McLaren v. Henderson [2006] ScotSC 15 (01 March 2006).

McLaren v. Henderson [2006] ScotSC 15 (01 March 2006).

The sheriff misdirected herself in law by concluding the appellant was in default despite being represented by his solicitor; the appeal is allowed and the action reinstated.

Citation
[2006] ScotSC 15
Parties
Pursuer and Appellant: Dean Francis McLaren; Defender and Respondent: Jennifer Henderson
Jurisdiction
Scotland
Judgment Date
01 March 2006
Procedural Posture
Family Action / Appeal Against Dismissal at Child Welfare Hearing
Outcome
appeal allowed, sheriff's interlocutor recalled, action reinstated
Legal Topics
Child Welfare Hearing, Contact Order, Default Decree, Representation at Hearing
Family Law Child Welfare Hearing Contact Order Default Decree Representation at Hearing

Case Brief

Summary, issues, holding and outcome

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Parties

Dean Francis McLaren

Pursuer and Appellant

Jennifer Henderson

Defender and Respondent

Procedural Posture

Family Action / Appeal Against Dismissal at Child Welfare Hearing

Legal Issues

  1. 1 Whether a party is in default for failing to attend a child welfare hearing when represented by a solicitor
  2. 2 Whether the sheriff was entitled to dismiss the action for non-attendance and lack of instructions

Ratio Decidendi

The sheriff misdirected herself in law by concluding the appellant was in default despite being represented by his solicitor; the appeal is allowed and the action reinstated.

Court Disposition

appeal allowed, sheriff's interlocutor recalled, action reinstated

Orders

  • Assign a fresh diet for a child welfare hearing
  • Remit to the sheriff to proceed as accords