Fitzpatrick v. Inland Revenue [2004] ScotSC 28 (05 April 2004)

Fitzpatrick v. Inland Revenue [2004] ScotSC 28 (05 April 2004)

An appeal against a refusal to grant a warrant for citation is incompetent because no action is in dependence until citation is served; Davidson v Davidson is binding authority. The sheriff's refusal is not an interlocutor but a minute. However, refusal of a warrant should not unjustifiably deny access to justice, and the administrative nature of the warrant process allows for the sheriff clerk to be instructed to grant the warrant.

Citation
[2004] ScotSC 28
Parties
Pursuer and Appellant: Myles Oliver Fitzpatrick; Defender and Respondent: The Advocate General for Scotland for and on behalf of The Commissioners of Inland Revenue
Jurisdiction
Scotland
Judgment Date
05 April 2004
Procedural Posture
Appeal in Civil Procedure (refusal of Warrant for Citation) / Appeal Against Refusal to Grant Warrant for Citation Prior to Service of Action
Outcome
Appeal dismissed as incompetent
Legal Topics
Competency of Appeal Against Refusal of Warrant for Citation, Right of Access to Justice Under ECHR Article 6, Administrative Versus Judicial Decisions in Civil Procedure
Civil Procedure Human Rights Competency of Appeal Against Refusal of Warrant for Citation Right of Access to Justice Under ECHR Article 6 Administrative Versus Judicial Decisions in Civil Procedure

Case Brief

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Parties

Myles Oliver Fitzpatrick

Pursuer and Appellant

The Advocate General for Scotland for and on behalf of The Commissioners of Inland Revenue

Defender and Respondent

Procedural Posture

Appeal in Civil Procedure (refusal of Warrant for Citation) / Appeal Against Refusal to Grant Warrant for Citation Prior to Service of Action

Legal Issues

  1. 1 Whether an appeal is competent against a sheriff's refusal to grant a warrant for citation before service of action
  2. 2 Whether refusal of a warrant to cite infringes the right of access to justice under Article 6 ECHR

Ratio Decidendi

An appeal against a refusal to grant a warrant for citation is incompetent because no action is in dependence until citation is served; Davidson v Davidson is binding authority. The sheriff's refusal is not an interlocutor but a minute. However, refusal of a warrant should not unjustifiably deny access to justice, and the administrative nature of the warrant process allows for the sheriff clerk to be instructed to grant the warrant.

Court Disposition

Appeal dismissed as incompetent

Orders

  • No order as to expenses
  • Instruction given to Sheriff Clerk to sign a warrant for citation (administrative instruction)