ANDREW SIMPSON v. JENNIFER DOWNIE [2011] ScotSC 131 (17 August 2011)

ANDREW SIMPSON v. JENNIFER DOWNIE [2011] ScotSC 131 (17 August 2011)

The time bar in section 28(8) is a limitation provision, not a matter of competency; it must be pleaded and cannot be raised without a relevant plea in law. The pursuer, having failed to plead limitation before record closure and offering no explanation, is personally barred from raising it now. Amendment to introduce the plea is refused; the appeal fails and the sheriff's decision is adhered to.

Citation
[2011] ScotSC 131
Parties
Pursuer and Appellant: Andrew Simpson; Defender and Respondent: Jennifer Downie
Jurisdiction
Scotland
Judgment Date
17 August 2011
Procedural Posture
Family Law (scotland) Act 2006, Section 28 Application / Appeal Against Sheriff's Interlocutor Refusing Time Bar Argument and Motion to Amend
Outcome
Appeal refused; sheriff's interlocutor adhered to; motion to amend refused; expenses awarded against pursuer and appellant; appeal certified as suitable for junior counsel.
Legal Topics
Cohabitation, Financial Provision on Cessation of Cohabitation, Time Bar, Limitation and Prescription, Pleading and Amendment
Family Law Civil Procedure Cohabitation Financial Provision on Cessation of Cohabitation Time Bar Limitation and Prescription Pleading and Amendment

Case Brief

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Parties

Andrew Simpson

Pursuer and Appellant

Jennifer Downie

Defender and Respondent

Procedural Posture

Family Law (scotland) Act 2006, Section 28 Application / Appeal Against Sheriff's Interlocutor Refusing Time Bar Argument and Motion to Amend

Legal Issues

  1. 1 Whether a counterclaim for a capital sum under section 28 of the Family Law (Scotland) Act 2006 must be made within the statutory one-year period
  2. 2 Whether the time bar in section 28(8) is a matter of competency or limitation
  3. 3 Whether the pursuer can raise a time bar argument without a relevant plea in law

Ratio Decidendi

The time bar in section 28(8) is a limitation provision, not a matter of competency; it must be pleaded and cannot be raised without a relevant plea in law. The pursuer, having failed to plead limitation before record closure and offering no explanation, is personally barred from raising it now. Amendment to introduce the plea is refused; the appeal fails and the sheriff's decision is adhered to.

Court Disposition

Appeal refused; sheriff's interlocutor adhered to; motion to amend refused; expenses awarded against pursuer and appellant; appeal certified as suitable for junior counsel.

Orders

  • Refuses the opposed motion of the pursuer to allow the record to be opened up and amended in terms of the Minute of Amendment
  • Refuses the appeal and adheres to the sheriff's interlocutor of 9 December 2010