Reclaiming Motion Following Debate on Procedure Ro
-This reclaiming motion was brought against an interlocutor of the Lord Ordinary dated 4 March 2005 following a procedure roll debate. In the interlocuter the Lord Ordinary decerned against the first and second-named reclaimers jointly and severally for payment to the respondents of ú306,178.80, with interest he found that the first and second-named reclaimers were bound in terms of a personal bond dated 25 May 1989 granted by them in favour of the respondents he found that the first and second- ...
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Limitation Act 1980 – Date of knowledge. The requisite knowledge for the purposes of the Limitation Act 1980 s.14A(8)(a) was knowledge of the facts constituting the essence of the complaint of negligence. In the circumstances the relevant date was not when the claimant first knew that he might have a claim for damages but the earlier date when he first knew enough to justify setting about investigating the possibility that the defendant's advice was defective.
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Reinstatement of claim which had been struck out. Where a blameless absent litigant whose case had been struck out was seeking its reinstatement, and where there had been no delay and there was no likelihood of prejudice to the other parties, it was for the other parties to show that the case had no chance of success. Prima facie justice required that the case be reinstated.
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Limitation Act 1980. The court had no jurisdiction under the Limitation Act 1980 s.33 to disapply the primary limitation period if the claimant had begun an action between the same parties within the limitation period, but that rule had to be confined to that narrow situation and did not apply where the first action had not been commenced in time.
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Principles applicable to assessment of damages. The court set out the principles applicable to the assessment of damages under the principle in Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1974) 1 WLR 798.
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Default judgment. Where a judgment in default had been granted in a claim based upon an alleged debt, and the appellant had acknowledged twice that the debt had arisen and had been outstanding, the court was entitled to dismiss her application to set aside the default judgment on the grounds that the defence had no real prospect of success.
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Litigant’s capacity to approve a settlement. In determining whether a litigant had the mental capacity to approve a settlement on liability, the court's enquiry should be focused on a litigant's capacity to conduct the proceedings as a whole and not judged on a piecemeal basis.
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Order for specific disclosure. An order for specific disclosure of certain documents was made where those documents were potentially significant to the disposal of a large counterclaim.
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Service within the jurisdiction not effective where Defendant out of the jurisdiction. It was not open to a court, in the light of the CPR r.6.5(1), to conclude that proceedings issued for service within the jurisdiction could properly be served when, at the time of deemed service, the defendant was physically out of the jurisdiction.
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Summary judgment. In the circumstances, the applicant was entitled to summary judgment in his claim for damages for fraud against the respondent where the respondent's challenge to the authenticity of an agreement that formed the basis of the applicant's claim had no real prospect of success.
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