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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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Applications relating to interim orders in depending actions

49.61

(1) An application, in an action depending before the court to which this Part applies, for, or for the variation or recall of, an interim residence order or an interim contact order shall be made by motion.

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled.

Care and supervision by local authorities

49.62

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

Applications after decree

49.63

(1) An application after final decree for the variation or recall of a section 11 order ... shall be made by minute in the process of the action to which it relates.

(2) Where a minute has been lodged under paragraph (1), any party–

(a) may apply by motion for an interim order pending the determination of the application; and

(b) shall intimate such a motion to every other party not less than 7 days before the date on which the motion is enrolled.

(3) Rules 49.42 (warrants for intimation to child and permission to seek views relating to section 11 order) to 49.42C (views of the child – craves relating to a section 11 order sought by both minuter and respondent) apply (with the necessary modifications) to the seeking of the child’s views in relation to a minute lodged in accordance with this rule.

Interpretation of this Part

49.64

Unless the context otherwise requires, words and expressions used in this Part which are also used in the Act of 1981[^f00125] have the same meaning as in that Act.

Form of applications under the Act of 1981

49.65

Subject to any other provision in this Chapter, an application for an order under the Act of 1981 shall be made–

(a) by an action for such an order;

(b) by a conclusion in the summons or in defences, as the case may be, in any other family action; or

(c) where the application is made by a person other than a party to an action mentioned in paragraph (a) or (b), by minute in that action.

Defenders in causes under the Act of 1981

49.66

The applicant for an order under the Act of 1981 shall call as a defender–

(a) where he is seeking an order as a spouse, the other spouse;

(b) where he is a third party making an application under section 7(1)[^f00126] (dispensing with consent of non-entitled spouse to a dealing), or section 8(1) (payment from non-entitled spouse in respect of loan), of the Act of 1981, both spouses; ...

(c) where the application is made under section 18 of the Act of 1981[^f00127] (occupancy rights of cohabiting couples),or is one to which that section applies, the other partner; and

(d) where the application is made under section 18A of the Act of 1981 (application for domestic interdict) , the other partner.

Applications by motion under the Act of 1981

49.67

(1) An application under any of the following provisions of the Act of 1981 shall be made by motion:–

(a) section 3(4) (interim order for regulation of rights of occupancy etc.);

(b) section 4(6) (interim order suspending occupancy rights);

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) the proviso to section 18(1)[^f00129] (extension of period of occupancy rights).

(2) Written intimation of a motion under paragraph (1) shall be given not less than 7 days before the date on which the motion is enrolled–

(a) to the other spouse or partner, as the case may be;

(b) where the motion is under paragraph (1)(a), (b), (c) or (f) and the entitled spouse or partner is a tenant or occupies the matrimonial home by the permission of a third party, to the landlord or third party, as the case may be; and

(c) to any other person to whom intimation of the application was or is to be made by virtue of rule 49.8(1)(k) (warrant for intimation to certain persons in actions for orders under the Act of 1981) or 49.15 (orders for intimation by the court).

Procedure for minutes

49.68

Where an application is made by minute under rule 49.65(c) (form of application under the Act of 1981 by a person other than a party) and answers to that minute are lodged, the minute and answers shall not be included with the other pleadings in the action in any record, but shall be made up separately in the form of a record; and rule 49.33(5)(b) and (c) (lodging etc. of records) shall apply to that record as it applies to a record under that rule.

Sist of actions to enforce occupancy rights

49.69

Unless the court otherwise directs, the sist of an action by virtue of section 7(4) of the Act of 1981 (where action raised by non-entitled spouse to enforce occupancy rights) shall apply only to such part of the action as relates to the enforcement of occupancy rights by a non-entitled spouse.

Certificates of execution of delivery of documents to chief constable

49.70

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

Evidence in causes under the Act of 1981

49.71

(1) For the purposes of proof in any application for an order under the Act of 1981, evidence by affidavit shall be admissible in place of parole evidence.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a cause to which paragraph (1) of this rule applies.

Application and interpretation of, and directions under, this Part

49.72

(1) This Part applies to an application for divorce by a party to a marriage made in the manner prescribed in rule 49.73 (form of applications for simplified divorce) if, but only if—

(a) that party relies on the facts set out in section 1(2)(d) (no cohabitation for one year with consent of defender to decree), ... section 1(2)(e) (no cohabitation for two years) or section (1)(1)(b)(issue of interim gender recognition certificate), of the Act of 1976[^f00131];

(b) in an application under section 1(2)(d) of the Act of 1976, the other party consents to decree of divorce being granted;

(d) there are no children of the marriage under the age of 16 years;

(e) neither party to the marriage applies for an order for financial provision on divorce; ...

(e) neither party to the marriage suffers from mental disorder; and

(g) neither party to the marriage applies for postponement of decree under section 3A of the Act of 1976 (postponement of decree where impediment to religious marriage exists).

(2) If an application ceases to be one to which this Part applies at any time before final decree, it shall be deemed to be abandoned and shall be dismissed.

(3) In this Part, “simplified divorce application” means an application mentioned in paragraph (1).

(4) The Principal Clerk shall give directions in relation to the administrative procedures to be followed on the lodging of a simplified divorce application for–

(a) the registration and service of such an application,

(b) having it brought before the court for consideration,

(d) connected purposes;

and such directions shall have effect subject to the provisions of this Part.

Form of applications for simplified divorce

49.73

(1) A simplified divorce application in which the facts set out in section 1(2)(d) of the Act of 1976 (no cohabitation for one year with consent of defender to decree) are relied on shall be made in Form 49.73–A and shall only be of effect if–

(a) it is signed by the applicant; and

(b) the form of consent in Part 2 of Form 49.73–A is signed by the party to the marriage giving consent.

(2) A simplified divorce application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for two years) are relied on shall be made in Form 49.73–B and shall only be of effect if it is signed by the applicant.

(3) A simplified divorce application in which the facts set out in section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate) are relied on shall be made in Form 49.73– C and shall only be of effect if signed by the applicant.

Lodging and registration of simplified divorce applications

49.74

(1) The applicant shall send a simplified divorce application to the Deputy Principal Clerk with–

(a) an extract or certified copy of the marriage certificate; ...

(b) the appropriate fee ; and

(c) an application under section 1(1)(b) of the Act of 1976, the interim gender recognition certificate or a certified copy.

(2) Subject to the following rules of this Part, a simplified divorce application shall, on being registered in accordance with any directions made under rule 49.72(4), be treated as a summons in an action of divorce which has commenced.

Warrants for service or intimation of simplified divorce applications

49.75

(1) On registration of a simplified divorce application where the address of the other party to the marriage is known, a clerk of session shall grant warrant for service of the application.

(2) On registration of an application in which the facts set out in section 1(2)(e) of the Act of 1976 (no cohabitation for two years) or section 1(1)(b) of the Act of 1976 (grounds of divorce: interim gender recognition certificate) are relied on where the address of the other party to the marriage is not known to the applicant and cannot reasonably be ascertained–

(a) the Deputy Principal Clerk shall grant warrant for intimation of the application to–

(i) every child of the marriage, and

(ii) one of the next of kin of the other party who has reached the age of 16 years,

unless the address of such person is not known and cannot reasonably be ascertained; and

(b) the application shall thereafter be placed before the Lord Ordinary for such order under rule 16.5 (service where address of person is not known) as he thinks fit.

(3) A warrant granted under paragraph (1) or (2)(a) shall be sufficient authority for such service and intimation.

Execution of service or intimation of simplified divorce applications

49.76

(1) Subject to the following paragraphs, service of intimation of a simplified divorce application on a warrant granted under rule 49.75 on any person whose address is known to the applicant shall be made–

(a) by the Deputy Principal Clerk by post in accordance with rule 16.4 (service by post); or

(b) by a messenger-at-arms.

(2) In the application of Part I of Chapter 16 (service and intimation) to service or intimation under this rule, the following provisions of that Part of that Chapter shall not apply:–

rule 16.1(3) (which relates to a party lodging a certificate of service in process),

rule 16.3(1)(b) (form of citation and certificate of service by messenger-at-arms),

rule 16.4(2)(b) (service by post by agent),

rule 16.4(4) (form of citation in service by post).

(3) In the case of service of a simplified divorce application on the other party to the marriage under paragraph (1), the person executing service shall complete a citation in Form 49.76–A (no cohabitation for one year with consent to divorce) ... Form 49.76–B (no cohabitation for two years) or Form 49.76–BA (interim gender recognition certificate), as the case may be.

(4) In the case of intimation of a simplified divorce application on a person under paragraph (1), the person giving intimation shall complete a notice of intimation in Form 49.76–C.

(5) A certificate of service or intimation in Form 49.76–D (certificate by Deputy Principal Clerk) or Form 49.76–E (certificate by messenger-at-arms), as the case may be, shall be–

(a) completed by the person executing service or giving intimation;

(b) in the case of a certificate completed by a messenger-at-arms, sent to the Deputy Principal Clerk; and

Opposition to simplified divorce applications

49.77

(1) Any person on whom service or intimation of a simplified divorce application has been made may give notice by letter sent to the Deputy Principal Clerk within the period of notice that he challenges the jurisdiction of the court or opposes the grant of decree of divorce and giving the reasons for hisfi opposition to the application.

(2) Where opposition to a simplified divorce application is made under paragraph (1), the court shall dismiss the application unless it is satisfied that the reasons given for the opposition are frivolous.

(3) The Deputy Principal Clerk shall give written intimation of the decision under paragraph (2) to the applicant and the respondent.

(4) The sending of a letter under paragraph (1) shall not imply acceptance of the jurisdiction of the court.

Evidence in simplified divorce applications

49.78

(1) Parole evidence shall not be given in a simplified divorce application.

(2) Rule 36.8 (conditions for receiving certain written statements in evidence) shall not apply in a simplified divorce application.

No reclaiming in simplified divorce applications

49.79

A decree pronounced in a simplified divorce application may not be reclaimed against.

Applications after decree in simplified divorce applications

49.80

(1) Any application to the court after decree of divorce has been granted in a simplified divorce application which could have been made if it had been an action of divorce shall be made by minute.

(2) On lodging a minute under paragraph (1), the minuter shall lodge a process.

Interpretation of this Part

49.81

In this Part–

“the Act of 1991” means the Child Support Act 1991[^f00132];

“child” has the meaning assigned in section 55 of the Act of 1991;

“maintenance assessment” has the meaning assigned in section 54 of the Act of 1991.

Restriction of expenses

49.82

Where the Secretary of State is called as a defender in an action for declarator of non-parentage or illegitimacy, and the Secretary of State does not defend the action, no expenses shall be awarded against the Secretary of State.

Effect of maintenance assessments

49.83

The Deputy Principal Clerk shall, on receiving notification that a maintenance assessment has been made, cancelled or has ceased to have effect so as to affect an order of a kind prescribed for the purposes of section 10 of the Act of 1991, endorse on the interlocutor sheet relating to that order a certificate in Form 49.83–A or 49.83–B, as the case may be.

Effect of maintenance assessments on extracts relating to aliment

49.84

(1) Where an order relating to aliment is affected by a maintenance assessment, any extract of that order issued by the Extractor shall be endorsed with a certificate in Form 49.84–A.

(2) Where an order relating to aliment has ceased to have effect on the making of a maintenance assessment, and that maintenance assessment is later cancelled or ceases to have effect, any extract of that order issued by the Extractor shall be endorsed also with a certificate in Form 49.84–B.

CHAPTER 50 — CAUSES UNDER THE PRESUMPTION OF DEATH (SCOTLAND) ACT 1977

Interpretation of this Chapter

50.1

In this Chapter–

“the Act of 1977” means the Presumption of Death (Scotland) Act 1977[^f00133];

“action of declarator” means an action under section 1(1) of the Act of 1977;

“missing person” has the meaning assigned in section 1(1) of the Act of 1977.

Parties to, and service and intimation of, actions for declarator

50.2

(1) The missing person shall be called as the defender in an action of declarator and service on that person shall be by advertisement in such newspaper or other publication as the court thinks fit of such of the facts relating to the missing person and set out in the summons as the court may specify.

(2) The period of notice where service is executed in accordance with paragraph (1) shall be 21 days from the date of publication of the advertisement unless the court otherwise orders.

(3) In the application of rule 16.5(3)(a) (form of advertisement) to service under paragraph (1) of this rule, for the reference to Form 16.5 there shall be substituted a reference to Form 50.2–A.

(4) Subject to paragraph (6), in the summons in an action of declarator, the pursuer shall insert a warrant for intimation to–

(a) the missing person's–

(i) spouse or civil partner, and

(ii) children or, if he has no children, nearest relative known to the pursuer.

(b) any person, including any insurance company, who so far as known to the pursuer, has any interest in the action, and

in the following terms:– “Warrant for intimation to (name and address) as [husband or wife, child or nearest relative] [a person having an interest in the presumed death] of (name and last known address of the missing person) and to the Lord Advocate.”.

(5) A notice of intimation in Form 50.2–B shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (4).

(6) The court may, on the motion of the pursuer, dispense with intimation on a person mentioned in paragraph (4)(a) or (b).

(7) Notwithstanding the reference in subsection 5 of section 1 of the Act of 1977 (person interested in seeking determination or appointment not sought by pursuer) to lodging a minute, an application under that subsection shall be made by lodging defences containing a conclusion for the determination or appointment sought, averments in the answers to the condescendence in support of that conclusion and an appropriate plea-in-law.

(8) On lodging defences under paragraph (7), the defender shall, as well as complying with rule 4.6 (intimation of steps of process)–

(a) send a copy of the defences by registered post or the first class recorded delivery service to each person to whom intimation of the action has been made under paragraph (4); and

(b) lodge in process a certificate of intimation of those defences by post in Form 16.4.

Further advertisement and procedure

50.3

(1) The pursuer in an action of declarator shall, on the expiry of the period for lodging defences and without any defences having been lodged indicating knowledge of the present whereabouts of the missing person, apply by motion–

(a) for such advertisement of the facts relating to the missing person set out in the summons in such newspapers or other publications as the court thinks fit; or

(b) to dispense with further advertisement.

(2) At any time before the determination of the action, the court may, at its own instance or on the motion of a party, make such order for further advertisement as it thinks fit.

Applications for proof

50.4

In an action of declarator where no defences have been lodged, the pursuer shall, after such further advertisment as may be ordered under rule 50.3, apply by motion for an order for a proof.

Applications for variation or recall of decrees

50.5

(1) An application under section 4(1) of the Act of 1977 (variation or recall of decree) shall be made by minute in the process of the action to which the application relates.

(2) On the lodging of such a minute, the minuter shall apply by motion for an order–

(a) for service on the missing person, where his whereabouts have become known;

(b) for intimation to those persons mentioned in rule 50.2(4) or to dispense with intimation to a person mentioned in rule 50.2(4)(a) or (b); and

(3) An application under section 4(3) of the Act of 1977[^f00134] (person interested seeking determination or appointment not sought by applicant for variation order) shall be made by lodging answers containing a crave for the determination or appointment sought.

(4) A person lodging answers containing a crave under paragraph (3) shall, as well as sending a copy of the answers to the minuter–

(a) send a copy of the answers by registered post or the first class recorded delivery service to each person on whom service or intimation of the minute was ordered; and

(b) lodge in process a certificate of intimation of those answers by post in Form 16.4.

Applications for remit from sheriff court

50.6

(1) An application by a person for a direction under section 1(6) or 4(4) of the Act of 1977 (remit of action or application to the court) shall be made by petition.

(2) An action of declarator or an application which is remitted to the court under section 1(6) or 4(4) of the Act of 1977 shall proceed in the Outer House as if it were an action brought or an application made, as the case may be, in that court.

Appointment of judicial factors

50.7

(1) Rule 61.6 (documents relating to judicial factories for Accountant of Court) shall apply to an application for the appointment of a judicial factor under section 2(2)(c) or section 4(2) of the Act of 1977 as it applies to a petition for the appointment of a judicial factor.

(2) Where, in an action of declarator or an application under section 4(1) of the Act of 1977 (variation or recall of decree), a judicial factor on the estate of the missing person is appointed, the process shall forthwith be transmitted to, and retained by, the Petition Department; and the judicial factory shall proceed as if the judicial factor had been appointed in a petition for that purpose.

(3) In the application of rule 50.5 (applications for variation or recall of decrees) to an application under section 4(1) of the Act of 1977 in a cause transmitted to the Petition Department under paragraph (2), for references to a minute there shall be substituted references to a note.

CHAPTER 51 — ACTIONS OF MULTIPLEPOINDING

Application of this Chapter

51.1

This Chapter applies to an action of multiplepoinding.

Parties to actions of multiplepoinding

51.2

(1) An action of multiplepoinding may be brought by any person holding, or having an interest in, or claim on, the fund in medio, in his own name.

(2) The pursuer shall call as defenders to such an action–

(a) all persons so far as known to him as having an interest in the fund in medio; and

(b) where he is not the holder of the fund, the holder of that fund.

Condescendence of fund in medio

51.3

(1) Where the pursuer is the holder of the fund in medio, he shall include a detailed statement of the fund in the condescendence annexed to the summons.

(2) Where the pursuer is not the holder of the fund in medio, the holder shall, unless he has lodged defences in accordance with rule 51.4 (objections to actions of multiplepoinding), lodge in process a condescendence of the fund in medio, stating–

(a) any claim or lien which he may profess to have on that fund, and

(b) all persons so far as known to him as having an interest in the fund,

within 7 days after the date on which the summons has called.

Objections to actions of multiplepoinding

51.4

(1) Any objection to an action of multiplepoinding on any ground shall be made by lodging defences.

(2) Where the holder of a fund in medio lodges defences under paragraph (1), he shall, notwithstanding his objection to the action, disclose all persons so far as known to him and reasonably ascertainable who have an interest in that fund.

(3) On defences being lodged under paragraph (1), the pursuer shall comply with rule 22.1 (making up open records); and the action shall proceed for the purpose of determining the objection stated in the defences as an ordinary action.

(4) Where the holder of the fund in medio has lodged defences, the court shall, on determining those defences without dismissing the action, ordain the holder of the fund to lodge a condescendence of the fund in medio stating any claim or lien which he may profess to have on that fund, within such period as it thinks fit.

Advertisement for objections to condescendence and claims

51.5

(1) The pursuer may–

(a) after the expiry of the period for lodging defences without defences having been lodged, or

(b) where defences have been lodged, after those defences have been repelled and, where an order is made under rule 51.4(4), the condescendence of the fund has been lodged,

apply by motion for the orders mentioned in paragraph (2).

(2) The orders referred to in paragraph (1) are–

(a) the ordaining of any objection to the condescendence of the fund in medio and claims on the fund to be lodged within such period as the court thinks fit; and

(b) advertisement of the call for any objection and claims in such newspapers or other publications and for such number of insertions as the court thinks fit.

(3) An advertisement ordered under paragraph (1) shall be in Form 51.5.

Form of objection to condescendence and claims

51.6

(1) An objection to a condescendence of the fund in medio shall be made by lodging defences.

(2) A claim on the fund in medio shall be made in the form of a condescendence, claim and appropriate pleas-in-law.

(3) On lodging a condescendence and claim, a claimant shall lodge his ground of debt and all other documents supporting his claim.

(4) Where a person intends to–

(a) object to the condescendence on the fund in medio, and

(b) make a claim on the fund,

he shall lodge defences and a separate condescendence and claim.

Procedure following call for objections

51.7

(1) Where defences are lodged under rule 51.6 (form of objection to condescendence and claims), an open record shall be made up on the condescendence and such objection, and the pursuer shall comply with rule 22.1 (making up open records); and the cause shall proceed for the purposes of determining the objection as an ordinary action.

(2) No order shall be pronounced in relation to any claims on the fund in medio until any defences under rule 51.6 have been disposed of and the condescendence of the fund in medio approved.

(3) Where the court disposes of defences, or where no defences have been lodged under rule 51.6, the court shall–

(a) approve the condescendence of the fund in medio, subject to such alteration as it may make in disposing of any objection;

(b) find the pursuer, or where he is not the holder of the fund, the holder, liable only in once and single payment;

Advertisement of dependence of actions

51.8

The court may, at its own instance or on the motion of a party, at any time order–

(a) such advertisement of the dependence of the action as it thinks fit; and

(b) intimation of the dependence of the action to any person not called as a defender.

Evidence of advertisement and intimation

51.9

Where the court orders advertisement or intimation under this Chapter, the party required to make such advertisement or intimation shall lodge in process, as the case may be–

(a) a copy of the newspaper or other publication containing the advertisement or a certificate of publication by the publisher stating the date of publication and the text of the advertisement; or

(b) the certificate of intimation.

Consignation of fund and discharge of holder

51.10

(1) On approval of the condescendence of the fund in medio, the holder of the fund may apply by motion for–

(a) a finding that he is entitled to his expenses out of the fund; and

(b) authority to consign the fund into court, after deduction of his expenses as taxed by the Auditor.

(2) Where consignation is made by virtue of an authority under paragraph (1)(b), the holder of the fund may apply by motion for his exoneration and discharge.

Claims not timeously lodged

51.11

(1) A claimant who fails to lodge his claim within the period specified in the order under rule 51.5(2)(a) (order for any objections and for claims) may apply by motion to have his claim received.

(2) The court may allow such a claim to be received on such conditions as to expenses, if any, as it thinks fit.

Procedure following approval of fund in medio

51.12

(1) After the condescendence of the fund in medio has been approved, and it appears that there is no competition, the court may, on the motion of any claimant, rank and prefer the parties who have lodged claims.

(2) After the condescendence of the fund in medio has been approved and where there is competition–

(a) any party may apply by motion for an order to print a record in the competition and, on such an order being made, an open record shall be made up on the condescendences and claims and the pursuer shall comply with rule 22.1 (making up open records); and the action shall proceed for the purpose of determining the competition as an ordinary action; and

(b) during the period of adjustment, a claimant may adjust his condescendence to state any objection to any other claim.

(3) When pronouncing any decree of ranking on the fund in medio, the court may determine any question of expenses; and, where it finds any party entitled to expenses out of the fund in medio, notwithstanding rule 42.1(1)(b) (decerniture for expenses as taxed) it shall not at the same time decern for payment of those expenses.

Decrees for payment

51.13

(1) No decree for payment out of the fund in medio, whether consigned into court or not, following an order for ranking (whether for aught yet seen or otherwise) shall be made until–

(a) all accounts of expenses found payable out of the fund in medio have been taxed and the report of the Auditor on those accounts has been approved; and

(b) the certificate referred to in rule 8.1(1)(b) (Inland Revenue certificate of taxes or duties paid) has been lodged.

(2) Where the fund in medio has been consigned into court, any decree for payment out of the fund shall include–

(a) warrant to the bank, on production of a certified copy of the interlocutor granting decree, to pay to each party the sums for which he has been ranked; and

(b) warrant to the Accountant of Court, on production of a certified copy of the interlocutor granting decree, to endorse and deliver the consignation receipt to the bank in order that the payments may be made.

Reclaiming by claimant against ranking for aught yet seen

51.14

(1) A claimant, who has failed to lodge his claim on the fund in medio before a ranking for aught yet seen, may reclaim against the interlocutor making such ranking at any time while the action is depending.

(2) The Division of the Inner House before which a motion for review of an interlocutor is brought under paragraph (1) may recall that interlocutor and remit the cause to the Lord Ordinary to receive the claim on such conditions as to expenses, if any, as it thinks fit.

Exoneration of holder where no consignation

51.15

Where the holder of the fund in medio has not been exonered and discharged, he may–

(a) following a decree for payment,

(b) on production of the receipts of the persons entitled to payment under that decree, and

apply by motion for his exoneration and discharge.

CHAPTER 52 — ACTIONS OF PROVING THE TENOR

Parties to action of proving the tenor

52.1

In an action of proving the tenor, the pursuer shall call as a defender–

(a) any person having an interest in the document to be proved; or

(b) where only the pursuer has such an interest, the Lord Advocate as representing the public interest.

Lodging of supporting evidence

52.2

On lodging the summons for signeting, supporting documentary evidence of the tenor of the document to be proved in an action of proving the tenor, so far as in the possession or control of the pursuer, shall be lodged in process.

Proof in undefended actions

52.3

(1) In an action of proving the tenor in which no defences have been lodged, evidence shall be given by affidavit unless the court otherwise directs.

(2) In an action to which paragraph (1) applies, if counsel or other person having a right of audience, on consideration of the available affidavits and supporting documents, is satisfied that a motion for decree may properly be made, he may move the court by minute in Form 52.3 to grant decree in terms of the summons.

(3) The court may, on consideration of the minute, affidavits and any other supporting documents, without requiring appearance–

(a) grant decree in terms of the minute; or

(b) put the action out by order for further procedure, if any, including proof by parole evidence, as the court thinks fit.

CHAPTER 53 — ACTIONS OF REDUCTION

Conclusions for suspension etc.

53.1

In an action where real or personal diligence may proceed on a document sought to be reduced in the action, the pursuer may include in the summons, in relation to that diligence, conclusions for suspension, interdict, and liberation as circumstances may require.

Intimation to clerk of inferior court or tribunal

53.2

(1) In an action in which reduction of a decree, order, decision or warrant of whatever nature of an inferior court or tribunal is concluded for, intimation of the action shall be made to the clerk of that court or tribunal.

(2) In an action to which paragraph (1) applies, the pursuer shall insert a warrant for intimation in the summons in the following terms:– “Warrant to the (designation of the clerk of the relevant court or tribunal) being the court [or tribunal] in which the decree [or as the case may be] was granted [or made] which is sought to be reduced in this action.”.

(3) A notice of intimation in Form 53.2 shall be attached to the copy of the summons where intimation is given on a warrant under paragraph (2).

(4) An interlocutor granting reduction in an action to which paragraph (1) applies shall include a direction to the clerk of court to send a copy of thfi e interlocutor to the clerk of the inferior court or tribunal to whom intimation of the action was made.

(5) Where such an interlocutor is reclaimed against or appealed to the Supreme Court, the reclaimer or appellant, as the case may be, shall give written intimation of that fact to the clerk of the inferior court or tribunal forthwith after the reclaiming motion has been marked or the notice of appeal to the Supreme Court has been filed, as the case may be.

(6) The interlocutor disposing of such a reclaiming motion or giving effect to the judgment of the Supreme Court shall include a direction to the clerk of court to send a copy of that interlocutor to the clerk of the inferior court or tribunal to whom intimation of the action was made.

Objection by defenders to production

53.3

(1) Where a defender objects to satisfying a conclusion for production of a document sought to be reduced in an action, he shall state in his defences–

(a) his grounds of objection; and

(b) any defence on the merits of the action.

(2) Where a defender objects to satisfying such a conclusion, he shall not be required to satisfy production at the time of lodging his defences.

(3) Where the court repels or reserves an objection to satisfying a conclusion for production, it shall, in the interlocutor repelling or reserving such objection, ordain the defender to satisfy production within such period as it thinks fit.

(4) Where–

(a) the defender obtempers an order made under paragraph (3), he shall, on lodging in process any such document as is in his possession or within his control, apply by motion to hold production either satisfied or satisfied in respect of the document lodged, as the case may be; or

(b) the defender fails to obtemper an order made under paragraph (3), the pursuer may apply by motion for decree by default.

Production by defenders where no objection

53.4

(1) Where a defender does not state an objection against satisfying a conclusion for production of a document sought to be reduced, he shall–

(a) on lodging his defences, lodge in process any such document as is in his possession or within his control; and

(b) apply by motion to hold production either satisfied or satisfied in respect of the document lodged.

(2) Where a defender–

(a) does not state an objection against satisfying a conclusion for production, and

(b) fails to comply with paragraph (1)(a),

the pursuer may apply by motion for decree by default.

Pursuers to satisfy production

53.5

(1) Where a document, in respect of which reduction is concluded for, is in the possession or the control of the pursuer, he shall lodge it in process on lodging the summons for calling.

(2) The court may, at any stage of an action, ordain the pursuer to satisfy a conclusion for production of a document sought to be reduced.

(3) The pursuer shall, on lodging a document under paragraph (1) or (2), apply by motion to hold production satisfied.

(4) Where a pursuer fails to obtemper an order made under paragraph (2), the defender may apply by motion for dismissal of the action.

Joint minutes for reduction

53.6

In an action in which a conclusion for production has not been satisfied and parties enter into a joint minute in terms of which decree of reduction is to be pronounced–

(a) the document to be reduced shall be lodged in process with the joint minute; and

(b) the terms of the joint minute shall be such as to enable the court, when interponing authority to it, to hold production satisfied.

Production satisfied by copies

53.7

The court may, with the consent of the parties, hold production satisfied by a copy of the document sought to be reduced.

Challenge of deeds or writings ope exceptionis

53.8

Where, in an action, a deed or other writing is founded on by a party, any objection to it may be stated by way of exception, unless the court considers that the objection would be more conveniently disposed of in a separate action of reduction.

CHAPTER 54 — APPLICATIONS UNDER THE DEFAMATION ACT 1996

Form of certain references

54.1

(1) An application to the court under section 3 of the Defamation Act 1996 (which relates to offers to make amends) where proceedings for defamation have been taken shall be by minute lodged in the process of those proceedings.

(2) A minute lodged under paragraph (1) shall set out—

(a) the questions to be determined by the court; and

(b) the contentions of the minuter,

and shall have appended to it a copy of the offer to make amends.

Other applications

54.2

An application to the court under the said section 3 where proceedings for defamation have not been taken shall be by petition presented in the Outer House.

CHAPTER 55 — CAUSES RELATING TO INTELLECTUAL PROPERTY

Application and interpretation of this Chapter

55.1

(1) This Chapter applies to any cause—

(a) under the Patents Act 1949;

(b) under the Registered Designs Act 1949;

(d) under the Patents Act 1977;

(e) under the Copyright, Designs and Patents Act 1988;

(f) under the Trade Marks Act 1994;

(g) under the Olympics Association Right (Infringement Proceedings) Regulations 1995; or

(h) for the determination of a question relating to a patent under the inherent jurisdiction of the court, or

(i) involving a claim for passing off.

(2) In this Chapter–

“the Act of 1949” means the Patents Act 1949;

“the Act of 1977” means the Patents Act 1977;

“the Comptroller” means the Comptroller-General of Patents, Designs and Trade Marks;

“the Copyright Act of 1988” means the Copyright, Designs and Patents Act 1988;

“existing patent” means a patent mentioned in section 127(2)(a) or (c) of the Act of 1977;

“intellectual property cause” means a cause to which this Chapter applies and, except where the context otherwise requires, “cause” means an intellectual property cause;

“intellectual property judge” means a judge nominated as such in accordance with rule 55.2 and, except where the context otherwise requires, “judge” means an intellectual property judge or such other judge before whom proceedings are brought in accordance with rule 55.2;

“the Journal” means the journal published in accordance with rules made under section 123(6) of the Act of 1977;

“patent” means an existing patent or a patent under the Act of 1977;

“patentee” has the meaning assigned to it in section 101(1) of the Act of 1949.

“preliminary hearing” means a hearing under rule 55.2E;

“procedural hearing” means a hearing under rule 55.3.

Proceedings before patents judge

55.2

All proceedings in the Outer House in a cause to which this Chapter applies shall be brought before a judge of the court nominated by the Lord President as the intellectual property judge or, where the intellectual property judge is not available, any other judge of the court (including the vacation judge).

Pre-proof hearings

55.3

(1) In an intellectual property cause, not less than 3 days, or such other period as may be prescribed by the judge at the preliminary hearing, before the date fixed under rule 55.2E(4) for the procedural hearing, each party shall lodge in process and send to every other party—

(a) a written statement of his proposals for further procedure which shall state—

(i) whether he seeks to have any issue of law or fact (including validity, infringement, an application for amendment of a patent under section 75 of the Act of 1977, damages or other remedies sought) to be determined separately from any other issue;

(ii) whether he seeks to have the cause appointed to debate or to have the cause sent to proof on the whole or any part of it;

(iii) what the issues are which he considers should be sent to debate or proof; and

(iv) the estimated duration of any debate or proof;

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

(c) where it is sought to have the cause appointed to proof, the reports of any skilled persons he proposes to call to give evidence;

(d) where it is sought to have the cause appointed to debate, 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) where it is sought to have any particular order made at a procedural hearing, a note giving written intimation of the order sought and the reason for seeking it.

(2) At the procedural hearing, the judge—

(a) shall determine whether to direct that any issue of law or fact (including validity, infringement, an application for amendment of a patent under section 75 of the Act of 1977, damages or other remedies sought) should be determined separately from any other issue;

(b) shall determine whether the cause should be appointed to debate or to proof on the whole or any part of it;

(d) where the cause is appointed to debate, or is sent to proof, may order that written arguments on any question of law should be submitted;

(e) where the cause is sent to proof, may determine whether evidence at the proof should be by oral evidence, the production of documents or affidavits on any issue;

(f) where the cause is 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;

(g) may direct that such witness statements or affidavits shall stand as evidence in chief of the witness concerned, subject to such further questioning in chief as the judge may allow;

(h) where the cause is sent to proof, may appoint parties to be heard By Order at a date prior to the proof date;

(i) may make an order regulating the making of any experiment, inspection, test or report;

(j) may make an order restricting the number or disciplines of expert witnesses to be called by each party;

(k) may direct that skilled persons should meet 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;

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

(m) 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 judge may specify;

(n) may remit an issue to a person of skill appointed by the court;

(o) may fix a date by which, notwithstanding rule 36.3 (lodging productions for proofs) any documents intended to be relied on by a party shall be lodged in process or, if more appropriate, be intimated to all other parties with a view to those documents being lodged in process as part of an agreed bundle of documents;

(p) 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;

(q) may fix a date by which a notice under rule 55.4 (notice to admit and notices of non-admission) shall be served;

(r) where the cause is sent to proof, may make an order fixing the time allowed for the examination and cross-examination of witnesses;

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

(t) may continue the procedural hearing to a date to be appointed by the judge;

(u) may order and fix a date for a further procedural hearing or fix a date for the hearing of any debate or proof; and

(v) may make such other order as the judge thinks fit.

(3) Chapter28 (procedure roll) shall apply to a debate ordered in an intellectual property cause under this rule as it applies to a cause appointed to the Procedure Roll.

Notices to admit and notices of non-admission

55.4

(1) In an intellectual property cause, at any time after defences or answers have been lodged but not later than such date as has been fixed by the court at a procedural hearing, a party may intimate to any other party to the cause a notice or notices calling on him to admit for the purposes of that cause only–

(a) such facts relating to an issue averred in the pleadings as may be specified in the notice;

(b) that a particular document lodged in process and specified in the notice is–

(i) an original and properly authenticated document;

(ii) a true copy of an original and properly authenticated document; or

(iii) correct in the particular respects specified in the notice.

(2) Where a party on whom a notice has been served under paragraph (1)–

(a) does not admit any of the facts specified in the notice, or

(b) does not admit, or seeks to challenge, the authenticity or correctness of any document specified in the notice,

he shall, within 28 days after the date of intimation of the notice under paragraph (1), intimate a notice of non-admission to the party intimating the notice to him under paragraph (1) stating that he does not admit the fact or document specified.

(3) A party who fails to serve a notice of non-admission under paragraph (2) shall be deemed to have admitted the matters specified in the notice intimated to him under paragraph (1); and such matters may be used in evidence at a proof if otherwise admissible in evidence unless the court, on special cause shown, otherwise directs.

(4) A party who fails to intimate a notice of non-admission under paragraph (2) within 28 days after the notice to admit intimated to him under paragraph (1) shall be liable to the party intimating the notice to admit for the expenses of proving the matters specified in that notice unless the court otherwise directs.

(5) The party intimating a notice under paragraph (1) or (2) shall lodge a copy of it in process.

(6) A deemed admission under paragraph (3) shall not be used against the party by whom it was deemed to be made other than in the cause for the purpose of which it was deemed to be made or in favour of any person other than the party by whom the notice was given under paragraph (1).

(7) The court may, at any time, allow a party to amend or withdraw an admission made by him on such conditions, if any, as it thinks fit.

Applications for leave to amend specifications

55.5

(1) A patentee or the proprietor of a patent intending to apply to the court under section 30 of the Act of 1949 or section 75 of the Act of 1977 (which provide for leave to amend specification) shall give notice of his intention to the Comptroller and at the same time deliver to him a form of advertisement–

(a) identifying the proceedings depending before the court in which it is intended to apply for such leave;

(b) giving particulars of the amendment sought;

(d) stating that any person intending to oppose the amendment who is not a party to the proceedings must, within 28 days after the appearance of the advertisement, give written notice of that intention to the applicant and to the Deputy Principal Clerk.

(2) On receipt of a form of advertisement under paragraph (1), the Comptroller shall cause the advertisement to be inserted once in the Journal.

(3) A person who gives notice of intention to oppose the amendment in accordance with the advertisement shall be entitled to be heard on the application subject to any order of the court as to expenses.

(4) Within 35 days after the appearance of the advertisement, the applicant shall make his application under section 30 of the Act of 1949 or section 75 of the Act of 1977, as the case may be, by motion intimated, with a copy of the specification certified by the Comptroller and showing in coloured ink the amendment sought, to–

(a) the Comptroller;

(b) every other party; and

(5) On enrolling a motion under paragraph (4), the applicant shall lodge in process–

(a) a copy of the Journal containing the advertisement referred to in paragraph (2); or

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

(6) At the hearing of a motion under paragraph (4)–

(a) where there is no opposition to the amendment sought, the court may–

(i) grant the application; or

(ii) make such order for further procedure as it thinks fit; or

(b) where there is opposition to the amendment sought, the court shall ordain the applicant to lodge a minute setting out the grounds of his application within such period as the court thinks fit, and allow any party or person opposing the amendment to lodge answers to the minute in process within a specified period.

(7) Within 7 days after the expiry of the time for lodging answers under paragraph (6)(b), the applicant shall apply by motion for an order for further procedure.

(8) On a motion under paragraph (7), the court may–

(a) grant the application;

(b) determine whether the motion shall be heard at the same time as the hearing of the cause depending before the court relating to the patent in question or at a different time;

(c) determine the manner in which evidence shall be given and, if the evidence is to be given by affidavit, the period within which affidavits must be lodged; or

(d) make such other order for further procedure as it thinks fit.

(9) Where the court allows the specification to be amended, the applicant shall forthwith–

(a) lodge with the Comptroller a certified copy of the interlocutor; and

(b) if so required by the court or the Comptroller, leave at the Patent Office a new specification and drawings as amended, prepared in compliance with the Act of 1949 or the Act of 1977, as the case may be, and any rules made under either of those Acts.

(10) On receiving the certified copy interlocutor under paragraph (9), the Comptroller shall cause it to be inserted at least once in the Journal.

Applications for revocation of patents

55.6

(1) Subject to paragraph (2), an application under section 72 of the Act of 1977[^f00142] (revocation of a patent) shall be made by petition.

(2) Where a cause is depending before the court between the same parties in relation to the patent in question, such an application may be made by counterclaim in that cause in accordance with rule55.2D (pleadings in intellectual property causes).

Proceedings for infringement

55.7

(1) In any cause in which it is alleged that a patent has been infringed, the person alleging infringement must aver in the petition or summons, as the case may be, particulars of the infringement relied on, showing which of the claims in the specification of the patent are alleged to have been infringed and giving at least one instance of each type of infringement alleged.

(2) Where, as a defence to such an allegation, it is averred that–

(a) at the time of the infringement there was in force a contract or licence relating to the patent made by or with the consent of the person alleging the infringement, and

(b) containing a condition or term void by virtue of section 44 of the Act of 1977,

the person stating that defence must aver particulars of the date of, and the parties to, each such contract or licence and particulars of each such condition or term.

Objections to validity of patent

55.8

(1) A person who–

(a) brings an action under section 32 of the Act of 1949[^f00143] or presents a petition under section 72 of the Act of 1977 for revocation of a patent, or

(b) being a party to an action relating to a patent–

(i) challenges the validity of the patent, or

(ii) applies by counterclaim in the action for revocation of the patent,

shall aver the grounds on which the validity of the patent is challenged.

(2) Where the grounds in respect of which averments are required under paragraph (1) include–

(a) want of novelty, or

(b) want of any inventive step,

the averments shall include the matters mentioned in paragraph (3).

(3) The matters referred to in paragraph (2) are–

(a) the manner, time and place of every prior publication or use relied on; and

(b) where prior use is alleged–

(i) specification of the name of every person alleged to have made such use;

(ii) an averment as to whether such use is alleged to have continued until the priority date of the claim in question or of the invention, as the case may be, and, if not, the earliest and latest date on which such use is alleged to have taken place;

(iii) a description accompanied, if necessary, by drawings sufficient to identify such use; and

(iv) if such use relates to machinery or apparatus, an averment as to whether the machinery or apparatus is in existence and where it can be inspected.

(4) Where, in the case of an existing patent–

(a) one of the grounds on which the validity of the patent is challenged is that the invention, so far as claimed in any claim of the complete specification, is not useful, and

(b) it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,

the averments shall specify that fact and identify each such claim and shall include particulars of each such example, specifying the respects in which it is alleged that it does not work or does not work as described.

Determination of question or application where Comptroller declines to deal with it

55.9

Where the Comptroller–

(a) declines to deal with a question under the following sections of the Act of 1977:–

(i) section 8 (entitlement to patents etc.),

(ii) section 12 (entitlement to foreign and convention patents),

(iii) section 37[^f00144] (right to patent after grant), or

(iv) section 61(3) (infringement of patent),

(b) declines to deal with an application under section 40 of that Act (compensation of employees for certain inventions), or

any person entitled to do so may, within 28 days after the decision of the Comptroller, apply by petition to have the question or application, as the case may be, determined by the court.

Applications by employees for compensation under section 40 of the Act of 1977

55.10

(1) An application under section 40(1) or (2) of the Act of 1977 (compensation of employees for certain inventions) shall be made by summons commenced within the period which begins when the relevant patent is granted and which expires one year after it has ceased to have effect.

(2) Where a patent has ceased to have effect by reason of a failure to pay any renewal fee within the period prescribed for the payment of that fee and an application is made to the Comptroller under section 28 of the Act of 1977[^f00145] (restoration of lapsed patent), the period within which the application by summons is to be made shall–

(a) if restoration is ordered, continue as if the patent has remained continuously in effect; or

(b) if restoration is refused, be treated as if expiring one year after the patent ceased to have effect or 6 months after the refusal, whichever is the later.

Proceedings for determination of certain disputes

55.11

A reference or application under any of the following provisions shall be made by petition:–

(a) a reference under–

(i) section 48 of the Act of 1949 or section 58[^f00146] of the Act of 1977 (which provide for disputes as to Crown use);

(ii) paragraph 3 of Schedule 1 to the Registered Designs Act 1949[^f00147] (disputes as to Crown use);

(iii) section 4 of the Defence Contracts Act 1958[^f00148] (payments for use and determination of disputes);

(iv) section 251(1) (design right matters), or section 252(1) (disputes as to Crown use), of the Act of 1988[^f00149]; and

(b) an application under section 45(3) of the Act of 1977 (variation of certain contracts).

Applications for rectification of Register of Designs or Patents

55.12

(1) Subject to paragraph (2), an application under section 20(1) of the Registered Designs Act 1949 (rectification of Register of Designs) or section 34(1) of the Act of 1977 (rectification of Register of Patents) shall be made by petition.

(2) Where a cause for infringement of a patent is depending before the court, an application mentioned in paragraph (1) may be made by counterclaim in that cause in accordance with rule55.2D (pleadings in intellectual property causes).

(3) In an application under section 34(1) of the Act of 1977, the applicant shall intimate the application to the Comptroller, who may lodge answers in process and be heard on the application.

Counterclaim for rectification of Register of Designs

55.13

(1) Where, in any cause, an infringement of ... a registered design is alleged, the party against whom the allegation is made may–

(a) put in issue the validity of the registration of that design;

(b) counterclaim for an order that the Register of Designs be rectified by cancelling or varying the registration; or

(2) A party to any such cause who counterclaims for an order that the Register of Designs be rectified shall intimate to the Comptroller a copy of the counterclaim; and the Comptroller may, or (if ordered to do so by the court) shall, lodge answers in process and be heard in any such cause.

(3) Such a counterclaim shall be made in accordance with rule55.2D (pleadings in intellectual property causes).

Appeals from Comptroller

55.14

(1) Subject to the following paragraphs of this rule, an appeal under the Act of 1949, the Act of 1977 or the Copyright Act of 1988 from a decision of , or a reference under the Copyright Act of 1988 from, the Comptroller shall be heard in the Outer House by the intellectual property judge.

(2) In the application of Part III of Chapter 41 (appeals in Form 41.25) by virtue of rule 41.51 (appeals to Lord Ordinary) to an appeal or a reference under paragraph (1) of this rule–

(a) for references to the Inner House there shall be substituted references to the intellectual property judge; and

(b) the following paragraphs of this rule shall apply.

(3) Subject to paragraph (4), an appeal or a reference shall be lodged in the General Department–

(a) in the case of a decision on a matter of procedure, within 14 days after the date of the decision appealed against; and

(b) in any other case, within 6 weeks after the date of the decision appealed against or the decision referring the proceedings to the court, as the case may be.

(4) Except with the leave of the court, no appeal or reference under this rule shall be entertained unless it has been lodged within the period specified in paragraph (3) or within such further period as the Comptroller may allow on an application made to him before the expiry of that period.

(5) Any determination by the Comptroller that a decision is on a matter of procedure shall be treated as being itself a decision on a matter of procedure.

(6) In the application of paragraph (1) of rule 41.27 (orders for service and answers), the order under that paragraph shall include a requirement to–

(a) intimate the appeal to the Comptroller; and

(b) serve the appeal on every other party to the proceedings before the Comptroller.

(7) On receiving intimation of the appeal, the Comptroller shall forthwith transmit to the Deputy Principal Clerk all the papers relating to the matter which is the subject of the appeal.

(8) A respondent who, not having appealed from the decision of the Comptroller, wishes to contend at the hearing of the appeal that the decision or the grounds of the decision should be varied shall–

(a) specify the grounds of that contention in his answers; and

(b) intimate those answers to the Comptroller and to every other party to the proceedings before the Comptroller.

(9) Intimation of the date of the hearing of the appeal shall be made to the Comptroller by the appellant not less than 7 days before that date, unless the court otherwise directs.

(10) An appeal under this rule shall be a re-hearing and the evidence led on appeal shall be the same as that led before the Comptroller; and, except with the leave of the court, no further evidence shall be led.

Intimation to Comptroller of reclaiming motion

55.15

The marking of a reclaiming motion from a decision of the intellectual property judge on an appeal from a decision of the Comptroller shall be intimated by the reclaimer to the Comptroller as well as to the other parties to the appeal.

Communication of information to European Patent Office

55.16

(1) The court may authorise the communication to the European Patent Office or the competent authority of any country which is a party to the European Patent Convention[^f00150] of any such information in the records of the court as the court thinks fit.

(2) An application for such information shall be made by letter addressed to the Deputy Principal Clerk.

(3) Before complying with an application for the disclosure of information under paragraph (1), any person appearing to be affected by the application shall be given the opportunity of making representations to the intellectual property judge in chambers on the question whether the information should be disclosed; and the decision of the intellectual property judge shall be final and not subject to review.

(4) In this rule, “the European Patent Convention” has the meaning assigned in section 130(1) and (6) of the Act of 1977[^f00151].

55.17

An application under section 114, 204 or 231 of the Copyright Act of 1988 (which provide for orders for disposal in respect of infringement of copyright, rights in performances and design rights), ... section 19 of the Trade Marks Act 1994 (order as to disposal of infringing goods, material or articles) or regulation 5 of the Olympics Association Right (Infringement Proceedings) Regulations 1995 (order as to disposal of infringing goods, material or articles etc.), shall be made–

(a) in a cause depending before the court, by motion; or

(b) where there is no depending cause, by petition; and

the applicant shall intimate the motion to, or serve the petition on, as the case may be, all persons, so far as known to the applicant or reasonably ascertainable, having an interest in the copy, article, recording or other thing which is the subject of the application, including any person in whose favour an order could be made in respect of the copy, article, recording or other thing under any of the said sections of the Copyright Act of 1988 , section 19 of the said Act of 1994 or regulation 5 of the said Regulations.

Applications for leave to proceed

55.18

(1) Where leave of the court is required under the Copyright Act of 1988 before an action may proceed, the pursuer shall apply by motion for leave to proceed before the summons is signeted.

(2) A motion under paragraph (1) shall be heard in chambers.

(3) Where such leave is granted, a copy of the interlocutor allowing leave shall be attached to the copy of the summons served on the defender.

CHAPTER 56 — JUDGMENTS OF THE HOUSE OF LORDS

Applications to apply judgments of the House of Lords

56.1

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

CHAPTER 57 — ADMISSION OF ADVOCATES

Form of petition for admission as advocate

57.1

A petition by a person for admission to the public office of advocate shall be in such form as the Lord President shall, in consultation with the Dean of the Faculty of Advocates, determine.

Disapplication of rules in relation to petitions

57.2

The following provisions of these Rules shall not apply to a petition by a person for admission to the public office of advocate:–

rule 4.1 (form, size, etc., of documents forming the process),

rule 4.3 (lodging of processes), and

Chapter 14 (petitions).

Admission as advocate

57.3

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

CHAPTER 58 — JUDICIAL REVIEW

Application and interpretation of this Chapter

58.1

(1) This Chapter applies to an application to the supervisory jurisdiction of the court.

(2) Such an application must be made by petition for judicial review.

(3) The following rules do not apply to a petition for judicial review—

(a) rule 14.4 (form of petitions);

(b) rule 14.5 (first order in petitions);

(d) rule 14.9 (unopposed petitions);

(e) rule 14.10 (disposals in petitions).

Disapplication of certain rules to this Chapter

58.2

In this Chapter—

“the 2007 Act” means the Tribunals, Courts and Enforcement Act 2007;

“application to the supervisory jurisdiction of the court” includes an application made under section 45(b) (specific performance of a statutory duty) of the Act of 1988;

“oral hearing” means an oral hearing to determine whether to grant permission under sections 27B or 27C of the Act of 1988;

“permission” means permission for an application to the supervisory jurisdiction of the court to proceed, as required by section 27B(1) of the Act of 1988;

“procedural hearing” means a hearing fixed under rule 58.11(1)(b);

“substantive hearing” means a hearing fixed under rule 58.11(1)(a).

Applications for judicial review

58.3

(1) A petition may not be lodged in respect of an application if that application could be made by appeal or review under or by virtue of any enactment.

(2) For the purposes of calculating the time limit under section 27A of the Act of 1988, an application is made when a petition is lodged.

(3) A petition for judicial review is made in Form 58.3.

(4) A petition must—

(a) have lodged with it all relevant documents in the petitioner’s possession or control;

(b) have appended to it a schedule specifying—

(i) any documents which the petition founds on that are not in the petitioner’s possession or control; and

(ii) the person who has possession or control over those documents;

(c) where the decision, act or omission in question and the basis of the challenge is not apparent from the documents lodged, have lodged with it an affidavit stating the terms of that decision, act or omission and the basis of the challenge.

(d) identify which documents are necessary to determine—

(i) whether to grant permission;

(ii) whether to extend the time limit under section 27A of the Act of 1988.

(5) Where the petitioner seeks an extension to the time limit under section 27A of the Act of 1988, this must be stated in the petition.

Powers of court in judicial review

58.4

(1) When a petition is lodged, the Lord Ordinary must make an order specifying—

(a) such intimation, service and advertisement as may be necessary;

(b) the period in which any respondent or interested party who intends to participate in the decision whether permission should be granted must, if so advised, lodge answers and any relevant documents (see rule 58.6(1));

(c) the period in which any respondent or interested party who only intends to contest the petition if permission is granted must, if so advised, give notice of that intention (see rule 58.6(2)).

(2) That order must, except where the Lord Ordinary orders otherwise, require—

(a) intimation, service and advertisement to take place within 7 days from the date of the order;

(b) the lodging of answers and relevant documents to take place within 21 days from the date of service;

(3) If a party seeks any of the things in paragraph (5), that party must apply by motion.

(4) The Lord Ordinary must have regard to the need for the speedy determination of the petition when ordering any of the things in paragraph (5).

(5) Those things are—

(a) dispensing with intimation, service or advertisement;

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

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) urgent consideration of the petition;

(f) a discretionary transfer to the Upper Tribunal under section 20(1)(b) of the 2007 Act;

(g) an interim order; or

(h) a sist for legal aid.

(6) Where a party seeks urgent consideration of the petition, the motion must set out—

(a) the need for urgency,

(b) the timescale sought for the court to consider permission, and

(7) A sist for legal aid must be for no longer than two months, but can be renewed on cause shown.

(8) The clerk of court must notify the Scottish Legal Aid Board of a sist for legal aid.

Nominated judge

58.5

(1) If the conditions in section 20(1)(a) of the 2007 Act are met, instead of determining permission under rule 58.7, the Lord Ordinary must make an order transferring the application to the Upper Tribunal.

(2) If paragraph (3) applies, the Lord Ordinary may make an order transferring the application to the Upper Tribunal—

(a) instead of determining permission under rule 58.7;

(b) after determining permission; or

(3) This paragraph applies if—

(a) the conditions in section 20(1)(b) of the 2007 Act are met, and

(b) the Lord Ordinary is satisfied that it is in all the circumstances appropriate to transfer the application.

(4) The Lord Ordinary may make an order under paragraph (2) whether or not such an order was sought in the petition or was sought by motion by any party to the proceedings, but if no such order was sought, the parties must be heard before making an order.

(5) Where the Lord Ordinary makes an order transferring the application to the Upper Tribunal under paragraph (1) or (2), an order may be made in respect of any expenses incurred by the parties up to that point.

Form of petition

58.6

(1) A person served with the petition who intends to participate in the decision whether permission should be granted must lodge answers within the period ordered for the lodging of answers.

(2) A person served with the petition who—

(a) does not intend to participate in the decision whether permission should be granted; but

(b) does intend to contest the petition if permission is granted,

must notify the court and the petitioner of that intention, within the period ordered for notification. That person may not participate in the decision whether permission should be granted.

(3) A person served with the petition who—

(a) does not lodge answers within the period ordered for the lodging of answers; and

(b) does not notify the court of an intention to contest the petition if permission is granted, within the period ordered for notification,

may not participate in the decision whether permission should be granted or contest the petition, unless the Lord Ordinary or the Inner House (as the case may be) orders otherwise.

First order

58.7

(1) Within 14 days from the end of the period for lodging answers the Lord Ordinary must—

(a) decide whether to—

(i) grant permission (including permission subject to conditions or only on particular grounds);

(ii) grant an extension to the time limit under section 27A of the 1988 Act; or

(b) order an oral hearing (for the purpose of making those decisions) to take place within 14 days.

(1A) The petitioner, respondent and any other person who has lodged answers to the petition must be given at least 2 days’ notice of the oral hearing.

(2) Where permission is refused (or permission is granted subject to conditions or only on particular grounds) without an oral hearing, the Lord Ordinary must give reasons for the decision.

(3) Where an extension to the time limit under section 27A of the Act of 1988 is refused without an oral hearing, the Lord Ordinary must give reasons for the decision.

Compearing parties

58.8

(1) A request to review a decision made without an oral hearing , under section 27C(2) of the Act of 1988, is made in Form 58.8.

(2) Where a request is granted, the oral hearing must take place within 7 days.

(3) The petitioner, respondent and any other person who has lodged answers to the petition must be given at least 2 days’ notice of the oral hearing.

First hearing

58.9

(1) Except on cause shown, an oral hearing must not exceed 30 minutes.

(2) Where permission is refused (or permission is granted subject to conditions or only on particular grounds) at an oral hearing, the Lord Ordinary must give reasons for the decision.

Second hearing

58.10

An appeal under section 27D(2) of the Act of 1988 (appeals following oral hearings) is made by reclaiming motion (see rule 38.8(d)).

CHAPTER 59 — APPLICATIONS FOR LETTERS

Applications for letters of arrestment or inhibition

59.1

(1) An application for letters of arrestment ... may be made, as the case may be, in–

(a) Form 59.1–A (arrestment);

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) An application under paragraph (1) shall be presented to the Deputy Principal Clerk together with any relevant supporting documents.

(3) ... If the Deputy Principal Clerk is satisfied that the applicant for such letters is entitled to a warrant for arrestment ...–

(a) he shall sign and date the warrant in such an application; and

(b) the application shall be signeted;

and such signeted application and warrant shall constitute letters of arrestment or inhibition, as the case may be.

(4) ... If the Deputy Principal Clerk refuses to sign and date such warrant, the application shall, on request, be placed before the Lord Ordinary; and the decision of the Lord Ordinary shall be final and not subject to review.

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) An application for letters of arrestment ... on the dependence of an action to which a claim under section 19 of the Family Law (Scotland) Act 1985[^f00153] applies shall be placed before the Lord Ordinary; and the decision of the Lord Ordinary shall be final and not subject to review.

CHAPTER 60 — APPLICATIONS FOR SUSPENSION, SUSPENSION AND INTERDICT, AND SUSPENSION AND LIBERATION

Application of this Chapter

60.1

Subject to rule 53.1 (conclusions for suspension etc., in action of reduction), this Chapter applies to an application for suspension, suspension and interdict, or suspension and liberation.

Form of applications

60.2

(1) An application to which this Chapter applies shall be made by petition.

(2) It shall not be necessary in any such petition to make an offer of caution or consignation.

First order

60.3

Where the interlocutor ordering intimation, service or advertisement contains an interim suspension of execution, interim interdict or interim liberation, subject to the finding of caution or the giving of other security or any other conditions, the petition shall not be intimated, served or advertised until such condition has been met.

Further petition following refusal by default

60.4

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