In Ferdinando v Ferdinando, the Sheriff Appeal Court held that a sheriff has an inherent power to dismiss a duplicate action to prevent abuse of process, and refused an appeal by a legally aided father who had raised separate divorce and contact actions within two days.
Background
The father raised an action of divorce, with financial orders and other craves, which was warranted on 27th April 2026. The next day, a separate action for a contact order under section 11(2)(d) of the Children (Scotland) Act 1995 was warranted against the same party. At a combined hearing on 1st May 2026 the sheriff dismissed the contact action, found the father liable in expenses, and sisted the first action for three months so that he could amend it to add contact.
The father was legally aided. His agent explained that raising contact separately was intended to keep the contact proceedings apart from the financial dispute, so that they could be conducted at public expense without any risk of repayment to the Scottish Legal Aid Board out of a financial award.
The legal framework
The father argued that the Ordinary Cause Rules contain no power to dismiss an action summarily in these circumstances, and that it is not unusual for more than one family action to run at the same time. The other party argued that the court has an inherent power to prevent abuse of its procedure, resources and time, including abuse of public funding, and that contact could simply have been dealt with in the first action.
The decision
The court held that, on these facts, raising two actions between the same parties within two days, each dealing with a separate part of the same dispute, could not be described as necessary or reasonable. The waste of time and resources was self-evident, and the only reason given was to avoid repayment to the same public fund that was financing the duplication.
The court rejected the argument that an express rule was needed. A sheriff has an inherent power at common law to control the accumulation of litigation, which does not depend on a motion from either party and includes the power to dismiss an action to prevent abuse of process. The father suffered no denial of justice, because he could have added contact to the first action, asked the court to recall the sist, and sought an early hearing. The court described the explanation given as self-serving and an apparent manipulation of the legal aid rules. The appeal was refused. Expenses of the appeal were left for parties to try to agree within 21 days, failing which a further hearing would be arranged.
What it means in practice
- Where an existing divorce action can accommodate the contact dispute, unnecessary parallel proceedings may expose a party to dismissal and expenses.
- In this case the explanation given for raising a separate action was avoidance of legal aid repayment, and the contact issue could instead have been addressed in the existing action, with an early hearing sought if needed.
- The decision does not mean that every separate family action is abusive. The court was concerned with duplication that was neither necessary nor reasonable on these facts.
Every case turns on its own facts. If you are considering court action about contact or divorce, please contact us to discuss how best to proceed.