Rule 33.33A Late appearance and application for recall by defendersF1

In a cause mentioned in F2rule 33.1(a) to F3(g) or F4(n) to (q) F5or rule 33.7A(1) (warrants and forms for intimation to a child and for seeking a child’s views), the sheriff may, at any stage of the action before the granting of final decree, make an order with such conditions, if any, as he thinks fit–

Where the sheriff makes an order under paragraph (1), the pursuer may recall a witness already examined or lead other evidence whether or not he closed his proof before that order was made.

Where no order under paragraph (1) has been sought by a defender who has not lodged a notice of intention to defend and decree is granted against him, the sheriff may, on an application made within 14 days of the date of the decree, and with such conditions, if any, as he thinks fit, make an order recalling the decree.

Where the sheriff makes an order under paragraph (3), the cause shall thereafter proceed as if the defender had lodged a notice of intention to defend and the period of notice had expired on the date on which the decree was recalled.

Where the sheriff makes an order under paragraph (1) or (3), the sheriff must order any steps to be taken that the sheriff considers appropriate to obtain or hear the views of the child in relation to any section 11 order sought by the defender.

An application under paragraph (1) or (3) shall be made by note setting out the proposed defence and explaining the defender's failure to appear.

An application under paragraph (1) or (3) shall not affect any right of appeal the defender may otherwise have.

A note lodged in an application under paragraph (1) or (3) shall be served on the pursuer and any other party.