Fernandez v. Fernandez [2006] ScotCS CSOH_133 (18 August 2006)

Fernandez v. Fernandez [2006] ScotCS CSOH_133 (18 August 2006)

The defender failed to appear at the continued diet of proof without adequate explanation, despite knowing the dates and having opportunity to instruct new solicitors. The pursuer would be seriously prejudiced by further delay. The only appropriate course was to grant decree by default, declaring the agreement binding and ordering payment as sought.

Citation
[2006] ScotCS CSOH_133
Parties
Pursuer: Aduke Ayinke Fernandez; Defender: Chief Oladeinde Fernandez
Jurisdiction
Scotland
Judgment Date
18 August 2006
Procedural Posture
Action for Declarator and Payment / Decree by Default After Proof Before Answer
Outcome
decree by default granted in favour of pursuer
Legal Topics
Divorce Settlement, Breach of Settlement Agreement, Decree by Default, Expenses, Interest on Judgment
Family Law Contract Law Civil Procedure Divorce Settlement Breach of Settlement Agreement Decree by Default Expenses Interest on Judgment

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Parties

Aduke Ayinke Fernandez

Pursuer

Chief Oladeinde Fernandez

Defender

Procedural Posture

Action for Declarator and Payment / Decree by Default After Proof Before Answer

Legal Issues

  1. 1 Whether the 'Out of Court Settlement' agreement remains legally binding and enforceable
  2. 2 Whether the pursuer breached the agreement by failing to withdraw French proceedings and maintain confidentiality
  3. 3 Whether decree by default should be granted due to defender's failure to appear

Ratio Decidendi

The defender failed to appear at the continued diet of proof without adequate explanation, despite knowing the dates and having opportunity to instruct new solicitors. The pursuer would be seriously prejudiced by further delay. The only appropriate course was to grant decree by default, declaring the agreement binding and ordering payment as sought.

Court Disposition

decree by default granted in favour of pursuer

Orders

  • Declarator that the agreement is legally binding and enforceable
  • Payment of £1,020,000 to pursuer