Welding v Wilson & Ors [2004] ScotSC 86 (22 December 2004)

Welding v Wilson & Ors [2004] ScotSC 86 (22 December 2004)

The sheriff did not err in law in granting the unopposed motion for absolvitor without awarding expenses, as the defenders failed to lodge a notice of opposition and the interlocutor did not reserve expenses. The defenders' procedural error was not grounds for relief under rule 2.1, as no notice was given in the grounds of appeal and the responsibility lay with the defenders.

Citation
[2004] ScotSC 86
Parties
Pursuer and Respondent: Barbara Welding; Defender and Appellant: Richard Hannay Wilson; Defender and Appellant: Miranda Christine Wilson; Defender and Appellant: Julian Humphrey Spencer Cook
Jurisdiction
Scotland
Judgment Date
22 December 2004
Procedural Posture
Civil Appeal / Appeal Against Interlocutor on Expenses After Abandonment
Outcome
Appeal refused; interlocutor adhered to.
Legal Topics
Abandonment of Action, Award of Expenses, Procedural Error, Sheriff Court Practice
Civil Procedure Abandonment of Action Award of Expenses Procedural Error Sheriff Court Practice

Case Brief

Summary, issues, holding and outcome

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Parties

Barbara Welding

Pursuer and Respondent

Richard Hannay Wilson

Defender and Appellant

Miranda Christine Wilson

Defender and Appellant

Julian Humphrey Spencer Cook

Defender and Appellant

Procedural Posture

Civil Appeal / Appeal Against Interlocutor on Expenses After Abandonment

Legal Issues

  1. 1 Whether the sheriff erred in finding no expenses due to or by either party after abandonment of the action
  2. 2 Whether the defenders were entitled to be heard on expenses despite not lodging opposition to the motion
  3. 3 Whether the dispensing power under rule 2.1 should be exercised to relieve the defenders' procedural error

Ratio Decidendi

The sheriff did not err in law in granting the unopposed motion for absolvitor without awarding expenses, as the defenders failed to lodge a notice of opposition and the interlocutor did not reserve expenses. The defenders' procedural error was not grounds for relief under rule 2.1, as no notice was given in the grounds of appeal and the responsibility lay with the defenders.

Court Disposition

Appeal refused; interlocutor adhered to.

Orders

  • Defenders and appellants found liable to the pursuer and respondent in the expenses of the appeal.
  • Account of expenses to be given in and remitted to the auditor of court to tax and report.