Grant v. Barnett [2010] ScotSC 8 (14 October 2010)

Grant v. Barnett [2010] ScotSC 8 (14 October 2010)

The sheriff did not properly exercise discretion in granting decree by default, particularly as relevant information about the defender's efforts to instruct new agents and ongoing communications was not before the court. The circumstances did not justify decree by default, and the decree should be recalled.

Citation
[2010] ScotSC 8
Parties
Pursuer and Respondent: John Grant curator ad litem to Laura Berry; Defender and Appellant: Marcus Barnett
Jurisdiction
Scotland
Judgment Date
14 October 2010
Procedural Posture
Family Law Payment Action (capital Sum) Under Section 28 of the Family Law (scotland) Act 2006 / Appeal Against Decree by Default at Pre Proof Hearing
Outcome
Appeal sustained; decree by default recalled; no expenses due to or by either party for the appeal; matter remitted to sheriff to proceed as accords, with provision for decree by default if prior expenses remain unpaid.
Legal Topics
Decree by Default, Discretionary Judicial Power, Recall of Decree, Expenses in Litigation
Family Law Civil Procedure Decree by Default Discretionary Judicial Power Recall of Decree Expenses in Litigation

Case Brief

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Parties

John Grant curator ad litem to Laura Berry

Pursuer and Respondent

Marcus Barnett

Defender and Appellant

Procedural Posture

Family Law Payment Action (capital Sum) Under Section 28 of the Family Law (scotland) Act 2006 / Appeal Against Decree by Default at Pre Proof Hearing

Legal Issues

  1. 1 Whether the sheriff properly exercised discretion in granting decree by default against the defender for non-appearance at pre-proof hearing
  2. 2 Whether circumstances justified recall of decree by default

Ratio Decidendi

The sheriff did not properly exercise discretion in granting decree by default, particularly as relevant information about the defender's efforts to instruct new agents and ongoing communications was not before the court. The circumstances did not justify decree by default, and the decree should be recalled.

Court Disposition

Appeal sustained; decree by default recalled; no expenses due to or by either party for the appeal; matter remitted to sheriff to proceed as accords, with provision for decree by default if prior expenses remain unpaid.

Orders

  • Recall of sheriff's interlocutor dated 20 April 2010
  • No expenses due to or by either party in relation to the appeal