Adults with Incapacity (Scotland) Act 2000 - Appointment of welfare and financial guardians - difficulty in obtaining Bond of Caution An application was made by EF and GF to be the appointed both welfare and financial guardians of their uncle. In terms of the 2000 Act, the Sheriff had to fix caution for the value of the adult’s estate. This mandatory requirement could only be dispensed with if the guardians were unable to find caution, but were otherwise suitable to be appointed. Sheriff ...
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Appeal - Children's Hearing - Alleged breach of right to a fair hearing - Article 6(1) of the European Convention on Human Rights The Authority Reporter had presented an application to find whether grounds for referral of a child (MU) to a Children’s Hearing had been established. Following a Proof in relation to the application, MU’s father appealed to the Sheriff Principal arguing that his a right to a fair hearing under Article 6(1) of the Europea ...
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Applicants Should Inform Court of Factors Affecting Appeal: The Court re-iterated that it was not appropriate for it to interfere with a case management decision taken by a judge who had applied the correct principles and acted within his generous ambit of discretion. At the time that permission to appeal was granted the Court had not been aware that one of the key issues in the case had already been directed to be determined as a preliminary issue in existing proceedings. It was stated per curi ...
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Summary Cause - Action for payment – Application to sist– whether action should be sisted pending outcome of case in the English High Court. In a Summary Cause action the Pursuers sought recovery of advance on a Current Account from the Defender. The Defender lodged Defences and a Counterclaim for recovery of bank charges. The Pursuers decided not to insist on their claim, so the only remaining issue was the Defender’s claim for recovery of bank charges. T ...
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Mention of a Letter does not Automatically Waive Legal Professional Privilege: The Court of Appeal, applying the test of “direct allusion”, accepted that a letter had been “mentioned” in a Respondent’s witness statement for the purposes of CPR31.14; the test was not intended to be an onerous one, the word mention was as general as could be. However, the Court was not satisfied that the mere mention of a document provided for the automatic and absolute waiver of its privilege; this would be a sig ...
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Pursuing Appeal prevents Pursuance of Alternative Procedural Routes: During a Court of Appeal hearing, the Appellant was given the choice whether to continue with the appeal, subject to it being limited to two paragraphs of the appealed judgment, or have the case remitted to the Chancery Division for a full trial. He elected for the former option, and subsequently lost the appeal. When he tried to renew the action in the Chancery Division, the Judge held that he had clearly agreed that he would ...
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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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