McNaught Or Cullen v Cullen [2000] ScotCS 74 (17 March 2000)

McNaught Or Cullen v Cullen [2000] ScotCS 74 (17 March 2000)

A reclaiming motion against an assessment of liability for expenses under section 18(2) of the Legal Aid (Scotland) Act 1986 is competent if it asserts wrongful exercise of discretion by the original court; however, the appeal court cannot substitute its own assessment but may remit the matter to the original court for reassessment.

Citation
[2000] ScotCS 74
Parties
Pursuer and Reclaimer: Jill Elizabeth McNaught or Cullen; Defender and Respondent: Alan Cullen
Jurisdiction
Scotland
Judgment Date
17 March 2000
Procedural Posture
Reclaiming Motion / Appeal Against Interlocutor Modifying Liability for Expenses
Outcome
Reclaiming motion held competent; motion will proceed.
Legal Topics
Competency of Appeal, Modification of Liability for Expenses, Discretion of Court Under Legal Aid (scotland) Act 1986
Civil Procedure Legal Aid Competency of Appeal Modification of Liability for Expenses Discretion of Court Under Legal Aid (scotland) Act 1986

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Parties

Jill Elizabeth McNaught or Cullen

Pursuer and Reclaimer

Alan Cullen

Defender and Respondent

Procedural Posture

Reclaiming Motion / Appeal Against Interlocutor Modifying Liability for Expenses

Legal Issues

  1. 1 Is a reclaiming motion against an assessment of liability for expenses under section 18(2) of the Legal Aid (Scotland) Act 1986 competent?
  2. 2 Can an appeal court review or substitute its own assessment for that of the original court under section 18(2)?

Ratio Decidendi

A reclaiming motion against an assessment of liability for expenses under section 18(2) of the Legal Aid (Scotland) Act 1986 is competent if it asserts wrongful exercise of discretion by the original court; however, the appeal court cannot substitute its own assessment but may remit the matter to the original court for reassessment.

Court Disposition

Reclaiming motion held competent; motion will proceed.

Orders

  • Order for lodging of grounds of appeal