Rolf Napoli v. Lucy Stone [2009] ScotSC 25 (16 September 2009)

Rolf Napoli v. Lucy Stone [2009] ScotSC 25 (16 September 2009)

The dismissal of a counterclaim does not constitute a final judgment as it does not dispose of the subject-matter of the cause as a whole, nor does it address the question of expenses; therefore, the appeal is incompetent under section 38 of the 1971 Act.

Citation
[2009] ScotSC 25
Parties
Pursuer and Respondent: Rolf Napoli; Defender and Appellant: Lucy Stone
Jurisdiction
Scotland
Judgment Date
16 September 2009
Procedural Posture
Small Claim / Appeal Against Dismissal of Counterclaim Prior to Final Judgment
Outcome
Appeal dismissed as incompetent
Legal Topics
Competency of Appeal, Final Judgment, Counterclaim Dismissal, Sheriff Courts (scotland) Act 1971, Small Claim Rules
Civil Procedure Competency of Appeal Final Judgment Counterclaim Dismissal Sheriff Courts (scotland) Act 1971 Small Claim Rules

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 3 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Rolf Napoli

Pursuer and Respondent

Lucy Stone

Defender and Appellant

Procedural Posture

Small Claim / Appeal Against Dismissal of Counterclaim Prior to Final Judgment

Legal Issues

  1. 1 Whether the dismissal of a counterclaim in a small claim constitutes a final judgment permitting appeal under section 38 of the Sheriff Courts (Scotland) Act 1971

Ratio Decidendi

The dismissal of a counterclaim does not constitute a final judgment as it does not dispose of the subject-matter of the cause as a whole, nor does it address the question of expenses; therefore, the appeal is incompetent under section 38 of the 1971 Act.

Court Disposition

Appeal dismissed as incompetent

Orders

  • Defender and appellant found liable to pursuer and respondent in expenses of the appeal, to be assessed by the sheriff clerk.
  • Cause remitted to the sheriff to proceed as accords.