A.B. AGAINST C.D. [2015] ScotCS CSOH_24 (27 February 2015)

A.B. AGAINST C.D. [2015] ScotCS CSOH_24 (27 February 2015)

Because CD was suspended and not entitled to practice as a solicitor at the time of service, postal citation was ineffective; AB did not appear in the action to cure the defect, so the decree in absence and subsequent charge were incompetent and must be reduced.

Citation
[2015] ScotCS CSOH_24
Parties
Pursuer: AB; Defender: CD
Jurisdiction
Scotland
Judgment Date
27 February 2015
Procedural Posture
Civil Reduction (scotland) / Opinion Following Proof Before Answer and Amendment
Outcome
Decree and subsequent charge reduced; pleas-in-law for CD repelled; pleas-in-law for AB sustained; expenses reserved.
Legal Topics
Reduction of Decree, Defective Service of Process, Solicitor Suspension and Entitlement to Practice, Sheriff Court Procedure
Civil Procedure Legal Profession Regulation Reduction of Decree Defective Service of Process Solicitor Suspension and Entitlement to Practice Sheriff Court Procedure

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Parties

AB

Pursuer

CD

Defender

Procedural Posture

Civil Reduction (scotland) / Opinion Following Proof Before Answer and Amendment

Legal Issues

  1. 1 Whether service of initial writ by suspended solicitor was valid
  2. 2 Whether defect in citation was cured by defender's actions
  3. 3 Competency of decree in absence where citation was defective

Ratio Decidendi

Because CD was suspended and not entitled to practice as a solicitor at the time of service, postal citation was ineffective; AB did not appear in the action to cure the defect, so the decree in absence and subsequent charge were incompetent and must be reduced.

Court Disposition

Decree and subsequent charge reduced; pleas-in-law for CD repelled; pleas-in-law for AB sustained; expenses reserved.

Orders

  • Decree of Sheriffdom of Tayside Central and Fife at Stirling dated 10 June 2010 and extracted 25 June 2010 reduced.
  • Charge dated and served on 2 July 2010 reduced.