The Pursuer raised a small claim action for payment and the Defender stated both a defence and a counter claim. The case called in court on several times and at a continued calling the Sheriff decided to deal with the counter claim on the basis of the information available. He did not consider it necessary to hear evidence and decided to dismiss the counter claim and to allow the principal action and defence to proceed. The Defender appealed that decision to the Sheriff Principal. ...
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Judge Could Not Unilaterally Order Defendant to Make a Payment In: The Court of Appeal held that, although delays complying with court orders could not be tolerated, a judge had acted in excess of his case management powers by ordering, of his own motion, that a defendant pay a large sum of money into court on the basis that he had failed to respond timeously to earlier court directions. The Defendant submitted that it would have such difficulty in raising the requisite sums that the judge’s imp ...
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In an action for recovery of possession of heritable property a Proof before Answer began in November 2001 before Sheriff Bell. Sheriff Bell retired in 2004 on medical grounds and was unfit for further duty. In these circumstances, it had to be decided whether the Sheriff who would hear the further Proof could have regard to the notes of the evidence already heard by Sheriff Bell and could continue from that point, or whether the case should be heard again from the beginning. An applic ...
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In an action for recovery of possession of heritable property a Proof before Answer began in November 2001 before Sheriff Bell. Sheriff Bell retired in 2004 on medical grounds and was unfit for further duty. In these circumstances, it had to be decided whether the Sheriff who would hear the further Proof could have regard to the notes of the evidence already heard by Sheriff Bell and could continue from that point, or whether the case should be heard again from the beginning. An applic ...
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The Pursuer/Appellant appealed the Sheriff’s interlocutor dismissing the action at the Options Hearing. Before the Options Hearing, the parties had agreed that the Hearing should be discharged and the case sisted for investigations. The Solicitors acting for the Defenders/Respondents agreed to instruct their local agents to appear on behalf of both parties at the Options Hearing. The local agents passed the instructions to another firm of Solicitors who appe ...
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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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