Court overrules decision on invalidity of unsigned citation
A failure to sign a form of citation does not render service of a summoms incurably valid, but can be corrected through exercise of the court's dispensing power, the Inner House of the Court of Session has ruled.
Lord President Carloway, Lady Paton and Lord Malcolm 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 properly served, reduction of the certificate of service lodged in process, and interdict against lodging the summons for calling. In doing so the court overruled Lord Penrose's decision in Blackfriars (Scotland) Ltd v Shetland Salmon Co's Trustee 2001 SLT 315.
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. The judge in Tarmac's action followed Lord Penrose and held that the source of the requirement for signature remained the Citation Act 1592, that regular citation was an essential step in the initiation of a litigation, and it was implicit in the statute that an unsigned citation was a nullity.
Lord Malcolm, who gave the opinion of the court, said the essential flaw in that reasoning was to proceed on the basis that signature was a requirement only of the 1592 Act. It was also a requirement of the rules of court, and having regard to the terms of rule 2.1, there was a failure to comply with a provision in the rules, which, if it could be characterised as a mistake or oversight, allowed 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 repealed certain statutes (see schedule 4) but not the 1592 and 1686 [Citation] Acts.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."
He 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 form of Tarmac's action the practice adopted of allowing submissions based on objections to irregularities in service. "This 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", Lord Malcolm stated.