2003. Co-operation
Applications 76A.2. — (1) An application under the following provisions shall be by petition:–
(a) section 121(1) (application, recall and variation);
(b) section 125(1) (management administrators);
(c) section 128(2) (enforcement administrators).
(2) An application under the following provisions shall be by note in process:–
(a) section 121(5) (application, recall and variation);
(b) section 134(2) (protection of persons affected);
(c) section 140(1)(b) (confiscation order varied or discharged).
(3) An application under the following provisions shall be made by motion:–
(a) section 123(1) and (7) (inhibition of property affected by order);
(b) section 124(1) and (6) (arrestment of property affected by order);
(c) section 135(1) (recall and variation of order).
(4) Before granting an application under the following provisions, the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit:–
(a) section 121(1);
(b) section 123(1);
(c) section 124(1). Documents for Accountant of Court 76A.3. — (1) A person who has lodged any document in the process of an application for the appointment of an administrator shall forthwith send a copy of that document to the Accountant of Court.
(2) The clerk of session in the Petition department shall transmit to the Accountant of Court any part of the process as the Accountant of Court may request in relation to an administration which is in dependence before the court unless such part of the process is, at the time of request, required by the court. Procedure for fixing and finding caution 76A.4. — (1) Rule 61.9 (finding caution in judicial factories) shall, with the necessary modifications, apply to the finding of caution by an administrator under this Part as it applies to the finding of caution by a judicial factor.
(2) A certified copy of the interlocutor appointing an administrator shall not be issued by a clerk of session until the Accountant of Court has given written intimation to the Petition Department that caution has been found or other security given. Time for finding caution 76A.5. — (1) Where the time within which caution is to be found is not stipulated in the interlocutor appointing the administrator, the time allowed for finding caution shall be, subject to paragraph (2) of this rule, limited to one calendar month from the date of the interlocutor.
(2) The court may, on application made before the expiry of the period for finding caution, and, on cause shown, allow further time for finding caution. Administrator’s title to act 76A.6. An administrator shall not be entitled to act until he has obtained a certified copy of the interlocutor appointing him. Accounts 76A.7. — (1) An administrator shall maintain accounts of his intromissions with the property in his charge and shall, subject to paragraph (2)–
(a) within six months after the date of his appointment; and
(b) at six monthly intervals after the first account during the subsistence of his appointment, lodge with the Accountant of Court an account of his intromissions in such form, with such supporting vouchers and other documents, as the Accountant of Court may require.
(2) The Accountant of Court may waive the lodging of an account where the administrator certifies that there have been no intromissions during a particular accounting period. Application for discharge of administrator 76A.8. An application to the court for the discharge of an administrator shall be made by minute in the process of the application in which the administrator was appointed. Appeals against determination of outlays and remuneration 76A.9. — (1) An appeal under paragraph 9(1) of Schedule 3 (appeal against a determination by the Accountant of Court), shall be made by note in the process in which the administrator was appointed.
(2) Where a note is lodged under paragraph (1), the Keeper of the Rolls shall put the cause out on the By Order Roll on the first available day for a hearing before the Lord Ordinary. Applications 76A.10. — (1) An application under section 244(1) (proceedings for recovery orders in Scotland) shall be by petition.
(2) An application under section 256(1) (application for interim administration order) shall be made–
(a) if the application is made before the enforcement authority has commenced proceedings for a recovery order, by petition; or
(b) if it is made after the enforcement authority has commenced such proceedings, by note in process.
(3) An application under the following provisions shall be by note in process:–
(a) section 260(1) (supervision of interim administrator);
(b) section 283(1) (compensation).
(4) An application under the following provisions shall be by motion:–
(a) section 258(1) and (7) (inhibition of property affected by order);
(b) section 260(3) (variation or recall of order);
(c) section 265(1) and (7) (arrestment of property affected by interim administration order).
(5) Before granting an application under the following provisions, the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit:–
(a) section 258(1);
(b) section 265(1). Disclosure orders 76A.11. — (1) An application under section 391(1) (disclosure orders) shall be by petition.
(2) Before the court grants an application referred to in paragraph (1), the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit.
(3) An application under section 396(4) of that Act (supplementary) shall by motion. Co-operation 76A.12. — (1) In this rule “the Order of 2002 ” means The Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 ( 4 ) .
(2) An application for registration under paragraph 11 of the Order of 2002 shall be by petition.
(3) Before the court grants an application referred to in paragraph (2), the court may dispense with, postpone or order intimation to be made to such persons as it thinks fit
(4) Where the Court makes an order under paragraph 11 of the Order of 2002, the Deputy Principal Clerk of Session shall–
(a) register the order; and
(b) send a copy of the order to any person affected by it.
(5) An order referred to in the foregoing paragraph shall be final and shall not be subject to review. ” .
(3) In Chapter 41, after Part IX, insert– “ PART IXA APPEALS UNDER THE PROCEEDS OF CRIME ACT 2002 Form of appeal under section 299 of the Proceeds of Crime Act 2002 41.43A. — (1) In this rule “the Act of 2002” means the Proceeds of Crime Act 2002.
(2) This rule applies to an appeal under section 299 of the Act of 2002.
(3) An appeal under paragraph (2) shall be to the Lord Ordinary. Reclaiming against decision of the Lord Ordinary 41.43B. The decision of the Lord Ordinary on an appeal under rule 41.43A shall be final and shall not be subject to review. ” . Saving provision 3. Paragraph 2 of this Act of Sederunt shall not apply to causes commenced under the Proceeds of Crime (Scotland) Act 1995( 5 ). W. DOUGLAS CULLEN Lord President, I.P.D. Edinburgh 27th March 2003 Explanatory Note
(This note is not part of the Act of Sederunt) This Act of Sederunt inserts a new Chapter (Chapter 76A) into the Court of Session Rules 1994 (S.I. 1994/1443 ) to make provision for applications in the Court of Session in respect of the Proceeds of Crime Act 2002 (“the Act of 2002”). In paragraph 1(2) of this Act of Sederunt– rules 76A.2 to 76A.9 make provision for restraint and administration orders; rules 76A.10 9 makes provision for civil recovery proceedings; rule 76A.11 9 makes provision for civil recovery investigations; rule 76A.12 9 makes provision for the registration of orders made under The Proceeds of Crime Act 2002 (Enforcement in different parts of the United Kingdom) Order 2002 (S.I. 2002/3133 ). Paragraph 1(3) of this Act of Sederunt makes provision for appeals under section 299 of the Act of 2002.
( 1 ) 1988 c. 36 ; section 5 was amended by section 2(3) of the Civil Evidence (Scotland) Act 1988 (c. 32) and by paragraph 45 of Schedule 4 to the Children (Scotland) Act 1995 (c. 36) . ( 2 ) 2002 c. 29 . ( 3 ) S.I. 1994/1443 , to which there are amendments not relevant to this Act of Sederunt. ( 4 ) S.I. 2002/3133 . ( 5 ) 1995 c. 43 .
