Barrie (t/a Barrdrum Tractors) v Alex Butter Landscaping Ltd [2004] ScotSC 66 (14 October 2004)

The sheriff proceeded on an erroneous factual basis regarding the defenders' awareness of the need to attend the proof diet; since there is a proper defence to advance, and in the interests of justice, the decree by default should be recalled and the defenders reponed.

Citation: [2004] ScotSC 66
Parties: Pursuer and Respondent: Alexander Walker Barrie trading as Barrdrum Tractors; Defenders and Appellants: Alex Butter Landscaping Limited
Jurisdiction: Scotland
Judgment Date: 14 October 2004
Procedural Posture: Civil Appeal / Appeal Against Decree by Default in Sheriff Court
Outcome: Appeal allowed; decree by default recalled; defenders reponed.
Legal Topics: Decree by Default, Withdrawal of Solicitor, Peremptory Diet, Reponing Note, Appeal Procedure

Civil Procedure Decree by Default Withdrawal of Solicitor Peremptory Diet Reponing Note Appeal Procedure

Case Brief

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Parties

Alexander Walker Barrie trading as Barrdrum Tractors

Pursuer and Respondent

Alex Butter Landscaping Limited

Defenders and Appellants

Procedural Posture

Civil Appeal / Appeal Against Decree by Default in Sheriff Court

Legal Issues

1 Whether the sheriff erred in granting decree by default without ascertaining the defenders' intentions after their solicitor withdrew
2 Whether the defenders were aware of the requirement to attend the proof diet
3 Proper application of Ordinary Cause Rule (OCR) 24.2(1A)

Ratio Decidendi

Court Disposition

Appeal allowed; decree by default recalled; defenders reponed.

Orders

Allows the appeal and recalls the sheriff's interlocutor of 1 March 2004.
Allows the defenders' minute of amendment to be received and form number 15 of process.