TARMAC TRADING LIMITED AGAINST MRS MARJORY GRAHAM DARE SIMPSON OR HAMILTON AS EXECUTRIX OF THE LATE ROBERT SCOTT HAMILTON [2017] ScotCS CSOH_146 (05 December 2017)

TARMAC TRADING LIMITED AGAINST MRS MARJORY GRAHAM DARE SIMPSON OR HAMILTON AS EXECUTRIX OF THE LATE ROBERT SCOTT HAMILTON [2017] ScotCS CSOH_146 (05 December 2017)

The unsigned Form 13.7 citation was a nullity due to non-compliance with the Citation Act 1592, and the court's dispensing power under Rule 2.1 could not relieve a statutory defect. The requirement for signature is statutory and absolute; failure to comply renders service invalid.

Citation
[2017] ScotCS CSOH_146
Parties
Pursuer: Tarmac Trading Limited; Defender: Mrs Marjory Graham Dare Simpson or Hamilton, as Executrix of the late Robert Scott Hamilton
Jurisdiction
Scotland
Judgment Date
05 December 2017
Procedural Posture
Commercial Action (court of Session, Scotland) / Debate on Commercial Roll; Interlocutory Decision
Outcome
Declarator that the citation was invalid; dispensing power not available; case put out by order for further procedure and interlocutors to give effect to decision.
Legal Topics
Service of Process, Validity of Citation, Court of Session Rules, Statutory Compliance, Dispensing Power of Court
Civil Procedure Commercial Law Service of Process Validity of Citation Court of Session Rules Statutory Compliance Dispensing Power of Court

Case Brief

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Parties

Tarmac Trading Limited

Pursuer

Mrs Marjory Graham Dare Simpson or Hamilton, as Executrix of the late Robert Scott Hamilton

Defender

Procedural Posture

Commercial Action (court of Session, Scotland) / Debate on Commercial Roll; Interlocutory Decision

Legal Issues

  1. 1 Whether an unsigned Form 13.7 citation is a nullity due to non-compliance with the Citation Act 1592
  2. 2 Whether the court's dispensing power under Rule 2.1 can relieve non-compliance with a statutory requirement

Ratio Decidendi

The unsigned Form 13.7 citation was a nullity due to non-compliance with the Citation Act 1592, and the court's dispensing power under Rule 2.1 could not relieve a statutory defect. The requirement for signature is statutory and absolute; failure to comply renders service invalid.

Court Disposition

Declarator that the citation was invalid; dispensing power not available; case put out by order for further procedure and interlocutors to give effect to decision.

Orders

  • Case to be put out by order to discuss terms of appropriate interlocutors and further procedure.