The Scottish Land Court Rules 1992

• Citation: S.I. 1992/2656
• Sections: 110

Section 1

These rules may be cited as the Scottish Land Court Rules 1992 and shall come into force on 1st November 1992.

Section 2

The rules of the Scottish Land Court shall be as set forth in the Schedule to these rules.

Section 3

The rules of the Scottish Land Court 1979 are revoked.

Section 1 DEFINITIONS

In the construction of these Rules (unless the context otherwise requires)—

(a) The word “Court” shall mean the Scottish Land Court and shall include the Full Court and any Divisional Court; the expression “Full Court” shall mean the Court constituted for hearing appeals under Section 25(5) of the Small Landholders (Scotland) Act 1911 and the expression “Divisional Court” shall mean any member or any two members sitting or acting with any legal assessor by virtue of any powers delegated under the said Subsection either by a quorum of the whole Court or by these Rules.

(b) The word “Chairman” shall mean the Chairman of the Court.

(c) The expression “Principal Clerk” shall mean the Principal Clerk and Legal Secretary to the Court and shall include (except for the purposes of Rule 102) every person who for the time being is authorised or deputed in the absence of the Principal Clerk to discharge the duties of Principal Clerk to the Court.

(d) The word “Auditor” shall mean the Auditor of the Land Court, who is the Principal Clerk.

(e) The word “Order” shall include decree, award and determination in any proceeding before the Court.

(f) The word “month” shall, in the computation of time for the purposes of these Rules and of any Order made by the Court, mean calendar month.

(g) The word “revaluation” shall mean the fixing of a second and every subsequent Fair Rent or Equitable Rent for a holding.

(h) The word “hearing” shall include trial, proof and debate in any Application or any proceeding accessory or incidental thereto.

(i) The word “landlord” shall mean any person for the time being entitled to receive the rents and profits or to take possession of any holding and shall include the trustees, executors, administrators, assignees, legatee, disponee or next-of-kin, spouse, guardian, curator bonis, trustee in bankruptcy or judicial factor of a landlord.

(j) The word “person” shall include any body or association of persons, incorporated or unincorporated.

(k) The expression “Final Order” shall mean an Order of the Court which, either by itself or taken along with a previous Order or Orders, disposes of the subject-matter of the Application, though all the questions of law or of fact arising in the Application shall not have been decided and though expenses, if found due, shall not have been modified, taxed or decerned for.

Section 2 OFFICE AND SITTINGS OF THE COURT

The office of the Court in Edinburgh shall be open to the public on every day of the year from 9 o'clock am until 4 o'clock pm except Saturdays, Sundays, public holidays and any other days on which the office may be closed by Order of the Court.

Section 3 OFFICE AND SITTINGS OF THE COURT

The Court shall hold sittings for the purpose of hearing Applications, including Appeals and Motions for Rehearing, at such places as they shall from time to time intimate to parties.

Section 4 OFFICE AND SITTINGS OF THE COURT

Any sitting and any hearing in any Application or proceeding may be postponed or adjourned either to a fixed day or to a day to be afterwards fixed by the Court.

Section 5 Applications

All Applications to the Court shall be framed as nearly as reasonably may be in accordance with the forms provided by the Court. These forms, with relative copy forms for service, may be procured by intending Applicants from the Court free of charge. They may be varied and the initial conclusions altered, supplemented or combined, so far as necessary to adapt the forms to any special case or to Applications for which no special form has been issued.

Section 6 Applications

No Application shall be incompetent solely on the ground that a declaratory Order only is applied for.

Section 7 Applications

Except as otherwise provided, Applications shall be signed by the Applicant or by a solicitor or counsel or, where an Applicant is furth of Scotland, by any person duly authorised in writing, on his behalf. Applications by a landlord may be signed by his factor.

Section 8 Applications

Where an Applicant cannot sign his name and is not represented by a solicitor, he may instead adhibit his X or mark in the presence of at least one witness above eighteen years of age who shall certify in writing on the Application that it was read over and explained to the Applicant before his mark was adhibited.

Section 9 Applications

All Applications shall be addressed to the Land Court at their office at 1 Grosvenor Crescent, Edinburgh, EH12 5ER and shall be posted, or delivered to, the said office, together with (1) (except in the cases provided f or under Rules 17, 18 and 22 and in Applications where no service is necessary, eg joint Applications by landlord and tenant) a copy, or as many copies as are required, duly completed, for service on the Respondent or Respondents and (2) the appropriate fee, as specified in the current Table of Court Fees a copy of which is available from the Principal Clerk.

Section 10 Applications

Tenants who hold pasture, grazing or other rights in common or whose holdings are situated in the same township and on the estate of the same landlord may join as Applicants, or be called by their landlord as Respondents, in one Application to fix fair rents for their holdings.

Section 11 Service, Intimation, Etc

If an Application, posted or delivered as aforesaid, appears to be in proper form and if the appropriate fee in accordance with the Table of Court Fees has been paid (unless the Application is one in which the Court fees fall to be assessed by the Court), the Principal Clerk shall, after satisfying himself of the accuracy of the service copy or copies lodged along with the Application, effect service of the Application by transmitting such copy or copies, duly certified, by first class recorded delivery service or registered post letter to the Respondent, or each Respondent, at the address, or addresses, stated in the Application.

Section 12 Service, Intimation, Etc

Any notice, order, summons or proceeding in any Application shall similarly be served or intimated by first class recorded delivery service or registered post letter containing a certified copy of such notice, order, summons or proceeding, directed by the Principal Clerk (or by an Applicant or Respondent if so ordered) to the person, or persons, on or to whom such service or intimation is required.

Section 13 Service, Intimation, Etc

Any period which begins to run from service or intimation shall be reckoned from the expiry of twenty-four hours after the time of posting such recorded delivery service or registered letter.

Section 14 Service, Intimation, Etc

Service on, or intimation to, a landlord may be effected by first class recorded delivery service or registered post letter containing a certified copy of the Application, order, notice, summons or proceeding, of which service or intimation is required, directed to him at the address of his factor or the solicitor to whom the tenant, or other Applicant or Applicants, has usually paid rent.

Section 15 Service, Intimation, Etc

Service on, or intimation to, any association, board, firm, company or corporation may be effected in like manner by first class recorded delivery service or registered post letter containing a certified copy as aforesaid, directed to such association, board, firm, company or corporation under the name or description which they ordinarily use, at the principal office or place of business or (if the principal office or place of business be situated outwith Scotland) at any office or place within Scotland (including the office of a clerk, secretary or representative) where they carry on business.

Section 16 Service, Intimation, Etc

In every case where a party to an Application is represented by a solicitor, any order, summons, notice or other proceeding may be served on, or intimated to, such party in like manner by first class recorded delivery service or registered post letter directed to such solicitor at his office or place of business, unless and until the other parties and the Principal Clerk are notified that such solicitor no longer acts for such party.

Section 17 Service, Intimation, Etc

In any Application where a Respondent’s address is unknown to the Applicant the Court may allow or direct the Applicant to give notice of intimation of the Application, or any proceeding therein, by the publication in a newspaper circulating in the area of the holding of the Respondent, or of the last known address of the Respondent or elsewhere of an advertisement in such form as the Court may order.

Prior to allowing or directing intimation by way of an advertisement in a newspaper, the Applicant will satisfy the Court that he has taken all reasonable steps to trace the whereabouts of the Respondent.

Where intimation is made by way of an advertisement, the Applicant will lodge a copy of the newspaper containing said advertisement with the Principal Clerk.

If, after intimation by advertisement as aforesaid, the address of the Respondent becomes known, the Court may allow the Application to be amended subject to such condition as to re-service, intimation and expenses as seems just.

Section 18 Service, Intimation, Etc

In any Application for resumption of, or otherwise relating to, common grazings, when the number of persons called as Respondents, or to whom intimation is ordered, exceeds twenty, the Court may allow the Applicant, or Applicants, or other parties, as the case may be, to give notice or intimation of the Application or any proceeding therein to all such persons by advertisement in each of two successive weeks in any newspaper circulating in the district or by service of such notice or intimation on the clerk to the grazings committee or in such other manner as the Court may think sufficient, in substitution for intimation or service made by recorded delivery service or registered post letter by the Principal Clerk to or on each Respondent so called or each person to whom intimation is so ordered.

Section 19 Service, Intimation, Etc

If any person who is named as a Respondent or who has an interest to intervene in, or who it is proposed should be made a party to, an Application has no known factor or solicitor and no known residence or place of business within Scotland, but has a known residence or place of business outwith Scotland, notice or intimation of such Application, or of any order or proceeding therein, shall be given to him by first class recorded delivery service or registered post letter containing a certified copy thereof directed to such residence or place of business.

Section 20 Service, Intimation, Etc

The receipt of the Post Office for a first class recorded delivery service or registered post letter duly directed, which is certified by the Principal Clerk or is otherwise proved to have contained a true copy of the Application, order, notice, summons or proceeding intended to be served on, or intimated to, the person to whom such recorded delivery service or registered post letter was directed, shall be sufficient prima facie proof of due service on, or intimation to, such person of such Application, order, summons, notice or proceeding having been effected at the time at which said recorded delivery service or registered post letter would have been delivered in ordinary course of post. A first class recorded delivery service or registered post letter shall be deemed, until the contrary is proved, to have been duly directed to the person on or to whom service or intimation was intended to be so made, when it has been directed to him either (1) at the address stated by him in any Application or pleading or proceeding in the Application or (2) at the address of his factor or solicitor or (3) at his last known residence or place of business.

Section 21 Service, Intimation, Etc

When intimation is made under Rule 17 or 18 copies of the newspaper containing the advertisement shall be deemed prima facie proof of such intimation.

Section 22 Service, Intimation, Etc

Any person named as a Respondent in an Application or made a party thereto, may by a signed endorsement on the Application or by statement in open Court or by letter to the Applicant or other party moving, or entitled to move, for service or intimation or to the Principal Clerk, agree to dispense with service or intimation of such Application or order, summons, notice or proceeding therein.

Section 23 Service, Intimation, Etc

No party who appears in court or lodges objections or answers or other pleading shall be entitled to state any objection to the regularity of the service on, or of the intimation to, himself.

Section 24 Service, Intimation, Etc

If there has been any insufficiency of, or irregularity in, any service on, or intimation to, a person who has not appeared in Court or lodged objections or answers or other pleading or if it seems expedient that service or intimation of any Application, order, notice, summons or proceeding on or to any person should be made of new or in any other or further manner than by first class recorded delivery service or registered post letter as aforesaid, the Court may authorise or direct new, or further, service or intimation accordingly, on such conditions as the Court may think proper, in any manner allowed by the law and practice of Scotland.

Section 25 Service, Intimation, Etc

As soon as an Application has been received by the Principal Clerk, it shall be deemed to be in dependence before the Court and shall not be abandoned or withdrawn without leave of the Court on such conditions as to expenses or otherwise as the Court may think just.

Section 26 Process

Any party to an Application or his solicitor or other authorised representative may (1) require the Principal Clerk to exhibit the Application, or any part of the process therein, in his custody at the office of the Court during office hours, free of charge; (2) make a hand-written copy of the Application or any order pronounced therein or any answers, minutes, writings, plans or other documents in process in such custody at the said office, during office hours, and under supervision of the Principal Clerk, free of charge. Where a party to an Application or his solicitor or other authorised representative obtains from the Principal Clerk a photocopy of the Application, or any Order pronounced therein, or any answers, minutes, writings, plans or other documents in process, the Principal Clerk will be entitled to charge a fee therefor in terms of the Court’s current Table of Fees.

Section 27 Process

No person shall be allowed, without leave of the Court, to borrow the principal Application or any original deed, writing, plan, document or other production forming part of the process therein: but the Principal Clerk may, when duly requested, issue a certified copy, or copies, thereof to any party to an Application or his solicitor or other authorised representative at the charge specified in the Table of Court Fees.

Section 28 Process

Any solicitor acting for a party to an Application may borrow (1) any part or parts of the process therein, other than those specified in the preceding Rule and (2) also the part or parts so specified, by leave of the Court, or by permission of the Principal Clerk, in each case upon granting a borrowing receipt and undertaking to return the productions borrowed to the office of the Court within 48 hours after demand by the Principal Clerk.

Section 29 Process

After the issue of a Final Order in any Application the Principal Clerk shall, if he considers it appropriate, return any productions lodged by any party to that party or his agents upon the granting of an appropriate receipt.

Section 30 CONSIGNATION

In any Application which raises questions regarding any claims for payment of money which the Court has power to decide, any party may consign a sum of money in Court to be dealt with according as the rights of parties may be determined in course of the proceedings.

Section 31 CONSIGNATION

Any sum of money which a party desires, or has been ordered, to consign shall be consiged in the hands of the Principal Clerk in the same manner as in an ordinary action in the Sheriff Court and shall be held by the Principal Clerk subject to the directions of the Court. No consigned money shall be paid or uplifted without leave of the Court or the consent in writing of all parties interested.

Section 32 TIME LIMITS

Any period limited in these Rules, or in any Order, for any act or proceeding, which expires on a Saturday, Sunday, public holiday or any other day on which the office of the Court is closed by Order of the Court, shall be extended to the next lawful day.

Section 33 TIME LIMITS

Any period limited by an Order for any act or proceeding may be extended by the Court, on cause shown, either before or after the expiry of such period.

Section 34 PLEADINGS

A Respondent is not required to lodge Answers unless, and until, Answers are ordered by the Court. Anwers, Replies, Objections or other written pleadings shall be lodged by hand, by post or by FAX with the Principal Clerk, unless otherwise directed by the Court, and the Principal Clerk shall note receipt of the same on the Application. If Answers ordered by the Court are not lodged within the time specified in the Order, the Principal Clerk shall certify to that effect on the Application.

Section 35 PLEADINGS

The Court may, at any stage of an Application, order any party therein to lodge a statement or pleadings, where this has not been done, or to revise his statement or pleadings, and also to make specific any statement, answer or reply contained in his Application, Objections, Answers or other pleadings, relating to material facts disputed; and either to admit or deny definitely any statement, made by any opposing party in that party’s Application or Answers or Objections or other pleadings, relating to disputed material facts, when the Court is of opinion that such statement or pleadings, specification, admission or denial is necessary to define, or determine, the real matter or matters in dispute; or to withdraw or expunge any irrelevant and improper matter contained in his Application, Answers, Replies, Objections or other pleadings.

Section 36 PLEADINGS

All Answers, Replies, Objections or other pleadings shall be subscribed as provided for under Rules 7 and 8.

Section 37 PLEADINGS

Where a party is represented by a solicitor or factor who lodges any Answers, Replies, Objections or other pleadings by hand or by post he shall be obliged to lodge, at the same time, a copy thereof for each of the other parties to the Application.

Section 38 Amendment, Conjunction, Etc

The Court may, either of their own accord or on the motion of any person interested, at any time before a Final Order has been pronounced in an Application and upon such terms or conditions as to notice, intimation or service and expenses or otherwise, as the Court shall think proper,

(a) Amend any error, omission or defect in the Application or any pleadings or proceeding therein;

(b) Qualify, restrict, enlarge, or add new conclusions to, the conclusions of the Application, notwithstanding that, by such amendment or addition, additional or alternative remedies may be sought or a larger sum of money or an additional area of land or other interests in land may thereby be subjected to the adjudication of the Court;

(c) Strike out the names of any persons who have, improperly or unnecessarily, been made parties to the Application;

(d) Substitute or add the names or proper characters of any persons as Applicants or Respondents who ought to have been, but were not, made parties, Applicant or Respondent as the case may be, or not made parties in their proper character, representative, individual or otherwise;

(e) Substitute or add the names of any persons as parties, Applicant or Respondent as the case may be, who by reason of any assignation or renunciation by, or the marriage, sequestration or death of, any of the parties to the Application, or of any other event occurring during its dependence, have acquired any right or interest, or become subject to any liability, in respect of the matters to which the Application relates;

and, when necessary to enable the Court effectually to determine, or adjudicate on, the real matters in dispute, such amendments or additions shall be made or allowed.

Section 39 Amendment, Conjunction, Etc

Where the same, or similar, questions of law or fact arise` in, or where there is a relation between, two or more depending Applications, the Court (1) may sist one or more of such Applications and appoint the other Application or Applications to proceed or (2) where it appears more convenient that they should be heard together, may conjoin such Applications and dispose of them, either together or separately, as may be found expedient.

Section 40 Amendment, Conjunction, Etc

The Court may appoint a curator ad litem to any party in an Application who is under the age of 16 years or is of defective capacity and has no known curator or other guardian.

Section 41 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

As soon as an Order appointing a time and place for hearing has been pronounced in any Application, any party thereto shall be entitled, unless the Order limits the hearing to matters of law or procedure,

(1) to call upon any opposing party by written notice, delivered or transmitted by first class recorded delivery service or registered post letter, not less than seven days before the time so appointed, to admit, but only as between the parties giving and receiving such notice and solely for the purposes of the particular Application, any specific fact or facts stated in such notice and relating to the subject-matter of the Application. If the party so called upon unnecessarily refuses or delays to admit such specific fact or facts, he may be found liable in the expenses incurred in proving any specific fact which he so refused or delayed to admit; and

(2) to move the Court to grant a summons requiring the persons therein named and designed to attend at such appointed time and place, and any adjourned hearing, for the purpose of (a) giving evidence and/or (b) producing the writings, documents, business books, plans or articles therein specified or described.

Section 42 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

Further, on special cause shown or of their own accord the Court may, at any stage of the proceedings in an Application—

(1) Order any party thereto (a) to lodge in process all writings, documents, business books, plans or articles in his possession or under his control, whether founded on by such party or not, relating to any matter in dispute therein, which are specified or described in such Order and (b) to state whether all or any writings, documents, business books, plans or articles specified or described in such Order are, or have at any time been, in his possession or under his control and whether he has parted with the same and what has become of them or any of them; and

(2) Order any person to attend the Court at a fixed time and place, or a time and place to be afterwards notified to such person, and to produce all writings, documents, business books, plans or articles in his possession, or under his control, which are specified or described in such Order, the production of which may be deemed by the Court material and proper for the determination of matters in dispute.

Section 43 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

All writings, plans, books, or excerpts from books, or other documents or productions which are founded on in any Application or in any Answers, Objections, Minutes or other pleadings, or certified copies thereof, shall be lodged in process along with such Application or Answers, Objections, Minutes or other pleadings.

Section 44 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

All writings, plans, books, or excerpts from books, or other documents or productions which any party intends to refer to or to use or put in evidence at any hearing shall, if in his possession or under his control, be lodged in process by such a party at least seven clear days before the time appointed for such hearing and the party lodging the same shall forthwith intimate to the other parties to the Application that he has done so. Any party to an Application lodging any such production shall be obliged to lodge, with the principal production, as many copies thereof for use by the Court as may be directed by or agreed with the Principal Clerk.

Section 45 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

The Court may allow any Answers, Objections, Minutes or other pleadings and any writing, plan, book, or excerpt from a book, or other document or productions, which ought to have been, but were not, timeously lodged, to be received or to be referred to or to be used or put in evidence at the hearing, if satisfied that such omission was in the circumstances excusable, upon such conditions as to expenses, adjournment, further allowance of proof or otherwise as the Court may think proper.

Section 46 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

When an Application or pleading or other original document has been lost or destroyed, a copy thereof proved and authenticated to the satisfaction of the Court may be substituted for the original to all effects and purposes.

Section 47 ADMISSIONS, WITNESSES, PRODUCTION OF DOCUMENTS, ETC

If any Applicant or Respondent fails to lodge any statement or pleading or to produce any writing, plan, book, or excerpt from a book, or other document or article, which the Court have ordered to be lodged or produced, or to obey any Order of Court (a) where the Applicant is the party in default, the Application may be in respect thereof dismissed, with expenses (b) where the Respondent is the party in default, any pleas, objections or claims stated by him may be in respect thereof repelled, with expenses or (c) the party in default, whether Applicant or Respondent, may be merely found liable in expenses occasioned by such default.