Action for divorce:- The pursuer sought an order for transfer, or assignation, from the defender in relation to any right to payment she may have had from the partners of the pursuer’s firm, and any right to payment under the terms of a decree granted previously by the court. Additionally, the pursuer sought interim interdict of the defender from taking steps to enforce the said decree, and from bringing diligence on the basis of the decree. The temporary judge had refused such a motion for interim interdict, and that decision was reclaimed by the pursuer.
In delivering the court’s opinion on the matter of interim interdict, the Inner House noted that as a general principle, the remedies of interdict and interdict ad interim are intended as remedies against an apprehended violation of a party’s rights. The court noted that while it was true that interdict had occasionally been used as a means of maintaining the status quo or regulating interim possession, that function had been largely, if not entirely, superseded by the provisions of then section 6(7) of the Administration of Justice (Scotland) Act 1933 and what is now section 47(2) of the Court of Session Act 1988. As such, the court noted that the remedy could only be used in this way in exceptional circumstances. The court did not find any such exceptional circumstances in this matter, and further doubted whether, even in the past, the remedy could ever have been thought appropriate to prevent enforcement of a valid decree of the court.
Further, the court disagreed with the pursuer’s submission that interim interdict would be competent under section 18(2) of the Family Law (Scotland) Act 1985, finding that enforcement of a decree would not constitute a “transaction” for the purposes of that provision. Moreover, the court rejected the pursuer’s submission that the claim for transfer of the right to payment in terms of the decree constituted a specific claim for transfer of “property” under section 8(1)(aa) of the 1985 Act, in holding that a decree was indistinguishable from the ius crediti underlying it, being no more nor less than the equivalent of cash, and thereby failing to be regarded as “property” under the Act. Reclaiming motion refused.
|Court: Court Of Session (Inner House) (Scotland)|
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