Decision to Strike Out Not a Pure Exercise of Discretion: The Court of Appeal said that courts should adopt a broad merits-based approach when considering an application to strike out a claim as an abuse of process on the basis that it could and should have been brought in previous proceedings. No distinction should be drawn between cases where the original matter was concluded by settlement and where it was concluded by judgment, nor where the original proceedings did not concern the same parti ...
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Diet of Debate - Relevancy and Specification - Action for Payment - Housing Grants, Construction & Regeneration Act 1996, sections 104 and 110 and Part II of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998 The Pursuer raised an action for payment in respect of works carried out on the Defender’s construction project. The parties had entered into a written contract. They were agreed that the contract was a fixed-price contract to supply l ...
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Diet of Debate - Relevancy and Specification of Pleadings - Existence of Contract between Parties The Defenders were main contractors on a housing development. The Pursuers bought a plot of land there and the Defenders built a house on it. The Pursuers entered into missives with the landowners, D Ltd, and corresponded with the Defenders regarding the specification of the house, the price and extras to be included. An NHBC Certificate was issued, naming the Defenders as the builders. After the P ...
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Parties bound by Report where Expert does not attend Trial. The Court of Appeal held that where an evidence had given his evidence in the form of a written report and had not been required to give oral evidence at trial, both parties were effectively bound by the statements of facts and opinion contained in that report. It was not open to raise issues on appeal that could have been raised in the course of the trial.
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Appeal - Sheriff's Decision on Expenses - Petition for Order Winding up Company - Insolvency Act 1986, ss 122(1)(f) and 124(1) The Petitioners/Respondents had brought a petition for an order to wind up the Appellants, founding on Section 122(1)(f) of the Insolvency Act 1986 in particular. Section 124(1) of that Act allows, among others, creditors, including contingent creditors, of a company to apply for the winding up of that company. The Respondents had brought the petition on the ...
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Appeal - Action of Declarator - Petition for Sequestration of non entity - OCR 5.7(1) The Defender/Appellant had carried on business under the trading name "HB Engineering" ("HB"). Proceedings had been raised against HB for recovery of debts and a decree had been obtained. A Petition for the sequestration of HB had been raised and sequestration had been awarded. The Pursuer/Respondent had been appointed as Interim Trustee. He then raised an action seeking a number of declarators designed to cur ...
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Small Claim - Commission and Diligence for Recovery of Documents - Fishing Diligence In a small claim action for recovery of bank charges, the Pursuer lodged an incidental application for Commission and Diligence for the recovery of a number of documents, which were sought in an attempt to establish that the Bank’s charges amounted to a penalty. At a Hearing in relation to the incidental application, the Pursuer did not insist on a number of the calls in the Specification. The Appl ...
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Appeal - Reasonableness of Sheriff's Decision - Disqualification from holding or obtaining driving licence -The Child Support Act 1991, Section 39A The Appellant had been disqualified from holding or obtaining a driving licence for a period of 9 months following an application on behalf of the Secretary of State for Work & Pensions under Section 39A of the Child Support Act 1991, Section 39A , which was introduced by the Child Support Pensions & Social Security Act 2000 . That provision ...
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Summary Application - Sexual Offences Protection Order - Sexual Offences Act 2003, Section 105(1) In a Summary Application, the Pursuer sought a Sexual Offences Protection Order against the Defender in terms of Section 105(1) of the Sexual Offences Act 2003. Having heard evidence from a number of witnesses, the Sheriff decided that the granting of such an Order was necessary to protect members of the public from suffering serious sexual harm as a result of the actions of the Defender. He held t ...
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First Instance Judge Should Make Decision on Credibility. The Court of Appeal held that it was for the judge who had heard the evidence of a witness to make a decision on that witness’s credibility; an appellate court that was not party to all the evidence was not in a position to reverse the findings made by the judge about that evidence.
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