Chapter 41 - Part ii - Appeals by stated case etc.
41.4. Subject to the provisions of the enactment providing for appeal and to Parts III toXIII, this Part shall regulate the procedure in-
(a) an appeal by stated case, special case, case, reference or submission against the decision of a tribunal;
(b) a case stated by an arbiter;
(c) all statutory proceedings for obtaining the opinion of the court on a question before the issue of a decision by a tribunal or by appeal against such a decision; and
(d) a case required to be stated by a tribunal referred to in subsection(1), as modified by subsection (7), of section 11 of the Tribunals and Inquiries Act 1992 (a).
Applications for case
41.5.-(1) An application for a case for the opinion of the court on any questions shall be made by minute setting out the question on which the case is applied for.
(2) A minute under paragraph (1) shall be sent to the clerk of the tribunal-
(a) where the application must be made before the issue of the decision of the tribunal, at any time before the issue of the decision; or
(b) where the application may be made-
(i) after the issue of the decision of the tribunal, or
(ii) in a cause in which a statement of the reasons for the decision was given later than the issue of the decision, after the issue of that statement, within the period mentioned in paragraph (3).
(3) The period referred to in paragraph (2)(b) is -
(a) the period prescribed by the enactment under which the appeal is made; or
(b) where no such period is prescribed, within 14 days after the issue of the decision or statement of reasons, as the case may be.
Additional questions by other parties
41.6.-(1) On receipt of an application under rule 41.5 (applications for case), the clerk of the tribunal shall send a copy of the minute to every other party.
(2) Within 14 days after the date on which the clerk of the tribunal complied with paragraph (1), any other party may lodge with the clerk a minute setting out any additional question he proposes for the case; and on so doing he shall send a copy of it to every other party.
Consideration of application by tribunal
41.7.-(1) Within 21 days after the expiry of the period allowed for lodging a minute under rule 41.6(2) (additional questions by other parties), the tribunal shall-
(a) decide to state a case on the basis of the questions set out in the application for a case under rule 41.5(1) and any minute under rule 41.6(2);
(b) where it is of the opinion that the proposed question-
(i) does not arise,
(ii) does not require to be decided for the purposes of the appeal, or
(iii) is frivolous, refuse to state a case on that question; or
(c) where the application under rule 41.5(1) is made before the facts have been ascertained and the tribunal is of the opinion that it is necessary or expedient that the facts should be ascertained before the application is disposed of, defer further consideration of the application until the facts have been ascertained by it.
(2) Where the tribunal has deferred a decision under paragraph (1)(c), it shall, within 14 days after it has ascertained the facts, decide whether to state or refuse to state a case.
(3) Where the tribunal makes a decision under paragraph (1) or (2),the clerk of the tribunal shall intimate that decision to each party.
(4) Where the tribunal has refused to state a case on any question, there shall be sent to the applicant with the intimation under paragraph (3)-
(a) a certificate specifying-
(i) the date of the decision of the tribunal; and
(ii) the reasons for refusal; and
(b) where the refusal has been made after the facts have been ascertained, a note of the proposed findings-in-fact on which the tribunal proposes to base its decision; or
(c) where the refusal has been made before the facts have been ascertained, a note of, or sufficient reference to, the averments of the parties in the appeal on which the refusal is based.
Procedure for ordaining tribunal to state a case
41.8.-(1) Where the tribunal has refused to state a case on any question, the party whose application has been refused may, within 14 days after the date on which intimation of such refusal was made under rule 41.7(3), lodge in the General Department-
(a) an application by note to the Inner House for an order to require the other party to show cause why a case should not be stated;
(b) the certificate and any note issued under rule 41.7(4); and
(c) a process in accordance with rule 4.4 (steps of process).
(2) A note under paragraph (1)(a) shall-
(a) state briefly the grounds on which the application is made; and
(b) specify the order and any incidental order sought.
(3) An application under paragraph (1) shall be put out in the Single Bills before the Inner House on the first available day after the date on which the note under paragraph (1)(a) was lodged for an order for service of the note on-
(a) the tribunal; and
(b) every other party.
(4) After the period for lodging answers has expired, the Inner House shall, on a motion by the noter, without hearing parties-
(a) appoint the note to the Summar Roll for hearing; or
(b) direct that the note be heard in the Single Bills.
(5) The noter shall intimate the decision of the Inner House on the note to the tribunal.
Preparation and issue of the case
41.9.-(1) Where the tribunal has decided, or is ordered under rule 41.8, to state a case, the tribunal shall, within 14 days after the date of intimation of its decision to the parties, cause the case to be prepared in Form 41.9 and copies of it to be submitted in draft to each party.
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(a) 1992 c.53; section 11 was amended by the Sea Fish (Convention) Act 1992 (c.60), section 9.
(2) The case shall-
(a) specify the relevant provision of the enactment under which it is prepared;
(b) state in numbered paragraphs the facts and circumstances out of which the case arises, as agreed or found, or as the case may be, the decision of the tribunal and the reasons for the decision; and
(c) set out the question for answer by the court.
(3) Within 21 days after the date on which the draft case is submitted under paragraph (1), each party shall-
(a) return a copy of it to the clerk of the tribunal with a note of any amendments which he seeks to have made; and
(b) intimate such amendments to every other party.
(4) Within 28 days after the expiry of the period for return of the case under paragraph (3), the tribunal-
(a) shall adjust and settle the case; and
(b) may, when so doing, add such further or additional findings-in-fact and such additional questions as it thinks necessary for the disposal of the subject-matter of the case.
(5) Where the tribunal does not accept any amendment sought by a party, it shall append to the case a note of-
(a) the terms of the amendment proposed by the party and any statement by that party in support of the proposal; and
(b) its reasons for rejecting the proposed amendment.
(6) When the case has been settled by the tribunal, the case shall be authenticated by the clerk of the tribunal who shall send it to the party, or first party, who applied for it.
Intimation of intention to proceed
41.10.-(1) The party to whom the case has been sent under rule 41.9(6) or paragraph (3) of this rule shall, within 14 days after the date of receipt of it-
(a) intimate to every other party a notice stating whether or not he intends to proceed with the case; and
(b) send a copy of the case to every other party.
(2) Where the party to whom the case has been sent under rule 41.9(6) does not intend to proceed with it, he shall, on intimating that fact to every other party under paragraph (1), send the case back to the clerk of the tribunal.
(3) On receipt of the case sent back under paragraph (1), the clerk of the tribunal shall send it to any other party who had applied for a case.
Lodging of case in court
41.11.-(1) The party who applied for the case shall, within the period mentioned in paragraph (2)-
(a) lodge in the General Department-
(i) the case; and
(ii) a process in accordance with rule 4.4 (steps of process) including any productions to be referred to in the appeal;
(b) on giving written intimation to every other party of the lodging of the case, send four copies of the case to every other party; and
(c) endorse and sign a certificate on the case that the requirements of rule 4.6 (intimation of steps of process) have been complied with.
(2) The period referred to in paragraph (1) shall be-
(a) the period prescribed by the enactment under or by virtue of which the appeal is brought; or
(b) where no such period is prescribed, within 28 days after the date on which the case was received by him from the clerk of the tribunal by virtue of rule 41.9(6) or 41.10(3), as the case may be.
Abandonment of appeal
41.12.-(1) If a party-
(a) fails to comply with a requirement of rule 41.11(1) (lodging of case in court), and
(b) does not apply to be reponed under rule 41.13 (reponing against deemed abandonment), he shall be deemed to have abandoned his appeal.
(2) Where a party is deemed to have abandoned his appeal under paragraph (1) and another party has also applied for a case and has had no opportunity of proceeding with his appeal, the party deemed to have abandoned his appeal shall-
(a) intimate to that other party that his appeal is abandoned, and
(b) send the case to that other party; and that other party shall be entitled to proceed in accordance with rule 41.11.
(3) In the application of rule 41.11 to a party entitled to proceed by virtue of paragraph (2) of this rule, for the words "on which the case" to "rule 41.9(6) or 41.10(3), as the case may be" in paragraph (2)(b) of that rule, there shall be substituted the words "of intimation of abandonment under rule 41.12 (2)".
Reponing against deemed abandonment
41.13. A party may apply by motion to the Inner House within 7 days after the expiry of the period specified in rule 41.11(2) (period for lodging of case in court), to be reponed against a failure to comply with a requirement of rule 41.11(1).
Procedure on abandonment
41.14.-(1) On the abandonment of the appeal by all parties entitled to proceed, the case shall be sent to the Deputy Principal Clerk.
(2) On receiving a case sent to him under paragraph (1), the Deputy Principal Clerk shall-
(a) endorse the case with a certificate in Form 41.14; and
(b) transmit the case to the clerk of the tribunal.
(3) Where a case has been transmitted under paragraph (2), the tribunal shall, on a motion being made to it to that effect-
(a) dispose of the cause; and
(b) where one party only has applied for a stated case, find him liable for payment to the other party in the appeal of the expenses of the abandoned appeal as taxed by the Auditor of the Court of Session.
Motions for hearing of appeals
41.15.-(1) On lodging a case under rule 41.11 (lodging of case in court), the party lodging it shall apply by motion to the Inner House for an order for a hearing.
(2) The Inner House shall, on a motion under paragraph (1), without hearing parties-
(a) appoint the cause to the Summar Roll for hearing; or
(b) direct that the cause be heard in the Single Bills.
Amendment or re-statement of case
41.16. The Inner House may, at any time before the final determination of the case-
(a) allow the case to be amended with the consent of the parties; or
(b) remit the case for restatement, or further statement, in whole or in part by the tribunal.
Remit to reporter
41.17.-(1) Where, in order to determine the case, any inquiry into matters of fact may be made, the Inner House may remit to a reporter, the Lord Ordinary or one of its own number to take evidence and to report to the court.
(2) On completion of a report made under paragraph (1), the reporter shall send his report and three copies of it, and a copy of it for each party, to the Deputy Principal Clerk.
(3) On receipt of such a report, the Deputy Principal Clerk shall-
(a) cause the report to be lodged in process; and
(b) give written intimation to each party that this has been done and that he may uplift a copy of the report from process.
(4) After the lodging of such a report, any party may apply by motion for an order in respect of the report or for further procedure.
