small claims
case digest

Hart (Business Sales) Ltd -v- Rome 1993 SCLR 147


Issue - Intimation of incidental application by first class recorded delivery that was undelivered by the post office - was this sufficient notice?

At a preliminary hearing  the defender offered settlement of claim; the preliminary hearing was continued for this purpose. Subsequently P enrolled incidental application (IA) amending statement of claim and seeking decree.

Intimation of the IA was made on D, but post office could not effect delivery. Decree was granted, but then recalled by the Sheriff when he discovered D had not received the IA.

P appealed to Sheriff Principal, who held that the Sheriff was wrong in law in recalling the decree.

Notice of an IA is required in terms of rule 33(1), but noprocedure was specified. The Sheriff Principal held that as rule 5(1) provides that service of summons can take place by first class recorded delivery (by an officer of court), then P had not failed to comply with the rules.

Accordingly, decree should not have been recalled.