Linda Bjork Hafthorsdotir against Bjarni Thor Eyvindsson (Court of Session)

Factual and Procedural Background

The parties were married in The City in 1998 and separated on 18 September 2018. They were divorced by decree in absence on 16 November 2021 at a Sheriff Court. The Plaintiff did not wish to be divorced and did not enter appearance in the divorce proceedings. The Plaintiff now seeks a decree of reduction of the divorce decree to resolve outstanding financial matters arising from the separation. The Defendant opposes the action, asserting that financial matters were resolved and noting that he has since remarried.

The Plaintiff's solicitor had intended to enter appearance and defend the divorce action, including counterclaiming for financial provision, but failed to properly lodge or follow up the Notice of Intention to Defend (NID). The Defendant's solicitor proceeded on the basis that the action was undefended and obtained decree. The Plaintiff discovered the decree through social media and initiated this action seeking reduction of the decree.

Legal Issues Presented

1. Whether the decree of divorce granted in absence should be reduced.
2. Whether the Plaintiff had a reasonable explanation for not entering the divorce proceedings.
3. Whether the whole circumstances justify reduction of the decree.
4. The relevance of potential professional negligence by the Plaintiff’s solicitor in the failure to defend the divorce action.

Arguments of the Parties

Plaintiff's Arguments

• The decree should be reduced because it ought not to have been granted on the merits due to unresolved financial matters.
• The Plaintiff had a reasonable explanation for not entering appearance, as the failure to lodge the NID was the solicitor’s or court’s responsibility, not hers.
• The whole circumstances justify reduction, especially since there was no other adequate remedy to resolve financial issues.
• The Defendant’s remarriage is not decisive as it was done with knowledge of the pending challenge to the decree.
• Cases cited by the Defendant relating to limitation and professional negligence are not applicable to the equitable jurisdiction exercised in this case.

Defendant's Arguments

• The Plaintiff’s solicitor failed to properly defend the divorce, which may give rise to a claim of negligence.
• The Defendant’s solicitor was entitled to proceed for decree on an undefended basis given the lack of formal response.
• The Plaintiff’s failure to defend and the Defendant’s remarriage justify granting decree of absolvitor (dismissal of the action to reduce the decree).
• References to relevant case law support that no obligation existed on the Defendant’s solicitor to notify the Plaintiff’s solicitor about procedural timelines.
• The possibility of a professional negligence claim is a relevant equitable consideration weighing against reduction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jandoo v. Jandoo [2018] SLT 531	Criteria for reduction of decree in absence: (a) decree should not have been granted on merits, (b) reasonable explanation for not entering proceedings, (c) whole circumstances justify reduction.	The court applied these criteria to find that the decree ought not to have been granted and that the Plaintiff had a reasonable explanation and that reduction was justified.
Robertson's Executor v. Robertson [1995] SC 23	No requirement for exceptional circumstances to reduce a decree.	The court confirmed that the Plaintiff was not required to prove exceptional circumstances to justify reduction.
Kelly & Ors v Stoddart Sekers International Plc [2004] CSOH 258	Test for professional negligence and limitation under section 19A of the Prescription and Limitation (Scotland) Act 1973.	The court found this case not directly applicable as it related to professional negligence claims and limitation, which differ from equitable jurisdiction to reduce a decree.
Drouet & Ors v Milligan [2024] CSOH 32	Similar to Kelly, concerning limitation and professional negligence claims.	The court distinguished this case on similar grounds, noting no pleadings or evidence about negligence here.
Hunter v Hanley 1955 SC 200	Standard for establishing professional negligence.	Referenced as the test for negligence, but no evidence was presented to apply it in this case.
Cockburn v Cockburn's Judicial Factor 2024 SCLR 518	Consideration of professional negligence claims without expert reports in certain circumstances.	The court acknowledged the principle but found insufficient pleadings and evidence to apply it here.
McCluskey v Scott Wilson Scotland Ltd 2024 SLT 863; 2024 SCLR 618	Discouragement of By Order hearings after proof or debate.	The court noted this but proceeded with a By Order hearing to allow parties to resolve issues amicably.

Court's Reasoning and Analysis

The court first accepted that the Plaintiff wished to defend the divorce and seek financial provision but that her solicitor failed to properly lodge or follow up the NID, which was not the Plaintiff’s fault. The Defendant and his solicitor acted opportunistically by proceeding for decree despite ongoing correspondence and unresolved financial matters.

The court applied the established test for reduction of a decree in absence, emphasizing that the decree should not be lightly set aside but that the Plaintiff had met the criteria: the decree ought not to have been granted on the merits due to an imbalance in the division of matrimonial assets and liabilities; there was a reasonable explanation for the Plaintiff’s failure to appear; and the whole circumstances justified reduction.

Regarding the Defendant’s argument about potential professional negligence by the Plaintiff’s solicitor, the court noted the absence of pleadings or evidence to substantiate such a claim, distinguishing this case from precedents where negligence claims were clearly established. The Defendant’s remarriage was considered but found not decisive as it was undertaken with knowledge of the pending challenge.

The court also acknowledged the procedural shortcomings of the Plaintiff’s solicitor but found the Defendant’s conduct and knowledge of unresolved matters undermined the validity of the decree granted in absence.

Finally, the court decided to schedule a By Order hearing to encourage the parties to resolve outstanding issues without further litigation, despite general discouragement of such hearings post-proof, considering the unique circumstances of the case.

Holding and Implications

The court granted the decree of reduction, setting aside the decree of divorce granted in absence.

The direct effect is that the divorce decree is reduced, allowing the Plaintiff to pursue unresolved financial claims. The court scheduled a By Order hearing to facilitate resolution between the parties, aiming to avoid unnecessary further litigation and preserve the Defendant’s marital status pending resolution. No new legal precedent was established; the decision applied existing principles to the facts at hand.