TARMAC TRADING LIMITED AGAINST MARJORY GRAHAM DARE SIMPSON OR HAMILTON AS THE EXECUTRIX OF THE LATE ROBERT SCOTT HAMILTON [2018] ScotCS CSIH_46 (04 July 2018)

TARMAC TRADING LIMITED AGAINST MARJORY GRAHAM DARE SIMPSON OR HAMILTON AS THE EXECUTRIX OF THE LATE ROBERT SCOTT HAMILTON [2018] ScotCS CSIH_46 (04 July 2018)

The dispensing power under rule 2.1 applies to procedural defects, including unsigned citation forms, as the requirement for signature is incorporated in both statute and rules; the court can relieve the party from consequences of non-compliance, allowing the action to proceed as if the form had been signed.

Citation
[2018] ScotCS CSIH_46
Parties
Pursuer/respondent: Tarmac Trading Limited; Defender/reclaimer: Mrs Marjory Graham Dare Simpson or Hamilton, as the executrix of the late Robert Scott Hamilton
Jurisdiction
Scotland
Judgment Date
04 July 2018
Procedural Posture
Reclaiming Motion (appeal) in Commercial and Ordinary Actions / Inner House, Court of Session, Post Interlocutor
Outcome
Reclaiming motions allowed; interlocutors quashed; dispensing power exercised; actions allowed to proceed as if citation form had been signed; expenses reserved.
Legal Topics
Service of Process, Dispensing Power, Citation Validity, Prescription
Civil Procedure Scottish Law Service of Process Dispensing Power Citation Validity Prescription

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Parties

Tarmac Trading Limited

Pursuer/respondent

Mrs Marjory Graham Dare Simpson or Hamilton, as the executrix of the late Robert Scott Hamilton

Defender/reclaimer

Procedural Posture

Reclaiming Motion (appeal) in Commercial and Ordinary Actions / Inner House, Court of Session, Post Interlocutor

Legal Issues

  1. 1 Whether failure to sign form 13.7 citation renders service incurably invalid
  2. 2 Whether relief is available under rule of court 2.1 dispensing power

Ratio Decidendi

The dispensing power under rule 2.1 applies to procedural defects, including unsigned citation forms, as the requirement for signature is incorporated in both statute and rules; the court can relieve the party from consequences of non-compliance, allowing the action to proceed as if the form had been signed.

Court Disposition

Reclaiming motions allowed; interlocutors quashed; dispensing power exercised; actions allowed to proceed as if citation form had been signed; expenses reserved.

Orders

  • Quash interlocutor of 13 December 2017 in commercial action.
  • Sustain pleas-in-law for defender and repel those of pursuer in commercial action.