Sheriff Courts (Scotland) Act 1907

CHAPTER 9 S STANDARD PROCEDURE IN DEFENDED CAUSES

Notice of intention to defend S

9.1. (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—

(a) challenge the jurisdiction of the court,

(b) state a defence, or

(c) make a counterclaim,

he shall, before the expiry of the period of notice, lodge with the sheriff clerk a notice of intention to defend in Form O7 [F1 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.

Textual Amendments

F1 Words in rule 9.1(1) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 2

Fixing date for Options Hearing S

9.2. (1) 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.

(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 [F2 a party] to make any incidental application to the court.

Textual Amendments

F2 Words in rule 9.2(3) substituted (1.11.1996) by S.I. 1996/2445, para. 3(12)

Second or subsequent Options Hearing S

[F3 9.2A. (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.]

Textual Amendments

F3 Rule 9.2A inserted (1.11.1996) by S.I. 1996/2445, para. 3(13)

Return of initial writ S

9.3. 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.

Lodging of pleadings before Options Hearing S

9.4. 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.

Process folder S

9.5. (1) On receipt of the notice of intention to defend, the sheriff clerk shall prepare a process folder which shall include—

(a) interlocutor sheets;

(b) duplicate interlocutor sheets;

(c) a production file;

(d) a motion file; and

(e) an inventory of process.

(2) Any production or part of process lodged in a cause shall be placed in the process folder.

Defences S

9.6. (1) Where a notice of intention to defend has been lodged, the defender shall [F4 (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.

[F5 (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.]

Textual Amendments

F4 Words in rule 9.6(1) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 3(a)

F5 Rule 9.6(3) inserted (1.11.1996) by S.I. 1996/2167, para. 2, Sch., para. 3(b)

Implied admissions S

9.7. 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.

Adjustment of pleadings S

9.8. (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.

Effect of sist on adjustment S

9.9. (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.

Open record S

9.10. 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.

Record for Options Hearing S

9.11. (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.

[F6 (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.]

Textual Amendments

F6 Rule 9.11(3) inserted (1.11.1996) by S.I. 1996/2445, para. 3(14)

Options Hearing S

9.12 (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.

Inspection and recovery of documents S

9.13. (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 M1 Administration of Justice (Scotland) Act 1972

Marginal Citations

M1 1972 c.59; section 1 was amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c.73); section 19 and Schedule 2, paragraph 15.

Exchange of lists of witnesses S

9.14. (1) Within 14 days after the date of the interlocutor allowing a proof or proof before answer, each party shall intimate to every other party a list of witnesses, including any skilled witnesses, whom he intends to call to give evidence.

(2) A party who seeks to call as a witness a person not on his list intimated under paragraph (1) shall, if any other party objects to such a witness being called, seek leave of the sheriff to call that person as a witness; 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.

Applications for time to pay directions S

9.15. An application for a time to pay direction under section 1(1) of the M2 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.

Marginal Citations

M2 1987 c.18.