Siar v. Collins [2007] ScotSC 9 (27 February 2007)

Siar v. Collins [2007] ScotSC 9 (27 February 2007)

There was no legal and valid citation of the defender as the documents were not served in accordance with statutory requirements; thus, the sheriff misdirected himself in law. The decree in absence must be recalled. The proposed defence to crave 1 (right to occupy) is without merit, but the defence to crave 2 (interdict) is sound as there are no relevant averments to support interdict.

Citation
[2007] ScotSC 9
Parties
Pursuers and Respondents: Comhairle Nan Eilean Siar; Defender and Appellant: Paul Collins
Jurisdiction
Scotland
Judgment Date
27 February 2007
Procedural Posture
Civil (landlord and Tenant/ejection/interdict) / Appeal From Sheriff's Refusal of Reponing Note and Decree in Absence
Outcome
Appeal sustained; interlocutor of sheriff recalled; decree in absence recalled so far as not implemented; reponing note granted; cause remitted to sheriff to proceed.
Legal Topics
Service of Process, Reponing Note, Decree in Absence, Interdict, Lease Assignation
Civil Procedure Landlord and Tenant Law Service of Process Reponing Note Decree in Absence Interdict Lease Assignation

Case Brief

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Parties

Comhairle Nan Eilean Siar

Pursuers and Respondents

Paul Collins

Defender and Appellant

Procedural Posture

Civil (landlord and Tenant/ejection/interdict) / Appeal From Sheriff's Refusal of Reponing Note and Decree in Absence

Legal Issues

  1. 1 Whether there was valid service of the initial writ on the defender
  2. 2 Whether the defender should be reponed (allowed to defend) after decree in absence
  3. 3 Whether the pursuers were entitled to interdict against the defender

Ratio Decidendi

There was no legal and valid citation of the defender as the documents were not served in accordance with statutory requirements; thus, the sheriff misdirected himself in law. The decree in absence must be recalled. The proposed defence to crave 1 (right to occupy) is without merit, but the defence to crave 2 (interdict) is sound as there are no relevant averments to support interdict.

Court Disposition

Appeal sustained; interlocutor of sheriff recalled; decree in absence recalled so far as not implemented; reponing note granted; cause remitted to sheriff to proceed.

Orders

  • Recall of interlocutor dated 31 October 2006
  • Grant of reponing note for defender