Application for Appointment of Guardian – Adults with Incapacity (Scotland) Act 2000- Replacement of original Guardian - Expenses - Awarded against Solicitors personally In May 2006 an application was made under the Adults with Incapacity (Scotland) Act 2000 to appoint a son as Guardian in respect of the welfare and property and financial affairs of his mother("the adult").The application contained no averments about the suitability of the proposed applicant and the writ had to be retur ...
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Appeal - This stated case arose out of an action of lawburrows raised by the pursuer and appellant. The defender and respondent is David Strang, who was until recently Chief Constable of Dumfries and Galloway Police. On the date which had been set down for proof in the action, the sheriff entertained and upheld submissions that the action was incompetent and irrelevant. The appellant appealed to this court by stated case. When the case called, the court appointed it to a full hearing, and ...
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Necessary to look at Proposed Amendment in the context of Proceedings as a Whole: The Court of Appeal held that, when deciding whether a proposed amendment to a claim form clarified an inconsistency in that document or raised a new cause of action, it was appropriate to view the amendment in the context of the proceedings as a whole rather than merely in the context of the pleadings. Had the Court done so, it would have seen the mismatch between the claim form and the accompanying documents, whi ...
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Requirements for Pre-Action Disclosure Application:Held that the threshold requirements for an application for pre-action disclosure were not met where the applicant failed to establish that the documents were likely to fall within standard disclosure and that pre-action disclosure was likely to dispose of the dispute or save costs. It was said that it was inappropriate for the Respondents to be required to identify which documents were within the scope of standard disclosure. An application for ...
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Procedural Hearing - Practice and Procedure – title to sue/Proof before Answer sought. Liability admitted by defender. Pursuer was individual claiming damages under Section 1(4) of Damages (Scotland) Act 1976 on the grounds that he was a “de facto stepfather” of deceased. Submitted that he had acted and was accepted by the deceased as father. Submitted by pursuer that no other person had a title to sue. The Court considered the provisions of the Act pre and post 4 M ...
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Motion - for an interim order under section 47(2) of the Court of Session Act 1988. The pursuers were seeking delivery of a Trial Master File and the now declined to co-operate, and instead asserted a common law lien on account of the pursuers' non-payment of work invoices. The parties were in agreement that the proper approach to an application for an interim order under section 47(2) was that affirmed by an Extra Division in Scottish Power Generation Ltd v British Energy Generation (UK) ...
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Minute of Amendment - This matter related to a development of flats which involved the various defenders in their construction. A growing list of faults and problems emerged and were so great that the flats had to be demolished. There were a number of issues in relation to the designation of the pursuers (who were, in essence, the developer of the flats) and they lodged a Minute of Amendment seeking inter alia to substitute for the pursuers, a different designation. The amendment was recei ...
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Commission and diligence - The pursuers and the defender were parties to a contract and in broad terms, the pursuers were the contractors and the defender were the employer. At this time, the action came before Lord Brodie on the motions for commission and diligence in terms of the parties' respective specifications of documents. It was agreed that commission and diligence should be granted in respect of the defender's specification, as amended. It was also agreed that commission and ...
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Barrister’s Duty Does Not Extend to Supplementing Deficiencies in Opponent’s Evidence: Counsel for the Defendant did not disclose a medical report in proceedings conducted against a Claimant who was appearing in person. The Court of Appeal said that in considering whether a barrister was bound to disclose evidence favourable to the other side it was better to approach the question from the stance that he would be failing in his duty to his own client if he were to supplement deficiencies in his ...
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Court cannot alter Judgment once Order Sealed. Jack J. held that once an Order had been sealed it operated as a bar to a judge’s discretion to alter the judgment as the judge was functus officio; at that stage the only way forward for a dissatisfied party was to appeal. The Order was clearly intended to draw a line under the proceedings and prepare the way for the future. It was accepted that it was well established that up until the point when the Order was sealed, i.e. where a judgment had be ...
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