Van McKellar | Partner

Excuses, Excuses

Cases involving esoteric laws can reinforce points of more general application.

Edinburgh Council recently applied to court seeking authority to bury MM’s long-deceased parents.

MM opposed that and sought to defend the proceedings personally. The court set a hearing date to allow for legal argument. MM failed to attend that hearing. As can often be the case with parties who are not legally represented, the court gave MM some considerable latitude. The court continued the hearing three further times to allow MM to attend. The court directed MM that if he could not attend for supposed medical reasons he needed either to get a lawyer or to lodge a GP certificate confirming he was medically unable to attend court. At the third continued hearing, MM again failed to attend. MM did not instruct a lawyer to attend and did not lodge a GP certificate. Unsurprisingly the court failed to allow MM any more latitude and proceeded with the hearing in MM’s absence and found for the Council. Again unsurprisingly MM failed in his appeal against that decision.

The appeal court made clear that while a party may try and explain their failings, the court needs to be given a reason which excuses that. Any explanation often falls very well short of an excuse. However arcane the substantive law on burials might be, procedurally it cannot be clearer that court directions have to be complied with and court hearings attended. What parties may consider valid explanations often fall well short of what a court will accept as a valid excuse.

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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