United Kingdom Legislation

1.

Short title.

This Act may be cited for all purposes as the Sheriff Courts (Scotland) Act 1907.

2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1

3.

Interpretation.

In construing this Act (unless where the context is repugnant to such construction) —

[ F7 4.

Jurisdiction.

The jurisdiction of the [ F8 sheriffs principal ] , within their respective sheriffdoms shall extend to and include all navigable rivers, ports, harbours, creeks, shores, and anchoring grounds in or adjoining such sheriffdoms. And the powers and jurisdictions formerly competent to the High Court of Admiralty in Scotland in all maritime causes and proceedings, civil and criminal, including such as may apply to persons furth of Scotland, shall be competent to the [ F8 sheriffs principal ] , provided the defender shall upon any legal ground of jurisdiction be amenable to the jurisdiction of the [ F8 sheriff principal ] before whom such cause or proceeding may be raised, and provided also that it shall not be competent to the [ F8 sheriffs principal ] to try any crime committed on the seas which it would not be competent for him to try if the crime had been committed on land; Provided always that where sheriffdoms are separated by a river, firth, or estuary, the [ F8 sheriffs principal ] on either side shall have concurrent jurisdictions over the intervening space occupied by water. ]

5.

Extension of jurisdiction.

Nothing herein contained shall derogate from any jurisdiction, powers, or authority presently possessed or in use to be exercised by the [ F9 sheriffs principal ] of Scotland, and such jurisdiction shall extend to and include — (1) Actions of declarator (except declarators of marriage or nullity of marriage, . . . F10 ): (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F11 [ F12 ( 2 ) Actions for aliment or separation ( other than any action mentioned in subsection ( 2A ) below ) . . . F13 ] [ F14 ( 2A ) Actions, arising out of an application under section 31 ( 1 ) of the Maintenance Orders ( Reciprocal Enforcement ) Act 1972, for the recovery of maintenance: ] [ F15 ( 2B ) Actions for divorce ] F16 (2C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) Actions of division of commonty and of division or division and sale of common property, in which cases the M2 Division of Commonties Act 1695 concerning the division of commonties shll be read and construed as if it conferred jurisdiction upon the sherrif court in the same manner as upon the Court of Session: (4) Actions relating to questions of heritable right or title (except actions of adjudication save in so far as now competent and actions of reduction) including all actions of declarator of irritancy and removing, whether at the instance of a superior against a vassal or of a landlord against a tenant: (5) Suspension of charges or threatened charges upon the decrees of court granted by the [ F9 sheriff principal ] or upon decrees of registration proceeding upon bonds, bills, contracts or other obligations registered in the books of the sheriff court, the books of council and session, or any others competent . . . F17 : . . . F18 : . . . F19 .

[ F20 5A.

Power of sheriff to order sheriff clerk to execute deeds relating to heritage.

— ( 1 ) This section applies where — ( 2 ) Where the grantor of any deed relating to the heritable property cannot be found or refuses or is unable or otherwise fails to execute the deed, the sheriff may —

( a )

where subsection ( 1 ) ( a ) above applies, on application;

( b )

where subsection ( 1 ) ( b ) above applies, on summary application,

by the grantee, make an order dispensing with the execution of the deed by the grantor and directing the sheriff clerk to execute the deed. ( 3 ) Where in pursuance of an order under this section a deed is executed by the sheriff clerk, it shall have the like force and effect as if it had been executed by the grantor. ( 4 ) In this section — “ grantor ” means a person who is under an obligation to execute the deed; and “ grantee ” means the person to whom that obligation is owed. ]

[ F21 6.

Action competent in sheriff court.

[ F22 Subject to section 8 of the M3 Domicile and Matrimonial Proceedings Act 1973 [ F23 and Chapter III of Part I of the Family Law Act 1986 ] . ] Any action competent in the sheriff court may be brought within the jurisdiction of the [ F24 sheriff principal ] —

7.

X1 Privative jurisdiction in causes under fifty pounds value.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F30 , all causes not exceeding [ F31 one thousand five hundred pounds ] in value exclusive of interest and expenses competent in the sheriff court shall be brought and followed forth in the sheriff court only, and shall not be subject to review by the Court of Session:

8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F33

9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F34

10.

Privilege not to exempt from jurisdiction.

No person shall be exempt from the jurisdiction of the sheriff court on account of privilege by reason of being a member of the College of Justice.

11.

X2 Appointment of sheriffs and salaried sheriffs-substitute.

The right of appointing to the salaried offices of [ F35 sheriff principal ] and salaried [ F35 sheriff ] shall be vested in His Majesty, and shall be exercised on the recommendation of the [ F36 Secretary of State ] .

12, 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F37

14.

Salaries of sheriffs and sheriffs-substitute.

It shall be lawful to grant to any [ F38 sheriff principal or sheriff ] such salary as to the Treasury may seem meet, and every such salary shall be paid [ F39 quarterly or otherwise in every year as the Treasury may determine ] , and shall be charged upon and be payable out of the Consolidated Fund.

15, 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F40

17.

Honorary sheriff-substitute.

The [ F41 sheriff principal ] may by writing under his hand appoint such persons as he thinks proper to hold the office of [ F41 honorary sheriff ] within his sheriffdom during his pleasure, and for whom he shall be answerable. An [ F41 honorary sheriff ] , during the subsistence of his commission, shall be entitled to exercise the powers and duties appertaining to the office of [ F41 sheriff ] . An [ F41 honorary sheriff ] shall hold office, notwithstanding the death, resignation, or removal of the [ F41 sheriff principal ] , until his commission shall be recalled by a succeeding [ F41 sheriff principal ] . In this section [ F41 “ sheriff principal ” ] does not include [ F41 sheriff. ]

18, 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F42

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F43

21. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F44

22 — 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F45

25, 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F46

27.

Appeal to sheriff.

Subject to the provisions of this Act an appeal to the [ F47 sheriff principal ] shall be competent against all final judgments of the [ F47 sheriff ] and also against interlocutors — (A) Granting or refusing interdict, interim or final; (B) Granting interim decree for payment of money other than a decree for expenses, or making an order ad factum præstandum; (C) Sisting an action; (D) Allowing or refusing or limiting the mode of proof . . . F48 ; (E) [ F49 Refusing a reponing note; or ( F ) ] Against which the [ F47 sheriff ] either ex proprio motu or on the motion of any party grants leave to appeal; Provided always that notwithstanding the death, resignation, or removal of a [ F47 sheriff principal ] appeals may be taken from the judgment of the [ F47 sheriff ] , which appeals shall be heard by the succeeding [ F47 sheriff principal ] when he shall enter upon office.
[ F49 It shall be competent for the [ F47 sheriff principal ] . when the action is before him on appeal on any point, to open the record ex proprio motu, if the record shall appear to him not to have been properly made up, or to allow further proof. ]

[ F50 28.

Appeal to Court of Session.

— ( 1 ) Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment either of a [ F51 sheriff principal or sheriff ] if the interlocutor appealed against is a final judgment or is an interlocutor — ( 2 ) Nothing in this section nor in section twenty-seven of this Act contained shall affect any right of appeal or exclusion of such right provided by any Act of Parliament in force for the time being. ]

29.

Effect of appeal.

An appeal shall be effectual to submit to review the whole of the interlocutors pronounced in the cause, and shall be available to and may be insisted in by all other parties in the cause notwithstanding they may not have noted separate appeals. An appeal shall not prevent immediate execution of a warrant of sequestration for rent, or of warrants to take inventories, or place effects in custody ad interim, or warrants for interim preservation, and an interim interdict, although appealed against shall be binding till recalled.

30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F53

31. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F54

32. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F55

33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F56

34.

Removings.

Where lands exceeding two acres in extent are held under a probative lease specifying a term of endurance, and whether such lease contains an obligation upon the tenant to remove without warning or not, such lease, or an extract thereof from the books of any court of record, shall have the same force and effect as an extract decree of removing obtained in an ordinary action at the instance of the lessor, or any one in his right, against the lessee or any party in possession, and such lease or extract shall, along with authority in writing signed by the lessor or any one in his right or by his factor or law agent, be sufficient warrant to any sheriff officer or messenger-at-arms of the sheriffdom within which such lands or heritages are situated to eject such party in possession, his family, sub-tenants, cottars, and dependants, with their goods, gear and effects, at the expiry of the term or terms of endurance of the lease: Provided that previous notice in writing to remove shall have been given — (A) When the lease is for three years and upwards not less than one year and not more than two years before the termination of the lease; and (B) In the case of leases from year to year (including lands occupied by tacit relocation) or for any other period less than three years, not less than six months before the termination of the lease (or where there is a separate ish as regards land and houses or otherwise before that ish which is first in date):

Provided that if such written notice as aforesaid shall not be given the lease shall be held to be renewed by tacit relocation for another year, and thereafter from year to year: Provided further that nothing contained in this section shall affect the right of the landlord to remove a tenant who has been sequestrated under the M4 Bankruptcy (Scotland) Act 1856, or against whom a decree of cessio has been pronounced under the M5 Debtors (Scotland) Act 1880, or who by failure to pay rent has incurred any irritancy of his lease or other liability to removal: Provided further that removal or ejectment in virtue of this section shall not be competent after six weeks from the date of the ish last in date: Provided further that nothing herein contained shall be construed to prevent proceedings under any lease in common form; and that the foregoing provisions as to notice shall not apply to any stipulations in a lease entitling the landlord to resume land for building, planting, feuing, or other purposes or to subjects let for any period less than a year.

35.

Letter of removal.

Where any tenant in possession of any lands exceeding two acres in extent (whether with or without a written lease) shall, either at the date of entering upon the lease or at any other time, have granted a letter of removal, F57 . . .such letter of removal shall have the same force and effect as an extract decree of removing, and shall be a sufficient warrant for ejection to the like effect as is provided in regard to a lease or extract thereof, and shall be operative against the granter of such letter of removal or any party in his right within the same time and in the same manner after the like previous notice to remove: Provided always that where such letter is dated and signed within twelve months before the date of removal or before the first ish, if there be more than one ish, it shall not be necessary that any notice of any kind shall be given by either party to the other.

36.

Notice to remove.

Where lands exceeding two acres in extent are occupied by a tenant without any written lease, and the tenant has given to the proprietor or his agent no letter of removal, the lease shall terminate on written notice being given to the tenant by or on behalf of the proprietor, or to the proprietor by or on behalf of the tenant not less than six months before the determination of the tenancy, and such notice shall entitle the proprietor, in the event of the tenant failing to remove, to apply for and obtain a summary warrant of ejection against the tenant and everyone deriving right from him.

37.

Notice of termination of tenancy.

In all cases where houses, with or without land attached, not exceeding two acres in extent, lands not exceeding two acres in extent let without houses, mills, fishings, shootings, and all other heritable subjects (excepting land exceeding two acres in extent) are let for a year or more, notice of termination of tenancy shall be given in writing to the tenant by or on behalf of the proprietor or to the proprietor by or on behalf of the tenant: Provided always that notice under this section shall not warrant summary ejection from the subjects let to a tenant, but such notice, whether given to or by or on behalf of the tenant, shall entitle the proprietor to apply to the [ F58 sheriff principal ] for a warrant for summary ejection in common form against the tenant and every one deriving right from him: Provided further that the notice provided for by this section shall be given at least forty days before the fifteenth day of May when the termination of the tenancy is the term of Whitsunday, and at least forty days before the eleventh day of November when the termination of the tenancy is the term of Martinmas.

38.

Summary removing.

Where houses or other heritable subjects are let for a shorter period than a year, any person by law authorised may present to the [ F59 sheriff principal ] a summary application for removing, and a decree pronounced in such summary cause shall have the full force and effect of a decree of removing and warrant of ejection. Where asuch a let is for a period not exceeding four months, notice of removal therefrom shall, in the absence of express stipulation, be given as many days before the ish as shall be equivalent to at least one-third of the full period of the duration of the let; and where the let exceeds four months, notice of removal shall, in the absence of express stipulation be given at least forty days before the expiry of the said period.

[ F61 38A.

Notice of termination in respect of dwelling-houses.

Any notice of termination of tenancy or notice of removal given under section 37 or 38 above in respect of a dwelling-house, on or after 2nd of December 1974, shall be in writing and shall contain such information as may be prescribed by virtue of section 112 of the M6 Rent ( Scotland ) Act 1984, and Rule 112 of Schedule 1 to this Act shall no longer apply to any such notice under section 37 above. ]

38B.

Lord Advocate as party to action for divorce.

— (1) The Lord Advocate may enter appearance as a party in any action for divorce, and he may lead such proof and maintain such pleas as he thinks fit, and the sheriff shall, whenever he considers it necessary for the proper disposal of any such action, direct that the action shall be brought to the notice of the Lord Advocate in order that he may determine whether he should enter appearance therein. (2) No expenses shall be claimable by or against the Lord Advocate in any action in which he has entered appearance under this section. ]

F63 38C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39.

Procedure rules.

Subject to the provisions of any Act of Parliament in force after the passing of this Act, the procedure in all civil causes shall be conform to the rules of procedure set forth in the First Schedule hereto annexed. Such rules shall be construed and have effect as part of this Act.

40.

Court of Session to regulate fees, &c.

The Court of Session may from time to time, by Act of Sederunt, make such regulations, . . . F64 for regulating the fees of agents [ F65 ( other than such of the fees of agents as the Secretary of State may regulate under or by virtue of section 14A of the M7 Legal Aid ( Scotland ) Act 1967 ) ] , officers, shorthand writers, and others, . . . F66 ; . . . F67 Provided . . . F68 that every such Act of Sederunt shall, within one week from the date thereof, be transmitted by the Lord President of the Court of Session to the [ F69 Secretary of State ] , in order that it may be laid before the Houses of Parliament; and, if either of the Houses of Parliament shall within thirty-six days after it has been laid before them resolve that the whole or any part of such Act of Sederunt ought not to continue in force, the whole or such part thereof as shall be included in such resolution shall from and after the date of the passing of such resolution cease to be binding.

41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F70

42 — 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F71

49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F72

50.

Summary applications.

In summary applications (where a hearing is necessary) the [ F73 sheriff principal ] shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the [ F73 sheriff principal ] shall order a record) shall summarily dispose of the matter and give his judgment in writing: Provided that wherever in any Act of Parliament an application is directed to be heard, tried, and determined summarily or in the manner provided by section fifty-two of the M8 Sheriff Courts (Scotland) Act 1876, such direction shall be read and construed as if it referred to this section of this Act: Provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought.

51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F74

52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F75

1.1.

Citation

These Rules may be cited as the Ordinary Cause Rules 1993.

1.2.

Interpretation

— (1) In these Rules, unless the context otherwise requires — “ document ” has the meaning assigned to it in section 9 of the M9 Civil Evidence (Scotland) Act 1988; “ period of notice ” means the period determined under rule 3.6 (period of notice after citation). (2) For the purposes of these Rules —

(a)

“ affidavit ” includes an affirmation and a statutory or other declaration; and

(b)

an affidavit shall be sworn or affirmed before a notary public or any other competent authority.

(3) Where a provision in these Rules requires a party to intimate or send a document to another party, it shall be sufficient compliance with that provision if the document is intimated or sent to the solicitor acting in the cause for that party. (4) Unless the context otherwise requires, anything done or required to be done under a provision in these Rules by a party may be done by the agent for that party acting on his behalf. (5) Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form, is a reference to the Chapter, Part, rule or form in Appendix 1, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of that paragraph or that head of that sub-paragraph, in which the reference occurs.

1.3.

Representation

— (1) Subject to paragraph (2), a party to any proceedings arising solely under the provisions of the M10 Debtors (Scotland) Act 1987 shall be entitled to be represented by a person other than a solicitor or an advocate provided that the sheriff is satisfied that such person is a suitable representative and is duly authorised to represent that party. (2) Paragraph (1) shall not apply to an appeal to the sheriff principal.

1.4.

Forms

Where there is a reference to the use of a form in these Rules, that form in Appendix 1 or Appendix 2, as the case may be, to these Rules, or a form substantially to the same effect, shall be used with such variation as circumstances may require.

2.1.

Relief from failure to comply with rules

— (1) The sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit. (2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

3.1.

Form of initial writ

— [ F77 ( 1 ) A cause shall be commenced – (2) The initial writ shall be written, typed or printed on A4 size paper of durable quality and shall not be backed or folded. (3) Where the pursuer has reason to believe that an [ F78 agreement ] exists prorogating jurisdiction over the subject-matter of the cause to another court, the [ F79 initial ] writ shall contain details of that agreement. (4) Where the pursuer has reason to believe that proceedings are pending before another court involving the same cause of action and between the same parties as those named in the instance of the initial writ, the [ F79 initial ] writ shall contain details of those proceedings. (5) An article of condescendence shall be included in the [ F79 initial ] writ averring —

(a)

the ground of jurisdiction; and

(b)

the facts upon which the ground of jurisdiction is based.

(6) Where the residence, registered office or place of business, as the case may be, of the defender is not known and cannot reasonably be ascertained, the pursuer shall set out in the instance that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts. (7) The initial writ shall be signed by the pursuer or his solicitor (if any) and the name and address of that solicitor shall be stated on the back of every service copy of that writ.

3.2.

Actions relating to heritable property

— (1) In an action relating to heritable property, it shall not be necessary to call as a defender any person by reason only of any interest he may have as the holder of a heritable security over the heritable property. (2) Intimation of such an action shall be made to the holder of the heritable security referred to in paragraph (1) —

(a)

where the action relates to any heritable right or title; and

(b)

in any other case, where the sheriff so orders.

[ F80 ( 3 ) In an action falling within section 1 ( 1 ) ( b ) or ( c ) of the Mortgage Rights ( Scotland ) Act 2001 M11 , the initial writ shall include averments about those persons who appear to the pursuer to be entitled to apply for an order under section 2 of that Act and such persons shall, so far as known to the pursuer, be called as defenders for their interest. ]

3.3.

Warrants of citation

— (1) The warrant of citation in any cause other than — shall be in [ F82 Form O1 ] . (2) In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for the defender, the warrant of citation shall be in [ F82 Form O2 ] . (3) In a cause in which a warrant of citation in accordance with [ F82 Form O2 ] is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in [ F82 Form O3 ] . [ F83 ( 4 ) In an action to which rule 3.2 ( 3 ) applies, the warrant of citation shall be in Form O2A. ]

3.4.

Warrants for arrestment to found jurisdiction

— (1) Where an application for a warrant for arrestment to found jurisdiction may be made, it shall be made in the crave of the [ F84 initial ] writ. (2) Averments to justify the granting of such a warrant shall be included in the condescendence.

3.5.

Warrants and precepts for arrestment on dependence

— (1) A copy of — certified as a true copy by the pursuer or defender, as the case may be, or his solicitor, shall be sufficient warrant to arrest on the dependence if it is otherwise competent to do so. (2) A precept of arrestment may be issued by the sheriff clerk on production to him of —

(a)

an initial writ containing a crave for payment of money on which a warrant of citation has been issued;

(b)

defences which include, or a minute of amendment which includes, a counterclaim containing a crave for payment of money; or

(c)

a document of liquid debt.

3.6.

Period of notice after citation

— (1) Subject to rule 5.6(1)(service where address of person is not known) and to paragraph (2) of this rule, a cause shall proceed after one of the following periods of notice has been given to the defender: — (2) Subject to paragraph (3), the sheriff may, on cause shown, shorten or extend the period of notice on such conditions as to the method or manner of service as he thinks fit. (3) A period of notice may not be reduced to a period of less than 2 days. (4) Where a period of notice expires on a Saturday, Sunday, or public or court holiday, the period of notice shall be deemed to expire on the next day on which the sheriff clerk ’ s office is open for civil court business.

4.1.

Orders against which caveats may be lodged

A person may lodge a caveat against —

4.2.

Form lodging and renewal of caveats

— (1) A caveat shall be in Form G2 and shall be lodged with the sheriff clerk. (2) A caveat shall remain in force for a period of one year from the date on which it was lodged and may be renewed on its expiry for a further period of one year and yearly thereafter. (3) Where a caveat has been lodged and has not expired, no order in respect of which the caveat was lodged may be pronounced unless the sheriff is satisfied that all reasonable steps have been taken to afford the person lodging the caveat an opportunity of being heard; and the sheriff may continue the hearing on such an order until he is satisfied that such steps have been taken.

5.1.

Signature of warrants

— (1) Subject to paragraph (2), a warrant for citation, intimation or arrestment on the dependence may be signed by the sheriff or sheriff clerk. (2) The following warrants shall be signed by the sheriff: —

(a)

a warrant containing an order shortening or extending the period of notice or any other order other than a warrant which the sheriff clerk may sign;

(b)

a warrant for arrestment on the dependence in a family action within the meaning of rule 33.1(1) in respect of a claim to which section 19 of the M13 Family Law (Scotland) Act 1985 (arrestment in action for aliment or claim for financial provision) applies; and

(c)

a warrant for intimation ordered under rule 33.8 (intimation where improper association).

(3) Where the sheriff clerk refuses to sign a warrant which he may sign, the party presenting the initial writ may apply to the sheriff for the warrant.

5.2.

Form of citation and certificate

— (1) Subject to rule 5.6 (service where address of person is not known), in any cause other than — [ F88 citation of ] any person shall be in Form O4 which shall be attached to a copy of the [ F89 initial ] writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7. (2) In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender, citation shall be in Form O5 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7. [ F90 ( 2A ) In an action to which rule 3.2 ( 3 ) applies, citation shall be in Form O5A which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7. ] (3) The certificate of citation in any cause other than a family action within the meaning of rule 33.1(1) or an action of multiplepoinding shall be in Form O6 which shall be attached to the initial writ. (4) Where citation is by a sheriff officer, one witness shall be sufficient for the execution of citation. (5) Where citation is by a sheriff officer, the certificate of citation shall be signed by the sheriff officer and the witness and shall state —

(a)

the method of citation; and

(b)

where the method of citation was other than personal or postal citation, the full name and designation of any person to whom the citation was delivered.

(6) Where citation is executed under paragraph 3 of rule 5.4 (depositing or affixing by sheriff officer), the certificate shall include a statement —

(a)

of the method of service previously attempted;

(b)

of the circumstances which prevented such service being executed; and

(c)

that a copy was sent in accordance with the provisions of paragraph (4) of that rule.

5.3.

Postal service or intimation

— (1) In any cause in which service or intimation of any document or citation of any person may be by recorded delivery, such service, intimation or citation shall be by the first class recorded delivery service. (2) Notwithstanding the terms of section 4(2) of the M14 Citation Amendment (Scotland) Act 1882 (time from which period of notice reckoned), where service or intimation is by post, the period of notice shall run from the beginning of the day after the date of posting. (3) On the face of the envelope used for postal service or intimation under this rule there shall be written or printed the following notice: — “ This envelope contains a citation to or intimation from ( specify the court ). If delivery cannot be made at the address shown it is to be returned immediately to:- The Sheriff Clerk ( insert address of sheriff clerk ’ s office ). ”

5.4.

Service within Scotland by sheriff officer

— (1) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served by a sheriff officer on any person shall be served — (2) Where service is executed under paragraph (1)(b), the certificate of citation or service shall contain the full name and designation of any person in whose hands the intial writ, decree, charge, warrant or other order or writ, as the case may be, was left. (3) Where a sheriff officer has been unsuccessful in executing service in accordance with paragraph (1), he may, after making diligent enquiries, serve the document in question —

(a)

by depositing it in that person ’ s dwelling place or place of business; or

(b)

by affixing it to the door of that person ’ s dwelling place or place of business.

(4) Subject to rule 6.1 (service of schedule of arrestment), where service is executed under paragraph (3), the sheriff officer shall, as soon as possible after such service, send a letter containing a copy of the document by ordinary first class post to the address at which he thinks it most likely that the person on whom service has been executed may be found.

5.5.

Service on persons furth of Scotland

— (1) Subject to the following provisions of this rule, an initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served on a person furth of Scotland shall be served — (2) Any document which requires to be posted in Scotland for the purposes of this rule shall be posted by a solicitor or a sheriff officer; and on the face of the envelope there shall be written or printed the notice set out in rule 5.3(3). (3) In the case of service by a method referred to in paragraph (1)(b)(ii) and (iii), the pursuer shall —

(a)

send a copy of the writ and warrant of service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the Secretary of State for Foreign and Commonwealth Affairs; and

(b)

lodge in process a certificate signed by the authority which executed service stating that it has been, and the manner in which it was, served.

(4) In the case of service by a method referred to in paragraph (1)(b)(v), the pursuer or the sheriff officer, shall —

(a)

send a copy of the writ and warrant for service with citation attached, or other document, as the case may be, with a request for service by the method indicated in the request to the official in the country in which service is to be executed; and

(b)

lodge in process a certificate of the official who executed service stating that it has been, and the manner in which is was, served.

(5) Where service is executed in accordance with paragraph (1)(a)(i) or (1)(b)(i) other than on another party in the United Kingdom, the Isle of Man or the Channel Islands, the party executing service shall lodge a certificate by a person who is conversant with the law of the country concerned and who practises or has practised law in that country or is a duly accredited representative of the Government of that country, stating that the method of service employed is in accordance with the law of the place where service was executed. (6) Every writ, document, citation or notice on the face of the envelope mentioned in rule 5.3(3) shall be accompanied by a translation in an official language of the country in which service is to be executed unless English is an official language of that country. (7) A translation referred to in paragraph (6) shall be certified as correct by the person making it; and the certificate shall —

(a)

include his full name, address and qualifications; and

(b)

be lodged with the execution of citation or service.

5.6.

Service where address of person is not known

— (1) Where the address of a person to be cited or served with a document is not known and cannot reasonably be ascertained, the sheriff shall grant warrant for citation or service upon that person — and the period of notice fixed by the sheriff shall run from the date of publication of the advertisement or display on the walls of court, as the case may be. (2) Where service requires to be executed under paragraph (1), the pursuer shall lodge a service copy of the intial writ and a copy of any warrant of citation with the sheriff clerk from whom they may be uplifted by the person for whom they are intended. (3) Where a person has been cited or served in accordance with paragraph (1) and, after the cause has commenced, his address becomes known, the sheriff may allow the initial writ to be amended subject to such conditions as to re-service, intimation, expenses or transfer of the cause as he thinks fit. (4) Where advertisement in a newspaper is required for the purpose of citation or service under this rule, a copy of the newspaper containing the advertisement shall be lodged with the sheriff clerk by the pursuer. (5) Where display on the walls of court is required under paragraph (1)(b), the pursuer shall supply to the sheriff clerk for that purpose a certified copy of the instance and crave of the initial writ and any warrant of citation.

5.7.

Persons carrying on business under trading or descriptive name

— (1) A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone; and an extract — [ F93 against such person under such trading or descriptive name shall be a valid ] warrant for diligence against such person. (2) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree in a cause in which a person carrying on business under a trading or descriptive name sues or is sued in that name shall be served —

(a)

at any place of business or office at which such business is carried on within the sheriffdom of the sheriff court in which the cause is brought; or

(b)

where there is no place of business within that sheriffdom, at any place where such business is carried on (including the place of business or office of the clerk or secretary of any company, corporation or association or firm).

5.8.

Endorsation unnecessary

An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree may be served, enforced or otherwise lawfully executed anywhere in Scotland without endorsation by a sheriff clerk; and, if executed by a sheriff officer, may be so executed by a sheriff officer of the court which granted it or by a sheriff officer of the sheriff court district in which it is to be executed.

5.9.

Re-service

Where it appears to the sheriff that there has been any failure or irregularity in citation or service on a person, he may order the pursuer to re-serve the initial writ on such conditions as he thinks fit.

5.10.

No objection to regularity of citation, service or intimation

— (1) A person who appears in a cause shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him; and his appearance shall remedy any defect in such citation, service or intimation. (2) Nothing in paragraph (1) shall preclude a party from pleading that the court has no jurisdiction.

6.1.

Service of schedule of arrestment

If a schedule of arrestment has not been personally served on an arrestee, the arrestment shall have effect only if a copy of the schedule is also sent by registered post or the first class recorded delivery service to — and the sheriff officer shall, on the certificate of execution, certifiy that this has been done and specify the address to which the copy of the schedule was sent.

6.2

Arrestment on dependence before service

— (1) An arrestment on the dependence of a cause used before service shall cease to have effect unless — (2) After such an arrestment has been executed, the party who executed it shall forthwith report the execution to the sheriff clerk.

6.3

Movement of arrested property

— (1) Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment to found jurisdiction or on the dependence of a cause. (2) Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

7.1.

Application of this Chapter

This Chapter applies to any cause other than an action in which the sheriff may not grant decree without evidence.

7.2.

Minute for granting of decree without attendance

— (1) Subject to the following paragraphs, where the defender — the sheriff may, on the pursuer endorsing a minute for decree on the initial writ, at any time after the expiry of the period for lodging that notice or application, grant decree in absence or other order in terms of the minute so endorsed without requiring the attendance of the pursuer in court. (2) The sheriff shall not grant decree under paragraph (1) —

(a)

unless it appears ex facie of the initial writ that a ground of jurisdiction exists under the M18 Civil Jurisdiction and Judgments Act 1982 where that Act applies; and

(b)

the cause is not a cause —

(i) in which decree may not be granted without evidence;

(ii) to which paragraph (4) applies; or

(iii) to which rule 33.31 (procedure in undefended family action for [ F94 a section 11 order ] ) applies.

(3) Where a defender is domiciled in another part of the United Kingdom or in another Contracting State, the sheriff shall not grant decree in absence until it has been shown that the defender has been able to receive the initial writ in sufficient time to arrange for his defence or that all necessary steps have been taken to that end; and for the purposes of this paragraph —

(a)

the question whether a person is domiciled in another part of the United Kingdom shall be determined in accordance with sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982;

(b)

the question whether a person is domiciled in another Contracting State shall be determined in accordance with Article 52 of [ F95 the Convention in ] Schedule 1 or 3C to that Act; and

(c)

the term “ Contracting State ” has the meaning assigned in section 1 of that Act.

(4) Where an initial writ has been served in a country to which the M19 Hague Convention on the Service Abroad of Judicial and Exta-Judicial Documents in [ F96 Civil or Commercial ] Matters dated 15th November 1965 applies, decree shall not be granted until it is established to the satisfaction of the sheriff that the requirements of Article 15 of that Convention have been complied with.

7.3.

Applications for time to pay directions in undefended causes

— (1) This rule applies to a cause in which a time to pay direction may be applied for under the Debtors (Scotland) Act 1987. (2) A defender in a cause which is otherwise undefended, who wishes to apply for a time to pay direction, and where appropriate, to have an arrestment recalled or restricted, shall complete and lodge with the sheriff clerk the appropriate part of Form O3 before the expiry of the period of notice. (3) Where the pursuer does not object to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff may grant decree or other order in terms of the application and minute. (4) Where the pursuer objects to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff clerk shall thereafter fix a hearing on the application of the defender and intimate the hearing to the pursuer and defender. (5) The sheriff may determine an application in which a hearing has been fixed under paragraph (4) whether or not any of the parties appear.

7.4.

Decree for expenses

On granting decree in abence or thereafter, the sheriff may grant decree for expenses.

7.5.

Finality of decree in absence

Subject to section 9(7) of the M20 Land Tenure Reform (Scotland) Act 1974 (decree in action of removing for breach of condition of long lease to be final when extract recorded in Register of Sasines), a decree in absence which has not been recalled or brought under review by suspension or by reduction shall become final and shall have effect as a decree in foro contentioso —

7.6.

Amendment of initial writ

— (1) In an undefended cause, the sheriff may — (2) The defender shall not be liable for the expense occasioned by any such amendment unless the sheriff so orders. (3) Where an amendment has been allowed under paragraph (1), the amendment —

(a)

shall not validate diligence used on the dependence of a cause so as to prejudice the rights of [ F99 creditors of ] the party against whom the diligence has been executed, who are interested in defeating such diligence; and

(b)

shall preclude any objection to such diligence stated by a party or any person by virtue of a title acquired or in right of a debt contracted by him subsequent to the execution of such diligence.

[ F100 7.7.

Disapplication of certain rules

The following rules in Chapter 15 ( motions ) shall not apply to an action in which no notice of intention to defend has been lodged or to any action in so far as it proceeds as undefended: – rule 15.2 ( intimation of motions ) , rule 15.3 ( opposition to motions ) , rule 15.5 ( hearing of motions ) .

8.1.

Reponing

— (1) In any cause other than — the defender may apply to be reponed by lodging with the sheriff clerk, before implement in full of a decree in absence, a reponing note setting out his proposed defence and explaining his failure to appear. (2) A copy of the note lodged under paragraph (1) shall be served on the pursuer. (3) The sheriff may, on considering the reponing note, recall the decree so far as not implemented subject to such order as to expenses as he thinks fit; and the cause shall thereafter proceed as if the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree in absence was recalled. (4) A reponing note, when duly lodged with the sheriff clerk and served upon the pursuer, shall have effect to sist diligence. [ F101 ( 4A ) Where an initial writ has been served on a defender furth of the United Kingdom under rule 5.5 ( 1 ) ( b ) ( service on persons furth of Scotland ) and decree in absence has been pronounced against him as a result of his failure to enter appearance, the court may, on the defender applying to be reponed in accordance with paragraph ( 1 ) above, recall the decree and allow defences to be received if –

( a )

without fault on his part, he did not have knowledge of the initial writ in sufficient time to defend;

( b )

he has disclosed a prima facie defence to the action on the merits; and

( c )

the reponing note is lodged within a reasonable time after he had knowledge of the decree or in any event before the expiry of one year from the date of decree. ]

(5) Any interlocutor or order recalling, or incidental to the recall of, a decree in absence shall be final and not subject to appeal.

9.1.

Notice of intention to defend

— (1) Subject to rules 33.34 (notice of intention to defend and defences in family action) and 35.8 (lodging of notice of appearance in action of multiplepoinding), where the defender intends to — he shall, before the expiry of the period of notice, lodge with the sheriff clerk a notice of intention to defend in Form O7 [ F102 and,at the same time, send a copy to the pursuer ] . (2) The lodging of a notice of intention to defend shall not imply acceptance of the jurisdiction of the court. [ F103 ( 3 ) This Chapter shall not apply to a commercial action within the meaning of Chapter 40. ]

9.2.

Fixing date for Options Hearing

— (1) [ F104 Subject to paragraph ( 1A ) , ] On the lodging of a notice of intention to defend, the sheriff clerk shall fix a date and time for an Options Hearing which date shall be on the first suitable court day occurring not sooner than 10 weeks after the expiry of the period of notice. [ F105 ( 1A ) Where in a family action –

( i ) the only matters in dispute are an order in terms of section 11 of the M21 Children ( Scotland ) Act 1995 ( court orders relating to parental responsibilities etc. ) ; or

( ii ) the matters in dispute include an order in terms of section 11 of that Act,

there shall be no requirement to fix an Options Hearing in terms of paragraph ( 1 ) above insofar as the matters in dispute relate to an order in terms of section 11 ( 2 ) of the Children ( Scotland ) Act 1995. F105 ( 1B ) In paragraph ( 1A ) above, “ family action ” has the meaning given to it in rule 33.1 ( 1 ) . ] (2) On fixing the date for the Options Hearing, the sheriff clerk shall —

(a)

forthwith intimate to the parties in Form G5 —

(i) the last date for lodging defences;

(ii) the last date for adjustment; and

(iii) the date of the Options hearing; and

(b)

prepare and sign an interlocutor recording those dates.

(3) The fixing of the date for the Options Hearing shall not affect the right of [ F106 a party ] to make any incidental application to the court.

[ F107 9.2A.

Second or subsequent Options Hearing

— ( 1 ) Where for any reason a second or subsequent Options Hearing requires to be fixed and an Options Hearing has already been fixed but has not yet taken place, the sheriff shall fix a second or subsequent Options Hearing and discharge that earlier hearing. ( 2 ) The sheriff clerk shall forthwith intimate to all parties –

( a )

that the original Options Hearing has been discharged;

( b )

the last date for lodging defences, if appropriate;

( c )

the last date for adjustment; and

( d )

the date and time fixed for the second or subsequent Options Hearing.

( 3 ) Any reference in these Rules to an Options Hearing or a continuation of it shall include a reference to a second or subsequent Options Hearing ordered under this rule. ]

9.3.

Return of initial writ

Subject to rule 9.4 (lodging of pleadings before Options Hearing), the pursuer shall return the initial writ, unbacked and unfolded, to the sheriff clerk within 7 days after the expiry of the period of notice.

9.4.

Lodging of pleadings before Options Hearing

Where any hearing, whether by motion or otherwise, is fixed before the Options Hearing, each party shall lodge in process a copy of his pleadings, or, where the pleadings have been adjusted, the pleadings as adjusted, not later than 2 days before the hearing.

9.5.

Process folder

— (1) On receipt of the notice of intention to defend, the sheriff clerk shall prepare a process folder which shall include — (2) Any production or part of process lodged in a cause shall be placed in the process folder.

9.6.

Defences

— (1) Where a notice of intention to defend has been lodged, the defender shall [ F108 ( subject to paragraph ( 3 ) ) ] lodge defences within 14 days after the expiry of the period of notice. (2) Subject to rule 19.1(3)(form of defences where counterclaim included), defences shall be in the form of answers in numbered paragraphs corresponding to the articles of the condescendence and shall have appended a note of the pleas-in-law of the defender. [ F109 ( 3 ) In a family action ( within the meaning of rule 33.1 ( 1 ) ) , neither a crave nor averments need be made in the defences which relate to any order under section 11 of the Children ( Scotland ) Act 1995. ]

9.7.

Implied admissions

Every statement of fact made by a party shall be answered by every other party, and if such a statement by one party within the knowledge of another party is not denied by that other party, that other party shall be deemed to have admitted that statement of fact.

9.8.

Adjustment of pleadings

— (1) Parties may adjust their pleadings until 14 days before the date of the Options Hearing or any continuation of it. (2) Any adjustments shall be exchanged between parties and not lodged in process. (3) Parties shall be responsible for maintaining a record of adjustments made during the period for adjustment. (4) No adjustments shall be permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

9.9.

Effect of sist on adjustment

— (1) Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as a part of the period for adjustment. (2) On recall of the sist of a cause, the sheriff clerk shall —

(a)

fix a new date for the Options Hearing;

(b)

prepare and sign an interlocutor recording that date; and

(c)

intimate that date to each party.

9.10.

Open record

The sheriff may, at any time before the closing of the record in a cause to which this Chapter applies, of his own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

9.11.

Record for Options Hearing

— (1) The pursuer shall, at the end of the period for adjustment referred to in rule 9.8(1) and before the Options Hearing, make a copy of the pleadings and any adjustments and amendments in the form of a record. (2) Not later than 2 days before the Options Hearing, the pursuer shall lodge a certified copy of the record in process. [ F110 ( 3 ) Where the Options Hearing is continued under rule 9.12 ( 5 ) , and further adjustment or amendment is made to the pleadings, a copy of the pleadings as adjusted or amended, certified by the pursuer, shall be lodged in process not later than 2 days before the Options Hearing so continued. ]

9.12

Options Hearing

— (1) At the Options Hearing the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3). (2) It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule. (3) At the Options Hearing the sheriff shall, except where the cause is ordered to proceed under the procedure in Chapter 10 (additional procedure), close the record and —

(a)

appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

(b)

after having heard parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

(c)

after having heard parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which justifies a debate.

(4) At the Options Hearing the sheriff may, having heard parties —

(a)

of his own motion or on the motion of any party, and

(b)

on being satisfied that the difficulty or complexity of the cause makes it unsuitable for the procedure under this Chapter,

order that the cause proceed under the procedure in Chapter 10 (additional procedure). (5) The sheriff may, on cause shown, of his motion or on the motion of any party, allow a continuation of the Options Hearing on one occasion only for a period not exceeding 28 days or to the first suitable court day thereafter. (6) On closing the record —

(a)

where there are no adjustments made since the lodging of the record under rule 9.11.(2), that record shall become the closed record; and

(b)

where there are such adjustments, the sheriff may order that a closed record including such adjustments be lodged within 7 days after the date of the interlocutor closing the record.

(7) For the purposes of rules 16.2 (decrees where party in default) and 33.37 (decree by default in family action), an Options Hearing shall be a diet in accordance with those rules.

9.13.

Inspection and recovery of documents

— (1) Each party shall, within 14 days after the date of the interlocutor allowing proof or proof before answer, intimate to every other party a list of the documents, which are or have been in his possession or control which he intends to use or put in evidence at the proof, including the whereabouts of those documents. (2) A party who has received a list of documents from another party under paragraph (1) may inspect those documents which are in the possession or control of the party intimating the list at a time and place fixed by that party which is reasonable to both parties. (3) A party who seeks to use or put in evidence at a proof a document not on his list intimated under paragraph (1) shall, if any other party objects to such document being used or put in evidence, seek leave of the sheriff to do so; and such leave may be granted on such conditions, if any, as the sheriff thinks fit. (4) Nothing in this rule shall affect —

(a)

the law relating, or the right of a party to object, to the inspection of a document on the ground of privilege or confidentiality; or

(b)

the right of a party to apply under rule 28.2 for a commission and diligence for recovery of documents or an order under section 1 of the M22 Administration of Justice (Scotland) Act 1972

9.14.

Exchange of lists of witnesses

— [ F111 ( 1 ) Within 28 days after the date of the interlocutor allowing a proof or proof before answer, each party shall – (2) A party who seeks to [ F112 rely on the evidence of ] a person not on his list intimated under paragraph (1) shall, if any other party objects to such [ F113 evidence being admitted ] , seek leave of the sheriff to [ F114 admit that evidence whether it is to be given orally or not ] ; and such leave may be granted on such conditions, if any, as the sheriff thinks fit. (3) The list of witnesses intimated under paragraph (1) shall include the name, occupation (where known) and address of each intended witness.

9.15.

Applications for time to pay directions

An application for a time to pay direction under section 1(1) of the M23 Debtors (Scotland) Act 1987 or for the recall or restriction of an arrestment under section 2(3) or 3(1) of that Act in a cause which is defended shall be made by motion lodged before the sheriff grants decree.

10.1.

Additional period for adjustment

— (1) Where, under rule 9.12(4)(order at Options Hearing to proceed under Chapter 10), the sheriff orders that a cause shall proceed in accordance with the procedure in this Chapter, he shall continue the cause for adjustment for a period of 8 weeks. (2) Paragraphs (2) and (3) of rule 9.8 (exchange and record of adjustments) shall apply to a cause in which a period for adjustment under paragraph (1) of this rule has been allowed as they apply to the period for adjustment under that rule.

10.2.

Effect of sist on adjustment period

Where a cause has been sisted, any period for adjustment before the sist shall be reckoned as part of the period for adjustment.

10.3.

Variation of adjustment period

— (1) At any time before the expiry of the period for adjustment the sheriff may close the record if parties, of consent or jointly, lodge a motion seeking such an order. (2) The sheriff may, if satisfied that there is sufficient reason for doing so, extend the period for adjustment for such period as he thinks fit, if any party —

(a)

lodges a motion seeking such an order; and

(b)

lodges a copy of the record adjusted to the date of lodging of the motion.

(3) A motion lodged under paragraph (2) shall set out —

(a)

the reasons for seeking an extension of the period for adjustment; and

(b)

the period for adjustment sought.

10.4.

Order for open record

The sheriff may, at any time before the closing of the record in a cause to which this Chapter applies, of his own motion or on the motion of a party, order any party to lodge a copy of the pleadings in the form of an open record containing any adjustments and amendments made as at the date of the order.

10.5.

Closing record

— (1) On the expiry of the period for adjustment, the record shall be closed and, without the attendance of parties, the sheriff clerk shall forthwith — (2) The pursuer shall, within 14 days after the date of the interlocutor closing the record, lodge a certified copy of the closed record in process. (3) The closed record shall contain only the pleadings of the parties.

10.6.

Procedural Hearing

— (1) At the Procedural Hearing, the sheriff shall seek to secure the expeditious progress of the cause by ascertaining from the parties the matters in dispute and information about any other matter referred to in paragraph (3). (2) It shall be the duty of the parties to provide the sheriff with sufficient information to enable him to conduct the hearing as provided for in this rule. (3) At the Procedural Hearing the sheriff shall —

(a)

appoint the cause to a proof and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit;

(b)

after having heard the parties and considered any note lodged under rule 22.1 (note of basis of preliminary plea), appoint the cause to a proof before answer and make such orders as to the extent of proof, the lodging of a joint minute of admissions or agreement, or such other matter as he thinks fit; or

(c)

after having heard the parties and considered any note lodged under rule 22.1, appoint the cause to a debate if satisfied that there is a preliminary matter of law which justifies a debate.

(4) For the purposes of rule 33.37 (decree by default in family action), a Procedural Hearing shall be a diet in accordance with that rule.

11.1.

Form and lodging of parts of process

All parts of process shall be written, typed or printed on A4 size paper of durable quality and shall be lodged, unbacked and unfolded, with the sheriff clerk.

11.2.

Custody of process

— (1) The initial writ, and all other parts of process lodged in a cause, shall be placed by the sheriff clerk in the process folder. (2) The initial writ, interlocutor sheets, borrowing receipts and the process folder shall remain in the custody of the sheriff clerk. (3) The sheriff [ F115 clerk may, ] on cause shown, authorise the initial writ to be borrowed by the pursuer, his solicitor or the solicitor ’ s authorised clerk.

11.3.

Borrowing and returning of process

— (1) Subject to paragraph (3), a process, or any part of a process which may be borrowed, may be borrowed only by a solicitor or by his authorised clerk. (2) All remedies competent to enforce the return of a borrowed process may proceed on the warrant of the court from the custody of which the process was obtained. (3) A party litigant —

(a)

may borrow a process only —

(i) with leave of the sheriff; and

(ii) subject to such conditions as the sheriff may impose; or

(b)

may inspect a process and obtain copies, where practicable, from the sheriff clerk.

(4) The sheriff may, on the motion of any party, ordain any other party who has borrowed a part of process to return it within such time as the sheriff thinks fit.

11.4.

Failure to return parts of process

— (1) Where a solicitor or party litigant has borrowed any part of process and fails to return it for any diet or hearing at which it is required, the sheriff may impose on such solicitor or party litigant a fine not exceeding £ 50, which shall be payable to the sheriff clerk; but an order imposing a fine may, on cause shown, be recalled by the sheriff. (2) An order made under this rule shall not be subject to appeal.

11.5.

Replacement of lost documents

Where any part of process is lost or destroyed, a copy of it, authenticated in such manner as the sheriff thinks fit, may be substituted for and shall, for the purposes of the cause to which the process relates, be treated as having the same force and effect as the original.

11.6.

Intimation of parts of process and adjustments

— (1) After a notice of intention to defend has been lodged, any party lodging a part of process or making an adjustment to his pleadings shall [ F116 , at the same time, ] intimate such lodging or adjustment to every other party who has entered the process by delivering to every other party a copy of each part of process or adjustment, including, where practicable, copies of any documentary production. (2) Unless otherwise provided in these Rules, the party required to give intimation under paragraph (1) shall deliver to every other party who has entered the process a copy of the part of process or adjustment or other document, as the case may be, by —

(a)

any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

(b)

where intimation is to a party represented by a solicitor —

(i) personal delivery,

(ii) facsimile transmission,

(iii) first class ordinary post,

(iv) delivery to a document exchange,

to that solicitor.

(3) Subject to paragraph (4), where intimation is given under —

(a)

paragraph (2)(b)(i) or (ii), it shall be deemed to have been given —

(i) on the day of transmission or delivery where it is given before 5.00 pm on any day; or

(ii) on the day after transmission or delivery where it is given after 5.00 pm on any day; or

(b)

paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

(4) Where intimation is given [ F117 or, but for this paragraph, would be deemedto be given ] on a Saturday, Sunday or public or court holiday, it shall be deemed to have been given on the next day on which the sheriff clerk ’ s office is open for civil court business.

11.7.

Retention and disposal of parts of process by sheriff clerk

— (1) Where any cause has been finally determined and the period for marking an appeal has expired without an appeal having been marked, the sheriff clerk shall — (2) Where an appeal has been marked on the final determination of the cause, the sheriff clerk shall exercise his duties mentioned in paragraph (1) after the final disposal of the appeal and any subsequent procedure.

11.8.

Uplifting of productions from process

— (1) Each party who has lodged productions in a cause shall — uplift the productions from process. (2) Where any production has not been uplifted as required by paragraph (1), the sheriff clerk shall intimate to —

(a)

the solicitor who lodged the production, or

(b)

where no solicitor is acting, the party himself or such other party as seems appropriate,

that if he fails to uplift the production within 28 days after the date of such intimation, it will be disposed of in such a manner as the sheriff directs.

12.1.

Signature of interlocutors by sheriff clerk

In accordance with any directions given by the sheriff principal, any interlocutor other than a final interlocutor may be written and signed by the sheriff clerk and —

12.2.

Further provisions in relation to interlocutors

— (1) The sheriff may sign an interlocutor when furth of his sheriffdom. (2) At any time before extract, the sheriff may correct any clerical or incidental error in an interlocutor or note attached to it. [ F118 ( 3 ) In any cause, other than a family action within the meaning of rule 33.1 ( 1 ) which has proceeded as undefended, where at any stage evidence has been led, the sheriff shall –

( a )

in the interlocutor, make findings in fact and law; and

( b )

append to that interlocutor a note setting out the reasons for his decision.

( 4 ) In any other interlocutor, the sheriff may, and shall when requested by a party, append a note setting out the reasons for his decision. ] (5) Where the sheriff reserves his decision and gives his decision at a date later than the date of the hearing outwith the presence of the parties —

(a)

the date of the interlocutor of the sheriff shall be the date on which it is received by the sheriff clerk; and

(b)

the sheriff clerk shall —

(i) enter that date in the interlocutor; and

(ii) forthwith send a copy of the interlocutor and any note attached to it free of charge to each party.

13.1.

Person claiming title and interest to enter process as defender

— (1) A person who has not been called as a defender or third party may apply by minute for leave to enter a process as a party minuter and to lodge defences. (2) A minute under paragraph (1) shall specify —

(a)

the applicant ’ s title and interest to enter the process; and

(b)

the grounds of the defence he proposes to state.

(3) Subject to paragraph (4), after hearing the applicant and any party, the sheriff may —

(a)

if he is satisfied that the applicant has shown title and interest to enter the process, grant the applicant leave to enter the process as a party minuter and to lodge defences; and

(b)

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

(4) Where an application under paragraph (1) is made after the closing of the record, the sheriff shall only grant leave under paragraph (3) if he is satisfied as to the reason why earlier application was not made.

13.2.

Procedure following leave to enter process

— (1) Where a party minuter lodges [ F119 defences ] , the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the party minuter had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers. (2) At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit. (3) A decree or other order against the party minuter shall have effect and be extractable in the same way as a decree or other order against a defender.

14.1.

Application of this Chapter

— (1) Where an application may be made by minute, the form of the minute and the procedure to be adopted shall, unless otherwise provided in these Rules, be in accordance with this Chapter. (2) This Chapter shall not apply to —

(a)

a minute of amendment; F120 . . .

(b)

a minute of abandonment [ F121 ; or ]

[ F122 ( c )

a joint minute. ]

14.2.

Form of minute

A minute to which this Chapter applies shall contain —

[ F123 14.3.

Lodging of minutes

— ( 1 ) Before intimating any minute, the minuter shall lodge the minute in process. ( 2 ) On the lodging of a minute, and any document under rule 21.1 ( 1 ) ( b ) ( lodging documents founded on or adopted ) , the sheriff –

( a )

may make an order for answers to be lodged;

( b )

may order intimation of the minute without making an order for answers; or

( c )

where he considers it appropriate for the expeditious disposal of the minute or for any other specified reason, may fix a hearing.

( 3 ) Any answers ordered to be lodged under paragraph ( 2 ) ( a ) shall, unless otherwise ordered by the sheriff, be lodged within 14 days after the date of intimation of the minute. ( 4 ) Where the sheriff fixes a hearing under paragraph ( 2 ) ( c ) , the interlocutor fixing that hearing shall specify whether –

( a )

answers are to be lodged;

( b )

the sheriff will hear evidence at that hearing; and

( c )

the sheriff will allow evidence by affidavit.

( 5 ) Any answers or affidavit evidence ordered to be lodged under paragraph ( 4 ) shall be lodged within such time as shall be specified in the interlocutor of the sheriff. ( 6 ) The following rules shall not apply to any hearing fixed under paragraph ( 2 ) ( c ) : – rule 14.7 ( opposition where no order for answers made ) , rule 14.8 ( hearing of minutes where no opposition or no answers lodged ) , rule 14.10 ( notice of opposition or answers lodged ) . ( 7 ) The sheriff clerk shall forthwith return the minute to the minuter with any interlocutor pronounced by the sheriff. ]

[ F124 14.4.

Intimation of minutes

— ( 1 ) The party lodging a minute shall, on receipt from the sheriff clerk of the minute, intimate to every other party including any person referred to in rule 14.13 ( 1 ) – ( 2 ) The sheriff may, on cause shown, dispense with intimation.

F125 14.5.

Methods of intimation

— (1) Intimation of a minute may be given by – (2) Where intimation is given –

(a)

under paragraph (1)(b)(i) or (ii), it shall be deemed to have been given –

(i) on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

(ii) on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

(b)

under paragraph 1(b)(iii) or (iv), it shall be deemed to have been given on the day after the date of posting or delivery.

F126 14.6.

Return of minute with evidence of intimation

Where intimation of any minute has been given, the minute and a certificate of intimation in Form G8 shall be returned to the sheriff clerk within 5 days after the date of intimation.

F127 14.7.

Opposition where no order for answers made

— (1) Where a party seeks to oppose a minute lodged under rule 14.3 (lodging of minutes) in which no order for answers has been made under paragraph (2)(a) of that rule, that party shall, within 14 days after the date of intimation of the minute to him – (2) Rule 14.5 (methods of intimation) and rule 14.6 (return of minute with evidence of intimation) shall apply to intimation of opposition to a minute under paragraph (1)(c) of this rule as they apply to intimation of a minute. (3) The sheriff may, on cause shown, reduce or dispense with the period for lodging the notice mentioned in paragraph (1)(b).

F128 14.8.

Hearing of minutes where no opposition or no answers lodged

— (1) Where no notice of opposition is lodged or where no answers have been lodged to the minute within the time allowed, the minute shall be determined by the sheriff in chambers without the attendance of parties, unless the sheriff otherwise directs. (2) Where the sheriff requires to hear a party on a minute, the sheriff clerk shall –

(a)

fix a date, time and place for the party to be heard; and

(b)

inform that party –

(i) of that date, time and place; and

(ii) of the reasons for the sheriff wishing to hear him.

F129 14.9.

Intimation of interlocutor

Where a minute has been determined in accordance with rule 14.8 (hearing of minutes where no opposition or no answers lodged), the sheriff clerk shall intimate the interlocutor determining that minute to the parties forthwith.

F130 14.10.

Notice of opposition or answers lodged

— (1) Where a notice of opposition has, or answers have, been lodged to the minute, the sheriff clerk shall – (2) The interlocutor fixing a hearing under paragraph (1) shall specify whether the sheriff will hear evidence at the hearing or receive evidence by affidavit.

F131 14.11.

Procedure for hearing

— (1) A certified copy of the interlocutor assigning a hearing under this Chapter and requiring evidence to be led shall be sufficient warrant to a sheriff officer to cite a witness on behalf of a party. (2) At the hearing, the sheriff shall hear parties on the minute and any answers lodged, and may determine the minute or may appoint such further procedure as he considers necessary.

F132 14.12.

Consent to minute

Subject to paragraph (2) of rule 14.8 (hearing of minutes where no opposition or no answers lodged), where all parties to the action indicate to the sheriff, by endorsement of the minute or otherwise in writing, their intention to consent to the minute, the sheriff may forthwith determine the minute in chambers without the appearance of parties.

F133 14.13.

Procedure following grant of minute

— (1) Where the minute includes a crave seeking leave – the sheriff, on granting the minute, may order a hearing under rule 9.12 (Options Hearing) to be fixed or may appoint such further procedure as he thinks fit. (2) Where an Options Hearing is ordered under paragraph (1), the sheriff clerk shall –

(a)

fix a date and time for such hearing, which date, unless the sheriff otherwise directs, shall be on the first suitable court day occurring not sooner than 10 weeks after the date of the interlocutor of the sheriff ordering such hearing be fixed;

(b)

forthwith intimate to the parties in Form G5 –

(i) where appropriate, the last date for lodging defences;

(ii) where appropriate, the last date for adjustment; and

(iii) the date of the Options Hearing; and

(c)

prepare and sign an interlocutor recording those dates.

(3) For the purpose of fixing the date for the Options Hearing referred to in paragraph (1), the date of granting the minute shall be deemed to be the date of expiry of the period of notice. ]

F135 15.1.

Lodging of motions

— (1) A motion may be made – (2) Subject to paragraph (3), a written motion shall be lodged with the sheriff clerk within 5 days after the date of intimation of the motion required by rule 15.2 (intimation of motions) with –

(a)

a certificate of intimation in Form G8; and

(b)

so far as practicable any document referred to in the written motion and not already lodged in process.

(3) Where the period for lodging opposition to the motion is varied under rule 15.2(4)(variation of and dispensing with period of intimation) to a period of 5 days or less, the written motion and certificate to be lodged in terms of paragraph (2) shall be lodged no later than the day on which the period for lodging opposition expires.

F136 15.2.

Intimation of motions

— (1) Subject to paragraphs (4) and (7), a party intending to lodge a motion in accordance with rule 15.1(1)(b)(lodging written motion) shall intimate the motion in Form G7, and a copy of any document referred to in the motion, to every other party. (2) Intimation of a motion may be given by –

(a)

any of the methods of service provided for in Chapter 5 (citation, service and intimation); or

(b)

where intimation is to a party represented by a solicitor, by –

(i) personal delivery,

(ii) facsimile transmission,

(iii) first class ordinary post, or

(iv) delivery to a document exchange,

to that solicitor.

(3) Where intimation is given –

(a)

under paragraph (2)(b)(i) or (ii), it shall be deemed to have been given –

(i) on the day of transmission or delivery where it is given before 5.00 p.m. on any day; or

(ii) on the day after transmission or delivery where it is given after 5.00 p.m. on any day; or

(b)

under paragraph (2)(b)(iii) or (iv), it shall be deemed to have been given on the day after posting or delivery.

(4) The sheriff may, on the application of a party intending to lodge a written motion, vary the period of 7 days specified in rule 15.3(1)(c) for lodging opposition to the motion or dispense with intimation. (5) An application under paragraph (4) shall be made in the written motion, giving reasons for such variation or dispensation. (6) Where the sheriff varies the period within which notice of opposition is to be lodged under rule 15.3(1)(c), the form of intimation required under rule 15.2(1)(intimation of motion in Form G7) shall state the date by which such notice requires to be lodged. (7) A joint motion by all parties lodged in Form G6 need not be intimated.

F137 15.3.

Opposition to motions

— (1) Where a party seeks to oppose a motion made in accordance with rule 15.1(1)(b)(written motion), he shall – (2) Paragraphs (2) and (3) of rule 15.2 (methods and time of intimation of motions) shall apply to the intimation of opposition to a motion under paragraph (1)(b) of this rule as they apply to intimation under that rule.

F138 15.4.

Consent to motions

Where a party consents to a written motion, he shall endorse the motion, or give notice to the sheriff clerk in writing, of his consent.

F139 15.5.

Hearing of motions

— (1) Subject to paragraph (2), where no notice of opposition is lodged with the sheriff clerk within the period specified in rule 15.3(1)(c), or ordered by virtue of rule 15.2(4), the motion shall be determined by the sheriff in chambers without the appearance of parties, unless the sheriff otherwise directs. (2) In accordance with any directions given by the sheriff principal, the sheriff clerk may determine any motion other than a motion which seeks a final interlocutor. (3) Where the sheriff clerk considers that a motion dealt with by him under paragraph (2) should not be granted, he shall refer that motion to the sheriff who shall deal with it in accordance with paragraph (1). (4) Where the sheriff requires to hear a party on a motion which is not opposed, the sheriff clerk shall –

(a)

fix a date, time and place for the party to be heard, and

(b)

inform that party –

(i) of that date, time and place; and

(ii) of the reasons for the sheriff wishing to hear him.

(5) Where a notice of opposition is lodged in accordance with rule 15.3(1), the sheriff clerk shall –

(a)

assign a date, time and place, on the first suitable court day after the lodging of the notice of opposition, for the motion to be heard; and

(b)

intimate that date, time and place to the parties.

(6) Where a motion has been determined under paragraph (1) or (2), the sheriff clerk shall intimate the interlocutor determining that motion to all parties forthwith. (7) Where the sheriff, under paragraph (4) of rule 15.2, dispenses with intimation required by paragraph (1) of that rule, he shall make such order as he thinks fit for intimation of his determination of the motion to every party to the action in respect of whom intimation has been so dispensed with. (8) Subject to paragraph (4), where all parties consent to a written motion, the sheriff may determine the motion in chambers without the appearance of parties. (9) Subject to paragraph (4) where a joint motion of all parties in Form G6 is lodged with the sheriff clerk, the sheriff may determine the motion in chambers without the appearance of parties.

[ F140 15.6.

Motions to sist

— ( 1 ) Where a motion to sist is made, either orally or in writing in accordance with rule 15.1 ( 1 ) ( a ) or ( b ) – ( 2 ) Where a cause has been sisted, the sheriff may, after giving parties an opportunity to be heard, recall the sist.

16.1.

Application of this Chapter

This [ F141 Chapter ] applies to any cause other than —

16.2.

Decrees where party in default

— (1) In a cause to which this Chapter applies, where a party fails — that party shall be in default. (2) Where a party is in default, the sheriff may grant decree as craved, decree of absolvitor or dismiss the cause, as the case may be, with expenses. (3) Where no party appears at a diet, the sheriff may dismiss the cause. (4) In this rule, “ diet ” includes —

(a)

a hearing under rule 9.12 (Options Hearing);

(b)

a hearing under rule 10.6 (Procedural Hearing);

(c)

a proof or proof before answer; and

(d)

a debate.

16.3.

Prorogation of time where party in default

In an action to which this Chapter applies, the sheriff may, on cause shown, prorogate the time for lodging any production or part of process or for giving intimation or for implementing any order.

17.1.

Application of this Chapter

This Chapter applies to any action other than —

17.2.

Applications for summary decree

— (1) Subject to paragraphs (2) to (5) of this rule, a pursuer may, at any time after a defender has lodged defences, apply by motion for summary decree against that defender on the ground that there is no defence to the action, or part of it, disclosed in the defences. (2) In applying for summary decree, the pursuer may move the sheriff —

(a)

to grant decree in terms of all or any of the craves of the initial writ;

(b)

to pronounce an interlocutor sustaining or repelling a plea-in-law; or

(c)

to dispose of the whole or part of the subject-matter of the cause.

F145 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) On a motion under paragraph (1), the sheriff may —

(a)

if satisfied that there is no defence to the action or to any part of it to which the motion relates, grant the motion for summary decree in whole or in part, as the case may be; or

(b)

ordain any party, or a partner, director, officer or office-bearer of, any party —

(i) to produce any relevant document or article; or

(ii) to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.

(5) Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change of circumstances.

17.3.

Application of summary decree to counterclaims, etc.

— (1) Where a defender has lodged a counterclaim — (2) Where a defender or third party has made a claim against another defender or third party who has lodged defences or answers, as the case may be —

(a)

he may apply by motion for summary decree against that other defender or third party on the ground that there is no defence to the claim, or a part of it, disclosed in the defences or answers, as the case may be; and

(b)

paragraphs (2) to (5) of rule 17.2 shall, with the necessary modifications, apply to a motion by a defender or third party under this paragraph as they apply to a motion by a pursuer under paragraph (1) of that rule.

18.1.

Alteration of sum sued for

— (1) In a cause in which all other parties have lodged defences or answers, the pursuer may, before the closing of the record, alter any sum sued for by amending the crave of the initial writ, F146 . . . and any record. (2) The pursuer shall forthwith intimate any such amendment in writing to every other party.

18.2.

Powers of sheriff to allow amendment

— (1) The sheriff may, at any time before final judgment, allow an amendment mentioned in paragraph (2). (2) Paragraph (1) applies to the following amendments: —

(a)

an amendment of the initial writ which may be necessary for the purpose of determining the real question in controversy between the parties, notwithstanding that in consequence of such amendment —

(i) the sum sued for is increased or restricted after the closing of the record; or

(ii) a different remedy from that originally craved is sought;

(b)

an amendment which may be necessary —

(i) to correct or supplement the designation of a party to the cause;

(ii) to enable a party who has sued or has been sued in his own right to sue or be sued in a representative capacity;

(iii) to enable a party who has sued or has been sued in a representative capacity to sue or be sued in his own right or in a different representative capacity;

(iv) to add the name of an additional pursuer or person whose concurrence is necessary;

(v) where the cause has been commenced or presented in the name of the wrong person, or it is doubtful whether it has been commenced or presented in the name of the right person, to allow any other person to be sisted in substitution for, or in addition to, the original person; or

(vi) to direct a crave against a third party brought into an action under Chapter 20 (third party procedure);

(c)

an amendment of a condescendence, defences, answers, pleas-in-law or other pleadings which may be necessary for determining the real question in controversy between the parties; and

(d)

where it appears that all parties having an interest have not been called or that the cause has been directed against the wrong person, an amendment inserting in the initial writ an additional or substitute party and directing existing or additional craves, averments and pleas-in-law against that party.

18.3.

Applications to amend

— (1) A party seeking to amend shall lodge a minute of amendment in process setting out his proposed amendment and, at the same time, lodge a motion — (2) Where the sheriff has pronounced an interlocutor allowing a minute of amendment to be received and answered, he may allow a period for adjustment of the minute of amendment and answers and, on so doing, shall fix a date for parties to be heard on the minute of amendment and answers as adjusted. [ F147 ( 3 ) Any adjustment to any minute of amendment or answers shall be exchanged between parties and not lodged in process. F147 ( 4 ) Parties shall be responsible for maintaining a record of adjustment made and the date of their intimation. F147 ( 5 ) No adjustments shall be permitted after the period of adjustment allowed, except with leave of the sheriff. F147 ( 6 ) Each party shall, no later than 2 days before the hearing fixed in terms of paragraph ( 2 ) , lodge in process a copy of their minute of amendment or answers with all adjustments made thereto in italic or bold type, or underlined. ]

18.4.

Applications for diligence on amendment

— (1) Where a minute of amendment is lodged by a pursuer under rule 18.2(2)(d)(all parties not, or wrong person, called), he may apply by motion for warrant to use any form of diligence which could be used on the dependence of a separate action. (2) A copy certified by the sheriff clerk of the interlocutor granting warrant for diligence on the dependence applied for under paragraph (1) shall be sufficient authority for the execution of that diligence.

18.5.

Service of amended pleadings

— (1) Where an amendment under rule [ F148 18.2 ( b ) ( iv ) , ( v ) or ( vi ) ( additional or substitute defenders added by amendment ) or rule ] 18.2(2)(d)(all parties not, or wrong person, called) has been made — (2) When paragraph (1) has been complied with, the cause as so amended shall proceed in every respect as if that party had originally been made a party to the cause. (3) Where a notice of intention to defend is lodged by virtue of paragraph (1)(a), the sheriff clerk shall fix a date and time for a hearing under rule 9.12 (Options Hearing).

18.6.

Expenses and conditions of amendment

The sheriff shall find the party making an amendment liable in the expenses occasioned by the amendment unless it is shown that it is just and equitable that the expenses occasioned by the amendment should be otherwise dealt with, and may attach such other conditions as he thinks fit.

18.7.

Effect of amendment on diligence

Where an amendment has been allowed, the amendment —

18.8.

Preliminary pleas inserted on amendment

— (1) Where a party seeks to add a preliminary plea by amendment or answers to an amendment, or by adjustment thereto, a note of the basis for the plea shall be lodged at the same time as the minute, answers or adjustment, as the case may be. (2) If a party fails to comply with paragraph (1), that party shall be deemed to be no longer insisting on the preliminary plea and the plea shall be repelled by the sheriff.

19.1.

Counterclaims

— (1) In any action other than a family action within the meaning of rule 33.1(1) or an action of multiplepoinding, a defender may counterclaim against a pursuer — (2) A counterclaim shall be made in the defences —

(a)

when the defences are lodged or during the period for adjustment;

(b)

by amendment at any other stage, with the leave of the sheriff and subject to such conditions, if any, as to expenses or otherwise as the sheriff thinks fit.

(3) Defences which include a counterclaim shall commence with a crave setting out the counterclaim in such form as, if the counterclaim had been made in a separate action, would have been appropriate in the initial writ in that separate action and shall include —

(a)

answers to the condescendence of the initial writ as required by rule 9.6(2)(form of defences);

(b)

a statement of facts in numbered paragraphs setting out the facts on which the counterclaim is founded, incorporating by reference, if necessary, any matter contained in the defences; and

(c)

appropriate pleas-in-law.

19.2.

Warrants for diligence on counterclaims

— (1) A defender who makes a counterclaim may apply for a warrant for arrestment on the dependence which would have been permitted had the warrant been sought in an initial writ in a separate action. (2) An application for a warrant under paragraph (1) shall be made —

(a)

at the time of making the counterclaim, by inserting [ F150 after ] the crave of the counterclaim the words “ Warrant for arrestment on the dependence applied for. ” ; or

(b)

after the counterclaim has been made, for a precept of arrestment.

(3) An application for a warrant under paragraph (2)(a) may be granted by the sheriff clerk writing on the defences, defences as adjusted or minute of amendment, as the case may be, the words “ Warrant granted as craved. ” after the warrant sought, and adding his signature and the date below those words. (4) A warrant granted under paragraph (3) shall have the same effect as if the warrant had been in an initial writ.

[ F151 19.2A.

Form of record where counterclaim lodged

Where, under rule 9.10 ( open record ) , 9.11 ( record for Options Hearing ) , 10.4 ( open record ) , or 10.5 ( closed record ) , a record requires to be lodged in an action in which a counterclaim is included in the defences, the pleadings of the parties shall be set out in the record in the following order: –

19.3.

Effect of abandonment of cause

— (1) The right of a pursuer to abandon a cause under rule 23.1 shall not be affected by a counterclaim; and any expenses for which the pursuer is found liable as a condition of, or in consequence of, such abandonment shall not include the expenses of the counterclaim. (2) Notwithstanding abandonment by the pursuer, a defender may insist in his counterclaim; and the proceedings in the counterclaim shall continue in dependence as if the counterclaim were a separate action.

19.4.

Disposal of counterclaims

The sheriff may —

20.1.

Applications for third party notice

— (1) Where, in an action, a defender claims that — he may apply by motion for an order for service of a third party notice on that other person in Form O10 for the purpose of convening that other person as a third party to the action. (2) Where —

(a)

a pursuer against whom a counterclaim has been made, or

(b)

a third party convened in the action,

seeks, in relation to the claim against him, to make against a person who is not a party, a claim mentioned in paragraph (1) as a claim which could be made by a defender against a third party, he shall apply by motion for an order for service of a third party notice in Form O10 in the same manner as a defender under that paragraph; and rules 20.2 to [ F152 20.6 ] shall, with the necessary modifications, apply to such a claim as they apply in relation to such a claim by a defender.

20.2.

Averments where order for service of third party notice sought

— (1) Where a defender intends to apply by motion for an order for service of a third party notice before the closing of the record, he shall, before lodging the motion, set out in his defences, by adjustment to those defences, or in a separate statement of facts annexed to those defences — (2) Where a defender applies by motion for an order for service of a third party notice after the closing of the record, he shall, on lodging the motion, lodge a minute of amendment containing —

(a)

averments setting out the grounds on which he maintains that the proposed third party is liable to him by contribution, relief or indemnity or should be made a party to the action, and

(b)

appropriate pleas-in-law,

unless those grounds and pleas-in-law have been set out in the defences in the closed record. (3) A motion for an order for service of a third party notice shall be lodged before the commencement of the hearing of the merits of the cause.

20.3.

Warrants for diligence on third party notice

— (1) A defender who applies for an order for service of a third party notice may apply for a warrant for arrestment to found jurisdiction or for arrestment on the dependence which would have been permitted had the warrant been sought in an initial writ in a separate action. (2) Averments in support of the application for such a warrant shall be included in the defences or the separate statement of facts referred to in rule 20.2(1). (3) An application for a warrant under paragraph (1) shall be made by motion —

(a)

at the time of applying for the third party notice; or

(b)

if not applied for at that time, at any stage of the cause thereafter.

(4) A certified copy of the interlocutor granting warrant for diligence applied for under paragraph (2) shall be sufficient authority for execution of the diligence.

20.4.

Service on third party

— (1) A third party notice shall be served on the third party within 14 days after the date of the interlocutor allowing service of that notice. (2) Where service of a third party notice has not been made within the period specified in paragraph (1), the order for service of it shall cease to have effect; and no service of the notice may be made unless a further order for service of it has been applied for and granted. (3) There shall be served with a third party notice a copy of the pleadings (including any adjustments and amendments). (4) A copy of the third party notice, with a certificate of service attached to it, shall be lodged in process by the defender.

20.5.

Answers to third party notice

— (1) An order for service of a third party notice shall specify 28 days, or such other period as the sheriff on cause shown may specify, as the period within which the third party may lodge answers. (2) Answers for a third party shall be headed “ Answers for [E.F.], Third Party in the action at the instance of [A.B.], Pursuer against [C.D.], Defender ” and shall include —

(a)

answers to the averments of the defender against him in the form of numbered paragraphs corresponding to the numbered articles of the condescendence in the initial writ and incorporating, if the third party so wishes, answers to the averments of the pursuer; or

(b)

where a separate statement of facts has been lodged by the defender under rules 20.2(1), answers to the statement of facts in the form of numbered paragraphs corresponding to the numbered paragraphs of the statement of facts; and

(c)

appropriate pleas-in-law.

20.6

Procedure following answers

— (1) Where a third party lodges answer, the sheriff clerk shall fix a date and time under rule 9.2 for a hearing under rule 9.12 (Options Hearing) as if the third party had lodged a notice of intention to defend and the period of notice had expired on the date for lodging answers. (2) At the Options Hearing, or at any time thereafter, the sheriff may grant such decree or other order as he thinks fit. (3) A decree or other order against the third party shall have effect and be extractable in the same way as a decree or other order against a defender.

21.1.

Lodging documents founded on or adopted

— (1) Subject to any other provision in these Rules, any document founded on by a party, or adopted as incorporated, in his pleadings shall, so far as in his possession or within his control, be lodged in process as a production by him — (2) Paragraph (1) shall be without prejudice to any power of the sheriff to order the production of any document or grant a commission and diligence for recovery of it.

21.2.

Consequences of failure to lodge documents founded on or adopted

Where a party fails to lodge a document in accordance with rule 21.1(1), he may be found liable in the expenses of any order for production or recovery of it obtained by any other party.

21.3.

Objection to documents founded on

— (1) Where a deed or writing is founded on by a party, any objection to it by any other party may be stated and maintained by exception without its being reduced. (2) Where an objection is stated under paragraph (1) and an action of reduction would otherwise have been competent, the sheriff may order the party stating the objection to find caution or give such other security as the sheriff thinks fit.

22.1.

Note of basis of preliminary plea

— (1) A party intending to insist on a preliminary plea shall, not later than 3 days before the Options Hearing under rule 9.12 or the Procedural Hearing under rule 10.6 — [ F153 ( 2 ) Where the Options Hearing is continued under rule 9.12 ( 5 ) and a preliminary plea is added by adjustment, a party intending to insist on that plea shall, not later than 3 days before the date of the Options Hearing so continued –

( a )

lodge in process a note of the basis for the plea; and

( b )

intimate a copy of it to every other party. ]

[ F154 ( 3 ) ] If a party fails to comply with paragraph (1) [ F155 or ( 2 ) ] , he shall be deemed to be no longer insisting on the preliminary plea; and the plea shall be repelled by the sheriff at the Options Hearing or Procedural Hearing. [ F154 ( 4 ) ] At any proof before answer or debate, parties may [ F156 on cause shown ] raise matters in addition to those set out in the note mentioned in paragraph (1) [ F155 or ( 2 ) ] . [ F157 ( 5 ) Where a note of the basis of a preliminary plea has been lodged under paragraph ( 1 ) , and the Options Hearing is continued under rule 9.12 ( 5 ) , unless the basis of the plea has changed following further adjustment, it shall not be necessary for a party who is insisting on the plea to lodge a further note before the Options Hearing so continued. ]

23.1.

Abandonment of causes

— (1) A pursuer may abandon a cause at any time before decree of absolvitor or dismissal by lodging a minute of abandonment and — (2) The sheriff shall not grant decree of dismissal under paragraph (1)(b) unless full judicial expenses have been paid to the defender, and any third party against whom he has directed any crave, within 28 days after the date of taxation. (3) If the pursuer fails to pay the expenses referred to in paragraph (2) to the party to whom they are due within the period specified in that paragraph, that party shall be entitled to decree of absolvitor with expenses.

23.2.

Application of abandonment to counterclaims

Rule 23.1 shall, with the necessary modifications, apply to the abandonment by a defender of his counterclaim as it applies to the abandonment of a cause.

24.1.

Intimation of withdrawal to court

— (1) [ F158 Subject to paragraph ( 3 ) , ] Where a solicitor withdraws from acting on behalf of a party, he shall intimate his withdrawal by letter to the sheriff clerk and to every other party. (2) The sheriff clerk shall [ F159 forthwith ] lodge such letter in process. [ F160 ( 3 ) Where a solicitor withdraws from acting on behalf of a party in open court and in the presence of the other parties to the action or their representatives, paragraph ( 1 ) shall not apply. ]

24.2.

Intimation to party whose solicitor has withdrawn

— (1) [ F161 Subject to paragraph ( 1A ) , ] The sheriff shall, of his own motion, or on the motion of any other party, pronounce an interlocutor ordaining the party whose solicitor has withdrawn from acting to appear or be represented at a specified diet fixed by the sheriff to state whether or not he intends to proceed, under certification that if he fails to do so the sheriff may grant decree or make such other order or finding as he thinks fit. [ F162 ( 1A ) Where any previously fixed diet is to occur within 14 days from the date when the sheriff first considers the solicitor ’ s withdrawal, the sheriff may either –

( a )

pronounce an interlocutor in accordance with paragraph ( 1 ) ; or

( b )

consider the matter at the previously fixed diet. ]

(2) The diet fixed in the interlocutor under paragraph (1) shall not be less than 14 days after the date of the interlocutor unless the sheriff otherwise orders. (3) The party who has lodged the motion under paragraph (1), or any other party appointed by the sheriff, shall forthwith serve on the party whose solicitor has withdrawn a copy of the interlocutor and a notice in Form G10; and a certificate of service shall be lodged in process.

24.3.

Consequences of failure to intimate intention to proceed

Where a party on whom a notice and interlocutor has been served under rule 24.2(2) fails to appear or be represented at a diet fixed under rule 24.2(1) and to state his intention as required by that paragraph, the sheriff may grant decree or make such other order or finding as he thinks fit.

25.1

Minutes of sist

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

25.2.

Minutes of transference

F163 . . .Where a party dies or comes under legal incapacity while a cause is depending and the provisions of rule 25.1 are not invoked, any other party may apply by minute to have the cause transferred in favour of or against, as the case may be, any person who represents that party or his estate. F164 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26.1.

Transfer to another sheriff court

— (1) The sheriff may, on cause shown, remit any cause to another sheriff court. (2) Subject to paragraph (4), where a cause in which there are two or more defenders has been brought in the sheriff court of the residence or place of business of one of them, the sheriff may transfer the cause to any other sheriff court which has jurisdiction over any of the defenders. (3) Subject to pargagraph (4), where a plea of no jurisdiction is sustained, the sheriff may transfer the cause to the sheriff court before which it appears to him the cause ought to have been brought. (4) The sheriff shall not transfer a cause to another sheriff court under paragraph (2) or (3) except —

(a)

on the motion of a party; and

(b)

where he considers it expedient to do so having regard to the convenience of the parties and their witnesses.

(5) On making an order under paragraph (1), (2) or (3), the sheriff —

(a)

shall state his reasons for doing so in the interlocutor; and

(b)

may make the order on such conditions as to expenses or otherwise as he thinks fit.

(6) The court to which a cause is transferred under paragraph (1), (2) or (3) shall accept the cause. (7) A transferred cause shall proceed in all respects as if it had been originally brought in the court to which it is transferred. (8) An interlocutor transferring a cause may, with leave of the sheriff, be appealed to the sheriff principal but shall not be subject to appeal to the Court of Session.

26.2.

Remit to Court of Session

— (1) The sheriff clerk shall, within four days after the sheriff has pronounced an interlocutor remitting a cause to the Court of Session, transmit the process to the Deputy Principal Clerk of Session. (2) The sheriff clerk shall, within the period specified in paragraph (1), send written notice of the remit to each party and certify on the interlocutor sheet that he has done so. (3) Failure by a sheriff clerk to comply with paragraph (2) shall not affect the validity of a remit made under paragraph (1).

26.3.

Remit from Court of Session

On receipt of the process in an action which has been remitted from the Court of Session under section 14 of the M25 Law Reform (Miscellaneous Provisions)(Scotland) Act 1985, the sheriff clerk shall —

27.1.

Application of this Chapter

This Chapter applies to —

27.2.

Form of applications

— (1) An application for an order for caution or other security, or for variation or recall of such an order, shall be made by motion. (2) The grounds on which such an application is made shall be set out in the motion.

27.3.

Orders

Subject to section 726(2) of the M27 Companies Act 1985 (expenses by certain limited com panies), an order to find caution or give other security shall specify the period within which such caution is to be found or such security given.

27.4.

Methods of finding caution or giving security

— (1) A person ordered — (2) The sheriff may approve a method of security other than one mentioned in paragraph (1), including a combination of two or more methods of security. (3) Subject to paragraph (4), any document by which an order to find caution or give other security is satisfied shall be lodged in process. (4) Where the sheriff approves a security in the form of a deposit of a sum of money in the joint names of the agents of parties, a copy of the deposit receipt, and not the principal, shall be lodged in process. (5) Any document lodged in process, by which an order to find caution or give other security is satisifed, shall not be borrowed from process.

27.5.

Cautioners and [ F165 guarantors ]

A bond of caution or other security obtained from an insurance company shall be given only by a company authorised under section 3 or 4 of the M29 Insurance Companies Act 1982 to carry on insurance business of class 15(b) in Schedule 2 to that Act.

27.6.

Forms of bonds of caution and other securities

— (1) A bond of caution shall oblige the cautioner, his heirs and executors to make payment of the sums for which he has become cautioner to the party to whom he is bound, as validity and in the same manner as the party and his heirs and successors, for whom he is cautioner, are obliged. (2) A bond of caution or other security document given by an insurance company shall state whether the company is authorised under section 3 or 4 of the Insurance Companies Act 1982 to carry on insurance business of class 15(b) in Schedule 2 to that Act.

27.7.

Sufficiency of caution or security and objections

— (1) The sheriff clerk shall satisfy himself that any bond of caution, or other document lodged in process under rule 27.4(3), is in proper form. (2) A party who is dissatisified with the sufficiency or form of the caution or other security offered in obedience to an order of the court may apply by motion for an order under rule 27.9 (failure to find caution or give security).

27.8.

Insolvency or death of cautioner or guarantor

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

27.9.

Failure to find caution or give security

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

28.1.

Application and interpretation of this Chapter

— (1) This Chapter applies to the recovery of any evidence in a cause depending before the sheriff. (2) In this Chapter, “ the Act of 1972 ” means the M32 Administration of Justice (Scotland) Act 1972.

28.2.

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

— (1) An application by a party for — shall be made by motion. (2) At the time of lodging a motion under paragraph (1), a specification of —

(a)

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

(b)

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

shall be lodged in process. [ F166 ( 3 ) A copy of the specification lodged under paragraph ( 2 ) and the motion made under paragraph ( 1 ) shall be intimated by the applicant to –

( a )

every other party;

( b )

in respect of an application under section 1 ( 1 ) of the M34 Act of 1972, any third party haver; and

( c )

where necessary, the Lord Advocate. ]

(4) Where the sheriff grants a motion made under paragraph (1) in whole or in part, he may order the applicant to find such caution or give such other security as he thinks fit. (5) The Lord Advocate may appear at the hearing of any motion under paragraph (1).