service upon a defender of a group register under either rule 26A.5(8) or rule 26A.9(4) amounts to the commencement of the proceedings in respect of those persons who are group members, and are recorded as such on the group register that is served.

• (2) The lodging with the court of a group register, in revised form, under rule26A.15(3)(a) amounts to the commencement of the proceedings in respect of any new group member who has, following the lodging and service of the group register under either rule 26A.5(7)(b) and (8) or rule 26A.9(3)(b) or (4), joined the group.

• (3) Paragraph (4) applies where, following an application being made by the representative party under rule26A.16(1), the Lord Ordinary grants the application allowing a claim for a person to which rule26A.16(1) applies to be brought in the proceedings.

• (4) The enrolment of a motion under rule 26A.16(2) in connection with an application made under rule26A.16(1) amounts to the commencement of the proceedings in respect of a person to which rule 26A.16(1) applies.

Summons in group proceedings actions

26A.19

• (1) A summons in proceedings to which this Chapter applies is made in Form13.2-AA.

• (2) A summons in proceedings to which this Chapter applies is to—

• (a) specify, in the form of conclusions, the orders sought;

• (b) identify the parties to the proceedings and the matters from which the proceedings arise;

• (c) specify any special capacity in which the representative party is bringing the proceedings or any special capacity in which the proceedings are brought against the defender;

• (d) summarise the circumstances out of which the proceedings arise; and

• (e) set out the grounds on which the action proceeds.

• (3) There is to be appended to a summons in a group proceedings action a schedule listing the documents founded on or adopted as incorporated in the summons, which is also to be lodged as an inventory of productions.

Defences

26A.20

• (1) Defences in proceedings to which this Chapter applies are to be in the form of answers to the summons with any additional statement of facts or legal grounds on which it is intended to rely.

• (2) There is to be appended to the defences in proceedings to which this Chapter applies a schedule listing the documents founded on or adopted as incorporated in the defences, which must be lodged as an inventory of productions.

Preliminary hearing

26A.21

• (1) An action in proceedings to which this Chapter applies is to call for a preliminary hearing within 14 days after defences have been lodged.

• (2) At the preliminary hearing, the Lord Ordinary—

• (a) is to determine whether and to what extent and in what manner further specification of the claims and defences must be provided;

• (b) may make an order in respect of any of the following matters—

• (i) detailed written pleadings to be made by a party either generally or restricted to particular claims or issues;

• (ii) a statement of facts to be made by one or more parties either generally or restricted to particular claims or issues;

• (iii) the allowing of an amendment by a party to their pleadings;

• (iv) disclosure of the identity of witnesses and the existence and nature of documents relating to the proceedings or authority to recover documents either generally or specifically;

• (v) documents constituting, evidencing or relating to the subject-matter of the proceedings or any correspondence or similar documents relating to the proceedings to be lodged in process within a specified period;

• (vi) each party to lodge in process, and send to every other party, a list of witnesses;

• (vii) reports of skilled persons or witness statements to be lodged in process;

• (viii) affidavits concerned with any of the issues in the proceedings to be lodged in process; and

• (ix) to proceed to a hearing without any further preliminary procedure either in relation to the whole, or any particular aspect or any particular claim, of the proceedings;

• (c) may fix the period within which any such order is to be complied with;

• (d) may continue the preliminary hearing to a date to be appointed by the Lord Ordinary;

• (e) may make such other order as the Lord Ordinary thinks fit for the efficient determination of the proceedings.

• (3) Where the Lord Ordinary makes an order under paragraph (2)(b)(i) or (ii) or (2)(c), the Lord Ordinary may ordain the representative party to—

• (a) make up a record; and

• (b) lodge that record in process within such period as the Lord Ordinary thinks fit.

• (4) At the conclusion of the preliminary hearing, the Lord Ordinary must, unless the Lord Ordinary has made an order under paragraph (2)(b)(ix), fix a date for a case management hearing to determine further procedure.

• (5) The date fixed under paragraph (4) for a case management hearing may be extended on cause shown by application to the court, by motion, not less than two days prior to the date fixed for the case management hearing.

• (6) In paragraph (2)(b)(i) to (iii) “party” and “parties” may, where the Lord Ordinary so orders after being addressed on the matter, include a group member, group members or a sub-set of group members.

Case management hearing

26A.22

• (1) Not less than 14 days, or such other period as may be prescribed by the Lord Ordinary at the preliminary hearing, before the date fixed under rule 26A.21(4) for the case management hearing, each party must—

• (a) lodge in process and, at the same time, send to every other party a written statement of proposals for further procedure which must state—

• (i) whether the party seeks to have the proceedings appointed to debate or to have the proceedings sent to proof on the whole or any part of it;

• (ii) what the issues are which the party considers should be sent to debate or proof; and

• (iii) the estimated duration of any debate or proof;

• (b) where it is sought to have the proceedings appointed to proof, lodge a list of the witnesses the party proposes to cite or call to give evidence, identifying the matters to which each witness is to speak;

• (c) where it is sought to have the proceedings appointed to proof, lodge the reports of any skilled persons;

• (d) where it is sought to have the proceedings appointed to debate, lodge a note of argument consisting of concise numbered paragraphs stating the legal propositions on which it is proposed to submit that any preliminary plea should be sustained or repelled with reference to the principal authorities and statutory provisions to be founded on; and

• (e) send a copy of any such written statement, lists, reports or note of argument, as the case may be, to every other party.

• (2) At the case management hearing, the Lord Ordinary—

• (a) must determine whether the group proceedings are to be appointed to debate or sent to proof on—

• (i) all or some of the claims;

• (ii) all or some of the issues raised by the claims,

made in the proceedings;

• (b) where the proceedings are appointed to debate or sent to proof, may order that written arguments on any question of law must be submitted;

• (c) where the proceedings are sent to proof, may determine whether evidence at the proof is to be by oral evidence, the production of documents or affidavits on any issue;

• (d) where the proceedings are sent to proof, may direct that parties serve on one another, and lodge in process, signed witness statements or affidavits from each witness whose evidence they intend to adduce, setting out in full the evidence which it is intended to take from that witness, and fix a timetable for the service (whether by exchange or otherwise) and lodging of such statements or affidavits as may be thought necessary;

• (e) may direct that such witness statements or affidavits are to stand as evidence in chief of the witness concerned, subject to such further questioning in chief as the Lord Ordinary may allow;

• (f) may determine, in the light of any witness statements, affidavits or reports produced, that proof is unnecessary on any issue;

• (g) where the proceedings are sent to proof, may appoint parties to be heard at a pre-proof hearing under rule 26A.24;

• (h) may direct that skilled persons hold a meeting with a view to reaching agreement and identifying areas of disagreement, and may order them thereafter to produce a joint note, to be lodged in process by one of the parties, identifying areas of agreement and disagreement, and the basis of any disagreement;

• (i) without prejudice to Chapter 12 (assessors), may appoint an expert to examine, on behalf of the court, any reports of skilled persons or other evidence submitted and to report to the court within such period as the Lord Ordinary may specify;

• (j) where the proceedings are sent to proof, may make an order fixing the time allowed for the examination and cross-examination of witnesses;

• (k) may, on the motion of a party, direct the proceedings to be determined on the basis of written submissions, or such other material, without any oral hearing;

• (l) may continue the case management hearing to a date to be appointed by the Lord Ordinary;

• (m) may make an order for parties to produce a joint bundle of productions arranged in chronological order or such other order as will assist in the efficient conduct of the proof;

• (n) may order and fix a date for a further case management hearing or fix a date for the hearing of any debate or proof;

• (o) may make such other order as the Lord Ordinary thinks fit.

Debates

26A.23

• (1) Where a party seeks to have the proceedings appointed to debate, the application must include—

• (a) the legal argument on which any preliminary plea is to be sustained or repelled;

• (b) the principal authorities (including statutory provisions) on which the argument is founded.

• (2) Following application being made to the court under paragraph (1), before determining whether the action is to be appointed to debate the Lord Ordinary is to hear from the parties with a view to ascertaining whether agreement can be reached on the points of law in contention.

• (3) The Lord Ordinary, having heard the parties, is to determine whether the action is to be appointed to debate.

• (4) Where the action is appointed to debate, the Lord Ordinary may order that written arguments on any question of law are to be submitted.

• (5) With the exception of rule 28.1(3)(d) which is not to apply, Chapter 28 (procedure roll), applies to a debate ordered under rule26A.22(2)(a) as it applies to a cause appointed to the Procedure Roll.

Pre-proof hearing

26A.24

Not less than 2 days prior to any hearing appointed under rule 26A.22(2)(g), parties must lodge in process an estimated timetable for the conduct of the proof together with a note of any issues which are to be addressed prior to the proof.

Lodging of productions for proof

26A.25

• (1) Unless an earlier date is specified by the Lord Ordinary, any document not previously lodged but required for any proof in proceedings to which this Chapter applies must be lodged as a production not less than 7 days before the date fixed for the proof.

• (2) No document may be lodged as a production after the date referred to in paragraph(1), even by agreement of all parties, unless the court is satisfied that any document sought to be lodged could not with reasonable diligence have been lodged in time.

Withdrawal of claim from group proceedings

26A.26

The lodging with the court of a group register, in revised form, under rule26A.15(3)(a) or (4)(a), following the withdrawal from the group of a group member, amounts to the point at which the person concerned withdraws consent for their claim to be brought in the group proceedings.

Power to make orders

26A.27

At any time before final judgment, the Lord Ordinary may, at the Lord Ordinary’s own instance or on the motion of any party, make such order as the Lord Ordinary thinks necessary to secure the fair and efficient determination of the proceedings.

Effect of interlocutor given in group proceedings

26A.28

• (1) Subject to paragraph (2), an interlocutor given in group proceedings—

• (a) must describe or otherwise identify the group members who will be affected by it; and

• (b) binds all such persons, other than any person who has, as at the date of the interlocutor, withdrawn their consent to their claim being brought in the proceedings.

• (2) An interlocutor given in group proceedings prior to a person joining the group as a group member binds such a person, except where the Lord Ordinary, on cause shown, orders otherwise.

Failure to comply with rule or order of Lord Ordinary

26A.29

Any failure by a party to comply timeously with a provision in these Rules or any order made by the Lord Ordinary in proceedings to which this Chapter applies entitles the Lord Ordinary, at his or her own instance—

• (a) to refuse to extend any period of compliance with a provision in these Rules or an order of the court;

• (b) to dismiss the action, as the case may be, in whole or in part;

• (c) to grant decree in respect of all or any of the conclusions of the summons, as the case may be; or

• (d) to make an award of expenses,

as the Lord Ordinary thinks fit.

Settlement of proceedings

26A.30

The representative party must consult with the group members on the terms of any proposed settlement before any damages in connection with the proceedings may be distributed.

Appeals under section 6B(1) of the Act of 1982 (appeals in relation to registration of judgments under the 2005 Hague Convention)

62.34A

• (1) An appeal under section 6B(1) of the Act of 1982 (appeals in relation to registration of judgments under the 2005 Hague Convention) is to be made by motion—

• (a) to the Lord Ordinary; and

• (b) within one month of service under rule 62.33 (service of warrant for registration under the Act of 1982, the Council Regulation, the 2005 Hague Convention or the Lugano Convention) or within two months of such service where service was executed on a person domiciled in another Contracting State or, as the case may be, State bound by the 2005 Hague Convention or the Lugano Convention.

• (2) Where the respondent in any such appeal is domiciled furth of the United Kingdom—

• (a) where that respondent has an address for service in Scotland, intimation of the motion must be made to that address for service; and

• (b) in any other case, intimation of the motion must be made in accordance with rule 16.2 (service furth of United Kingdom) or, as the case may be, rule 16.5 (service where address of person is not known).

• (3) Where an appeal under paragraph (1) is successful, the court must, on the motion of the appellant, pronounce an interlocutor recalling any protective measure or interim interdict.

Reclaiming under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention

Recognition of judgments from another Contracting State, Member State or State bound by the Lugano Convention

Enforcement of judgments from another part of the United Kingdom in Scotland (non-money provisions)

Cancellation of registration under the Act of 1982, the Council Regulation , the 2005 Hague Convention or the Lugano Convention

Enforcement in another Contracting State or Member State of Court of Session judgments etc.

Enforcement in another part of the United Kingdom of Court of Session judgments or documents registered for execution (non-money provisions)

CHAPTER 108 — CHALLENGES TO VALIDITY OF EU INSTRUMENTS (EU EXIT)

Interpretation and application

108

• (1) In this Chapter—

• “the 2019 Regulations” means the Challenges to Validity of EU Instruments (EU Exit) Regulations 2019;

• “EU instrument” has the meaning provided in schedule 1 of the Interpretation Act 1978;

• “TFEU” means the Treaty on the Functioning of the European Union including the Protocols thereto;

• “the proceedings” means any proceedings to which regulation 3 of the 2019 Regulations applies;

• “the relevant UK authorities” has the meaning provided by regulation 2 of the 2019 Regulations.

• (2) This Chapter applies to challenges to the validity of an EU instrument, as provided for by regulation 3 of the 2019 Regulations.

Declarations from the court that an EU instrument was invalid – notices

108

Where a party to the proceedings seeks a declaration from the court that an EU instrument was invalid on any of the grounds set out in the second paragraph of Article 263 TFEU as it has effect immediately before IP completion day, or the court is considering whether to make such a declaration at its own instance in the proceedings—

• (a) notice in Form 108.2-A is to be given to the relevant UK authorities no later than 21 days, or such other period as the court may direct, before the date on which the declaration is to be made—

• (i) by the party seeking the declaration; or

• (ii) by the clerk of court,

as the case may be; and

• (b) where notice is given by the party seeking the declaration, the party must lodge a certificate of notification in process.

108

Where any of the relevant UK authorities wish to be joined as a party to the proceedings they must serve notice in Form 108.3-A to that effect on the Deputy Principal Clerk of Session and must serve a copy of the notice on all other parties in the proceedings.

Lodging of productions and witness lists

49.33A

• (1) Rule 4.5 (productions) and rule 36.3 (lodging productions) do not apply to a family action.

• (2) Where a proof has been allowed in a family action—

• (a) copies of all productions which are intended to be used at the proof must be intimated to every other party not later than 56 days before the diet of proof;

• (b) an inventory of productions which are intended to be used at the proof must be intimated to every other party and lodged in process not later than 56 days before the diet of proof; and

• (c) the productions included in the inventory of productions must be lodged in process no later than 14 days before the diet of proof.

• (3) A production may be intimated and lodged electronically with the permission of, and in accordance with directions given by, the judge.

• (4) A production lodged in hard copy must be—

• (a) marked with a number of process with the cause reference number assigned to the principal writ; and

• (b) if consisting of more than one sheet, securely fastened together.

• (5) A production which is not intimated and lodged in accordance with paragraph (2) must not be used or put in evidence at a proof without—

• (a) consent of the parties; or

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

• (6) Not later than 56 days before the diet fixed for a proof, each party must—

• (a) give written intimation to every other party of a list containing the name, occupation (if known) and address of each person whom the party intends to call as a witness; and

• (b) lodge a copy of that list in process.

• (7) A party who seeks to call as a witness a person not on the list mentioned in paragraph(6)(a) may only do so—

• (a) by consent of the 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 think fit.

Late appearance by defenders