Skip to content
Law Society of Scotland
Search
Find a Solicitor
Contact us
About us
Sign in
Search
Find a Solicitor
Contact us
About us
Sign in
  • For members

    • For members

    • CPD & Training

    • Membership and fees

    • Rules and guidance

    • Regulation and compliance

    • Journal

    • Business support

    • Career growth

    • Member benefits

    • Professional support

    • Lawscot Wellbeing

    • Lawscot Sustainability

  • News and events

    • News and events

    • Law Society news

    • Blogs & opinions

    • CPD & Training

    • Events

  • Qualifying and education

    • Qualifying and education

    • Qualifying as a Scottish solicitor

    • Career support and advice

    • Our work with schools

    • Funding your education

    • Social mobility

  • Research and policy

    • Research and policy

    • Research

    • Influencing the law and policy

    • Equality and diversity

    • Our international work

    • Legal Services Review

    • Meet the Policy team

  • For the public

    • For the public

    • What solicitors can do for you

    • Making a complaint

    • Client protection

    • Find a Solicitor

    • Frequently asked questions

    • Your Scottish solicitor

  • About us

    • About us

    • Contact us

    • Who we are

    • Our strategy, reports and plans

    • Help and advice

    • Our standards

    • Work with us

    • Our logo and branding

    • Equality and diversity

  1. Home
  2. News and events
  3. Legal news
  4. No review competent of refusal to grant warrant to cite

No review competent of refusal to grant warrant to cite

10th October 2016 | civil litigation , mental health-adult incapacity

A sheriff's refusal to grant warrant to cite an application by a solicitor for appointment of a financial guardian to an incapable adult could not be brought under review, nor was it appropriate to issue an administrative direction to the sheriff clerk to sign the warrant, a sheriff principal has held.

Sheriff Principal Mhairi Stephen QC at Edinburgh Sheriff Court gave the decision in refusing a further attempt by a solicitor (J) to bring an application relating to F, aged 87, a stroke victim now in a care home, with whom J maintained she had established a close relationship.

Sheriff Braid refused the application on the basis that J, who was simply F's solicitor and not, for example, the holder of a power of attorney, had not shown the necessary “interest” in relation to F's property and financial affairs to bring an application under s 57(1) of the Adults with Incapacity (Scotland) Act 2000 (click here for report).

J sought to bring the decision under review, listing grounds on which the sheriff was said to have erred and requesting the sheriff principal to issue an administrative direction, as was done in Fitzpatrick v Advocate General for Scotland (2004).

Sheriff Principal Stephen said the grounds sought to bring the sheriff's decision under review or appeal, but Fitzpatrick had held that an appeal challenging a refusal to grant a warrant to cite was incompetent, following an 1891 decision, and that remained good law. “There being no action in dependence there can be no appeal”, she stated.

The sheriff principal in Fitzpatrick had however given an “administrative instruction” to the sheriff clerk, on the basis that it would be wrong having regard to human rights considerations to deny the pursuer the opportunity to raise his action. But Sheriff Principal Stephen said the current application was “quite different”: its object was the appointment of a guardian to take decisions on behalf of F, and though it conferred wide powers the sheriff had to have regard to the s 1 principles. Where there was no application the local authority came under a duty in relation to the adult and there was therefore no denial of the adult's needs or right to a guardian. “It follows that the argument in favour of administrative intervention falls away.”

She added: “The sheriff's decision with regard to warrant in this case does not preclude an application by a solicitor as a person 'claiming an interest in the adult's property and financial affairs'. The sheriff's decision is restricted to the circumstances of this application. Other applications fall to be determined on their own facts and circumstances.”

Click here to view the sheriff principal's judgment.

Add To Favorites
Law Society of Scotland
Atria One, 144 Morrison Street
Edinburgh
EH3 8EX
If you’re looking for a solicitor, visit FindaSolicitor.scot
T: +44(0) 131 226 7411
E: lawscot@lawscot.org.uk
About us
  • Contact us
  • Who we are
  • Strategy reports plans
  • Help and advice
  • Our standards
  • Work with us
Useful links
  • Find a Solicitor
  • Sign in
  • CPD & Training
  • Rules and guidance
  • Website terms and conditions
Law Society of Scotland | © 2025
Made by Gecko Agency Limited