OpenLegislation

Paragraph 18.5 Preservation and obtaining of evidence

Changes not yet applied. Later legislation changes this provision in ways not yet written into the text below:

(1)

Evidence in danger of being lost may be taken to be retained until required and, if satisfied that it is desirable so to do, the sheriff may, upon the application of any party at any time, either take it himself or grant authority to a commissioner to take it.

(2)

The interlocutor granting such a commission shall be sufficient authority for citing the witness to appear before the commission.

(3)

The evidence of any witness who–

(a)

is resident beyond the sheriffdom;

(b)

although resident within the sheriffdom, resides at some place remote from the court in which the proof is to be held; or

(c)

is by reason of illness, age, infirmity or other sufficient cause unable to attend the proof,

may be taken in the same manner as is provided in paragraph (1).

(4)

On special cause shown, evidence may be taken from any witness or haver on a ground other than one mentioned in paragraph (1) or (3).

(5)

Evidence taken under paragraph (1), (3) or (4) may be taken down by–

(a)

the sheriff;

(b)

the commissioner; or

(c)

a clerk or shorthand writer nominated by the sheriff or commissioner,

and such evidence may be recorded in narrative form or by question and answer as the sheriff or commissioner shall direct and the extended notes of such evidence certified by such clerk or shorthand writer shall be the notes of such oral evidence.

(6)

At the commission, the commissioner shall or where the sheriff takes evidence himself, the sheriff shall–

(a)

administer the appropriate oath or affirmation to any clerk and any shorthand writer appointed for the commission; and

(b)

administer to the witness the oath in Form 20, or where the witness elects to affirm, the affirmation in Form 21.