Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993

• Citation: S.I. 1993/1956
• Sections: 328

Section 1 Citation and commencement

(1) This Act of Sederunt may be cited as the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 and shall come into force on 1st January 1994.

(2) This Act of Sederunt shall be inserted in the Books of Sederunt.

Section 2 Ordinary Cause Rules

For Schedule 1 to the Sheriff Courts (Scotland) Act 1907 there shall be substituted the Schedule in Schedule 1 to this Act of Sederunt.

Section 3 Extension of Ordinary Cause Rules to summary causes

In the Act of Sederunt (Summary Cause Rules, Sheriff Court) 1976 , for paragraph 3(2) there shall be substituted the following paragraph:—

(2) The following provisions of the Ordinary Cause Rules 1993 shall apply to a summary cause insofar as not inconsistent with those Rules:—

Section 4 Extension of Ordinary Cause Rules to small claims

In the Act of Sederunt (Small Claims Rules) 1988 , for Appendix 2 there shall be substituted the following appendix:—

Section 5 Revocations and repeal

The enactments specified in column 2 of Schedule 2 to this Act of Sederunt shall be revoked or repealed, as the case may be, to the extent specified in column 3 of that Schedule.

Section 6 Savings for causes already commenced

Nothing in this Act of Sederunt shall affect any cause commenced before the date of the coming into force of this Act of Sederunt, and any such cause shall proceed according to the law and practice in force immediately before that date.

Section 1.1 Citation

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

Section 1.2 Interpretation

(1) In these Rules, unless the context otherwise requires—

“document” has the meaning assigned to it in section 9 of the Civil Evidence (Scotland) Act 1988 ;

“period of notice” means the period determined under rule 3.6 (period of notice after citation).

(2) For the purposes of these Rules—

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

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

(3) Where a provision in these Rules requires a party to intimate or send a document to another party, it shall be sufficient compliance with that provision if the document is intimated or sent to the solicitor acting in the cause for that party.

(4) Unless the context otherwise requires, anything done or required to be done under a provision in these Rules by a party may be done by the agent for that party acting on his behalf.

(5) Unless the context otherwise requires, a reference to a specified Chapter, Part, rule or form, is a reference to the Chapter, Part, rule or form in Appendix 1, so specified in these Rules; and a reference to a specified paragraph, sub-paragraph or head is a reference to that paragraph of the rule or form, that sub-paragraph of that paragraph or that head of that sub-paragraph, in which the reference occurs.

Section 1.3 Representation

(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) Paragraph (1) shall not apply to an appeal to the sheriff principal.

Section 1.4 Forms

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

Section 2.1 Relief from failure to comply with rules

(1) The sheriff may relieve a party from the consequences of failure to comply with a provision in these Rules which is shown to be due to mistake, oversight or other excusable cause, on such conditions as he thinks fit.

(2) Where the sheriff relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), he may make such order as he thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

Section 3.1 Form of initial writ

(1) An ordinary cause shall be commenced by initial writ in Form G1.

(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 argreement exists prorogating jurisdiction over the subject-matter of the cause to another court, the intitial 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 intial writ shall contain details of those proceedings.

(5) An article of condescendence shall be included in the intitial writ averring—

(a) the ground of jurisdiction; and

(b) the facts upon which the ground of jurisdiction is based.

(6) Where the residence, registered office or place of business, as the case may be, of the defender is not known and cannot reasonably be ascertained, the pursuer shall set out in the instance that the whereabouts of the defender are not known and aver in the condescendence what steps have been taken to ascertain his present whereabouts.

(7) The initial writ shall be signed by the pursuer or his solicitor (if any) and the name and address of that solicitor shall be stated on the back of every service copy of that writ.

Section 3.2 Actions relating to heritable property

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

(2) Intimation of such an action shall be made to the holder of the heritable security referred to in paragraph (1)—

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

(b) in any other case, where the sheriff so orders.

Section 3.3 Warrants of citation

(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 may be applied for by the defender,

shall be in Form 01.

(2) In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for the defender, the warrant of citation shall be in Form 02.

(3) In a cause in which a warrant of citation in accordance with Form 02 is appropriate, there shall be served on the defender (with the initial writ and warrant) a notice in Form 03.

Section 3.4 Warrants for arrestment to found jurisdiction

(1) Where an application for a warrant for arrestment to found jurisdiction may be made, it shall be made in the crave of the intitial writ.

(2) Averments to justify the granting of such a warrant shall be included in the condescendence.

Section 3.5 Warrants and precepts for arrestment on dependence

(1) A copy of—

(a) an initial writ with warrant to cite which includes a warrant to arrest on the dependence,

(b) defences which include, or a minute of amendment which includes, a counterclaim with warrant granted to arrest on the dependence endorsed on that writ,

certified as a true copy by the pursuer or defender, as the case may be, or his solicitor, shall be sufficient warrant to arrest on the dependence if it is otherwise competent to do so.

(2) A precept of arrestment may be issued by the sheriff clerk on production to him of—

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

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

(c) a document of liquid debt.

Section 3.6 Period of notice after citation

(1) Subject to rule 5.6(1) (service where address of person is not known) and to paragraph (2) of this rule, a cause shall proceed after one of the following periods of notice has been given to the defender:—

(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.

Section 3.7 Form of warrant for execution

An extract of a decree on which execution may proceed shall include a warrant for execution in the following terms:— “This extract is warrant for all lawful execution hereon.”.

Section 4.1 Orders against which caveats may be lodged

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.

Section 4.2 Form lodging and renewal of caveats

(1) A caveat shall be in Form G2 and shall be lodged with the sheriff clerk.

(2) A caveat shall remain in force for a period of one year from the date on which it was lodged and may be renewed on its expiry for a further period of one year and yearly thereafter.

(3) Where a caveat has been lodged and has not expired, no order in respect of which the caveat was lodged may be pronounced unless the sheriff is satisfied that all reasonable steps have been taken to afford the person lodging the caveat an opportunity of being heard; and the sheriff may continue the hearing on such an order until he is satisfied that such steps have been taken.

Section 5.1 Signature of warrants

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

(2) The following warrants shall be signed by the sheriff:—

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

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

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

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

Section 5.2 Form of citation and certificate

(1) Subject to rule 5.6 (service where address of person is not known), in any cause other than—

(a) a family action within the meaning of rule 33.1(1),

(b) an action of multiplepoinding, or

(c) an action in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender,

citation by any person shall be in Form O4 which shall be attached to a copy of the intial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

(2) In a cause in which a time to pay direction under the Debtors (Scotland) Act 1987 may be applied for by the defender, citation shall be in Form O5 which shall be attached to a copy of the initial writ and warrant of citation and shall have appended to it a notice of intention to defend in Form O7.

(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.

Section 5.3 Postal service or intimation

(1) In any cause in which service or intimation of any document or citation of any person may be by recorded delivery, such service, intimation or citation shall be by the first class recorded delivery service.

(2) Notwithstanding the terms of section 4(2) of the 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).

(4) The certificate of citation or intimation in the case of postal service shall have attached to it any relevant postal receipts.

Section 5.4 Service within Scotland by sheriff officer

(1) An initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served by a sheriff officer on any person shall be served—

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

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

Section 5.5 Service on persons furth of Scotland

(1) Subject to the following provisions of this rule, an initial writ, decree, charge, warrant or any other order or writ following upon such initial writ or decree served on a person furth of Scotland shall be served—

(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 Foreign Office:

(iii) by or through a British Consular Office in the country where service is to be executed at the request of the Foreign Office;

(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.

(2) Any document which requires to be posted in Scotland for the purposes of this rule shall be posted by a solicitor or a sheriff officer; and on the face of the envelope there shall be written or printed the notice set out in rule 5.3(3).

(3) In the case of service by a method referred to in paragraph (1)(b)(ii) and (iii), the pursuer shall—

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

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

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

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

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

(5) Where service is executed in accordance with paragraph (1)(a)(i) or (1)(b)(i) other than on another party in the United Kingdom, the Isle of Man or the Channel Islands, the party executing service shall lodge a certificate by a person who is conversant with the law of the country concerned and who practises or has practised law in that country or is a duly accredited representative of the Government of that country, stating that the method of service employed is in accordance with the law of the place where service was executed.

(6) Every writ, document, citation or notice on the face of the envelope mentioned in rule 5.3(3) shall be accompanied by a translation in an official language of the country in which service is to be executed unless English is an official language of that country.

(7) A translation referred to in paragraph (6) shall be certified as correct by the person making it; and the certificate shall—

(a) include his full name, address and qualifications; and

(b) be lodged with the execution of citation or service.

Section 5.6 Service where address of person is not known

(1) Where the address of a person to be cited or served with a document is not known and cannot reasonably be ascertained, the sheriff shall grant warrant for citation or service upon that person—

(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.

Section 5.7 Persons carrying on business under trading or descriptive name

(1) A person carrying on a business under a trading or descriptive name may sue or be sued in such trading or descriptive name alone; and an extract—

(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).

Section 5.8 Endorsation unnecessary

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

Section 5.9 Re-service

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

Section 5.10 No objection to regularity of citation, service or intimation

(1) A person who appears in a cause shall not be entitled to state any objection to the regularity of the execution of citation, service or intimation on him; and his appearance shall remedy any defect in such citation, service or intimation.

(2) Nothing in paragraph (1) shall preclude a party from pleading that the court has no jurisdiction.

Section 6.1 Service of schedule of arrestment

If a schedule of arrestment has not been personally served on an arrestee, the arrestment shall have effect only if a copy of the schedule is also sent by registered post or the first class recorded delivery service to—

(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.

Section 6.2 Arrestment on dependence before service

(1) An arrestment on the dependence of a cause used before service shall cease to have effect unless—

(a) the initial writ is served within 20 days from the date of arrestment; and

(b) in the case of an undefended cause, decree in absence has been pronounced within 20 days after the expiry of the period of notice.

(2) After such an arrestment has been executed, the party who executed it shall forthwith report the execution to the sheriff clerk.

Section 6.3 Movement of arrested property

(1) Any person having an interest may apply by motion for a warrant authorising the movement of a vessel or cargo which is the subject of an arrestment to found jurisdiction or on the dependence of a cause.

(2) Where the court grants a warrant sought under paragraph (1), it may make such further order as it thinks fit to give effect to that warrant.

Section 7.1 Application of this Chapter

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

Section 7.2 Minute for granting of decree without attendance

(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 ,

(c) has lodged such an application for a time to pay direction 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 parental rights) 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 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 and 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.

Section 7.3 Applications for time to pay directions in undefended causes

(1) This rule applies to a cause in which a time to pay direction may be applied for under the Debtors (Scotland) Act 1987.

(2) A defender in a cause which is otherwise undefended, who wishes to apply for a time to pay direction, and where appropriate, to have an arrestment recalled or restricted, shall complete and lodge with the sheriff clerk the appropriate part of Form O3 before the expiry of the period of notice.

(3) Where the pursuer does not object to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff may grant decree or other order in terms of the application and minute.

(4) Where the pursuer objects to the application of the defender made in accordance with paragraph (2), he shall minute for decree in accordance with rule 7.2; and the sheriff clerk shall thereafter fix a hearing on the application of the defender and intimate the hearing to the pursuer and defender.

(5) The sheriff may determine an application in which a hearing has been fixed under paragraph (4) whether or not any of the parties appear.

Section 7.4 Decree for expenses

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

Section 7.5 Finality of decree in absence

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 or from the date of a charge made under it, where the service of the initial writ or of the charge has been personal; and

(b) in any event, on the expiry of 20 years from the date of the decree.

Section 7.6 Amendment of initial writ

(1) In an undefended cause, the sheriff may—

(a) allow the pursuer to amend the initial writ in any way permitted by rule 18.2 (powers of sheriff to allow amendment); and

(b) order the amended intial writ to be re-served on the defender on such period of notice as he thinks fit.

(2) The defender shall not be liable for the expense occasioned by any such amendment unless the sheriff so orders.

(3) Where an amendment has been allowed under paragraph (1), the amendment—

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

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

Section 8.1 Reponing

(1) In any cause other than—

(a) a cause mentioned in rule 33.1(1)(a) to (h) (certain family actions), or

(b) a cause to which Chapter 37 (causes under the Presumption of death (Scotland) Act 1977) applies,

the defender may apply to be reponed by lodging with the sheriff clerk, before implement in full of a decree in absence, a reponing note setting out his proposed defence and explaining his failure to appear.

(2) A copy of the note lodged under paragraph (1) shall be served on the pursuer.

(3) The sheriff may, on considering the reponing note, recall the decree so far as not implemented subject to such order as to expenses as he thinks fit; and the cause shall thereafter proceed as if the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree in absence was recalled.

(4) A reponing note, when duly lodged with the sheriff clerk and served upon the pursuer, shall have effect to sist diligence.

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

Section 9.1 Notice of intention to defend

(1) Subject to rules 33.34 (notice of intention to defend and defences in family action) and 35.8 (lodging of notice of appearance in action of multiplepoinding), where the defender intends to—

(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.

(2) The lodging of a notice of intention to defend shall not imply acceptance of the jurisdiction of the court.

Section 9.2 Fixing date for Options Hearing

(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 parties to make any incidental application to the court.

Section 9.3 Return of initial writ

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

Section 9.4 Lodging of pleadings before Options Hearing

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

Section 9.5 Process folder

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

(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.

Section 9.6 Defences

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

Section 9.7 Implied admissions

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

Section 9.8 Adjustment of pleadings

(1) Parties may adjust their pleadings until 14 days before the date of the Options Hearing or any continuation of it.

(2) Any adjustments shall be exchanged between parties and not lodged in process.

(3) Parties shall be responsible for maintaining a record of adjustments made during the period for adjustment.

(4) No adjustments shall be permitted after the period mentioned in paragraph (1) except with leave of the sheriff.

Section 9.9 Effect of sist on adjustment

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

(2) On recall of the sist of a cause, the sheriff clerk shall—

(a) fix a new date for the Options Hearing;

(b) prepare and sign an interlocutor recording that date; and

(c) intimate that date to each party.

Section 9.10 Open record

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