Saddiq Ahmed against Kamall Ahmed (Court of Session) [2024] CSIH 25 (13 August 2024)

Saddiq Ahmed against Kamall Ahmed (Court of Session) [2024] CSIH 25 (13 August 2024)

An enrolled solicitor, even without a practising certificate, is excluded from appointment as a lay representative under Rule of Court 12B. The Lord Ordinary erred in refusing the defender a debate on the procedure roll regarding preliminary pleas and relevancy, and should have appointed the cause to the procedure roll rather than fixing proof before answer.

Citation
[2024] CSIH 25
Parties
Pursuer and Respondent: Saddiq Ahmed; Defender and Reclaimer: Kamall Ahmed
Jurisdiction
Scotland
Judgment Date
13 August 2024
Procedural Posture
Civil Ordinary Action / Appeal (reclaiming Motion) Against Interlocutor Fixing Proof Before Answer
Outcome
Reclaiming motion allowed in part; interlocutor allowing proof before answer recalled; cause appointed to procedure roll.
Legal Topics
Executor Appointment, Confirmation of Estate, Lay Representation, Case Management, Procedural Fairness
Civil Procedure Succession Law Executor Appointment Confirmation of Estate Lay Representation Case Management Procedural Fairness

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Parties

Saddiq Ahmed

Pursuer and Respondent

Kamall Ahmed

Defender and Reclaimer

Procedural Posture

Civil Ordinary Action / Appeal (reclaiming Motion) Against Interlocutor Fixing Proof Before Answer

Legal Issues

  1. 1 Whether an enrolled solicitor without a practising certificate can be appointed as a lay representative under Rule of Court 12B
  2. 2 Whether the Lord Ordinary erred in refusing appointment of a lay representative
  3. 3 Whether procedural unfairness occurred by not granting an adjournment

Ratio Decidendi

An enrolled solicitor, even without a practising certificate, is excluded from appointment as a lay representative under Rule of Court 12B. The Lord Ordinary erred in refusing the defender a debate on the procedure roll regarding preliminary pleas and relevancy, and should have appointed the cause to the procedure roll rather than fixing proof before answer.

Court Disposition

Reclaiming motion allowed in part; interlocutor allowing proof before answer recalled; cause appointed to procedure roll.

Orders

  • Recall interlocutor of Lord Ordinary allowing proof before answer and ancillary orders.
  • Appoint cause to procedure roll for debate on preliminary pleas.