Aitken v. McAdam Or Aitken [2005] ScotCS CSOH_105 (04 August 2005)

Aitken v. McAdam Or Aitken [2005] ScotCS CSOH_105 (04 August 2005)

Interim interdict was granted because the pursuer offered to consign sufficient funds to secure the defender's claims, thus removing the risk of prejudice to the defender and avoiding unnecessary sequestration and recall proceedings, and the pursuer had averred a prima facie case challenging the validity of the divorce decree and associated financial orders.

Citation
[2005] ScotCS CSOH_105
Parties
Pursuer: John Graham Aitken; Defender: Isabella McAdam or Aitken
Jurisdiction
Scotland
Judgment Date
04 August 2005
Procedural Posture
Motion for Interim Suspension and Interim Interdict in Action for Reduction of Divorce Decree / Interlocutory (interim Relief Sought Pending Determination of Main Action)
Outcome
Interim interdict granted on condition of consignation of £36,000 within 7 days, subject to release of arrested funds by defender.
Legal Topics
Interim Interdict, Sequestration, Reduction of Decree, Apparent Insolvency, Financial Provision on Divorce
Civil Procedure Family Law Bankruptcy Interim Interdict Sequestration Reduction of Decree Apparent Insolvency Financial Provision on Divorce

Case Brief

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Parties

John Graham Aitken

Pursuer

Isabella McAdam or Aitken

Defender

Procedural Posture

Motion for Interim Suspension and Interim Interdict in Action for Reduction of Divorce Decree / Interlocutory (interim Relief Sought Pending Determination of Main Action)

Legal Issues

  1. 1 Whether interim interdict should be granted to prevent sequestration after expiry of days of charge and constitution of apparent insolvency
  2. 2 Whether exceptional circumstances exist to justify late intervention to prevent sequestration
  3. 3 Whether security offered by pursuer is sufficient to protect defender's interests

Ratio Decidendi

Interim interdict was granted because the pursuer offered to consign sufficient funds to secure the defender's claims, thus removing the risk of prejudice to the defender and avoiding unnecessary sequestration and recall proceedings, and the pursuer had averred a prima facie case challenging the validity of the divorce decree and associated financial orders.

Court Disposition

Interim interdict granted on condition of consignation of £36,000 within 7 days, subject to release of arrested funds by defender.

Orders

  • Pursuer to consign £36,000 in Court of Session within 7 days, conditional on defender releasing arrestment of approximately £24,000; if defender does not consent, pursuer to consign balance so that total consigned and arrested sums equal £36,000.
  • Interim interdict granted preventing defender from proceeding with sequestration pending further order.