X AGAINST A, B, C AND D [2016] ScotSC 5 (22 August 2016)

X AGAINST A, B, C AND D [2016] ScotSC 5 (22 August 2016)

The court held that the amendment to designate the defenders as executors dative was competent and should be allowed, as the original writ was not radically incompetent and the amendment was formal, not substantive. The procedure of cognitionis causa tantum is flexible enough to include statutory claims under section 29, and there is no alternative procedure. The court exercised its discretion to allow the amendment and awarded the defenders one half of the expenses of the proof before answer and the amendment procedure.

Citation
[2016] SC EDIN 55
Parties
Pursuer: X; Defender: A; Defender: B; Defender: C; Defender: D
Jurisdiction
Scotland
Judgment Date
22 August 2016
Procedural Posture
Family Law (scotland) Act 2006, Section 29 Claim / Interlocutory Hearing on Amendment and Expenses
Outcome
Amendment allowed; defenders' second and third pleas in law and pursuer’s third plea in law repelled; proof allowed; expenses awarded to defenders for half of proof before answer and amendment procedure.
Legal Topics
Cohabitant's Claims on Intestacy, Amendment of Pleadings, Competency of Procedure, Expenses in Civil Litigation
Family Law Civil Procedure Succession Law Cohabitant's Claims on Intestacy Amendment of Pleadings Competency of Procedure Expenses in Civil Litigation

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Parties

X

Pursuer

A

Defender

B

Defender

C

Defender

D

Defender

Procedural Posture

Family Law (scotland) Act 2006, Section 29 Claim / Interlocutory Hearing on Amendment and Expenses

Legal Issues

  1. 1 Whether amendment to designate defenders as executors dative is competent after expiry of statutory time limit
  2. 2 Whether action cognitionis causa tantum is competent for a section 29 claim under the Family Law (Scotland) Act 2006
  3. 3 Whether expenses should be awarded to defenders for amendment and prior procedure

Ratio Decidendi

The court held that the amendment to designate the defenders as executors dative was competent and should be allowed, as the original writ was not radically incompetent and the amendment was formal, not substantive. The procedure of cognitionis causa tantum is flexible enough to include statutory claims under section 29, and there is no alternative procedure. The court exercised its discretion to allow the amendment and awarded the defenders one half of the expenses of the proof before answer and the amendment procedure.

Court Disposition

Amendment allowed; defenders' second and third pleas in law and pursuer’s third plea in law repelled; proof allowed; expenses awarded to defenders for half of proof before answer and amendment procedure.

Orders

  • Record to be opened up and amended per pursuer’s Minute of Amendment and defenders’ answers
  • Defenders’ second and third pleas in law repelled