The Sheriff Appeal Court recently refused an appeal on the grounds it was lodged a day late as a result of a solicitor diarising error.¹ In another example of the Scottish courts reminding practitioners that rules are not made to be broken, Sheriff Miller at Aberdeen Sheriff Court has, in the case of Screwfix Direct Limited v. The Firm of North Deko and others,² recently opined on the importance of adhering to procedural timetables.

Case summary

This case was an action for payment, initiated by the pursuer seeking payment for building and construction materials supplied to the three defenders. The first defender was described as a partnership, with the second and third defenders individuals and partners in the first defender partnership.

In terms of procedural background, the key dates to bear in mind were the following: (i) the initial writ was warranted on 24 October 2023, with a 21-day notice period for each defender; (ii) the warranted writ was served on the first and second defenders by post on 17 November 2023, with delivery on 18 November 2023; (iii) due to difficulties in tracing the third defender, service was not effected until 10 September 2024, with delivery on 16 September 2024; and (iv) none of the defenders had lodged a notice of intention to defend and, on 25 February 2025, the pursuer lodged a minute for decree in absence against all three defenders (the minute being dated 25 October 2024).

Legal analysis

The case focused on the common law rule in Scots law that if an undefended action does not call within a year and a day of the expiry of the period of notice, the action falls. This is the case even if some incidental procedure (such as a motion for interim interdict) has occurred prior to the expiry of the period of notice.

For these purposes, the "calling" of the case may be constituted by the lodging of a minute for decree or by any other procedural step on the part of the pursuer which invokes or calls for some response from the court, such as a motion for decree in absence which is refused due to the absence of proof of intimation.

In the present case, the relevant date in respect of the first and second defenders is 19 November 2024 and, for the third defender, it is 17 September 2025.

Decision

Relying on the fact that the minute for decree was lodged more than a year and a day after the expiry of the notice period for the first and second defenders, it was refused in respect of them but granted against the third defender. The Sheriff was not interested in the date of the minute (which would have brought the minute in on time for all three defenders), rather the date on which it was lodged.

Takeaways

The key takeaway is clearly the importance of having comprehensive processes around diarising key procedural dates.

In addition, this case also reiterates the ability of a pursuer, in actions where there is more than one defender, to minute for decree in absence against the non-compering defender(s) and to continue the action against the compering defender(s).

1. 2025sacciv11-james-rodgers-against-motonovo-finance-and-others.pdf ↩
2. 2025scabe27-screwfix-direct-limited-against-the-firm-of-northdeko-and-others.pdf ↩