Reduction of a Grant of Confirmation as a Competent Remedy in Commissary Practice (and Interim Suspension/Interdict Pending Proof)

1. Introduction

Saddiq Ahmed against Kamall Ahmed (Court of Session) ([2026] CSOH 30, Lord Colbeck, 25 March 2026) concerns an intra-family executry dispute arising from the intestate death of Bashir Ahmed in 1996. The pursuer and defender—two of the deceased’s sons—were appointed executors-dative in 1998. In 2023, the defender applied for and obtained a grant of confirmation at Wick Sheriff Court (EXE/37/23, 12 May 2023) without informing the pursuer.

The pursuer raised proceedings in the Court of Session seeking: (i) production and reduction of the grant of confirmation; (ii) suspension (including ad interim) of that grant; and (iii) interdict preventing reliance on the confirmation, particularly in relation to dealing with heritable properties listed in the inventory. Interim suspension and interim interdict had already been granted (4 August 2023).

The immediate procedural posture was a procedure roll debate on the relevancy and competency of the action and remedies, following the Extra Division’s earlier procedural intervention in [2024] CSIH 25 (recalling an interlocutor allowing proof before answer and appointing the cause to the procedure roll).

The key issues included: (a) whether reduction of confirmation is competent and what must be pled; (b) whether alternative remedies (e.g., an eik) bar reduction; (c) competency of suspension/interdict in this context; (d) “all parties not called”; and (e) whether various averments were irrelevant and should be excluded from proof.

2. Summary of the Judgment

Lord Colbeck:

  • Reaffirmed the procedure-roll principle that the court must treat the opponent’s factual averments as true for debate purposes.
  • Repelled the defender’s “all parties not called” plea, holding the intestate heirs/beneficiaries had no necessary title/interest in the present reduction challenge to confirmation.
  • Held that reduction of a grant of confirmation is competent in the Court of Session, and rejected the defender’s contention that an appeal to the Sheriff Appeal Court was an available alternative remedy in “commissary” proceedings.
  • Rejected the defender’s argument that the pursuer required to aver a “miscarriage of justice” as a pleading requirement; instead the question is whether the pled facts, if proved, could justify the equitable remedy.
  • Held that suspension and interdict were competent (under the correct procedural framework) as ancillary protections pending the reduction challenge.
  • Repelled the defender’s conflict-of-interest plea, holding it was for solicitors (not the court at debate) to determine conflict, and in any event it could not be resolved on disputed averments at debate.
  • Excluded from probation Articles 3 and 7 of condescendence as irrelevant, but allowed proof on the remainder.
  • Found the defender liable in the expenses of the debate (the pursuer succeeding except in two minor respects).

3. Analysis

3.1 Precedents Cited

[2024] CSIH 25

This earlier appellate step did not resolve the merits but shaped the procedural route: the Extra Division recalled a proof-before-answer interlocutor and directed the case to be argued on the procedure roll. Lord Colbeck’s opinion sits within that framework, determining what is fit for proof and what is legally competent.

Malcolm v Park Lane Motors Ltd 1998 SLT 1252

The defender relied on Malcolm for propositions commonly associated with reduction: that it is exceptional, equitable, and often refused where other remedies exist. Lord Colbeck did not dispute reduction’s equitable character, but rejected the defender’s attempt to convert those themes into hard-and-fast pleading barriers (e.g., a mandatory “miscarriage of justice” averment) and rejected the defender’s assertion that an appeal to the Sheriff Appeal Court was available in this commissary context. The judgment treats alternative remedies (such as an eik) as part of the equitable assessment at a later stage, not as an automatic bar at debate.

Campbell v Barber (1896) 23 R 90

Cited by the pursuer for the proposition that in executry administration, an executor’s conduct and intentions can be relevant to protective intervention. Lord Colbeck’s approach is consistent with that: averments that the defender acted unilaterally, advanced an erroneous inventory, and intended litigation inimical to the estate were held relevant to reduction and interim protection (subject to proof and later equitable balancing).

Roy v MacGregor 1935 SLT (Sh Ct) 6

Used to support the contention that opposition to confirmation can be grounded where an applicant is committed to a position of conflict. Lord Colbeck accepted that there is a limited but real basis to oppose confirmation and that restoring the pursuer to the position of being able to oppose confirmation was an “intelligible purpose” for reduction proceedings.

Bain v Hugh L S McConnell Ltd 1991 SLT 691

This was central to the court’s framing of reduction as an equitable remedy available (including in relation to decrees of inferior courts) in exceptional circumstances where necessary for “substantial justice”. Lord Colbeck relied on Bain to reinforce that reduction is within the Court of Session’s supervisory competence and that the inquiry is fact- and equity-sensitive—often unsuitable for disposal without evidence where the pleadings disclose a potentially justifying factual matrix.

Cameron v Lightheart 1995 SC 341

The pursuer invoked Cameron (including Lord McCluskey’s obiter remarks) to emphasise the need for an “intelligible purpose” and the equitable flexibility of reduction. Lord Colbeck accepted that the pleadings disclosed such a purpose: undoing a confirmation allegedly obtained unilaterally and on an allegedly materially erroneous inventory, thereby permitting proper opposition and protecting the estate.

Connell v Ferguson (1857) 19 D 482

Cited for the proposition that “all parties not called” is pars judicis—a matter the court must consider where it arises. Lord Colbeck applied that principle and addressed it even though the defender did not develop submissions on it at debate.

Wilson v Independent Broadcasting Authority 1979 SC 351

Provided the test for sustaining “all parties not called”: only where absent parties are necessary for the question to be effectively disposed of. Applying Wilson, Lord Colbeck held the beneficiaries/heirs on intestacy were not necessary parties to determine whether a grant of confirmation obtained by one co-executor without the other’s knowledge should be reduced.

Dowie v Barclay (1871) 9 M 726

Discussed as an example of historical reduction proceedings in the confirmation context, particularly involving alleged error as to domicile and forum. While reduction was ultimately refused on the facts (domicile found to be Kinross), the case demonstrated: (i) the availability of reduction proceedings in this sphere; and (ii) that factual questions (such as domicile) may require proof. Lord Colbeck used Dowie to counter any suggestion that reduction of confirmation is inherently incompetent.

Baines's Executor v Clark 1957 SC 342

Used as an analogous illustration of rectifying errors tied to confirmation formalities (there, reduction/cancellation of a certificate where the testator’s domicile was discovered to be Northern Irish, not English). Although the opinion notes no written judgment, the outcome supported the broader proposition that Court of Session intervention by reduction can be used to correct foundational errors in confirmation-related process.

3.2 Legal Reasoning

(a) The procedure roll lens: assumed truth of pleaded facts

A pivotal feature of the opinion is methodological: at debate, the defender could not argue by contradicting the pursuer’s factual account. Lord Colbeck repeatedly identified where the defender’s criticisms failed because they did not accept the pursuer’s averments pro tem. This mattered because the pursuer’s case depended on allegedly unilateral action, allegedly false or materially incomplete inventory content, and alleged risk to the estate from intended conduct.

(b) “All parties not called”: beneficiaries are not necessary parties

The court treated the issue as one going to the court’s duty. It held that the question was the validity/equity of confirmation obtained in the executors’ names, in circumstances said to be improper. Only those with the right to be confirmed (or whose legal interests are directly engaged) required to be parties. The intestate heirs had no title in the subject matter of this reduction action and were not necessary for effective disposal.

(c) Reduction of confirmation: competency and pleading standard

Lord Colbeck accepted that direct authority is relatively sparse, but treated it as clear that (i) reduction proceedings in confirmation-related matters have been entertained historically, and (ii) reduction of decrees of inferior courts is within the Court of Session’s supervisory jurisdiction. The opinion also contains an important practical holding: the defender’s proposed alternatives did not foreclose reduction at debate. Notably, the court rejected the notion that the pursuer could appeal to the Sheriff Appeal Court, holding (as pled/argued) that appeal lies in civil proceedings, not commissary proceedings.

On what must be pled, Lord Colbeck rejected a strict “miscarriage of justice” averment requirement. The legal question was whether the pursuer pled facts which, if proved, could justify the equitable remedy of reduction. On that basis, Articles 10, 16 and 18 (summarised in the opinion) were held relevant: unilateral expeding of confirmation without notice to a co-executor; alleged certification of incorrect and incomplete information to the sheriff court; alleged inclusion of non-estate assets; and alleged future conduct risking the estate (including litigation funded via executry indemnity).

Crucially, the court positioned “other remedies” (such as an eik correcting inventory errors) as an equitable consideration to be weighed later, rather than an up-front competency bar defeating relevancy at debate.

(d) Competency of suspension and interdict

The defender argued suspension/interdict were incompetent, including by reference to rule 53.1 and the idea that there was no “threatened wrong”. Lord Colbeck held these objections misconceived: suspension is apt to stop unlawful conduct and in this case was “the prelude to reduction”, operating alongside interdict to prevent steps being taken in reliance on the challenged confirmation pending resolution. The court also rejected the suggestion that the pursuer sought to interdict “access to the courts”; rather, the sought interdict targeted reliance on the allegedly flawed grant to transact with estate property.

(e) Conflict of interest allegations against pursuer’s agents

Lord Colbeck disposed of this in two ways: (i) the factual premise was disputed and could not be resolved at debate; and (ii) it is generally for the solicitor, not the court, to determine whether a conflict exists. Additionally, the other beneficiaries were held to have no interest in the present proceedings, reinforcing that this line of defence did not undermine the current action’s competency/relevancy.

(f) Relevancy trimming: excluding Articles 3 and 7

While largely allowing the case to go to proof, the court performed a focused relevancy exercise and excluded two areas as not bearing on the necessity for the remedies: (i) background litigation about a purported will (Article 3); and (ii) broadly stated averments about later sales/encumbrances (Article 7), criticised also as lacking specification. This reflects a disciplined approach: reduction and interim remedies require relevant factual linkage to the asserted wrong and need for protection.

3.3 Impact

  • Practical confirmation challenges: The opinion strengthens the procedural toolkit for a co-executor (or other interested party) who alleges confirmation was expede unilaterally and on a materially erroneous basis. It confirms that reduction proceedings in the Court of Session are a viable route, and that interim suspension/interdict can be competent to “hold the ring” pending proof.
  • Pleading and debate discipline: The decision underscores that defendants cannot win procedure-roll debates by disputing facts; if the pursuer’s averments (assumed true) justify the remedy in principle, proof is likely.
  • Alternative remedies are not an automatic bar: By treating eik/alternatives as part of later equitable evaluation, the court reduces the risk that defenders defeat reduction applications at debate merely by asserting “cheaper/faster” options.
  • Commissary procedure clarification: The statement that Sheriff Appeal Court appeals are not available in commissary proceedings (as deployed here) will be cited by practitioners confronting forum/remedy objections.
  • Party calling in executry disputes: The rejection of “all parties not called” arguments aimed at dragging in all beneficiaries helps keep litigation proportionate and focused where the dispute is about the validity of an administrative grant rather than distribution entitlements.

4. Complex Concepts Simplified

Confirmation
The Scottish process by which executors obtain authority/title to “intromit” (collect, manage, and administer) a deceased’s estate. Statutorily linked in the opinion to section 14(1) of the Succession (Scotland) Act 1964.
Executor-dative
An executor appointed by the court (typically where there is no valid will naming executors), rather than nominated by will.
Inventory
The schedule of estate assets presented for confirmation. Allegations that assets were wrongly included (or omitted) can be central to challenge.
Caveat
A procedural lodging that ensures the court gives notice before granting confirmation, enabling an interested person to object.
Reduction
An equitable remedy setting aside a legal act or decree (here, the confirmation grant) where justified to achieve substantial justice.
Suspension
An order stopping reliance on or implementation of a challenged act/decree pending determination (often paired with reduction).
Interdict
A court order prohibiting a party from doing a specified act (here, taking steps in reliance on the grant, including dealing with listed properties).
Eik to confirmation
A mechanism to amend/supplement a confirmation (e.g., correcting inventory errors). The court treated this as potentially relevant to equitable discretion later, but not as automatically defeating a reduction case at debate.
Procedure roll debate / Proof
A debate tests legal relevancy/competency on pleadings alone (facts assumed true); a proof is an evidential hearing to determine disputed facts.

5. Conclusion

[2026] CSOH 30 is an important executry/procedure decision confirming that reduction of a grant of confirmation is a competent remedy within the Court of Session’s supervisory jurisdiction, and that interim suspension and interdict may competently protect against reliance on a challenged grant pending proof. It also clarifies that, at least as argued and accepted here, an appeal to the Sheriff Appeal Court is not an available alternative in commissary proceedings, rebuts attempts to impose an inflexible “miscarriage of justice” pleading requirement, and keeps party-calling proportionate by rejecting the need to convene all beneficiaries.

The decision’s broader significance lies in its pragmatic, equity-sensitive approach: where a pursuer credibly pleads unilateral expeding of confirmation, material errors in the inventory, and risk to the estate, the court will ordinarily allow proof—while still pruning irrelevant background averments—before deciding whether substantial justice requires reduction.