ukpga/Edw7/7/51 — Sheriff Courts (Scotland) Act 1907

Sheriff Courts (Scotland) Act 1907 1907 c. 51 An Act to regulate and amend the Laws and practice relating to the civil procedure in Sheriff Courts in Scotland, and for other purposes. [28th August 1907] Preliminary Short title. 1 This Act may be cited for all purposes as the Sheriff Courts (Scotland) Act 1907. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Interpretation. 3 In construing this Act (unless where the context is repugnant to such construction)— a “ sheriff principal ” includes sheriff ; b “ Tenant ” includes sub-tenant; c “ Lease ” includes sub-lease; d “ Action ” or “ cause ” includes every civil proceeding competent in the ordinary sheriff court; e “ Person ” includes company, corporation, or association and firm of any description nominate or descriptive, or any Board corporate or unincorporate; f “ Sheriff clerk ” includes sheriff-clerk depute; g “ Agent ” means a law-agent enrolled in terms of the Law Agents (Scotland) Act 1873; h “ Final judgment ” means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that expenses found due may not have been modified, taxed, or decerned for; i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . j “ Small Debt Acts ” means and includes the Small Debt (Scotland) Acts 1837 to 1889, and Acts explaining or amending the same; k “ Initial writ ” means the statement of claim, petition, note of appeal, or other document by which the action is initiated; l “ Procurator-Fiscal ” means procurator-fiscal in the sheriff-court; m . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . n “ Pursuer ” means and includes any person making a claim or demand, or seeking any warrant or order competent in the sheriff court; o “ Defender ” means and includes any person who is required to be called in any action; p “ Summary application ” means and includes all applications of a summary nature brought under the common law jurisdiction of the sheriff principal , and all applications, whether by appeal or otherwise, brought under any Act of Parliament which provides, or, according to any practice in the sheriff court, which allows, that the same shall be disposed of in a summary manner, but which does not more particularly define in what form the same shall be heard, tried, and determined; q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jurisdiction Jurisdiction. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Extension of jurisdiction. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of sheriff to order sheriff clerk to execute deeds relating to heritage. 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action competent in sheriff court. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Privative jurisdiction in causes under fifty pounds value. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Privilege not to exempt from jurisdiction. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sheriffs Appointment of sheriffs and salaried sheriffs-substitute. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Salaries of sheriffs and sheriffs-substitute. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Honorary sheriff-substitute. 17 The sheriff principal may by writing under his hand appoint such persons as he thinks proper to hold the office of honorary sheriff within his sheriffdom during his pleasure, and for whom he shall be answerable. An honorary sheriff , during the subsistence of his commission, shall be entitled to exercise the powers and duties appertaining to the office of sheriff . An honorary sheriff shall hold office, notwithstanding the death, resignation, or removal of the sheriff principal , until his commission shall be recalled by a succeeding sheriff principal . In this section “ sheriff principal ” does not include sheriff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Appeals Appeal to sheriff. 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeal to Court of Session. 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of appeal. 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Removings Removings. 34 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 Bankruptcy (Scotland) Act 1985 or 2016 , or against whom a decree of cessio has been pronounced under the 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. Letter of removal. 35 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, . . .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. Notice to remove. 36 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. Notice of termination of tenancy. 37 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 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. Exception for certain tenancies 37A The provisions of this Act relating to removings (including summary removings) shall not apply to or in relation to short limited duration tenancies , limited duration tenancies, modern limited duration tenancies or repairing tenancies within the meaning of the Agricultural Holdings (Scotland) Act 2003 (asp 11). Summary Removings Summary removing. 38 Where houses or other heritable subjects are let for a shorter period than a year, any person by law authorised may present to the 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. Provided that in no case shall notice of removal be given less than 28 days before the date on which it is to take effect. Notice of termination in respect of dwelling-houses. 38A 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 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. Consistorial Causes Lord Advocate as party to action for divorce. 38B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38C Procedure Rules Procedure rules. 39 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. Court of Session to regulate fees, &c. 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Summary Applications Summary applications. 50 In summary applications (where a hearing is necessary) the 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 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 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 SCHEDULES First Schedule ORDINARY CAUSE RULES 1993 Initiation and progress of causes CHAPTER 1 CITATION, INTERPRETATION, REPRESENTATION AND FORMS Citation 1 These Rules may be cited as the Ordinary Cause Rules 1993. Interpretation 1 1 In these Rules, unless the context otherwise requires— “ attend ”, “ attendance ” and “ attend personally ” are construed in accordance with Chapter 4A (mode of attendance at hearings); “ document ” has the meaning assigned to it in section 9 of the Civil Evidence (Scotland) Act 1988; “ enactment ” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament; “ Full Case Management Hearing ” means a hearing under rules 33.36P or 33A.36P (Full Case Management Hearing), as the case may be; “ Initial Case Management Hearing ” means a hearing under rules 33.36J or 33A.36J (Initial Case Management Hearing), as the case may be; “ period of notice ” means the period determined under rule 3.6 (period of notice after citation). “ the Act of 2004 ” means the Vulnerable Witnesses (Scotland) Act 2004 “ the 2014 Act ” means the Courts Reform (Scotland) Act 2014; “ the all-Scotland sheriff court ” means the sheriff court specified in the All-Scotland Sheriff Court (Sheriff Personal Injury Court) Order 2015 so far as the court is constituted by a sheriff sitting in the exercise of the sheriff’s all-Scotland jurisdiction for the purpose of dealing with civil proceedings of a type specified in that Order. 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. 7 In these Rules— a references to a sheriff’s all-Scotland jurisdiction are to be construed in accordance with section 42(3) of the 2014 Act ; b references to a sheriff’s local jurisdiction are to be construed in accordance with section 42(4) of the 2014 Act . 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Representation 1 1 Subject to paragraph (2), a party to any proceedings arising solely under the provisions of the 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A party may be represented by any person authorised under any enactment to conduct proceedings in the sheriff court in accordance with the terms of that enactment. 4 The person referred to in paragraph (3) may do everything for the preparation and conduct of an action as may have been done by an individual conducting his own action. Lay support 1.3A 1 At any time during proceedings the sheriff may, on the request of a party litigant, permit a named individual to assist the litigant in the conduct of the proceedings by sitting beside or behind (as the litigant chooses) the litigant at hearings in court or in chambers and doing such of the following for the litigant as he or she requires— a providing moral support; b helping to manage the court documents and other papers; c taking notes of the proceedings; d quietly advising on— i points of law and procedure; ii issues which the litigant might wish to raise with the sheriff; iii questions which the litigant might wish to ask witnesses. 2 It is a condition of such permission that the named individual does not receive from the litigant, whether directly or indirectly, any remuneration for his or her assistance. 3 The sheriff may refuse a request under paragraph (1) only if— a the sheriff is of the opinion that the named individual is an unsuitable person to act in that capacity (whether generally or in the proceedings concerned); or b the sheriff is of the opinion that it would be contrary to the efficient administration of justice to grant it. 4 Permission granted under paragraph (1) endures until the proceedings finish or it is withdrawn under paragraph (5); but it is not effective during any period when the litigant is represented. 5 The sheriff may, of his or her own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1); but the sheriff must first be of the opinion that it would be contrary to the efficient administration of justice for the permission to continue. 6 Where permission has been granted under paragraph (1), the litigant may— a show the named individual any document (including a court document); or b impart to the named individual any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the named individual is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant. 7 Any expenses incurred by the litigant as a result of the support of an individual under paragraph (1) are not recoverable expenses in the proceedings. Forms 1 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. CHAPTER 1A LAY REPRESENTATION Application and interpretation 1A.1 1 This Chapter is without prejudice to any enactment (including any other provision in these Rules) under which provision is, or may be, made for a party to a particular type of case before the sheriff to be represented by a lay representative. 2 In this Chapter, a “ lay representative ” means a person who is not— a a solicitor; b an advocate, or c someone having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. Lay representation for party litigants 1A.2 1 In any proceedings in respect of which no provision as mentioned in rule 1A.1(1) is in force, the sheriff may, on the request of a party litigant, permit a named individual (a “lay representative”) to appear, along with the litigant, at a specified hearing for the purpose of representing the litigant at that hearing. 2 An application under paragraph (1)— a is to be made orally on the date of the first hearing at which the litigant wishes a named individual to represent the litigant ; and b is to be accompanied by a document, signed by the named individual, in Form 1A.2. 3 The sheriff may grant an application under paragraph (1) only if the sheriff is of the opinion that it would be in the interests of justice to grant it. 4 It is a condition of permission granted by the sheriff that the lay representative does not receive directly or indirectly from the litigant any remuneration or other reward for his or her assistance. 5 The sheriff may grant permission under paragraph (1) in respect of one or more specified hearings in the case; but such permission is not effective during any period when the litigant is legally represented. 6 The sheriff may, of his or her own accord or on the motion of a party to the proceedings, withdraw permission granted under paragraph (1). 6A Where permission is granted under paragraph (1), the lay representative may do anything in the preparation or conduct of the hearing that the litigant may do. 7 Where permission has been granted under paragraph (1), the litigant may— a show the lay representative any document (including a court document); or b impart to the lay representative any information, which is in his or her possession in connection with the proceedings without being taken to contravene any prohibition or restriction on the disclosure of the document or the information; but the lay representative is then to be taken to be subject to any such prohibition or restriction as if he or she were the litigant. 8 Any expenses incurred by the litigant in connection with lay representation under this rule are not recoverable expenses in the proceedings. CHAPTER 2 RELIEF FROM COMPLIANCE WITH RULES Relief from failure to comply with rules 2 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. CHAPTER 3 COMMENCEMENT OF CAUSES Form of initial writ 3 1 A cause shall be commenced– a in the case of an ordinary cause, by initial writ in Form G1; or b in the case of a commercial action within the meaning of Chapter 40, by initial writ in Form G1A. ; or c in the case of a personal injuries action within the meaning of Part AI of Chapter 36, by initial writ in Form PI1. d in the case of a personal injuries action appointed to proceed in accordance with Chapter 36A under rule 36.C1, by initial writ in Form G1 which includes an interlocutor in Form PI4. 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 agreement exists prorogating jurisdiction over the subject-matter of the cause to another court, the 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 initial writ shall contain details of those proceedings. 5 An article of condescendence shall be included in the initial writ averring— a the ground of jurisdiction; and b the facts upon which the ground of jurisdiction is based. 5A Where a personal injuries action within the meaning of Part A1 of Chapter 36 is raised in Edinburgh Sheriff Court the initial writ must include an averment indicating whether the proceedings are for determination in the exercise of the sheriff’s all-Scotland jurisdiction or the sheriff’s local jurisdiction. 5B Where an averment is included indicating that the proceedings are for determination in the exercise of the sheriff’s all-Scotland jurisdiction, the heading of the initial writ must state that the action is being raised in the all-Scotland sheriff court. 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. Actions relating to heritable property 3 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. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Actions relating to regulated agreements 3 In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974— a the initial writ shall include an averment that such an agreement exists and details of that agreement; and b a copy of the regulated agreement shall be attached to the initial writ. Warrants of citation 3 1 The warrant of citation in any cause other than— a a family action within the meaning of rule 33.1(1), b an action of multiplepoinding, c an action in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for by the defender, d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e a civil partnership action within the meaning of rule 33A.1(1). shall be in Form O1 . 2 In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for the defender, the warrant of citation shall be in Form O2 . 3 In a cause in which a warrant of citation in accordance with Form O2 is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in Form O3 . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Warrants for arrestment to found jurisdiction 3 1 Where an application for a warrant for arrestment to found jurisdiction may be made, it shall be made in the crave of the initial writ. 2 Averments to justify the granting of such a warrant shall be included in the condescendence. Warrants and precepts for arrestment on dependence 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Period of notice after citation 3 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:— a where the defender is resident or has a place of business within Europe, 21 days after the date of execution of service; or b where the defender is resident or has a place of business outside Europe, 42 days after the date of execution of service. 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. CHAPTER 3A PERSONAL INJURY PRE-ACTION PROTOCOL Application and interpretation 3A.1 1 This Chapter applies to an action of damages for, or arising from, personal injuries. 2 In this Chapter “the Protocol” means the Personal Injury Pre-Action Protocol set out in Appendix 4, and references to the “aims of the Protocol”, “requirements of the Protocol” and “stages of the Protocol” are to be construed accordingly. Requirement to comply with the Protocol 3A.2 In any case where the Protocol applies, the court will normally expect parties to have complied with the requirements of the Protocol before proceedings are commenced. Consequences of failing to comply with the Protocol 3A.3 1 This rule applies where the sheriff considers that a party (“party A”)— a failed, without just cause, to comply with the requirements of the Protocol; or b unreasonably failed to accept an offer in settlement which was— i made in accordance with the Protocol; and ii lodged as a tender during the period beginning with the commencement of proceedings and ending with the lodging of defences. 2 The sheriff may, on the sheriff’s own motion, or on the motion of any party, take any steps the sheriff considers necessary to do justice between the parties, and may in particular— a sist the action to allow any party to comply with the requirements of the Protocol; b make an award of expenses against party A; c modify an award of expenses; or d make an award regarding the interest payable on any award of damages. 3 A motion made by a party under paragraph (2) must include a summary of— a the steps taken by parties under the Protocol with a view to settling the action; and b that party’s assessment of the extent to which parties have complied with the requirements of the Protocol. 4 In considering what steps (if any) to take under paragraph (2), the sheriff must take into account— a the nature of any breach of the requirements of the Protocol; and b the conduct of the parties during the stages of the Protocol. 5 In assessing the conduct of the parties, the sheriff must have regard to the extent to which that conduct is consistent with the aims of the Protocol. 6 This rule does not affect any other enactment or rule of law allowing the sheriff to make or modify awards regarding expenses and interest. CHAPTER 4 Orders against which caveats may be lodged 4 A person may lodge a caveat against— a an interim interdict sought in an action before he has lodged a notice of intention to defend; or b an interim order (other than an order under section 1 of the Administration of Justice (Scotland) Act 1972(orders for inspection of documents and other property, etc. )) sought before the expiry of the period within which he could lodge a notice of intention to defend. Form lodging and renewal of caveats 4 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. CHAPTER 4A MODE OF ATTENDANCE AT HEARINGS Application 4A.1 This Chapter is without prejudice to any enactment under which provision has been made regarding the mode of attendance of persons at hearings. Mode of attendance at hearings – procedural business 4A.2 1 Hearings at which only procedural business is to be considered are to be attended by electronic means. 2 Paragraph (1) does not apply to hearings at which a party is unrepresented or utilising an interpreter. Alternative mode of attendance at hearings 4A.3 1 The sheriff may, at the sheriff’s own instance or on the motion of a party on cause shown— a in relation to hearings to which rule 4A.2(1) applies, order physical attendance at a hearing; b in relation to any other hearings, order attendance at a hearing by electronic means. 2 The sheriff may revoke an order granted under paragraph (1) or this paragraph and, where the sheriff does so, the sheriff may make such further order as the sheriff thinks fit . 3 Before the sheriff makes an order under paragraph (1) or (2), the sheriff is to give parties the opportunity to make representations about the mode of attendance. Hybrid hearings 4A.4 An order under rule 4A.3(1) or (2) may include provision for a person to attend a hearing— a both physically and by electronic means; b by one mode and another person to attend by the other mode, and at different times or dates. CHAPTER 5 CITATION, SERVICE AND INTIMATION Signature of warrants 5 1 Subject to paragraph (2), a warrant for citation, or intimation 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 to found jurisdiction (including the arrestment of a ship) ; ba a warrant for arrestment on the dependence; c a warrant for intimation ordered under rule 33.8 (intimation where alleged association). d a warrant for intimation ordered under rule 33A.8 (intimation where alleged association). e a warrant for arrestment of a ship to found jurisdiction; f a warrant for arrestment of a ship or cargo in rem ; g a warrant for arrestment of cargo. 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. Form of citation and certificate 5 1 Subject to rule 5.6 (service where address of person is not known), in any cause other than— a a family action within the meaning of rule 33.1(1), aa a civil partnership action within the meaning of rule 33A.1(1); b an action of multiplepoinding, . . . c an action in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 may be applied for by the defender, or d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . citation of any person shall be in Form O4 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. 2 In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 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. 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Postal service or intimation 5 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 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 ).” Service within Scotland by sheriff officer 5 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— a personally; or b by being left in the hands of a resident at the person’s dwelling place or an employee at his place of business. 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 leaving it at that person’s dwelling place or place of business in such a way that it is likely to come to the attention of that person. 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 Where the firm which employs the sheriff officer has in its possession– a the document or a copy of it certified as correct by the pursuer’s solicitor, the sheriff officer may serve the document upon the defender without having the document or certified copy in his possession, in which case he shall if required to do so by the person on whom service is executed and within a reasonable time of being so required, show the document or certified copy to the person; or b a certified copy of the interlocutor pronounced allowing service of the document, the sheriff officer may serve the document without having in his possession the certified copy interlocutor if he has in his possession a facsimile copy of the certified copy interlocutor (which he shall show, if required, to the person on whom service is executed). 6 Where service is executed under paragraphs (1)(b) or (3), the document and the citation or notice of intimation, as the case may be, must be placed in an envelope bearing the notice “This envelope contains a citation to or intimation from ( insert name of sheriff court) ”and sealed by the sheriff officer. Service on persons furth of Scotland 5 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— a at a known residence or place of business in England, Wales, Northern Ireland, the Isle of Man, the Channel Islands or any country with which the United Kingdom does not have a convention providing for service of writs in that country— i in accordance with the rules for personal service under the domestic law of the place in which service is to be executed; or ii by posting in Scotland a copy of the document in question in a registered letter addressed to the person at his residence or place of business; b in a country which is a party to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters dated 15th November 1965 or the Convention in Schedule 1 or 3C to the Civil Jurisdiction and Judgments Act 1982— i by a method prescribed by the internal law of the country where service is to be executed for the service of documents in domestic actions upon persons who are within its territory; ii by or through the central, or other appropriate, authority in the country where service is to be executed at the request of the Scottish Ministers : iii by or through a British Consular Office in the country where service is to be executed at the request of the Secretary of State for Foreign, Commonwealth and Development Affairs ; iv where the law of the country in which the person resides permits, by posting in Scotland a copy of the document in a registered letter addressed to the person at his residence; or v where the law of the country in which service is to be executed permits, service by an huissier, other judicial officer or competent official of the country where service is to be executed; ... or c in a country with which the United Kingdom has a convention on the service of writs in that country other than the conventions mentioned in sub-paragraph (b), by one of the methods approved in the relevant convention. ; or d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A In a country to which the EC Service Regulation applies, service– a may be effected by the methods prescribed in paragraph (1)(b)(ii) and (iii) only in exceptional circumstances; and b is effected only if the receiving agency has informed the person that acceptance of service may be refused on the ground that the document has not been translated in accordance with paragraph (6). 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 Scottish Ministers or, as the case may be, the Secretary of State for Foreign, Commonwealth and Development 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 . . . a an official language of the country in which service is to be executed; or b in a country to which the EC Service Regulation applies, a language of the member state of transmission that is understood by the person on whom service is being executed. 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. 8 In this rule “the EC Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, as amended from time to time. Service where address of person is not known 5 A1 Subject to rule 6.A7 this rule applies to service where the address of a 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— a by the publication of an advertisement in Form G3 in a specified newspaper circulating in the area of the last known address of that person, or b by displaying on the walls of court a copy of the instance and crave of the initial writ, the warrant of citation and a notice in Form G4; 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. Persons carrying on business under trading or descriptive name 5 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— a of a decree pronounced in the sheriff court, or b of a decree proceeding upon any deed, decree arbitral, bond, protest of a bill, promissory note or banker’s note or upon any other obligation or document on which execution may proceed, recorded in the sheriff court books . . ., 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). Endorsation unnecessary 5 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. Re-service 5 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. No objection to regularity of citation, service or intimation 5 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. CHAPTER 6 INTERIM DILIGENCE Interpretation 6 In this Chapter– “ the 1987 Act ” means the Debtors (Scotland) Act 1987 ; and “ the 2002 Act ” means the Debt Arrangement and Attachment (Scotland) Act 2002 . Application for interim diligence 6 1 The following shall be made by motion– a an application under section 15D(1) of the 1987 Act for warrant for diligence by arrestment or inhibition on the dependence of an action or warrant for arrestment on the dependence of an admiralty action; b an application under section 9C of the 2002 Act for warrant for interim attachment. 2 Such an application must be accompanied by a statement in Form G4A. 3 A certified copy of an interlocutor granting a motion under paragraph (1) shall be sufficient authority for the execution of the diligence concerned. Effect of authority for inhibition on the dependence 6 1 Where a person has been granted authority for inhibition on the dependence of an action, a certified copy of the interlocutor granting the motion may be registered with a certificate of execution in the Register of Inhibitions and Adjudications. 2 A notice of a certified copy of an interlocutor granting authority for inhibition under rule 6.A2 may be registered in the Register of Inhibitions and Adjudications; and such registration is to have the same effect as registration of a notice of inhibition under section 155(2) of the Titles to Land Consolidation (Scotland) Act 1868 . Recall etc of arrestment or inhibition 6 1 An application by any person having an interest– a to loose, restrict, vary or recall an arrestment or an interim attachment; or b to recall, in whole or in part, or vary, an inhibition, shall be made by motion. 2 A motion under paragraph (1) shall— a specify the name and address of each of the parties; b where it relates to an inhibition, contain a description of the inhibition including the date of registration in the Register of Inhibitions and Adjudications. Incidental applications in relation to interim diligence, etc 6 An application under Part 1A of the 1987 Act or Part 1A of the 2002 Act other than mentioned above shall be made by motion. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of inhibition on the dependence where address of defender not known 6 1 Where the address of a defender is not known to the pursuer, an inhibition on the dependence shall be deemed to have been served on the defender if the schedule of inhibition is left with or deposited at the office of the sheriff clerk of the sheriff court district where the defender's last known address is located. 2 Where service of an inhibition on the dependence is executed under paragraph (1), a copy of the schedule of inhibition shall be sent by the sheriff officer by first class post to the defender's last known address. Form of schedule of arrestment on the dependence 6 1 An arrestment on the dependence shall be served by serving the schedule of arrestment on the arrestee in Form G4B. 2 A certificate of execution shall be lodged with the sheriff clerk in Form G4C. Service of schedule of arrestment 6 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— a the last known place of residence of the arrestee, or b if such place of residence is not known, or if the arrestee is a firm or corporation, to the arrestee’s principal place of business if known, or, if not known, to any known place of business of the arrestee; 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Movement of arrested property 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CHAPTER 7 UNDEFENDED CAUSES Application of this Chapter 7 This Chapter applies to any cause other than an action in which the sheriff may not grant decree without evidence. Minute for granting of decree without attendance 7 1 Subject to the following paragraphs, where the defender— a does not lodge a notice of intention to defend, b does not lodge an application for a time to pay direction under the Debtors (Scotland) Act 1987 or a time order under the Consumer Credit Act 1974 , c has lodged such an application for a time to pay direction or time order and the pursuer does not object to the application or to any recall or restriction of an arrestment sought in the application, 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 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 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 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 Hague Convention on the Service Abroad of Judicial and Exta-Judicial Documents in 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. Applications for time to pay directions or time orders in undefended causes 7 1 This rule applies to a cause in which a a time to pay direction may be applied for under the Debtors (Scotland) Act 1987 ; or b a time order may be applied for under the Consumer Credit Act 1974 2 A defender in a cause which is otherwise undefended, who wishes to apply for a time to pay direction or time order , 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. 2A As soon as possible after the application of the defender is lodged, the sheriff clerk shall send a copy of it to the pursuer by first class ordinary post. 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 on the same date— a complete and lodge with the sheriff clerk Form O3A; b minute for decree in accordance with rule 7.2; and c send a copy of Form O3A to the defender. 4A The sheriff clerk shall then fix a hearing on the application of the defender and intimate the hearing to the pursuer and the defender. 4B The hearing must be fixed for a date within 28 days of the date on which the Form O3A and the minute for decree are lodged. 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. Decree for expenses 7 1 On granting decree in abence or thereafter, the sheriff may grant decree for expenses. 2 Where the pursuer elects, in the minute for decree, to claim expenses comprising— a the inclusive charges set out in Part 1 of Table 1 in schedule 4 of the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019; and b outlays comprising only— i the court fee for warranting the initial writ; ii postal charges incurred in effecting, or attempting to effect, service of the initial writ by post; and iii where applicable, a sheriff officer’s fee for service of the initial writ, the sheriff may grant decree for payment of such expenses without the necessity of taxation. Finality of decree in absence 7 Subject to section 9(7) of the 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— a on the expiry of six months from the date of the decree