small claims
case digest

Alpine House Ltd -v- Links 1990 SLT (Sh.Ct.) 87









 

Issue - Recall of decree; application of rule 27(1) and (3).

Following P's non-appearance at a preliminary hearing, D was granted decree of absolvitor. P lodged a minute for recall of decree in accordance with rule 27(1) - but failed to appear at the hearing of the minute. Thereafter P lodged a further minute outwith the 21 day time period, seeking the Sheriff to allow the minute late by exercising his dispensing power in terms of rule 34.

The Sheriff held the second minute to be incompetent and noted that in any event he would not have been minded to exercise his discretion. P appealed.

The Sheriff Principal held that the Sheriff had erred in law in treating the second minute as incompetent by virtue of rule 27(3). If the decree had not been recalled, then the application for its recall had not been made (applied Sureweld (UK) Ltd -v- DS Baddely (Engineering) Ltd 1987 SCLR 332: decided by Sheriff Principal McCleod).

However, the Sheriff was entitled not to exercise his dispensing power, and accordingly, the appeal failed.