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Mark Andrew Aikman v. Elizabeth Bond [2011] CSIH 11


In this action for damages for failure to implement missives, the defender had failed to attend court and find caution, leading to decree being granted in favour of the pursuer. The defender appealed to the Sheriff Principal, and subsequently the Court of Session, arguing that a stateable defence in relation to quantum was indeed available to be plead by the defender, pending her application for legal aid to allow her to instruct agents. It was also latterly argued that the missives in question had been concluded by her original agents without instruction.

The court considered the defences offered by the defender to be contradictory of admissions on the record and on appeal documents, and had the hallmarks of “opportunistic intervention”. The court concluded that the only stateable defence the defender had was restricted to quantum only. Having heard submissions, the court thought that the difference between decree and the proposed quantum only amounted to £10,000.
Against the background of the pursuer's legal expenses to date in bringing the action, the court was satisfied that injustice to the pursuer would result if the action were allowed to proceed on the defences. In light of the defender's failure to comply with the procedural timetable of the case, the appeal was refused.