Jackson v. McDougall [2004] ScotCS 143 (16 June 2004)

Jackson v. McDougall [2004] ScotCS 143 (16 June 2004)

Rule of Court 43.3(2) is not excluded from the scope of Rule of Court 2.1; the pursuer's failure to comply was due to mistake by reason of his solicitor's ignorance of the rule; it is competent for the court to grant relief under RC 2.1, and in the interests of justice, the pursuer should be relieved from the consequences of non-compliance.

Citation
[2004] ScotCS 143
Parties
Pursuer: Simon John Jackson; Defender: Alistair McDougall
Jurisdiction
Scotland
Judgment Date
16 June 2004
Procedural Posture
Personal Injury Action / Motion to Allow Late Calling of Summons After Failure to Comply With Time Limit Under RC 43.3(2)
Outcome
Motion granted; pursuer relieved from consequences of non-compliance with RC 43.3(2).
Legal Topics
Dispensing Power of Court, Time Limits for Calling Summons, Ignorance of Procedural Rules, Relief From Procedural Default
Civil Procedure Personal Injury Dispensing Power of Court Time Limits for Calling Summons Ignorance of Procedural Rules Relief From Procedural Default

Case Brief

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Parties

Simon John Jackson

Pursuer

Alistair McDougall

Defender

Procedural Posture

Personal Injury Action / Motion to Allow Late Calling of Summons After Failure to Comply With Time Limit Under RC 43.3(2)

Legal Issues

  1. 1 Is a motion to allow late calling of a summons after failure to comply with RC 43.3(2) competent under RC 2.1?
  2. 2 Should the court exercise its discretion to relieve the pursuer from the consequences of non-compliance with RC 43.3(2)?

Ratio Decidendi

Rule of Court 43.3(2) is not excluded from the scope of Rule of Court 2.1; the pursuer's failure to comply was due to mistake by reason of his solicitor's ignorance of the rule; it is competent for the court to grant relief under RC 2.1, and in the interests of justice, the pursuer should be relieved from the consequences of non-compliance.

Court Disposition

Motion granted; pursuer relieved from consequences of non-compliance with RC 43.3(2).

Orders

  • Summons allowed to call late; cause to proceed as if failure had not occurred.
  • All questions of expenses in relation to this motion reserved.