Chapter 41 - Part i - General Provisions
Application and interpretation of this Chapter
41.1.-(1) This Chapter applies to an appeal to the court from a decision of a tribunal other than a decision in the Outer House or a court to which Chapter 40 (appeals from inferior courts) applies.
(2) In this Chapter, unless the context otherwise requires-
"appeal" includes stated case, case, special case (other than a special case under section 27 of the Act of 1988)(a) reference or submission, or an application under an enactment by virtue of which a person may question the validity of a decision;
"case" means stated case, special case (other than a special case under section 27 of the Court of Session Act 1988), reference or submission;
"decision" includes assessment, determination, order or scheme;
"party" means the person appearing before the tribunal against the decision of which appeal is taken;
"tribunal" means court, Secretary of State, Minister, Department, statutory tribunal, referee, authority or arbiter, as the case may be, against whose decision the appeal is taken.
Applications for leave to appeal
41.2.-(1) Where leave to appeal is required, an application for such leave shall be made, in the first instance, to the tribunal which made the decision sought to be appealed against unless -
(a) the enactment allowing the appeal requires the application to be made to the court; or
(b) there are special circumstances which make it impracticable or impossible to apply to the tribunal.
(2) Where-
(a) the tribunal has refused leave to appeal and such refusal is not final, or
(b) leave to appeal is required from the court and not the tribunal, any application to the court for leave to appeal shall be made in Form 40.2 to the Inner House.
(3) An application to the court under paragraph (2) for leave to appeal shall be lodged in the General Department-
(a) within the period prescribed by the enactment by virtue of which it is made; or
(b) where no such period is prescribed, within the period mentioned in paragraph (1)(b) of rule 41.20 (lodging of appeal in court).
(4) An application to the court for leave to appeal shall include a statement setting out the proposed grounds of appeal and the grounds on which leave to appeal is sought.
(5) There shall be lodged with an application to the court under paragraph (3)-
(a) a process in accordance with rule 4.4 (steps of process);
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(a) 1988 c.36.
(b) where applicable-
(i) evidence that leave to appeal has been refused by the tribunal;
(ii) a copy of the grounds of appeal submitted to the tribunal; and
(iii) any note by the tribunal setting out the reasons for its refusal;
(c) a copy of the document issued by the tribunal setting out the decision complained of and any reasons for that decision; and
(d) where the tribunal itself exercised an appellate function, a copy of the decision of the tribunal from which that appeal was taken and any reasons given for that decision.
Determination of applications for leave to appeal
41.3.-(1) On lodging an application for leave to appeal under rule 41.2, the applicant shall apply by motion to the Inner House for an order for intimation and service.
(1A) An order for intimation and service under paragraph (1) shall include a requirement to intimate the application to the clerk of the tribunal.
(2) On expiry of the period within which answers may be lodged, the applicant may apply by motion to the Inner House for the application to be granted.
(3) Where an application for leave to appeal has been granted-
(a) the Deputy Principal Clerk shall send a certified copy of the interlocutor granting the application to the tribunal; and
(b) in an appeal by stated case within 14 days after the date on which the certified copy of the interlocutor was sent to it, the tribunal shall state a case in accordance with rule 41.9 (preparation and issue of case).
(4) Where an application for leave to appeal has been refused, the Deputy Principal Clerk shall send to the tribunal a copy of the interlocutor refusing the application.
Competency of appeals41.3A.-(1) Where the Deputy Principal Clerk considers that an appeal may be incompetent, he may, at any time before the cause is brought before the Inner House, refer it to a single judge in accordance with paragraph (2).
(2) Any referral by the Deputy Principal Clerk under paragraph (1) shall be made to a judge nominated for that purpose by the Lord President.
(3) Where a referral is made under paragraph (1), the judge may –
(a) order any party to make representations to him in respect of the competency of the appeal;
(b) refuse the appeal on the ground it is incompetent;
(c) direct that the appeal is to proceed as if the referral had not been made;
(d) make such order as to expenses or otherwise as he thinks fit.
(4) Any decision of a judge in respect of an appeal referred to him under paragraph (1) shall be final and not subject to review.
Intimation of final interlocutor
41.3B The Deputy Principal Clerk shall send to the tribunal a copy of the final interlocutor in an appeal.
