Inappropriate to Set Aside Stay where Chances of Success Remote. Keith J. held that it was not appropriate to set aside a stay of proceedings where the proceedings had been delayed over a period of some twelve years, and where the claimant’s chances of success were so remote that the interests of justice demanded that the litigation be brought to an end. The procedural situation in the case was extremely complicated- the case had been automatically stayed when the CPR came into force and the par ...
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Undefended Divorce Action - Motion to allow appeal to be marked late The Appellant enrolled a motion to relieve her of the consequences of Ordinary Cause Rule 31.1, which sets a time limit of 14 days for the lodging of an appeal, and to allow her to mark an appeal late in relation to a Decree of Divorce. The Decree was pronounced on 10th August 2007 and the Appellant maintained that she did not become aware of the proceedings until 28th August, 2007. The appeal was refused. The ...
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Summary Cause/Small Claim - application to sist The Pursuers in a summary cause and a small claim action were seeking recovery of bank charges which their banks, the respective Defenders, had deducted from their current accounts. The Pursuers argued that the charges were a penalty and, on that basis, unenforceable. They also contended that the charges were contrary to the Unfair Terms in Consumer Contracts Regulations 1999. The Defenders made applications to sist both cases at their first calli ...
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Action for Declarator of Nullity of Marriage - Jurisdiction of Sheriff Court An undefended action for declarator of nullity of marriage was dismissed. An issue arose in relation to jurisdiction. The Sheriff noted that Section 4 of the Family Law (Scotland) Act 2006 purports to extend the jurisdiction of the Sheriff Court to include declarators of nullity of marriage by amending section 5(1) of the Sheriff Courts (Scotland) Act 1907. Before that, the Court of Session had exclusive jurisdiction i ...
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Judgment Set Aside for Equitable Forebearance. A local authority successfully applied for an order to set aside a judgment against it. The authority originally made an admission of primary liability (subject to a reduction for contributory negligence) but sought to resile from this in its Defence. The allocation questionnaire, case summary and witness statements were all prepared on the basis that liability was in issue; the Judge held that this amounted to approbation and reprobation. It was h ...
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Abuse of Civil Proceedings not a Cause of Action in itself. On the slightly unusual facts of the case, the Claimant, a litigant-in-person, brought a claim against the Defendant alleging breach of lease, harassment, libel and defamation and abuse of procedure. Tugendhat J. held that the claims for breach of lease and libel were stature barred. Abuse of civil proceedings was not a cause of action known to the law. The Court had power to reflect any abuse of civil proceedings in its determination ...
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Director liable for Company pursuing hopeless Counterclaim. Rimer J. held that where companies had irresponsibly pursued a hopeless counterclaim on the instructions and for the benefit of a controlling director, that director was made liable, jointly and severally with the companies, to pay the costs of the proceedings on the indemnity basis. It was an exceptional case in which the director was in substance the, or at least a, real party to the proceedings from start to finish.
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Procedure Roll
In this action the pursuer seeks payment by the defenders to her of certain sums of money. In a counterclaim the defenders seek payment from the pursuer of certain sums of money. The pursuer moved Lord Bracadale to grant decree de plano and to restrict probation with respect to matters raised by the defenders in defence of the claim for payment in lieu of notice. With respect to the counterclaim, Mr Sandison were seeking to refuse probation to the claim based on breach of fiduciary duty. Mr McNe ...
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Not necessary to exhaust domestic remedies to bring a Francovich claim. Holland J. held that it was not necessary for a claimant to have exhausted domestic remedies before bringing a claim against a Member State for its failure to effectively implement a Directive. This was because the rationale underpinning the Francovich procedure was that each Member State had an obligation to its own citizens to implement Directives. This sat uneasily with the notion that the State would be able to avoid lia ...
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Not necessary to exhaust domestic remedies to bring a Francovich claim. Holland J. held that it was not necessary for a claimant to have exhausted domestic remedies before bringing a claim against a Member State for its failure to effectively implement a Directive. This was because the rationale underpinning the Francovich procedure was that each Member State had an obligation to its own citizens to implement Directives. This sat uneasily with the notion that the State would be able to avoid li ...
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