McDonald & Anor v Kwok [1998] ScotCS 107 (18 December 1998)

McDonald & Anor v Kwok [1998] ScotCS 107 (18 December 1998)

The court held that the dispensing power under Rule 2.1 is competent to relieve the pursuers from the consequences of failing to call the summons within the prescribed period, even after the instance has fallen under Rule 13.13(6). The only test of competency is whether there has been a failure to comply with a provision of the Rules, and the court's power to grant relief is unqualified unless a final interlocutor has been pronounced.

Citation
[1998] ScotCS 107
Parties
Pursuers: Margaret McDonald and Another; Defender: Tony Kwok
Jurisdiction
Scotland
Judgment Date
18 December 1998
Procedural Posture
Personal Injury Damages Action / Interlocutory Motion Regarding Competency of Dispensing Power to Relieve Failure to Call Summons
Outcome
Motion for relief under Rule 2.1 held competent; further consideration continued for submissions on excusability and discretion.
Legal Topics
Dispensing Power of Court, Failure to Call Summons, Limitation of Actions, Competency of Motions
Civil Procedure Personal Injury Dispensing Power of Court Failure to Call Summons Limitation of Actions Competency of Motions

Case Brief

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Parties

Margaret McDonald and Another

Pursuers

Tony Kwok

Defender

Procedural Posture

Personal Injury Damages Action / Interlocutory Motion Regarding Competency of Dispensing Power to Relieve Failure to Call Summons

Legal Issues

  1. 1 Whether the court's dispensing power under Rule 2.1 can be invoked to relieve the pursuers from the consequences of failing to call the summons within the prescribed period, after the instance has fallen under Rule 13.13(6)

Ratio Decidendi

The court held that the dispensing power under Rule 2.1 is competent to relieve the pursuers from the consequences of failing to call the summons within the prescribed period, even after the instance has fallen under Rule 13.13(6). The only test of competency is whether there has been a failure to comply with a provision of the Rules, and the court's power to grant relief is unqualified unless a final interlocutor has been pronounced.

Court Disposition

Motion for relief under Rule 2.1 held competent; further consideration continued for submissions on excusability and discretion.

Orders

  • Parties allowed to lodge statements and documents regarding excusability and discretion.
  • Case to be put out By Order for further submissions on the continued motion.