Accountant In Bankruptcy v. Butler [2007] ScotSC 47 (05 September 2007)

Accountant In Bankruptcy v. Butler [2007] ScotSC 47 (05 September 2007)

A petition for sequestration must be raised against the true legal person and not merely a trading or descriptive name. Sequestration is not a form of diligence within the meaning of OCR 5.7(1), and proceedings based solely on a trading name are a nullity. Such a nullity cannot be cured by declarator, and the action must be dismissed as irrelevant.

Citation
[2007] ScotSC 47
Parties
Pursuer/respondent: The Accountant in Bankruptcy; Defender/appellant: Peter Butler
Jurisdiction
Scotland
Judgment Date
05 September 2007
Procedural Posture
Civil Appeal / Appeal From Sheriff's Interlocutor
Outcome
Appeal allowed; action dismissed as irrelevant and incompetent.
Legal Topics
Sequestration, Designation of Debtor, Nullity of Proceedings, Competency of Declarator
Bankruptcy Civil Procedure Sequestration Designation of Debtor Nullity of Proceedings Competency of Declarator

Case Brief

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Parties

The Accountant in Bankruptcy

Pursuer/respondent

Peter Butler

Defender/appellant

Procedural Posture

Civil Appeal / Appeal From Sheriff's Interlocutor

Legal Issues

  1. 1 Whether sequestration proceedings can be validly raised against a trading name rather than the true debtor's name
  2. 2 Whether a nullity in sequestration proceedings can be cured by declarator
  3. 3 Whether sequestration is a form of diligence under OCR 5.7(1)

Ratio Decidendi

A petition for sequestration must be raised against the true legal person and not merely a trading or descriptive name. Sequestration is not a form of diligence within the meaning of OCR 5.7(1), and proceedings based solely on a trading name are a nullity. Such a nullity cannot be cured by declarator, and the action must be dismissed as irrelevant.

Court Disposition

Appeal allowed; action dismissed as irrelevant and incompetent.

Orders

  • Recalls the interlocutors of the sheriff dated 3 and 28 November 2005.
  • Sustains the second plea-in-law for the defender and dismisses the action.