McDermid v D & E Mackay (Contractors) Ltd [2013] ScotCS CSIH_65 (20 March 2013)

McDermid v D & E Mackay (Contractors) Ltd [2013] ScotCS CSIH_65 (20 March 2013)

The Sheriff Principal failed to take into account the highly relevant factor that the pursuer did not receive intimation of the peremptory diet, which materially undermined the validity of the discretionary decision. The dispensing power should be applied to relieve the pursuer of the consequences of his failure to appeal in time, as the failure was directly caused by lack of awareness of the interlocutor.

Citation
[2013] ScotCS CSIH_65
Parties
Pursuer and Appellant: Eric Ian McDermid; Defenders and Respondents: D & E Mackay (Contractors) Ltd
Jurisdiction
Scotland
Judgment Date
20 March 2013
Procedural Posture
Appeal (civil, Personal Injury) / Appeal Against Refusal to Excuse Late Appeal After Decree of Dismissal
Outcome
Appeal allowed
Legal Topics
Excusal of Late Appeal, Service of Court Documents, Discretionary Decisions, Sheriff Court Procedure
Civil Procedure Personal Injury Excusal of Late Appeal Service of Court Documents Discretionary Decisions Sheriff Court Procedure

Case Brief

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Parties

Eric Ian McDermid

Pursuer and Appellant

D & E Mackay (Contractors) Ltd

Defenders and Respondents

Procedural Posture

Appeal (civil, Personal Injury) / Appeal Against Refusal to Excuse Late Appeal After Decree of Dismissal

Legal Issues

  1. 1 Whether the Sheriff Principal erred in refusing to excuse the late appeal under OCR 2.1
  2. 2 Whether failure to receive intimation of the peremptory diet constituted an excusable cause for late appeal

Ratio Decidendi

The Sheriff Principal failed to take into account the highly relevant factor that the pursuer did not receive intimation of the peremptory diet, which materially undermined the validity of the discretionary decision. The dispensing power should be applied to relieve the pursuer of the consequences of his failure to appeal in time, as the failure was directly caused by lack of awareness of the interlocutor.

Court Disposition

Appeal allowed

Orders

  • Recall the interlocutor of the Sheriff Principal
  • Permit the pursuer's appeal to proceed, although late