Accountant In Bankruptcy v. Butler [2005] ScotSC 78 (03 November 2005)

Declarator is competent and available to cure an admitted defect in the designation of the debtor in sequestration proceedings, where the factual position is not in dispute and no other statutory remedy is available, thus the action should not be dismissed at debate.

Citation: [2005] ScotSC 78
Parties: Pursuer: Accountant in Bankruptcy; Defender: Peter Butler
Jurisdiction: Scotland
Judgment Date: 03 November 2005
Procedural Posture: Ordinary Cause (declarator) / Debate on Defender's Pleas in Law (competence and Relevancy)
Outcome: Defender's pleas in law numbers one and two repelled; cause appointed to call on the Procedure Roll for further procedure and hearing on expenses.
Legal Topics: Sequestration, Declarator, Designation of Parties, Bankruptcy (scotland) Act 1985, Ordinary Cause Rule 5.7

Insolvency Civil Procedure Sequestration Declarator Designation of Parties Bankruptcy (scotland) Act 1985 Ordinary Cause Rule 5.7

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Parties

Accountant in Bankruptcy

Pursuer

Peter Butler

Defender

Procedural Posture

Ordinary Cause (declarator) / Debate on Defender's Pleas in Law (competence and Relevancy)

Legal Issues

1 Whether an action of declarator is competent to cure an error in the designation of the debtor in sequestration proceedings
2 Whether sequestration against a non-existent entity (trading name) is a fatal error or can be remedied by declarator

Ratio Decidendi

Court Disposition

Defender's pleas in law numbers one and two repelled; cause appointed to call on the Procedure Roll for further procedure and hearing on expenses.

Orders

Repels Defender's pleas in law numbers one and two.
Appoints the cause to call on the Procedure Roll on 28 November 2005 at 10.00 am.