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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10085
Experience:  30 years as a practising solicitor.
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In the rules of the court of session 16.11 it states: A

Customer Question

In the rules of the court of session 16.11 it states:

A person who enters the process of a cause shall not be entitled to state any objection to the regularity of the execution of service or intimation o a document on him; and his appearance shall be deemed to remedy any defect in such service or intimation.

However, in the Court of Session Act 1968 s21 (http://www.legislation.gov.uk/ukpga/Vict/31-32/100/section/21) it states:

No party appearing in any action or proceeding in the Court of Session shall be entitled to state any objection to the regularity of the execution or service as against himself of the summons or other pleading or writ whereby he is convened.

For reference only, the sherrif court rules 6.10 reads:

"A person who appears in any claim shall not be entitled to state any objection to the regularity of the execution of service or intimation on him and his appearance shall remedy any defect in such service or intimation.".

The difference between the Court of Session rules and the Court of Session Act is that one forbids a party appearing in an action, and one forbids a person who enters the process.

Are the rules a simply interpretation of the Act? Which taken precedence?

Entering appearance and entering the process are not the same thing, as entering appearance requires he actions to be carried out as described in rule 17.1 and entering the process does not.
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.

It is "appearance" not "entering appearance". It means that if you show up, any defect in service is cured by your doing so.

That is distinct from entering appearance as you say although if you do enter appearance following inadequate service, that would be deemed to be cured as well.

So the Rules and the Act are referring to different things. If you enter the process following inadequate service OR if you turn up to court in similar circumstances, you can't object to the way service was made.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

paragraph 18:


 


https://www.scotcourts.gov.uk/opinions/B335_09.html


 


In the course of preparing my judgement I noticed the decision of Sheriff Principal Mowat QC in Cairney v Bulloch 1993 SCLR 901 (also 1994 SLT (Sh Ct) 37). This turned upon the proper construction of rule 18(1) of the Ordinary Cause Rules 1983 which provided: "A party who appears may not state any objection to the regularity of the service upon himself, and his appearance shall remedy any defect in the service". In that case (which was an ordinary cause) a purported form of citation of the defender took place which in the view of his solicitor was ineffective. The defender did not lodge a notice of intention to defend and the pursuer minuted for decree in absence. The sheriff clerk, having been informed by the defender's solicitor of the objection to citation, wrote to both parties' solicitors informing them that a hearing had been fixed before the sheriff and stating: "Please ensure your firm is represented at said hearing". At the hearing the sheriff, although accepting that on the face of the service copy initial writ the citation was flawed, held that the presence of the defender's solicitor at the hearing had cured any defect in the citation.


 


The defender appealed, arguing that his appearance at the hearing had not amounted to an appearance within the meaning of rule 18(1). He submitted that, since the word "appearance" was not defined anywhere in the rules, it was necessary to go back to the original Ordinary Cause Rules in Schedule 1 to the Sheriff Courts (Scotland) Act 1907, and in particular to rules 13 and 22. Rule 13 was in similar terms to rule 18(1) in the 1983 Rules, and rule 22 provided: "If the defender intends to state a defence he shall (except in a summary cause) before the expiry of the induciae lodge with the sheriff clerk a notice of appearance in the following terms ....... ". It was submitted that the word "appearance" in rule 13 must mean appearance as provided for in rule 22, i.e. the lodging of a notice of appearance and that, since there was no provision in the 1983 Rules for the lodging of a notice of appearance but instead a provision for the lodging of a notice of intention to defend, the word "appearance" in rule 18(1) of the 1983 Rules must mean the taking of the steps necessary to allow a defence to be stated, in other words the lodging of a notice of intention to defend. No such notice had been lodged and it followed that the attendance of the defender's solicitor at the hearing before the sheriff had not constituted an appearance within the meaning of rule 18(1). At page 904 Sheriff Principal Mowat stated:

Customer: replied 2 years ago.

In any event (should they be deemed to differ), which would take priority, or would they both be in effect?

Expert:  JGM replied 2 years ago.
Both would be in effect. The case you refer to was argued on the basis of the fact that the defender wasn't answering the citation so the appearance wasn't an appearance as such. It was a hearing fixed specially by the sheriff to determine the competency or otherwise of the minute for decree following an ineffective citation.

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