Reduction of Confirmation is Competent in the Court of Session; Sheriff Appeal Court Appeal Not Available in Commissary Proceedings

1. Introduction

Saddiq Ahmed against Kamall Ahmed ([2026] CSOH 30) is an Outer House decision of Lord Colbeck concerning an intestate estate where two brothers—in their capacities as executors-dative of their late father, Bashir Ahmed— became embroiled in dispute over a grant of confirmation issued by Wick Sheriff Court on 12 May 2023.

The pursuer sought: (i) production and reduction of the grant of confirmation; (ii) suspension of that grant (including ad interim); and (iii) interdict preventing reliance on the confirmation (notably any dealing with nine properties listed in the inventory). The practical aim was to restore the pursuer to a position in which he could have opposed the confirmation (e.g., by caveat/objections), alleging the defender obtained confirmation unilaterally and on the basis of a materially erroneous inventory and alleged unsuitability/conflict.

Interim suspension and interim interdict had been granted on 4 August 2023. The case returned to procedure roll following the Extra Division’s decision in [2024] CSIH 25, which recalled an earlier allowance of proof before answer and directed procedure roll.

Key issues

• Is reduction of a grant of confirmation competent in the Court of Session, and what must be pled?
• Is there an alternative remedy (e.g., eik; appeal to Sheriff Appeal Court), such that reduction should be refused?
• Are suspension and interdict competent in this context?
• Are all necessary parties called?
• Which averments are relevant for proof at procedure roll stage?

2. Summary of the Judgment

Lord Colbeck held that proceedings seeking reduction of confirmation are competent in the Court of Session, and that the pursuer’s core averments— if proved—were relevant to support the equitable remedy of reduction. The defender’s contention that the pursuer had other remedies was rejected in a critical respect: an appeal to the Sheriff Appeal Court is available in civil proceedings, not commissary proceedings.

The court also held the defender’s competency challenges to suspension and interdict were misconceived; suspension (under the appropriate Court of Session procedure) could operate as a prelude to reduction and operate alongside interdict to prevent reliance on the impugned confirmation.

On pleadings, the defender’s “all parties not called” plea failed: beneficiaries/heirs on intestacy had no title to the subject matter of the action, which concerned the validity of confirmation obtained by and in favour of executors. A purported conflict-of-interest challenge to the pursuer’s solicitors was rejected at this stage (and in any event the court emphasised it is primarily for solicitors, not the court, to determine conflicts).

Procedurally, Lord Colbeck allowed a proof of parties’ respective averments, but refused probation for Articles 3 and 7 of condescendence as irrelevant. The defender was found liable in the expenses of the debate.

3. Analysis

3.1 Precedents Cited

(a) Procedure roll discipline and the “assume averments true” rule

A central methodological point (para [19]) was that at procedure roll debate, the court must proceed on the basis that the non-moving party’s relevant factual averments are true. Lord Colbeck applied that discipline to discount aspects of the defender’s critique that effectively sought to contradict the pursuer’s pleaded facts rather than test legal relevancy.

(b) “All parties not called” as pars judicis

• Connell v Ferguson (1857) 19 D 482: cited for the proposition that the issue is pars judicis—the court must address it even if not argued. Lord Colbeck relied on Lord Deas’ discussion to justify examining the plea notwithstanding the defender’s failure to develop it.
• Wilson v Independent Broadcasting Authority 1979 SC 351: applied for the test—whether all parties have been called whose participation is necessary to dispose of the question effectively. On that test, the heirs/beneficiaries were unnecessary because the dispute concerned executors’ right to confirmation and its reduction.

(c) Reduction as an equitable remedy and reduction of inferior court decrees

• Bain v Hugh L S McConnell Ltd 1991 SLT 691: used in two ways. First, the pursuer cited it for the proposition that reduction is an equitable remedy, available “in exceptional circumstances if reduction is necessary to produce substantial justice” (para [17]). Second, Lord Colbeck relied on it to affirm the broader principle that reduction of decrees of an inferior court may competently be brought in the Court of Session (para [32]).
• Cameron v Lightheart 1995 SC 341: the pursuer invoked Lord McCluskey’s (obiter) remarks on reduction and the need for an “intelligible purpose” (paras [17]–[18]). Lord Colbeck accepted that the pursuer had identified such a purpose—restoration of the opportunity to oppose confirmation and prevent reliance upon it.
• Malcolm v Park Lane Motors Ltd 1998 SLT 1252: cited by the defender for propositions about reduction (miscarriage of justice, lack of alternative remedy, and substantial justice). Lord Colbeck rejected the defender’s insistence on a pleaded “miscarriage of justice” requirement as formulated (para [34]), focusing instead on whether the pursuer pled facts and circumstances entitling the remedy, with equitable assessment reserved for proof.

(d) Authority and materials on reduction of confirmation specifically

• Currie, "Confirmation of Executors" (9thEdition): relied upon as a practitioner statement that confirmation may be reduced (paras [25]–[26]), though Lord Colbeck observed the text’s lack of direct authority for some propositions and therefore examined case law.
• Dowie v Barclay (1871) 9 M 726: analysed as an example of an action of reduction directed against a decree and confirmation founded on alleged errors (notably domicile/sheriffdom). Although the reduction failed on the facts, Lord Colbeck treated it as demonstrating the availability of such proceedings and as supporting an inference that a material domicile error could have justified reduction (para [31]).
• Baines's Executor v Clark 1957 SC 342: treated as analogous—reduction/cancellation of a commissary clerk’s certificate after discovery that the deceased was domiciled in Northern Ireland rather than England. Though opinionless, it evidenced Court of Session willingness to grant reduction-type relief in confirmation/probate-related error.

(e) Opposition to confirmation; relevance of executor conduct/intention

• Campbell v Barber (1896) 23 R 90: cited for the proposition that an executor’s conduct and intentions are relevant to opposition to confirmation. This supported the pursuer’s contention that unilateral action and intended litigation could be material to suitability and estate risk (para [16]).
• Roy v MacGregor 1935 SLT (Sh Ct) 6: cited for the proposition that opposition can be founded on an executor’s commitment to a position of conflict. This fed into the pursuer’s case that, if notified, he could have opposed confirmation based on the defender’s alleged conflict/unsuitability.

3.2 Legal Reasoning

(a) Competency and forum: reduction of confirmation

Lord Colbeck’s reasoning proceeds in layers:

1. Confirmation can be reduced: while modern direct authority is sparse, the court treated the combination of practitioner materials (Currie) and the historical litigation pattern in Dowie v Barclay (1871) 9 M 726 as confirming that actions seeking reduction of confirmation are not incompetent (paras [25]–[32]).
2. Reduction of inferior court decrees is a settled Court of Session function: the court placed the matter within the established supervisory and equitable reduction jurisdiction (para [32], citing Bain v Hugh L S McConnell Ltd 1991 SLT 691).
3. Executry practicality: Lord Colbeck emphasised that the remedy’s availability is “essential” in executry proceedings; the facts illustrated why a remedy may be needed where confirmation has been expede without notice and allegedly on a materially erroneous inventory (para [33]).

(b) Alternative remedies: eik and (non-)availability of appeal

The defender argued reduction should be refused because alternative remedies existed: an eik and an appeal to the Sheriff Appeal Court. Lord Colbeck drew a sharp line:

• Appeal point: the court held that “An appeal to the Sheriff Appeal Court is available in civil proceedings, not commissary proceedings” (para [33]). This is a significant clarification within the judgment: the alleged appellate route could not be treated as an available alternative remedy undermining reduction.
• Eik point: the court accepted that alternative steps such as eik may be relevant, but treated them as part of the equitable balancing to be performed later (para [35]). In other words, availability of an eik did not automatically render the action irrelevant at pleading stage.

(c) What must be pled for reduction at procedure roll stage

The defender sought to impose a requirement to aver a “miscarriage of justice.” Lord Colbeck rejected that formulation (para [34]). The court framed the correct inquiry as whether the pursuer has averred facts and circumstances which, if established, would entitle the court to grant reduction, recognising reduction’s equitable character and reserving the substantive equitable assessment for proof (para [35]).

On that approach, the pursuer’s core averments—unilateral confirmation without notice, certification of “correct and complete” information despite material errors/omissions, and apprehension of prejudicial steps in reliance on confirmation—were held capable of supporting reduction if proved.

(d) Competency of suspension and interdict in this context

Lord Colbeck rejected the defender’s competency objections:

• Rule reliance rejected: the defender’s reference to rule 53.1 was held irrelevant; the court identified the operative procedural framework as chapter 60 (para [36]).
• Nature of suspension: suspension was characterised as stopping unlawful conduct and, here, functioning as a prelude to reduction (para [36]).
• Interdict purpose: interdict did not seek to bar the defender from courts, but to prevent steps in reliance on the disputed confirmation (paras [36]–[38]).

(e) Conflict of interest allegation against pursuer’s solicitors

The defender attempted to turn the debate into a policing exercise about the pursuer’s agents. The court disposed of this on two grounds (paras [39]–[41]): (i) factual dispute—unsuitable for procedure roll determination; and (ii) principle—conflicts are primarily for solicitors to assess, and (in any event) other beneficiaries had no interest in the present proceedings’ subject matter.

(f) Relevancy pruning: targeted refusal of probation

Lord Colbeck undertook a granular relevancy review and refused probation only for Articles 3 and 7 (paras [42]–[52]), treating them as background lacking bearing on the necessity of the remedies sought. The remainder—especially emails/communications post-confirmation and averments showing knowledge of property disposals and intention to litigate—were allowed to probation as potentially bearing on reduction and interim remedies.

3.3 Impact

• Clarification on remedies against confirmation: the opinion strengthens the practical understanding that reduction is an available Court of Session remedy where confirmation has been expede in allegedly improper circumstances, with equitable merits to be assessed on evidence.
• Important procedural clarification: the statement that appeal to the Sheriff Appeal Court is not available in commissary proceedings (para [33]) is likely to be deployed in future executry disputes when respondents argue that appeal is the “proper” remedy.
• Interim protection preserved: the endorsement of suspension/interdict as an appropriate mechanism to prevent reliance on a disputed confirmation supports proactive interim protection where estate assets might otherwise be dealt with pending resolution.
• Pleadings and proof: the approach signals that, in executry reduction contexts, courts may be reluctant to terminate cases at debate where core averments allege unilateral action, material inventory misstatement, and risk to the estate—while still pruning genuinely irrelevant background.

4. Complex Concepts Simplified

• Confirmation: a court grant that provides executors with title to administer (“intromit with”) the deceased’s estate. The judgment links this to section 14(1) of the Succession (Scotland) Act 1964.
• Inventory: the list of estate assets lodged for confirmation. If materially wrong, it may underpin challenges (including, potentially, reduction).
• Caveat and note of objections: procedural mechanisms enabling an interested party to receive notice and oppose a proposed grant of confirmation. The pursuer’s complaint was that he was deprived of that opportunity.
• Reduction: an equitable Court of Session remedy that sets aside a decree or deed. It is not granted automatically; the court assesses whether it is necessary to achieve “substantial justice” (cf Bain v Hugh L S McConnell Ltd 1991 SLT 691), often after proof where facts are disputed.
• Suspension: a remedy to stop steps taken under (or in reliance upon) a challenged legal process; here, used to prevent reliance on a grant of confirmation pending the reduction action.
• Interdict: an order preventing specified conduct—in this case, preventing steps to sell, burden, or otherwise deal with properties in reliance on the confirmation.
• Procedure roll debate: a legal argument stage focused on relevancy/competency, not proof of facts; the court assumes the opponent’s relevant factual averments are true.
• “All parties not called”: a plea that the action cannot proceed because essential parties are missing; it only succeeds if those parties are necessary to dispose of the question effectively (Wilson v Independent Broadcasting Authority 1979 SC 351).
• Eik to confirmation: a mechanism to amend/supplement confirmation; here treated as potentially relevant to equitable assessment, but not a bar to relevancy at debate.

5. Conclusion

[2026] CSOH 30 confirms, in a modern executry dispute context, that an action for reduction of confirmation is competent in the Court of Session and that pursuers need not plead a free-standing “miscarriage of justice” formula at debate; rather, they must aver facts which, if proved, could justify equitable reduction. The opinion also provides a pointed procedural clarification: the Sheriff Appeal Court route is not available for commissary proceedings, undermining a commonly-argued alternative-remedy objection. Finally, it preserves the practical utility of suspension and interdict to prevent reliance on a disputed confirmation while the merits are determined after proof.