Bobby Murray

In short (and at the risk of some slight oversimplification), a husband had litigated in the sheriff court to divorce his wife. She had communicated a clear intention to resist the divorce on the basis that an assortment of financial matters remained unresolved. The parties’ respective solicitors had been in correspondence for 19 months.

Proceedings were raised and the wife’s solicitor accepted service of those. His position was that he had prepared and sent the necessary document to notify the court that the action was to be defended. For one reason or another, the court never processed that document. The husband then took a decree of divorce in the absence of any appearance at court by the wife. His intention to do so was not communicated. Following service of the action, the wife’s lawyer heard nothing from the husband’s until sometime after the decree had been granted. Even then, no notification of the decree was given. It was simply noted that the husband’s solicitor was no longer instructed. That was in November 2021.

It’s now January 2025, and the Court of Session has reduced the decree of divorce. Essentially, to use a colloquial term, it seems that there was little doubt that the husband had tried to use a clear error to his advantage and pull a fast one. He had, in the judge’s view, acted “opportunistically”, and his solicitor knew that.

The judgment’s postscript is, perhaps, particularly insightful for those staring down the barrel of litigation and deciding how to play their hand. His lordship observed as follows:

Everyone and their granny knows that solicitors have a duty to act in their client’s best interests. I’m sure that’s what the husband’s lawyer thought he was doing – indeed, I like to hope that’s what we all do, all the time. What’s often forgotten, though, is that we have many duties – to act with candour and as officers of the court to name but two – and our task is to balance all of these in the work that we do. As this case exemplifies, we can’t effectively protect our client’s interests unless we avoid the pitfalls of coming up short in our other duties, too.

Perhaps most importantly, this decision should bring one question to the forefront of litigants’ minds:

“What approach, ultimately, is actually in my best interests?”

That question isn’t as simple as one might think at first blush. Your lawyer should help you answer it correctly.

Take Mr Eyvindsson’s strategy as an example. At the time the decree was granted, it probably felt like a “quick win”. In the end, it was anything but. The parties have been in dispute about the validity of the divorce for more than three years since it was granted. Their representation during that time will have come at a cost. To add to that, Court of Session litigation is eye-wateringly expensive. After all that, they’re essentially back to square one. Does that sound like it was in Mr Eyvindsson’s best interests? Answers on a postcard, please.

It’s easy to get swept up in the emotion of a dispute when you’re in one. Prudent lawyers should, 99 times out of 100, do what they can to resolve disagreements for their clients without having to go to court (unless it’s not possible to do so). Your solicitor should help to ground you and focus on the outcome. Creative solutions, and candour with your opponent about your intentions, is the order of the day. We now have a stark reminder from the court about the risks of proceeding otherwise. A good lawyer will make sure you avoid them.

Bobby Murray is a senior associate at Harper Macleod.