Robb v Gillan [2004] ScotSC 61 (20 September 2004)

Robb v Gillan [2004] ScotSC 61 (20 September 2004)

The minute seeking to allow the defender to re-enter the process as a party was incompetent after the action had proceeded as undefended due to default. The appropriate remedy for the defender is to use the procedures under OCR 33.63 for interim orders or OCR 33.65 after decree, not to seek to restore the action to a defended status.

Citation
[2004] ScotSC 61
Parties
Pursuer and Respondent: Ronald Thomas Robb; Defender and Appellant: Kathleen Elizabeth Cord Gillan
Jurisdiction
Scotland
Judgment Date
20 September 2004
Procedural Posture
Family Action (declarator of Paternity, Residence, Parental Responsibilities and Rights) / Appeal Against Sheriff's Refusal of Minute to Re Enter Process
Outcome
Appeal refused; sheriff's interlocutor adhered to.
Legal Topics
Parental Responsibilities and Rights, Residence Orders, Procedural Competency, Default and Re Entry, Children's Welfare
Family Law Civil Procedure Parental Responsibilities and Rights Residence Orders Procedural Competency Default and Re Entry Children's Welfare

Case Brief

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Parties

Ronald Thomas Robb

Pursuer and Respondent

Kathleen Elizabeth Cord Gillan

Defender and Appellant

Procedural Posture

Family Action (declarator of Paternity, Residence, Parental Responsibilities and Rights) / Appeal Against Sheriff's Refusal of Minute to Re Enter Process

Legal Issues

  1. 1 Whether a defender can re-enter a family action as a party after being in default and the action proceeding as undefended, prior to decree being granted
  2. 2 Whether the minute seeking re-entry was competent

Ratio Decidendi

The minute seeking to allow the defender to re-enter the process as a party was incompetent after the action had proceeded as undefended due to default. The appropriate remedy for the defender is to use the procedures under OCR 33.63 for interim orders or OCR 33.65 after decree, not to seek to restore the action to a defended status.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to.

Orders

  • Defender and appellant found liable to pursuer and respondent in expenses of the appeal.
  • Account of expenses to be lodged and remitted to auditor of court to tax and report.