Lindsay v. Rattray [2005] ScotSC 55 (05 August 2005)

Lindsay v. Rattray [2005] ScotSC 55 (05 August 2005)

The Sheriff Principal held that section 12(1)(b) of the 1985 Act required the court to specify a period for making a capital sum order and did not permit extension of that period under the Act. However, the court's inherent jurisdiction could be invoked in this case to prevent manifest injustice, as all evidence had been led and only submissions and judgment remained. The refusal to extend the period would unjustly deprive the defender of a fair determination of her claim. The interlocutor refusing the extension was recalled, and the case remitted to the Sheriff to hear parties on the evidence and issue judgment.

Citation
[2005] ScotSC 55
Parties
Pursuer and Respondent: William Lindsay; Defender and Appellant: Nicola Romaine Rattray or Lindsay
Jurisdiction
Scotland
Judgment Date
05 August 2005
Procedural Posture
Divorce Action With Financial Provision Claim / Appeal Against Refusal to Extend Period for Making Capital Sum Order
Outcome
Appeal allowed in part; interlocutor refusing extension recalled; case remitted to Sheriff for hearing and judgment; appeal sanctioned for counsel; expenses reserved.
Legal Topics
Divorce, Financial Provision on Divorce, Capital Sum Orders, Court Jurisdiction, Inherent Jurisdiction
Family Law Divorce Financial Provision on Divorce Capital Sum Orders Court Jurisdiction Inherent Jurisdiction

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Parties

William Lindsay

Pursuer and Respondent

Nicola Romaine Rattray or Lindsay

Defender and Appellant

Procedural Posture

Divorce Action With Financial Provision Claim / Appeal Against Refusal to Extend Period for Making Capital Sum Order

Legal Issues

  1. 1 Whether the court could extend the 12-month period specified under section 12(1)(b) of the Family Law (Scotland) Act 1985 for making an order for payment of a capital sum after decree of divorce
  2. 2 Whether the refusal to extend the period caused manifest injustice and whether the court's inherent jurisdiction could be invoked

Ratio Decidendi

The Sheriff Principal held that section 12(1)(b) of the 1985 Act required the court to specify a period for making a capital sum order and did not permit extension of that period under the Act. However, the court's inherent jurisdiction could be invoked in this case to prevent manifest injustice, as all evidence had been led and only submissions and judgment remained. The refusal to extend the period would unjustly deprive the defender of a fair determination of her claim. The interlocutor refusing the extension was recalled, and the case remitted to the Sheriff to hear parties on the evidence and issue judgment.

Court Disposition

Appeal allowed in part; interlocutor refusing extension recalled; case remitted to Sheriff for hearing and judgment; appeal sanctioned for counsel; expenses reserved.

Orders

  • Recall of the interlocutor of 7 February 2005 insofar as it refused the defender's motion as incompetent
  • Remit to the Sheriff to hear parties on the evidence led and thereafter issue judgment