JACQUELINE GEE v. AXA CORPORATE SOLUTIONS ASSURANCE SA UK LIMITED [2012] ScotSC 87 (27 August 2012)

JACQUELINE GEE v. AXA CORPORATE SOLUTIONS ASSURANCE SA UK LIMITED [2012] ScotSC 87 (27 August 2012)

The appeal was allowed because the pursuer failed to provide adequate specification and evidence of impecuniosity, resulting in material prejudice to the defenders. The sheriff erred in admitting the pursuer's evidence without sufficient notice or vouching, and there was no basis to grant decree for the claimed sum. The burden of proving impecuniosity lies with the party asserting it, and mere assertion without supporting evidence is insufficient.

Citation
[2012] ScotSC 87
Parties
Pursuer & Respondent: Jacqueline Gee; Defenders & Appellants: AXA Corporate Solutions Assurance SA UK Limited
Jurisdiction
Scotland
Judgment Date
27 August 2012
Procedural Posture
Summary Cause Appeal / Appeal Judgment
Outcome
Appeal allowed; action dismissed
Legal Topics
Credit Hire, Impecuniosity, Mitigation of Loss, Settlement Agreements, Burden of Proof
Civil Procedure Tort Law Contract Law Credit Hire Impecuniosity Mitigation of Loss Settlement Agreements Burden of Proof

Case Brief

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Parties

Jacqueline Gee

Pursuer & Respondent

AXA Corporate Solutions Assurance SA UK Limited

Defenders & Appellants

Procedural Posture

Summary Cause Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the pursuer was entitled to recover credit hire charges based on impecuniosity
  2. 2 Whether there was a binding pre-litigation agreement to settle liability on a 50/50 basis
  3. 3 On whom does the burden of proving impecuniosity lie

Ratio Decidendi

The appeal was allowed because the pursuer failed to provide adequate specification and evidence of impecuniosity, resulting in material prejudice to the defenders. The sheriff erred in admitting the pursuer's evidence without sufficient notice or vouching, and there was no basis to grant decree for the claimed sum. The burden of proving impecuniosity lies with the party asserting it, and mere assertion without supporting evidence is insufficient.

Court Disposition

Appeal allowed; action dismissed

Orders

  • Sheriff's interlocutors of 2 July and 17 November 2010 recalled
  • Action dismissed