Rule 28.10 Commissions for examination of witnesses

Scotland

(1)

This rule applies to a commission—

(a)

to take the evidence of a witness who—

(i)

is resident beyond the jurisdiction of the court;

(ii)

although resident within the jurisdiction of the court, resides at some place remote from that court; or

(iii)

by reason of age, infirmity or sickness, is unable to attend the diet of proof; F1. . .

(b)

in respect of the evidence of a witness which is in danger of being lost, to take the evidence to lie in retentis F2; or

F3(c)

on special cause shown, to take evidence of a witness on a ground other than one mentioned in sub-paragraph (a) or (b)

(2)

An application by a party for a commission to examine a witness shall be made by motion; and that party shall specify in the motion the name and address of at least one proposed commissioner for approval and appointment by the sheriff.

F4(2A)

A motion under paragraph (2) may include an application for authority to record the proceedings before the commissioner by video recorder:

(3)

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

(4)

At the commission, the commissioner shall—

(a)

administer the oath de fideli administratione to any F5clerk and any shorthand writer appointed for the commis sion; and

(b)

administer to the witness the oath in Form G14, or where the witness elects to affirm, the affirmation in Form G15.

(5)

Where a commission is granted for the examination of a witness, the commission shall proceed without interrogatories unless, on cause shown, the sheriff otherwise directs.

Annotations

Textual amendments

F1: Word in rule 28.10(1)(a)(iii) omitted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(i)
F2: Rule 28.10(1)(b): “;or” substituted for the full-stop (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(ii)
F3: Rule 28.10(1)(c) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(a)(iii)
F4: Sch. 1 rule 28.10(2A) inserted (1.7.2008) by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2008 (S.S.I. 2008/223), para. 11
F5: Words in rule 28.10(4)(a) inserted (1.11.1996) by S.I. 1996/2445, para. 3(37)(b)

Notes on Schedule First

Textual amendments

F1

Sch. 1 (with appendices 1 and 2) substituted (1.1.1994) for Sch. 1 (with appendix) by S.I. 1993/1956, para. 2, Sch.1.

Sch. 1 (except rule 29.10) excluded (1.4.1997) by S.I. 1997/291, para. 3.24, Sch. 3

Sch. 1 extended (14.2.2000) by S.I. 2000/124, reg. 30(5)

Modifications

C1: Sch. 1 applied (30.11.2016) by Bankruptcy (Scotland) Act 2016 (asp 21), ss. 121(5), 237(2) (with ss. 232, 234(3), 235, 236); S.S.I. 2016/294, reg. 2
C2: Sch. 1 modified (1.12.2025) by Act of Sederunt (Intimation and Service) 2025 (S.S.I. 2025/301), paras. 1(2), (4), 2 (with para. 1(5))
C3: Sch. 1 modified (1.12.2025) by Act of Sederunt (Electronic Signature and Electronic Transmission of Documents) 2025 (S.S.I. 2025/302), paras. 1(2), 2(1), 3-5