John Grant curator ad litem to Laura Berry v. Marcus Barnett, Sheriff Principal Edward F. Bowen QC, Edinburgh Sheriff Court, 14 October 2010

Recall of decree:- At a pre-proof hearing, decree by default was granted against the defender in an action for payment of a capital sum, sought by the pursuer under section 28 of the Family Law (Scotland) Act 2006. The defender failed to appear at diet, and the Sheriff granted decree as craved, in terms of Ordinary Cause Rule 28A.1(5). The defender appealed against the granting of that decree, arguing that the granting of the decree in the particular circumstances of the case was not a proper exercise of the Sheriff's discretionary power.

The defender submitted that his former agents had withdrawn from acting on his behalf, and that he was subsequently not aware of a new date for the pre-proof hearing having been set. To that extent, the defender submitted that his failure to attend the hearing was not deliberate. Moreover, efforts by the defender's subsequent agents to ascertain the state of matters were ignored by his former agents.

In considering those circumstances, the Sheriff Principal considered it proper to recall the decree by default against the defender.