JAMES PAUL ASSOCIATES v. CAROL ELLIS [1998] ScotSC 3 (2nd December, 1998)

JAMES PAUL ASSOCIATES v. CAROL ELLIS [1998] ScotSC 3 (2nd December, 1998)

The sheriff court does not have jurisdiction under Schedule 8, para 2(8)(b) unless it is positively averred that the defender is domiciled outside the UK and contracting states. The pursuers failed to make such averments, and thus the action is incompetent.

Citation
[1998] ScotSC 3
Parties
Pursuer: Messrs James Paul Associates; Defender: Carol Ellis
Jurisdiction
Scotland
Procedural Posture
Civil / Jurisdictional Challenge; Judgment After Debate
Outcome
Action dismissed for incompetency due to lack of jurisdiction.
Legal Topics
Jurisdiction, Domicile, Beneficial Interest in Land, Civil Jurisdiction and Judgments Act 1982, Sheriff Courts (scotland) Act 1907
European Community Law Civil Procedure Jurisdiction Domicile Beneficial Interest in Land Civil Jurisdiction and Judgments Act 1982 Sheriff Courts (scotland) Act 1907

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Parties

Messrs James Paul Associates

Pursuer

Carol Ellis

Defender

Procedural Posture

Civil / Jurisdictional Challenge; Judgment After Debate

Legal Issues

  1. 1 Whether the Scottish sheriff court has jurisdiction over a defender with a beneficial interest in heritable property in Scotland when her domicile is unknown or believed to be in England
  2. 2 Interpretation of Schedule 8, para 2(8)(b) of the Civil Jurisdiction and Judgments Act 1982

Ratio Decidendi

The sheriff court does not have jurisdiction under Schedule 8, para 2(8)(b) unless it is positively averred that the defender is domiciled outside the UK and contracting states. The pursuers failed to make such averments, and thus the action is incompetent.

Court Disposition

Action dismissed for incompetency due to lack of jurisdiction.

Orders

  • Sustains the fourth plea in law for the defender.
  • Holds the action to be incompetent and grants decree of dismissal.