LORRAINE WALKER OR PARK v. ANDREW PARK and MARTIN A VALENTE [1999] ScotSC 3 (11th March, 1999)

LORRAINE WALKER OR PARK v. ANDREW PARK and MARTIN A VALENTE [1999] ScotSC 3 (11th March, 1999)

The interlocutor of 8 December 1998 was not incompetent, as all actions taken were within the powers of the Sheriff and consensus existed in court for granting absolvitor to the third party. The absence of the phrase 'of consent' did not render the interlocutor incompetent. Therefore, the appeal was itself incompetent, as leave to appeal was required and not obtained.

Citation
[1999] ScotSC 3
Parties
Pursuer: Lorraine Walker or Park; Defender: Andrew Park; Third Party: Martin A Valente
Jurisdiction
Scotland
Procedural Posture
Divorce and Financial Provision / Appeal Against Interlocutor
Outcome
Appeal refused
Legal Topics
Divorce, Matrimonial Property, Absolvitor, Competency of Interlocutor, Appeals Procedure
Family Law Civil Procedure Divorce Matrimonial Property Absolvitor Competency of Interlocutor Appeals Procedure

Case Brief

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Parties

Lorraine Walker or Park

Pursuer

Andrew Park

Defender

Martin A Valente

Third Party

Procedural Posture

Divorce and Financial Provision / Appeal Against Interlocutor

Legal Issues

  1. 1 Whether the interlocutor of 8 December 1998 granting absolvitor in favour of the third party was incompetent and thus appealable without leave
  2. 2 Whether decree of absolvitor requires explicit consent or statement thereof
  3. 3 Whether the Sheriff Principal has power to entertain an appeal against an interlocutor not final but alleged to be incompetent

Ratio Decidendi

The interlocutor of 8 December 1998 was not incompetent, as all actions taken were within the powers of the Sheriff and consensus existed in court for granting absolvitor to the third party. The absence of the phrase 'of consent' did not render the interlocutor incompetent. Therefore, the appeal was itself incompetent, as leave to appeal was required and not obtained.

Court Disposition

Appeal refused

Orders

  • Sheriff Principal refuses the appeal and adheres to the Sheriff's interlocutor of 8 December 1998.
  • Sanctions the appeal as suitable for the employment of a solicitor-advocate.