On 19 March the case was called before the Extra Division when the parties lodged a joint minute disposing of the action. Both parties agreed that no expenses should be found due to or by either party. Here the question arose as to whether the court should make an order against either or both of the parties of the kind made by the First Division in Billig and Anr v The Council of the Law Society of Scotland. The Extra Division remitted the case to a court of five judges to consider the competenc ...
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A Sheriff Officer applied for an order against a third party under Section 21(11) of the Debt Arrangement and Attachment (Sc) Act 2002 to have a sum consigned into Court. The creditor, Aberdeen City Council, had obtained a summary warrant against the debtor, Rage Electronics Limited, and had instructed Sheriff Officers to execute an attachment of goods at the debtor’s premises. Before the items were uplifted from the premises, it was discovered that a significant number of the goods were n ...
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Application for Strike Out Should Not Involve a “Mini Trial” Paul Girolami QC held that, for the purposes of whether a claim had “real prospects of success” for the purpose of an application to strike out part of a defence, it was important that there should not be a “mini trial” that would usurp the function of the trial judge and lead to potentially unsafe conclusions being reached on the documents only without the aid of cross-examination. If, on an appro ...
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Court Should Look at Value of Claim and Periodical Payments When Awarding Interim Payment: Judge Reddihough held that, when assessing the amount of a further interim payment to be made in a personal injury claim, it was appropriate to make reference to the likely awards for PSLA, past losses and expenses and future losses that might be capitalised. As the Claimant’s Schedule of Losses was not an unreasonable attempt to quantify his losses, it was appropriate for the Court to consider it. It woul ...
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Caution:- On 1 October 2008, the pursuers were ordered to find caution for expenses for £25,000 within 21 days "in a form to be agreed between the parties, which failing the case to be brought back to court in order that said form be decided by the court". Here the pursuers argued that caution should be given by their placing the sum of £25,000 in a joint deposit account in the names of solicitors acting for both parties pending decree or settlement. On behalf of the def ...
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The Nature of the Cause of Action Not Integral to the Concept of a Counterclaim: Norris J. allowed an insurance company, who had been joined to the action on a limited basis due to the main defendant being bankrupt, to bring a counterclaim out of time within the meaning of section 35(3) of the Limitation Act 1980. The Claimant had argued that the claim was incapable of being a counterclaim because it had not amended its claim to make any allegations against the insurance company that the claim c ...
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Debate-at instance of pursuers. Their plea was to the relevancy and specification of certain averments made by the first defender. Action for recovery of £1,190,921.49 from the defenders jointly and severally as a partnership, arising out of borrowings. The first defender avered that he was not in partnership. He made several averments about the third defender. He avered that the third defender had committed fraud against the pursuers by use of accounts in the names of Edmund Keane and Jimmy Jon ...
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The Pursuers/Respondents raised proceedings against the Defender/Appellant for payment of two sums. The Pursuers adjusted their pleadings, eventually reducing the amount sued for significantly. They did not formally amend the craves, however, although they lodged a Record in which the craves reflected the reduced sum sued for. The Defender's solicitors withdrew from acting and there was no appearance by or on behalf of the Defender at the peremptory diet. The Sheriff granted Decree by defau ...
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The Pursuer entered into a hire purchase agreement with the Defenders in relation to a car. 3 months later she signed a Trust Deed. She then raised proceedings seeking an order in terms of the Consumer Credit Act 1974, section 140B(1)(e) to set aside the duties imposed on her under the hire purchase agreement, including repayment of the sums she had paid and the return of ownership of the car to her. The Defenders counterclaimed for delivery of the car and for interdict to prevent the Pursu ...
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This decision concerned the issue of expenses following the Sheriff’s decision on 23 April 2008 (see Casecheck summary). The First Defenders sought the expenses of the action against the Pursuers on an agent/client basis, rather than a party/party basis, arguing that the conduct of the litigation was such that expenses should not be restricted to the judicial scale. They put forward a number of arguments in support of this motion. It was submitted that the Defenders had ...
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