Saunders, Petitioner
| Jurisdiction | Scotland |
| Judgment Date | 25 May 1999 |
| Docket Number | No 56 |
| Date | 25 May 1999 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord MacLean
PracticeSheriff court practiceReduction of sheriff court decree granting reporting noteDefenders bankrupt and writ erroneously served on trusteeWrit thereafter sought to be served on defenders whose whereabouts were unknownWhether subsequent decree when no notice of intention to defend lodged constituted a decree in foroWhether decree in absenceWhether amenable to judicial reviewCompetency of application for judicial reviewRules of Court of Session 1994, r 58.3
Rule 53.2 of the Rules of the Court of Session 1994 provides, inter alia, that: In an action in which reduction of a decree of an inferior court is concluded for, intimation of the action shall be made to the clerk of that court. Rule 58.3 provides, inter alia, that: (1) Subject to paragraph (2), an application to the supervisory jurisdiction of the court , shall be made by petition for judicial review. (2) An application may not be made under paragraph (1) if that application is made, or could be made, by appeal or review under or by virtue of any enactment.
The petitioner brought an action against two people in the sheriff court who had been sequestrated. The action was served per incuriamupon their trustee who entered appearance and lodged defences. An amendment was allowed substituting the real defenders and the pursuer was ordained to serve the amended writ upon them. The defenders' whereabouts were unknown and edictal citation was effected. The defenders failed to enter appearance. Decree passed against them. The decree, as extracted by the sheriff clerk depute, recorded that the sheriff in foro granted decree against the defenders. The public liability insurers of the defenders successfully reponed. The petitioner thereafter brought a petition in the Court of Session under the judicial review procedure. The insurers argued that the petition was incompetent.
Held that as the substance of the petition was the reduction of a sheriff court decree which had its own specific procedure regulated by r 53.2, the petition was incompetent; and petition dismissed.
Opinion that, in any event, the original decree had been one of decree in absence notwithstanding the sheriff clerk depute's interpretation of the sheriff's interlocutor.
George Lesley Saunders brought a petition in the Court of Session under the judicial review procedure whereby he sought reduction of a decision of the sheriff of Grampian, Highland and Islands at Tain dated 4 November 1998. Royal Insurance plc were called in the petition as respondents and lodged answers.
The petition and answers called before the Lord Ordinary (MacLean) in procedure roll.
Cases referred to:
Bell v Fiddes 1996 SLT 51
Miller v National Coal BoardSC1960 SC 376
West v Secretary of State for ScotlandSC 1992 SC 385
Textbook referred to:
Dobie, Sheriff Court Practice, p 132
At advising, on 25 May 1999, the Lord Ordinary dismissed the petition as being incompetent.
LORD MACLEAN'SOpinionIn this application to the court, brought within the terms of chapter 58 of the Rules of Court, the petitioner, George Lesley Saunders, seeks reduction of a decision of the sheriff of Grampian, Highlands and Islands, A Sheriff Booker-Milburn, sitting in Tain, dated 4 November 1998. On that date, having heard the agent for the defenders and senior counsel for the pursuer, the sheriff granted a reponing note by the defenders, in terms of which he recalled the decrees against the defenders granted on 13 April 1994 and 9 April 1997, and appointed defences to be lodged within 14 days thereafter. The petitioner maintains that the...
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