HOMEBANK FINANCIAL SERVICES LIMITED v. MR AND MRS HAIN [2010] ScotSC 43 (19 January 2010)

HOMEBANK FINANCIAL SERVICES LIMITED v. MR AND MRS HAIN [2010] ScotSC 43 (19 January 2010)

The Small Claim Rules, as amended, permit an artificial legal entity to be represented by an authorised lay representative, provided that representative is a natural person and does not charge a fee for drafting. The summons is not fundamentally null if drafted by such a representative, and the details of the representative must be disclosed.

Citation
[2010] ScotSC 43
Parties
Pursuer: Homebank Financial Services Limited; Defender: Mr. & Mrs. Hain
Jurisdiction
Scotland
Judgment Date
19 January 2010
Procedural Posture
Small Claim / First Hearing; Preliminary Issue on Competence of Summons Drafting
Outcome
Case to proceed; preliminary objection overruled; not dismissed.
Legal Topics
Representation of Artificial Legal Entities, Small Claims Procedure, Lay Representation, Solicitors (scotland) Act 1980
Civil Procedure Company Law Representation of Artificial Legal Entities Small Claims Procedure Lay Representation Solicitors (scotland) Act 1980

Case Brief

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Parties

Homebank Financial Services Limited

Pursuer

Mr. & Mrs. Hain

Defender

Procedural Posture

Small Claim / First Hearing; Preliminary Issue on Competence of Summons Drafting

Legal Issues

  1. 1 Whether a limited company can prepare and present a Small Claim summons without a solicitor
  2. 2 Whether the summons drafted by a non-solicitor is unlawful and should not be warranted
  3. 3 Interpretation of rules regarding lay representation for artificial legal entities in Small Claims

Ratio Decidendi

The Small Claim Rules, as amended, permit an artificial legal entity to be represented by an authorised lay representative, provided that representative is a natural person and does not charge a fee for drafting. The summons is not fundamentally null if drafted by such a representative, and the details of the representative must be disclosed.

Court Disposition

Case to proceed; preliminary objection overruled; not dismissed.

Orders

  • Case appointed for a First Calling of new to note issues on the merits and fix a Proof if advised.
  • All questions of expenses formally reserved.