Hull v Campbell [2011] ScotCS CSOH_24 (02 February 2011)

Hull v Campbell [2011] ScotCS CSOH_24 (02 February 2011)

The court held that it has discretion to require a creditor to account to the debtor for any excess value over the debt and reasonable expenses of sale when granting decree of declarator of expiry of the legal under adjudication for debt. Granting decree without such compensation would be incompatible with Article 1 Protocol 1 ECHR. The statute does not preclude such discretion, and a literal interpretation leading to unjust enrichment is not supported by the spirit or history of the law.

Citation
[2011] ScotCS CSOH_24
Parties
Pursuer: Bertie Walter Hull; Defender: James William Thomas Campbell; Minuter: Lord Advocate (as Minuter)
Jurisdiction
Scotland
Judgment Date
02 February 2011
Procedural Posture
Civil / Judgment After Proof (trial)
Outcome
Action dismissed (decree of dismissal granted)
Legal Topics
Adjudication for Debt, Expiry of the Legal, Heritable Property, European Convention on Human Rights Article 1 Protocol 1, Judicial Discretion, Compensation for Deprivation of Property
Civil Procedure Property Law Human Rights Adjudication for Debt Expiry of the Legal Heritable Property European Convention on Human Rights Article 1 Protocol 1 Judicial Discretion +1 more

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Parties

Bertie Walter Hull

Pursuer

James William Thomas Campbell

Defender

Lord Advocate (as Minuter)

Minuter

Procedural Posture

Civil / Judgment After Proof (trial)

Legal Issues

  1. 1 Whether the court has discretion to require a creditor to account for excess value when granting declarator of expiry of the legal under adjudication for debt
  2. 2 Whether granting decree without compensation for excess value is compatible with Article 1 Protocol 1 ECHR

Ratio Decidendi

The court held that it has discretion to require a creditor to account to the debtor for any excess value over the debt and reasonable expenses of sale when granting decree of declarator of expiry of the legal under adjudication for debt. Granting decree without such compensation would be incompatible with Article 1 Protocol 1 ECHR. The statute does not preclude such discretion, and a literal interpretation leading to unjust enrichment is not supported by the spirit or history of the law.

Court Disposition

Action dismissed (decree of dismissal granted)

Orders

  • Decree of dismissal granted as per pursuer's subsidiary motion
  • Question of expenses reserved for further procedure