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

Type Statutory-Instrument

Publication 1994-05-31

Last updated 2021-03-01

State In force

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(2) Each copy production consisting of more than one sheet shall be securely fastened together by the party lodging it.

Returning borrowed documents before proof

36.5

All steps of process and productions which have been borrowed shall be returned to process before 12.30 p.m. on the day preceding the diet of proof.

Notices to admit and notices of non-admission

36.6

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

Admissions by parties

36.7

(1) Where a party admits–

(a) any matter of fact whether averred in the pleadings or not,

(b) the authenticity of any document, or

which has not been admitted in the pleadings or in respect of which a notice under rule 28A.1(1) has not been intimated, a minute of admission signed by counsel or other person having a right of audience for the party making such admission, shall be lodged in process.

(2) An admission made in a minute of admission may be used in evidence at a proof if otherwise admissible in evidence.

(3) In taxing any account of expenses, the Auditor shall disallow the expenses of any evidence led on matters covered by a minute of admission, unless special cause is shown to him.

Conditions for receiving certain written statements in evidence

36.8

A party who wishes to have any written statement (including an affidavit) or report, admissible under section 2(1)(b) of the Civil Evidence (Scotland) Act 1988, received in evidence shall lodge the statement or report in process and shall intimate such lodging to the other party or parties.

Attendance, and lists, of witnesses

36.9

(1) It shall be the duty of each party to ensure that his witnesses, if any, are–

(a) in attendance in the vicinity of the courtroom; and

(b) available when called to give evidence.

(2) Each party shall, before his case begins, give to the macer of the court a numbered list of any witnesses of his in the order in which it is proposed to call them.

(3) No witness at a proof shall, except with leave of the court–

(a) be present in the courtroom during the proceedings prior to the giving of his evidence; or

(b) leave the courtroom after giving evidence.

(4) No party, other than the party citing a witness, shall have access to that witness while he is in attendance at court.

Administration of oath or affirmation to witnesses

36.10

The Lord Ordinary shall administer the oath to a witness in Form 36.10–A or, where the witness elects to affirm, the affirmation in Form 36.10–B.

Recording of evidence

36.11

(1) Subject to any other provision in these Rules, evidence at a proof shall be recorded by–

(a) a shorthand writer to whom the oath de fideli adminisratione officii has been administered on his appointment as a shorthand writer in the Court of Session; or

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

(2) The record of the evidence at a proof shall include–

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

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

(3) A transcript of the record of the evidence shall be made only on the direction of the court; and the cost shall, in the first instance, be borne–

(a) in an undefended cause, by the agent for the pursuer; and

(b) in a defended cause, by the agents for the parties in equal proportions.

(4) The transcript of the record of the evidence provided for the use of the court shall be certified as a faithful record of the evidence by–

(a) the shorthand writer or shorthand writers, if more than one, who recorded the evidence; or

(b) where the evidence was recorded by tape recording or other mechanical means, the person who transcribed the record.

(5) The court may make such alterations to the transcript of the record of the evidence as appear to it to be necessary after hearing the parties; and, where such alterations are made, the Lord Ordinary shall authenticate the alterations.

(6) Where a transcript of the record of the evidence has been made for the use of the court, copies of it may be obtained by any party from the shorthand writer on payment of his fee.

(7) Except with leave of the court, the transcript of the record of the evidence may be borrowed from process only for the purpose of enabling a party to consider whether to reclaim against the interlocutor of the court on the proof.

(8) Where a transcript of the record of the evidence is required for the purpose of a reclaiming motion but has not been directed to be transcribed under paragraph (3), the reclaimer–

(a) may request such a transcript from the shorthand writer, or as the case may be, the cost of the transcript being borne by the agent for the reclaimer in the first instance; and

(b) shall lodge the transcript in process;

and copies of it may be obtained by any party from the shorthand writer, or as the case may be, on payment of his fee.

Finality of decision on sufficiency of stamp

36.12

The decision of the Lord Ordinary that a document adduced in evidence is sufficiently stamped, or does not require to be stamped, shall be final and not subject to review.

Death, disability, retiral, etc., of Lord Ordinary

36.13

(1) Where the Lord Ordinary, before whom proof has been taken, in whole or in part, dies, retires or otherwise becomes unable to give judgment or to hear further proof, as the case may be, any party to the cause may apply by motion to the Inner House for directions–

(a) that the cause shall be continued before, and shall be disposed of by, another Lord Ordinary;

(b) that the notes of evidence already taken, as certified by the shorthand writer, shall be evidence in the cause; and

(c) that the notes of the Lord Ordinary taken at the proof shall be made available to the Lord Ordinary before whom the cause is to be continued.

(2) On making directions under paragraph (1), the Inner House may make such other order as it thinks fit.

(3) On enrolling a motion under paragraph (1), the party enrolling it shall–

(a) lodge in process four copies of the closed record (incorporating all interlocutors pronounced in the cause and amendments to the record allowed since the closing of the record); and

(b) send one copy of that record to every other party.

(4) It shall not be necessary for any documents to be lodged in support of such a motion unless the court otherwise directs.

(5) The vacation judge may not hear or determine a motion under paragraph (1).

CHAPTER 37 — JURY TRIALS

Applications for jury trial

37.1

(1) Within 14 days after the date of an interlocutor allowing issues in an action, the pursuer shall lodge in process the proposed issue for jury trial and a copy of it for the use of the court.

(2) Where a pursuer fails to lodge a proposed issue for jury trial under paragraph (1), he shall, unless–

(a) the court, on cause shown, otherwise orders, or

(b) a proposed issue is lodged by another party under paragraph (3),

be held to have departed from his right to jury trial; and any other party may apply by motion for a proof.

(3) Where a pursuer fails to lodge a proposed issue under paragraph (1), any other party may, within 7 days after the expiry of the period specified in that paragraph, lodge in process a proposed issue for jury trial and a copy of it.

(4) Where a proposed issue has been lodged under paragraph (1) or (3), any other party may, within 7 days after the date on which the proposed issue has been lodged, lodge in process a proposed counter-issue and a copy of it.

(5) A proposed counter-issue lodged by a party under paragraph (4) may include any question of fact which is made the subject of a specific averment on record or is relevant to his pleas-in-law notwithstanding that it does not in terms meet the proposed issue.

(6) The party lodging a proposed issue under paragraph (1) or (3) shall, on the day after the date on which the period for lodging a proposed counter-issue under paragraph (4) expires, apply by motion for approval of the proposed issue.

(7) Any party who has lodged a proposed counter-issue under paragraph (4) shall, within 7 days after the enrolment of a motion for approval of a proposed issue under paragraph (6), apply by motion for approval of his proposed counter-issue.

(8) Where a proposed counter-issue has been lodged, the motion for approval of a proposed issue shall be heard at the same time as the motion for approval of the proposed counter-issue.

(9) The Lord Ordinary, on granting a motion for approval of a proposed issue or proposed counter-issue, shall authenticate with his signature the proposed issue or proposed counter-issue as lodged or as adjusted.

(10) Where an issue or counter-issue has been approved by the court, the party whose issue or counter-issue it is shall lodge 18 copies of the approved issue or counter-issue for the use of the court; and such copies need not contain the authentication of the Lord Ordinary.

Citation of jurors

37.2

(1) Not less than 70 days before the diet for jury trial, the pursuer shall attend at the General Department and request the issue of a jury precept.

(2) Where the pursuer has failed to request the issue of a jury precept under paragraph (1), any other party may request a jury precept not less than 63 days before the diet for jury trial.

(3) A jury precept shall be in Form 37.2–A.

(4) Where a jury precept is issued, it shall be transmitted by a clerk of session to the sheriff principal of the sheriffdom of Lothian and Borders who shall cause a list of jurors to be prepared of an equal number of men and women in accordance with the precept.

(5) A citation of a person to attend as a juror shall be in Form 37.2–B and shall be executed by the sheriff clerk at Edinburgh (or a depute authorised by him) by post ....

(6) Where no party requests the issue of a jury precept under paragraph (1) or (2), each party shall be held to have departed from the application for a jury trial and inquiry into the facts of the cause shall be taken by proof.

Ineligibility for, and excusal from, jury service

37.3

(1) A person summoned to serve on a jury may, as soon as possible after receipt of his citation, apply in writing to the Deputy Principal Clerk to be released from his citation; and the Deputy Principal Clerk may, if he is satisfied that there are good and sufficient grounds for excusal, grant the application.

(2) The Lord Ordinary to preside at the jury trial may, at any time before the jury is empanelled, excuse any person summoned to attend as a juror from attendance if he is satisfied that there are good and sufficient grounds for doing so.

Application of certain rules relating to proofs

37.4

The following provisions of these Rules shall apply in relation to an action in which issues have been approved for jury trial as they apply to a cause in which a proof has been allowed:–

rule 36.2 (citation of witnesses),

rule 36.3 (lodging productions),

rule 36.4 (copy productions),

rule 36.5 (returning borrowed documents before proof),

rule 36.7 (admissions by parties),

rule 36.8 (conditions for receiving certain written statements in evidence),

rule 36.9 (attendance, and lists, of witnesses),

rule 36.10 (administration of oath or affirmation to witnesses),

Failure of party to appear at jury trial

37.5

Where a party does not appear at the diet for jury trial, then–

(a) if the party appearing is the pursuer or the party on whom the burden of proof lies, he shall be entitled to lead evidence, and go to the jury for a verdict;

(b) if the party appearing is the defender or the party on whom the burden of proof does not lie, he shall be entitled to obtain a verdict in his favour without leading evidence.

Administration of oath or affirmation to jurors

37.6

(1) Subject to paragraph (2), the clerk of court shall administer the oath collectively to the jury in Form 37.6–A.

(2) Where a juror elects to affirm, the clerk shall administer the affirmation to that juror in Form 37.6–B.

Exceptions to judge’s charge

37.7

(1) Where a party seeks to take exception to a direction on a point of law given by the Lord Ordinary in his charge to the jury or to request the Lord Ordinary to give a direction differing from or supplementary to the directions in the charge, he shall, immediately on the conclusion of the charge, so intimate to the Lord Ordinary, who shall hear counsel for the parties in the absence of the jury.

(2) The party dissatisfied with the charge to the jury shall formulate in writing the exception taken by him or the direction sought by him; and the exception or direction, as the case may be, and the judge’s decision on it, shall be recorded in a note of exception under the direction of the Lord Ordinary and shall be certified by him.

(3) After the note of exception has been certified by the Lord Ordinary, he may give such further or other directions to the jury in open court as he thinks fit before the jury considers its verdict.

Further questions for jury

37.8

The Lord Ordinary may, after the evidence has been led, submit to the jury in writing along with the issue and any counter-issue such further questions as he thinks fit.

Verdicts

37.9

After a verdict has been returned by a jury, the verdict shall be written on the issue and dated and signed by the clerk of court.

Application of verdicts

37.10

Any party may, after the expiry of 7 days after the date on which the verdict was written on the issue and signed, apply by motion to apply the verdict, grant decree in accordance with it and make any award in relation to expenses.

CHAPTER 38 — RECLAIMING

Interpretation of this Chapter

38.1

(1) This Chapter applies subject to any other provision in these Rules or any enactment.

(2) Any party to a cause who is dissatisfied with an interlocutor pronounced by—

(a) the Lord Ordinary;

(b) the Lord Ordinary in Exchequer Causes; or

and who seeks to submit that interlocutor to review by the Inner House shall do so by reclaiming within the reclaiming days in accordance with the provisions of this Chapter.

(3) In this Chapter, “reclaiming days” means the days within which an interlocutor may be reclaimed against.

Reclaiming

38.2

(1) An interlocutor disposing, either by itself or taken along with a previous interlocutor, of—

(a) the whole subject matter of the cause; or

(b) the whole merits of the cause whether or not the question of expenses is reserved or not disposed of,

may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(2) Where an interlocutor which reserves or does not dispose of the question of expenses is the subject of a reclaiming motion under paragraph (1)(b), any party to the cause who seeks an order for expenses before the disposal of the reclaiming motion shall apply by motion to the Lord Ordinary for such an order within 14 days of the date of enrolment of that reclaiming motion.

(3) An interlocutor disposing of the merits of the action and making an award of provisional damages under section 12(2)(a) of the Administration of Justice Act 1982 may be reclaimed against, without leave, within 21 days after the date on which the interlocutor was pronounced.

(4) An interlocutor mentioned in paragraph (5) may be reclaimed against, without leave, within 14 days after the date on which the interlocutor was pronounced.

(5) Those interlocutors are—

(a) an interlocutor disposing of part of the merits of a cause;

(b) an interlocutor allowing or refusing proof, proof before answer or jury trial (but, in the case of refusal, without disposing of the whole merits of the cause);

(d) an interlocutor adjusting issues for jury trial;

(e) an interlocutor granting, refusing, recalling, or refusing to recall, interim interdict or interim liberation;

(f) an interlocutor in relation to an exclusion order under section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981;

(g) an interlocutor granting ... or recalling a sist of execution or procedure;

(h) an interlocutor loosing, restricting or recalling an arrestment or recalling in whole or in part an inhibition used on the dependence of an action or refusing to loose, restrict or recall such an arrestment or inhibition;

(i) an interlocutor granting authority to move an arrested vessel or cargo;

(j) an interlocutor deciding (other than in a summary trial) that a reference to the European Court should be made.

(6) An interlocutor (other than a decree in absence or an interlocutor mentioned in paragraph (2), (3) or (5) of this rule) may be reclaimed against, with leave, within 14 days after the date on which the interlocutor was pronounced.

Reclaiming days

38.3

(1) An interlocutor granting or refusing a motion for summary decree may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(2) In the application of section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law arising from making, variation or recall of time to pay directions)—

(a) leave to appeal shall be sought within 14 days after the date of the decision of the Lord Ordinary appealed against; and

(b) an appeal shall be made by motion to the Inner House within 14 days after the date on which leave was granted.

(3) An interlocutor, other than an interlocutor—

(a) deciding whether to give permission (including the giving of permission either subject to conditions or only on particular grounds) for group proceedings to be brought under Chapter 26A (group procedure);

(b) deciding whether to grant permission for the application to proceed under section27B(1) of the Act of 1988 or an interlocutor determining the application, pronounced under Chapter 58 (applications for judicial review),

may be reclaimed against only with the leave of the Lord Ordinary within 14 days after the date on which the interlocutor was pronounced.

(4) The decision of the Lord Ordinary on a note of objection to the report of the Auditor under rule 42.4 may be reclaimed against only with the leave of the Lord Ordinary within 7 days after the date on which the decision was made.

(5) An interlocutor granting or refusing a motion under rule 47.10(1) (appointing action to be a commercial action) may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

(6) An interlocutor pronounced on the Commercial Roll, other than an interlocutor which makes such disposal as is mentioned in rule 38.2(1), may be reclaimed against only with the leave of the commercial judge within 14 days after the date on which the interlocutor was pronounced.

Leave to reclaim etc. in certain cases

38.4

(1) An application for leave to reclaim against an interlocutor shall be made by motion.

(2) A motion under paragraph (1) shall be brought—

(a) before the Lord Ordinary who pronounced the interlocutor;

(b) where that Lord Ordinary is, for whatever reason, unavailable, before another Lord Ordinary; or

(3) Where a motion under paragraph (1) is brought before a judge under paragraph (2)(b) or (c), that judge shall—

(a) continue the motion until the Lord Ordinary who pronounced the interlocutor is available; or

(b) where the matter is of such urgency that a continuation would not be appropriate, grant or refuse leave, as the case may be.

(4) Any period during which a motion under paragraph (1) is continued by virtue of an order under paragraph (3)(a) shall not be taken into account in calculating the reclaiming days under rule 38.2(6) (reclaiming days and leave) or rule 38.3 (leave to reclaim etc. in certain cases).

(5) In granting leave to reclaim, the Lord Ordinary may impose such conditions, if any, as he thinks fit.

(6) The decision of the Lord Ordinary or the vacation judge to grant or refuse leave to reclaim shall be final and not subject to review.

(7) Leave to reclaim against an interlocutor shall not excuse obedience to or implement of the interlocutor unless by order of the Lord Ordinary, a procedural judge or the vacation judge.

Applications for leave to reclaim

38.5

(1) A party who seeks to reclaim against an interlocutor shall mark a reclaiming motion by enrolling a motion for review in Form 38.5 before the expiry of the reclaiming days.

(2) On enrolling a motion for review under paragraph (1), the reclaimer shall lodge a reclaiming print in the form of a record which shall contain—

(a) the whole pleadings and interlocutors in the cause;

(b) where the reclaiming motion is directed at the refusal of the Lord Ordinary to allow the pleadings to be amended in terms of a minute of amendment and answers, the text of such minute and answers; and

(3) A party who reclaims against an interlocutor adjusting issues for jury trial shall, on enrolling the motion for review—

(a) lodge in process the issue or counter-issue proposed by him showing the amendment to the issues, as adjusted, sought to be made; and

(b) send a copy of the issue or counter-issue, as the case may be, to every other party.

Method of reclaiming

38.6

(1) Subject to paragraph (2), a reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary or any interlocutor of the Lord Ordinary in a motion under rule 38.2(2), not only at the instance of the party reclaiming but also at the instance of any other party who appeared in the cause, and without the necessity of any counter-reclaiming motion.

(2) Where an interlocutor, either by itself or taken along with a previous interlocutor, has disposed of the whole merits of the cause, a reclaiming motion against a subsequent interlocutor dealing with expenses shall have the effect of submitting to review only that interlocutor and any other interlocutor so far as it deals with expenses.

(3) After a reclaiming motion has been enrolled, the reclaimer shall not be at liberty to withdraw it without the consent of the other parties who have appeared in the cause; and if he does not insist on the reclaiming motion, any other party may do so in the same way as if the motion had been enrolled at his instance.

(4) An unopposed motion by a party to refuse a reclaiming motion shall be treated as if all parties consented to it.

(5) Where an interlocutor contains an award of residence, contact or aliment, the marking of a reclaiming motion shall not excuse obedience to or implement of the award of residence, contact or aliment, as the case may be, unless by order of the court.

Leave to reclaim out of time

38.7

Review by the Inner House of an interlocutor shall not be prevented by reason only that extract has been issued before the expiry of the reclaiming days.

Effect of reclaiming

38.8

In respect of the following appeals, the rules in this Chapter shall apply to those appeals as they apply to reclaiming—

(a) an appeal from a decision of the Lord Ordinary under section 6 of and Article 37 or 41 of the convention in Schedule 1 or 3C to, the Civil Jurisdiction and Judgments Act 1982 (appeals in relation to decisions on enforcement); and

(b) an appeal from a decision of the Lord Ordinary under section6A of the Civil Jurisdiction and Judgments Act 1982 and Article44 and Annex IV to the Lugano Convention, as defined in rule62.26(2) (application and interpretation of Part V of Chapter62 of these Rules); and

(c) an appeal from a decision of the Lord Ordinary under section 103(3) of the Debtors (Scotland) Act 1987 (appeals on questions of law).

(d) an appeal from a decision of the Lord Ordinary concerning permission to proceed in petitions for judicial review under section 27D of the Act of 1988 (appeal following oral hearings).

Effect of extracted interlocutor

38.9

(1) Where decree by default has been granted against a party in respect of his failure to lodge a step of process or other document, a motion for review by that party of the interlocutor granting such decree shall be refused unless the document is lodged on or before the date on which the motion is enrolled.

(2) A decree by default may, if reclaimed against, be recalled on such conditions, if any, as to expenses or otherwise as the court thinks fit.

Appeals treated as reclaiming motions

38.10

(1) In a case of mistake or inadvertence, a procedural judge may, on an application made in accordance with paragraph (2), allow a motion for review to be received outwith the reclaiming days and to proceed out of time on such conditions as to expenses or otherwise as the judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion for review made under rule 38.5(1).

Reclaiming against decree by default

38.11

(1) Where the reclaimer seeks urgent disposal of a reclaiming motion, he shall include in his motion under rule 38.5(1) either the words “and for urgent disposal on the Summar Roll” or the words “and for urgent disposal in the Single Bills”.

(2) Where a respondent seeks urgent disposal of a reclaiming motion, he shall, within the period allowed for opposing the motion, endorse on the motion of the reclaimer under rule 38.5(1), or send by post or facsimile transmission a notice of opposition in Form 23.4 including the words “The respondent (name) seeks urgent disposal on the Summar Roll” or the words “The respondent (name) seeks urgent disposal in the Single Bills”, as the case may be.

(3) The entry in the rolls in respect of the motion for urgent disposal shall be starred; and the motion shall call before a procedural judge.

(4) At the hearing of the motion, the parties shall provide the procedural judge with an assessment of the likely duration of the hearing to determine the reclaiming motion.

(5) The procedural judge may—

(a) grant the motion for urgent disposal and either appoint the reclaiming motion to the Summar Roll for a hearing or direct that the reclaiming motion be heard in the Single Bills; or

(b) refuse the motion for urgent disposal.

(6) Where the procedural judge grants the motion for urgent disposal, he may make such order as to the future timetabling of, and procedure in, the reclaiming motion as he thinks fit.

(7) Rules 38.12 to 38.16 shall apply to a reclaiming motion in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he so directs.

Reclaiming against interlocutor adjusting issues

38.12

(1) Any party other than the reclaimer may object to the competency of a reclaiming motion by—

(a) lodging in process; and

(b) serving on the reclaimer,

a note of objection in Form 38.12.

(2) Where the Deputy Principal Clerk considers that a reclaiming motion may be incompetent he may (whether or not any party has lodged and served a note of objection under paragraph (1)) refer the question of competency to a procedural judge.

(3) Where the Deputy Principal Clerk refers a question of competency, he shall intimate to the parties the grounds on which he considers that question of competency arises.

(4) A note of objection may be lodged, and the Deputy Principal Clerk may refer a question of competency, only in the period of 14 days after the date on which the reclaiming motion was marked.

(5) Where a note of objection is lodged, or the Deputy Principal Clerk has referred a question of competency, the Keeper of the Rolls shall—

(a) allocate a diet for a hearing before a procedural judge; and

(b) intimate the date and time of that diet to the parties.

(6) Each party shall, within the period of 14 days after the date on which a note of objection is lodged or a question of competency is referred by the Deputy Principal Clerk—

(a) lodge in process; and

(b) serve on the other party,

a note of argument giving fair notice of the submissions which the party intends to make as to competency.

(7) At the hearing allocated under paragraph (5), the procedural judge may—

(a) refuse the reclaiming motion as incompetent;

(b) direct that the reclaiming motion is to proceed as if the note of objection had not been lodged or the question not been referred, whether under reservation of the question of competency or having found the reclaiming motion to be competent; or

and he may make such order as to expenses or otherwise as he thinks fit.

(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection;

(d) reserve the objection for hearing with the merits.

Early disposal of reclaiming motion

38.13

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 38.13, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the reclaiming motion, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of grounds of appeal and answers;

(b) the lodging of any appendices to the reclaiming print or, as the case may be, the giving of intimation that the reclaimer does not intend to lodge any appendices;

(d) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the reclaiming motion.

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 38.12(4), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 38.12(7)(b), within 7days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the reclaiming motion under rule 38.12(9)(a) or following a Summar Roll hearing under rule 38.12(9)(b), or

(ii) an interlocutor has been pronounced under rule 38.12(9)(c) or (d),

within 7 days after the date of that interlocutor.

Objections to competency of reclaiming motion

38.14

(1) A reclaiming motion may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 38.13(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form 38.13.

Procedure where no objection to competency

38.15

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the reclaiming motion out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the reclaimer or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the reclaiming motion;

(b) in particular, where the reclaimer fails to comply with the timetable, refuse the reclaiming motion; or

(c) in particular, where a sole respondent fails or all respondents fail to comply with the timetable, grant the reclaiming motion.

Grounds of appeal in reclaiming motions

38.16

(1) At the procedural hearing fixed under rules 38.13(1)(b) or 38.14(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

(a) appoint the reclaiming motion to the Summar Roll for a hearing and allocate a date and time for that hearing;

(b) appoint the reclaiming motion to the Single Bills for a hearing and allocate a date and time for that hearing; or

(3) Where this paragraph applies the procedural judge is to make an order under paragraph (2)(c) appointing the reclaiming motion to be determined in chambers without appearance unless satisfied that cause exists for making some other order.

(4) Paragraph (3) applies where—

(a) the interlocutor reclaimed against is an interlocutor disposing of an application for a protective expenses order under Chapter 58A of these Rules; and

(b) the grounds of appeal do not seek to submit to the review of the Inner House any other interlocutor, other than a subsequent interlocutor dealing with expenses.

Orders for hearing

38.17

(1) Where, after a reclaiming motion has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears that the amendment makes a material change to the pleadings, the Inner House may recall the interlocutor of the Lord Ordinary reclaimed against and remit the cause back to the Lord Ordinary for a further hearing.

Reclaiming prints

38.18

(1) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the reclaiming motion should be granted.

(2) On lodging grounds of appeal, the party lodging them shall—

(a) lodge three copies of them in process; and

(b) send a copy of them to every other party.

(3) A party who has lodged grounds of appeal or answers to the grounds of appeal may apply by motion to amend the grounds or answers, on cause shown.

(4) An application under paragraph (3) shall include any necessary application under rule 38.14(1) (sist or variation of timetable).

Lodging of appendices in reclaiming motions

38.19

(1) Where, in a reclaiming motion, the reclaimer considers that it is not necessary to lodge an appendix to the reclaiming print, the reclaimer shall, by the relevant date specified in the timetable—

(a) give written intimation of that fact to the Deputy Principal Clerk; and

(b) send a copy of that intimation to each respondent.

(2) Where the reclaimer provides intimation under paragraph (1), a respondent may apply to a procedural judge, by motion, for an order requiring the reclaimer to lodge an appendix.

(3) An application under paragraph (2) shall include specification of the documents that the respondent seeks to have included in the appendix.

(4) Where an application is made under paragraph (2), a procedural judge may make an order requiring the reclaimer to lodge any appendix that the procedural judge considers necessary, within such time as the procedural judge may specify.

(5) An order under paragraph (4) may only be granted by a procedural judge after having heard parties.

(6) Paragraph (7) applies where—

(a) a respondent seeks to submit for consideration by the court notes of evidence or documents in respect of which the reclaimer has given written intimation to the respondent that the reclaimer does not intend to include in his appendix; and

(b) a procedural judge has not made an order under paragraph (2) requiring the reclaimer to lodge an appendix which includes such notes of evidence or documents.

(7) The respondent shall incorporate such notes or documents in an appendix which he shall lodge within such period as is specified by the procedural judge in disposing of the application under paragraph (4).

(8) Where, in any reclaiming motion other than one in which intimation is given under paragraph (1)—

(a) the opinion of the Lord Ordinary has not been included in the reclaiming print; or

(b) it is sought to submit notes of evidence or documents for consideration by the court,

the reclaimer shall lodge an appendix incorporating such documents within such period as shall be specified in the timetable.

Notes of evidence not extended when agreed

38.20

Where, in a reclaiming motion, the parties are agreed that on any particular issue the interlocutor reclaimed against is not to be submitted to review, it shall not be necessary to reproduce the notes of evidence or documents relating to that issue.

Amendment of pleadings in reclaiming motions

38.21

At any hearing of a reclaiming motion in the Single Bills, the Inner House may determine the motion or make such other order as it thinks fit.

CHAPTER 39 — APPLICATIONS FOR NEW TRIAL OR TO ENTER JURY VERDICTS

Applications for new trial

39.1

(1) An application under section 29(1) of the Act of 1988 (application for new trial) shall be made to a procedural judge, by motion, within 7 days after the date on which the verdict of the jury was written on the issue and signed.

(2) A motion under paragraph (1) shall specify the grounds on which the application is made.

(3) An application under section 29(1)(a), (b) or (c) of the Act of 1988 may not be made unless—

(a) in the case of an application under section 29(1)(a) (misdirection of judge), the procedure in rule 37.7 (exceptions to judge’s charge) has been complied with;

(b) in the case of an application under section 29(1)(b) (undue admission or rejection of evidence), objection was taken to the admission or rejection of evidence at the trial and recorded in the notes of evidence under the direction of the judge presiding at the trial; or

(c) in the case of an application under section 29(1)(c) (verdict contrary to evidence), it sets out in brief specific numbered propositions the reasons the verdict is said to be contrary to the evidence.

(4) On enrolling a motion for a new trial under paragraph (1), the party enrolling it shall lodge—

(a) a print of the whole pleadings and interlocutors in the cause incorporating the issues and counter-issues;

(b) the verdict of the jury; and

(5) Rule 38.6 (effect of reclaiming) shall, with the necessary modifications, apply to an application for a new trial under section 29 of the Act of 1988 as it applies to a reclaiming motion.

Applications out of time

39.2

(1) A procedural judge may, on an application made in accordance with paragraph (2), allow an application for a new trial under section 29(1) of the Act of 1988 or section 69(1) of the Act of 2014 to be received outwith the period specified in rule 39.1(1) or rule 39.1A(1) and to proceed out of time on such conditions as to expenses or otherwise as the procedural judge thinks fit.

(2) An application under paragraph (1) shall be made by motion included in the motion made under rule 39.1(1) or rule 39.1A.

Objections to competency of application

39.3

(1) Any party other than the applicant may object to the competency of an application for a new trial under section 29(1) of the Act of 1988 or section 69(1) of the Act of 2014 by—

(a) lodging in process; and

(b) serving on the applicant,

a note of objection in Form 39.3.

(2) A note of objection may be lodged only within the period of 7 days after the date on which the motion under rule 39.1(1) was enrolled.

(3) Where a note of objection is lodged, the Keeper of the Rolls shall—

(a) allocate a diet for a hearing before a procedural judge; and

(b) intimate the date and time of that diet to the parties.

(4) Each party shall, within the period of 7 days after the date on which a note of objection is lodged–

(a) lodge in process; and

(b) serve on the other party,

a note of argument giving fair notice of the submissions which the party intends to make as to competency.

(5) At the hearing allocated under paragraph (3), the procedural judge may—

(a) refuse the application for a new trial as incompetent;

(b) direct that the application for a new trial is to proceed as if the note of objection had not been lodged or the question not been referred, whether under reservation of the question of competency or having found the application to be competent; or

and he may make such order as to expenses or otherwise as he thinks fit.

(6) Where a procedural judge refers a question of competency under paragraph (5)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(7) At the hearing in the Single Bills arranged under paragraph (6), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection; or

Procedure where no objections to competency

39.4

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 39.4, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the application for a new trial, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of any appendices to the documents mentioned in rule 39.1(4) or, as the case may be, the giving of notice that the applicant does not intend to lodge any appendices;

(aa) the lodging of any appendices to the documents mentioned in rule 39.1A(4) or, as the case may be, the giving of notice that the applicant does not intend to lodge any appendices;

(b) the lodging of any notes of argument; and

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged within the period mentioned in rule39.3(2), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 39.3(5)(b), within 7 days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the application for a new trial under rule 39.3(7)(a) or following a Summar Roll hearing under rule 39.3(7)(b), or

(ii) an interlocutor has been pronounced under rule 39.3(7)(c),

within 7 days after the date of that interlocutor.

Lodging of appendix

39.5

(1) An application for a new trial may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 39.4(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form39.4.

Applications to enter jury verdict

39.6

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the application for a new trial out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the applicant or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the application;

(b) in particular, where the applicant fails to comply with the timetable, refuse the application; or

(c) in particular, where a sole respondent fails or all respondents fail to comply with the timetable, allow the application.

CHAPTER 40 — APPEALS FROM INFERIOR COURTS

Application and interpretation of this Chapter

40.1

(1) This Chapter applies to an appeal to the court from any decision pronounced by an inferior court which may be appealed to the court.

(2) In this Chapter—

(a) “appeal process” means—

(i) the process of the inferior court; or

(ii) where the cause is recorded in an official book of an inferior court, a copy of the record in that book certified by the clerk of the inferior court;

(b) “decision” includes interlocutor, judgment or other determination;

(i) the Lyon Court;

(ii) the Sheriff Appeal Court, in respect of an appeal under section 113(1) of the Act of 2014 or section 38(b) of the Sheriff Courts (Scotland) Act 1971;

(iii) the sheriff principal, in respect of an appeal under section 114(1) of the Act of 2014;

(d) any reference to leave to appeal includes permission to appeal in terms of section 113(1) of the Act of 2014.

Applications for leave to appeal from inferior court

40.2

(1) Where leave to appeal is required, an application for such leave shall be made in the first instance to the inferior court unless the enactment allowing the appeal requires the application to be made to the court.

(2) Where—

(a) the inferior court has refused leave to appeal and such refusal is not final, or

(b) leave to appeal is required from the court and not the inferior court,

any application to the court for leave to appeal shall be made in Form 40.2 to a procedural judge.

(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department—

(a) within the period prescribed by the enactment by virtue of which it is made; or

(b) where no such period is prescribed, within 14 days after the date specified in paragraph (4).

(4) The date referred to in paragraph (3)(b) is—

(a) the date on which the decision of the inferior court refusing leave to appeal was intimated to the appellant; or

(b) where the application for leave to appeal is required to be made to the court and not the inferior court—

(i) the date on which the decision of the inferior court complained of was issued; or

(ii) where the inferior court issued reasons for its decision later than the decision, the date of issue of the reasons.

(5) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.

(6) There shall be lodged with an application to the court under paragraph (3)—

(a) a process in accordance with rule 4.4 (steps of process);

(b) where applicable—

(i) evidence that leave to appeal has been refused by the inferior court;

(ii) a copy of the grounds of appeal intimated to the inferior court; and

(iii) any note by the inferior court setting out the reasons for its refusal;

(d) where the inferior court itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.

Determination of applications for leave to appeal from inferior court

40.3

(1) An application for leave to appeal under rule 40.2 shall, without a motion being enrolled—

(a) during session, be brought before a procedural judge on the first available day after being made for an order for—

(i) service of the application on the respondent and such other person as the procedural judge thinks fit within 7 days of the date of the order or such other period as the procedural judge thinks fit; and

(ii) any person on whom the application has been served, to lodge answers, if so advised, within 14 days after the date of service or within such other period as the procedural judge thinks fit; and

(b) during vacation, be brought before the vacation judge for such an order.

(2) An order for service under paragraph (1) shall include a requirement to intimate the application to the clerk of the inferior court.

(3) Where an application for leave to appeal is served under paragraph (1), evidence of service in accordance with Chapter 16 of these Rules shall be provided to the General Department within 14 days from the date of service.

(4) Within 14 days after expiry of the period within which answers may be lodged, the applicant may apply by motion for the application to be granted.

Time and method of appeal

40.4

(1) An appeal from an inferior court shall be made–

(a) within the period prescribed by the enactment by virtue of which the appeal is made; or

(b) where no such period is prescribed, within 21 days after—

(i) the date on which the decision appealed against was given;

(ii) where the inferior court issued written reasons for its decision later than the decision, the date on which the written reasons were issued; or

(iii) where leave to appeal was granted by the inferior court or application for leave to appeal was made to the court under rule 40.2(2), the date on which leave was granted by the inferior court or the court, as the case may be.

(2) A party seeking to appeal from an inferior court shall mark an appeal by writing a note of appeal in Form 40.4—

(a) on the interlocutor sheet, minute of court or other written record containing the decision appealed against; or

(b) where such a decision is not available or the proceedings of the inferior court are recorded in an official book, on a separate sheet lodged with the clerk of the inferior court.

(3) A note of appeal shall—

(a) be signed by the appellant or his agent;

(b) bear the date on which its is signed; and

(c) where the appellant is represented, specify the name and address of the agent who will be acting for him in the appeal.

Leave to appeal out of time

40.5

(1) An application to allow an appeal to be received outwith the time prescribed for marking an appeal and to proceed out of time shall be included in the note of appeal.

(2) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process from the clerk of the inferior court under rule 40.6(1), the appellant shall apply by motion to allow the appeal to be received outwith the time prescribed for marking an appeal and for leave to proceed out of time.

(3) The motion enrolled in terms of paragraph (2) shall be disposed of by a procedural judge.

(4) Where a motion under paragraph (2) is refused, the Deputy Principal Clerk shall—

(a) give written intimation to the clerk of the inferior court that leave to appeal out of time has been refused; and

(b) transmit the appeal process and note of appeal to him.

Transmission of appeal process

40.6

(1) Within 4 days after an appeal has been marked, the clerk of the inferior court shall—

(a) give written intimation of the appeal to every other party and certify on the interlocutor sheet, other record or separate note of appeal, as the case may be, that he has done so; and

(b) transmit—

(i) the appeal process, and

(ii) any separate note of appeal,

to the Deputy Principal Clerk.

(2) On receipt of an appeal process sent to him under paragraph (1), the Deputy Principal Clerk shall—

(a) mark the date of receipt on the interlocutor sheet, other record or separate note of appeal, as the case may be; and

(b) give written intimation of that date to the appellant.

(3) Where the clerk of the inferior court or the Deputy Principal Clerk fails to comply with a provision of this rule, the appeal shall not be invalidated; but the court may give such remedy for any disadvantage or inconvenience occasioned thereby as it thinks fit.

Procedure following transmission of appeal process

40.7

(1) Within 14 days after the date of receipt by the Deputy Principal Clerk of the appeal process, each party seeking to appear in the appeal shall—

(a) give written intimation to the Deputy Principal Clerk of, or

(b) state by note written on the interlocutor sheet, minute of court, or other record containing the decision appealed against, or on the separate note of appeal, as the case may be,

his name and address and that of his agent (if any).

(2) Subject to rule 40.15(2) (appeals deemed abandoned), within 28 days after the date of receipt by the Deputy Principal Clerk of the appeal process, or the date of the interlocutor granting a motion made under rule 40.5(2) (leave to appeal out of time), whichever is the later, the appellant shall—

(a) lodge a process, including each part of the appeal process, in accordance with rule 4.4 (steps of process);

(b) lodge an appeal print in the form of a record which shall contain—

(i) the whole pleadings and interlocutors in the cause;

(ii) where the appeal is directed at the refusal of the inferior court to allow the pleadings to be amended, the text of the proposed amendment; and

(iii) where available, the judgment of the inferior court (including in an appeal in a summary cause under the Act of Sederunt (Summary Cause Rules) 2002 ..., the stated case of the sheriff , or in an appeal in a simple procedure case, the Decision Form and Appeal Report); and

Sist of process of appeal

40.8

(1) Within 14days after the date of receipt by the Deputy Principal Clerk of the appeal process, the appellant may apply by motion to a procedural judge for a sist of process.

(2) On enrolling a motion under rule40.5(2) (leave to appeal out of time) or under paragraph (1) of this rule, the appellant shall lodge a motion sheet and an interlocutor sheet, if not already lodged.

(3) Where the procedural judge grants a motion under paragraph(1), the period of 28days mentioned in rule40.7(2) (lodging process etc.) shall not run during any period in which the appeal is sisted.

(4) The provisions of this rule are without prejudice to the power of the court to sist an appeal, as referred to in rule 40.12.

Appeals deemed abandoned

40.9

(1) Where the appellant seeks urgent disposal of an appeal, he shall, on lodging an appeal print under rule 40.7(2)(b), apply by motion to a procedural judge for urgent disposal of the appeal, specifying in the motion whether he seeks urgent disposal on the Summar Roll or urgent disposal in the Single Bills.

(2) Where a respondent seeks urgent disposal of an appeal, he shall—

(a) within the period allowed for opposing the motion, endorse on the motion of the appellant under paragraph (1), or send by post or facsimile transmission a notice of opposition in Form 23.4 including the words “The respondent (name) seeks urgent disposal in the Summar Roll” or the words “The respondent (name) seeks urgent disposal in the Single Bills”, as the case may be; or

(b) enrol a motion for urgent disposal on the Summar Roll or for urgent disposal in the Single Bills, within 7 days of the respondent intimating his name and address and that of his agent (if any) in terms of rule 40.7(1).

(3) The entry in the rolls in respect of a motion for urgent disposal under this rule shall be starred; and the motion shall call before a procedural judge.

(4) At the hearing of the motion, the parties shall provide the procedural judge with an assessment of the likely duration of the hearing to determine the appeal.

(5) The procedural judge may—

(a) grant the motion for urgent disposal and either appoint the cause to the Summar Roll for hearing or direct that the cause be heard in the Single Bills;

(b) refuse the motion for urgent disposal.

(6) Where the procedural judge grants the motion for urgent disposal, he may make such order as to the future timetabling of, and procedure in, the appeal as he thinks fit.

(7) Rules 40.10 to 40.14 shall apply to an appeal in respect of which the procedural judge has granted a motion for urgent disposal only to the extent that he so directs.

Reponing against deemed abandonment

40.10

(1) Any party other than the appellant may object to the competency of an appeal made under this Chapter by—

(a) lodging in process; and

(b) serving on the appellant,

a note of objection in Form 40.10.

(2) Where the Deputy Principal Clerk considers that an appeal made under this Chapter may be incompetent he may (whether or not any party has lodged and served a note of objection under paragraph (1)) refer the question of competency to a procedural judge at any time within the period of 14 days after receipt by the Deputy Principal Clerk of the appeal process .

(3) Where the Deputy Principal Clerk refers a question of competency, he shall intimate to the parties the grounds on which he considers that question of competency arises.

(4) A note of objection may be lodged ... only within 14 days after the expiry of the period specified in rule 40.7(2) (lodging process etc.).

(5) Where a note of objection is lodged, or the Deputy Principal Clerk has referred a question of competency, the Keeper of the Rolls shall—

(a) allocate a diet for a hearing before a procedural judge; and

(b) intimate the date and time of that diet to the parties.

(6) Each party shall, within the period of 14 days after the date on which a note of objection is lodged or a question of competency is referred by the Deputy Principal Clerk—

(a) lodge in process; and

(b) serve on the other party,

a note of argument giving fair notice of the submissions which the party intends to make as to competency.

(7) At the hearing allocated under paragraph (5), the procedural judge may—

(a) refuse the appeal as incompetent;

(b) direct that the appeal is to proceed as if the note of objection had not been lodged or the question not been referred, whether under reservation of the question of competency or having found the appeal to be competent; or

and he may make such order as to expenses or otherwise as he thinks fit.

(8) Where a procedural judge refers a question of competency under paragraph (7)(c), the cause shall be put out for a hearing in the Single Bills before a Division of the Inner House comprising three or more judges.

(9) At the hearing in the Single Bills arranged under paragraph (8), the Inner House may—

(a) dispose of the objection to competency;

(b) appoint the cause to the Summar Roll for a hearing on the objection;

(d) reserve the objection for hearing with the merits.

Early disposal of appeal

40.11

(1) The Keeper of the Rolls shall—

(a) issue a timetable in Form 40.11, calculated by reference to such periods as are specified in this Chapter and such other periods as may be specified from time to time by the Lord President, stating the date by which the parties shall comply with the procedural steps listed in paragraph (2) and the date and time of the hearing allocated in terms of subparagraph (b) of this paragraph; and

(b) allocate a diet for a procedural hearing in relation to the appeal, to follow on completion of the procedural steps listed in paragraph (2).

(2) The procedural steps are—

(a) the lodging of a process in accordance with rule 40.7(2)(a);

(b) the lodging and sending a copy of the appeal print in accordance with rule 40.7(2)(b);

(d) the lodging of grounds of appeal and answers;

(e) the lodging of appendices to the appeal print or, as the case may be, the giving of intimation that the appellant does not intend to lodge any appendices;

(f) the lodging of notes of argument; and

(g) the lodging of estimates of the length of any hearing on the Summar Roll or in the Single Bills which is required to dispose of the appeal.

(3) The Keeper of the Rolls shall take the steps mentioned in paragraph (1)—

(a) where no note of objection has been lodged and no question of competency has been referred by the Deputy Principal Clerk within the period mentioned in rule 40.10(4), within 7 days of the expiry of that period;

(b) where a procedural judge has made a direction under rule 40.10(7)(b), within 7days after the date that direction was made; or

(i) an interlocutor has been pronounced sustaining the competency of the appeal under rule 40.10(9)(a) or following a Summar Roll hearing under rule 40.10(9)(b), or

(ii) an interlocutor has been pronounced under rule 40.10(9)(c) or (d),

within 7 days after the date of that interlocutor.

Objections to competency of appeals

40.12

(1) An appeal under this Chapter may be sisted or the timetable may be varied on the application by motion of any party.

(2) An application under paragraph (1) shall be—

(a) placed before a procedural judge; and

(b) granted only on special cause shown.

(3) The procedural judge before whom an application under paragraph (1) is placed may—

(a) determine the application;

(b) refer the application to a bench of three or more judges; or

(4) Where the timetable is varied, the Keeper of the Rolls may—

(a) discharge the procedural hearing fixed under rule 40.11(1)(b);

(b) fix a date for a procedural hearing; and

(5) Upon recall of a sist, the Keeper of the Rolls may—

(a) fix a date for a procedural hearing; and

(b) issue a revised timetable in Form40.11.

Procedure where no objection to competency of appeal

40.13

(1) Where a party fails to comply with the timetable, the Keeper may, whether on the motion of a party or otherwise, put the appeal out for a hearing before a procedural judge.

(2) At a hearing under paragraph (1), the procedural judge may—

(a) in any case where the appellant or a respondent fails to comply with the timetable, make such order as he thinks fit to secure the expeditious disposal of the appeal;

(b) in particular, where the appellant fails to comply with the timetable, refuse the appeal; or

Grounds of appeal

40.14

(1) At the procedural hearing fixed under rules 40.11(1)(b), 40.12(4)(b) or (5)(a), the procedural judge shall ascertain, so far as reasonably practicable, the state of preparation of the parties.

(2) The procedural judge may—

(a) appoint the appeal to the Summar Roll for a hearing and allocate a date and time for that hearing;

(b) appoint the appeal to the Single Bills for a hearing and allocate a date and time for that hearing; or

Orders for hearing of appeal

40.15

(1) If an appellant fails—

(a) to apply by motion in accordance with rule 40.5(2) (leave to appeal out of time), or

(b) to comply with the requirements of rule 40.7(2) (lodging process etc.),

he shall be deemed to have abandoned his appeal on the expiry of the period for marking an appeal or for complying with the requirements of rule 40.7(2), as the case may be.

(2) Where an appeal has been deemed to be abandoned by reason of paragraph (1)(b), a respondent may, within 7 days after the date on which the appeal is deemed to be abandoned, comply with the requirements of rule 40.7(2) (lodging process etc.) and thereafter insist in the appeal as if it had been marked by him; and the following provisions of this Chapter applying to an appellant shall, with the necessary modifications, apply to an appeal by a respondent under this paragraph.

(3) Where a respondent insists on an appeal under paragraph (2), the appellant shall be entitled to insist in the appeal notwithstanding that his appeal has been deemed to be abandoned.

(4) If, on the expiry of the period of 7 days after the date on which an appeal is deemed to be abandoned by virtue of paragraph (1)—

(a) the appellant has not been reponed under rule 40.16, and

(b) a respondent does not insist in the appeal under paragraph (2) of this rule,

the decision appealed against shall be treated in all respects as if no appeal had been marked, and the Deputy Principal Clerk shall transmit the appeal process to the clerk of the inferior court in accordance with paragraph (5) of this rule.

(5) Where an appeal process falls to be transmitted to the inferior court under paragraph (4), the Deputy Principal Clerk shall—

(a) write on the interlocutor sheet, minute of court or other record containing the decision appealed against or on the separate note of appeal, as the case may be, a certificate in Form 40.15;

(b) send the appeal process to the clerk of the inferior court; and

(6) Where an appeal is deemed to be abandoned under paragraph (1) and has been transmitted to an inferior court under paragraph (5)—

(a) a respondent in the appeal may apply by motion to that court for an award of the expenses of the abandoned appeal; and

(b) the inferior court shall on such motion grant decree for payment to that respondent of those expenses as taxed by the Auditor of the Court of Session.

Appeal prints

40.16

(1) An appellant may, within 7 days after the date on which the appeal has been deemed to be abandoned under rule 40.15(1), apply by motion to a procedural judge to be reponed.

(2) A procedural judge may grant a motion under paragraph (1) on such conditions as to expenses or otherwise as he thinks fit.

(3) On enrolling a motion under paragraph (1), the appellant shall lodge a process (or such necessary steps of process as have not already been lodged) and an appeal print.

Lodging of appendices in appeals

40.17

(1) Where, after an appeal has been marked, any party applies by motion to have the pleadings amended in terms of a minute of amendment and answers, he shall apply for a direction as to further procedure.

(2) Where it appears that the amendment makes a material change to the pleadings, the Inner House may set aside the decision, or recall the interlocutor of the inferior court appealed against and remit the cause back to the inferior court for a further hearing.

Notes of evidence not extended when agreed in appeals

40.18

(1) Grounds of appeal shall consist of brief specific numbered propositions stating the grounds on which it is proposed to submit that the appeal should be allowed.

(2) On lodging grounds of appeal, the party lodging them shall—

(a) lodge three copies of them in process; and

(b) send a copy of them to every other party.

(3) A party who has lodged grounds of appeal or answers to the grounds of appeal may apply by motion to amend the grounds or answers, on cause shown.

(4) An application under paragraph (3) shall include any necessary application under rule 40.12(1).

Amendment of pleadings in appeals

40.19

(1) Where, in an appeal under this Chapter, the appellant considers that it is not necessary to lodge an appendix to the appeal print, the appellant shall, by the relevant date specified in the timetable—

(a) give written intimation of that fact to the Deputy Principal Clerk; and

(b) send a copy of that intimation to each respondent.

(2) Where the appellant provides intimation under paragraph (1), a respondent may apply to a procedural judge, by motion, for an order requiring the appellant to lodge an appendix.

(3) An application under paragraph (2) shall include specification of the documents that the respondent seeks to have included in the appendix.

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