Appeal Court exercises ‘dispensing power’ to overrule decision on invalidity of unsigned citation

Lord Malcolm
Lord Malcolm
A failure to sign a form of citation does not render service of a summons incurably valid and can be corrected under the court’s “general dispensing power”, appeal judges have ruled.
The Inner House of the Court of Session allowed an appeal by Marjory Hamilton as executrix of Robert Hamilton against a commercial judge’s decision granting declarator to Tarmac Trading Ltd that a summons had not been validly served.
In doing so the court overruled the decision in Blackfriars (Scotland) Ltd v Shetland Salmon Co’s Trustee 2001 SLT 315, in which Lord Penrose held that regular citation was an “essential step” in the initiation of a litigation.
Invalid service
The Lord President, Lord Carloway, sitting with Lady Paton and Lord Malcolm, heard that Mrs Hamilton had sought to raise an action against Tarmac for a seven figure sum relating to the cost of restoring a quarry.
Service took place shortly before expiry of the five-year prescriptive period, but an English process server had failed to sign the form 13.7 citation. 
Tarmac raised a commercial action against Mrs Hamilton seeking declarator that the summons had not been validly served, reduction of the certificate of service lodged in process, and interdict against lodging the summons for calling. 
The commercial judge noted that in Blackfriars Lord Penrose stated that the Citation Act 1592 “remains the source of the requirement for signature of the citation fo the defender in an ordinary action” and that it was implicit in the statute that an unsigned citation was a nullity.
Given that the source of the requirement for a signature is the 1592 Act, not the rules of court, it followed that the court’s power to dispense with a failure to comply with the rules could not be exercised. 
As the general dispensing power in rule 2.1 was available only to relieve a party from the consequences of failure to comply with provisions of the rules themselves, non-compliance with the statute “cannot be vanished away”.
The commercial judge accordingly refused to exercise the dispensing power, but Mrs Hamilton appealed, arguing that Blackfriars was “wrongly decided” and that in any event a “purposive approach” to the statutory provisions was required; the purpose being to give the defenders due notification of the action, which in this case was achieved by service of a signed summons which told Tarmac all they needed to know and do to protect their interests. 
Dispensing power
Allowing the reclaiming motion, the judges ruled that the dispensing power exercised, thus allowing the ordinary action to proceed as if there had been “no defect” in the form 13.7 served upon Tarmac.
Delivering the opinion of the court, Lord Malcolm said: “The essential flaw in the reasoning of the commercial judge (and of Lord Penrose in Blackfriars) was to proceed upon the basis that signature of the citation by the server was a requirement of only the 1592 Act. Such a signature is also a requirement of the rules of court…; the form clearly indicating that it is to be signed. Having regard to the terms of rule 2.1, there was a failure to comply with a provision in the rules, which, if it can be characterised as a mistake or oversight, allows the court to relieve Mrs Hamilton from the consequences of that failure.”
He continued: “On behalf of Tarmac it was submitted that this analysis affords insufficient weight to, first, the need for a valid citation and, secondly, the primacy given to statutory provisions as opposed to rules of procedure. There is nothing in the first point; rule 2.1 can be and commonly is used to excuse mistakes in important matters. As to the second submission, the Act of Sederunt (Rules of the Court of Session 1994) 1994… repealed certain statutes (see schedule 4) but not the 1592 and 1686 [Citation] Acts. No doubt this was on the basis that there is nothing inconsistent between them and the provisions in the rules.
“In effect, the statutory requirements were incorporated into the rules governing the service of a summons. It would have been appreciated that an unsigned citation would be not only a breach of the rules but also of the statutes. It does no violence to the statutory provisions if the dispensing power enables the court, in an appropriate case, to afford relief from the consequences of an unsigned citation. It would be surprising if an unsigned citation form was in a different category from other procedural defects, many of which might, on the face of it, be more serious.”
Lord Malcolm concluded: “The absence of a signature at the foot of the form caused no prejudice to or difficulty for Tarmac. They were given the service copy of the summons which informed them of the nature of the action and as to what they had to do to enter appearance. In the hope of taking advantage of the subsequent expiry of the prescriptive period, Tarmac relied upon the most technical of objections. We consider that this is a clear example of the kind of case for which the dispensing provisions were designed.”
The court also expressed reservations as to the practice adopted whereby Tarmac was allowed to make submissions based on objections as to irregularities in the execution of service.
“This, Lord Malcolm said, “is difficult to reconcile with the terms of rule 16.11, a rule which confirms that such defects do not fall into the fundamental nullity category contended for by Tarmac”. 
He added: “The court’s reservations extend to the form of this commercial action whereby the court is asked to pronounce an order for reduction of an ex facie valid certificate of service and to interdict a procedural step, namely the calling of a summons. Both requests are inconsistent with the terms of rule 2.1 and again are designed to circumvent rule 16.11; a rule which has the beneficial consequence of discouraging purely technical objections of no inherent merit, which, if upheld, would thwart rather than further the interests of justice.”

© Scottish Legal News Ltd 2020

Other judgments by Lord Malcolm