BROOKE (AP) AGAINST MARY KELLY (AP) AND ANOTHER [2018] ScotCS CSOH_53 (31 May 2018)

BROOKE (AP) AGAINST MARY KELLY (AP) AND ANOTHER [2018] ScotCS CSOH_53 (31 May 2018)

The pursuer failed to prove facility, as the evidence did not establish that she was unable to look after her own interests at the material time. The pursuer was found to be the instigator of the transaction, motivated by financial difficulties, and there was no credible evidence of circumvention by the defender. Lesion was not established as the pursuer likely received £45,000 and remained in occupation rent-free for years. Accordingly, the action for reduction failed.

Citation
[2018] ScotCS CSOH_53
Parties
Pursuer: Elizabeth Brooke; Defender: Mary Kelly; Defender: Another
Jurisdiction
Scotland
Judgment Date
31 May 2018
Procedural Posture
Civil Reduction (facility and Circumvention) / Outer House, Court of Session Opinion After Proof
Outcome
Action dismissed
Legal Topics
Facility and Circumvention, Reduction of Disposition, Short Assured Tenancy, Lesion, Credibility of Witnesses
Property Law Contract Law Civil Procedure Facility and Circumvention Reduction of Disposition Short Assured Tenancy Lesion Credibility of Witnesses

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Parties

Elizabeth Brooke

Pursuer

Mary Kelly

Defender

Another

Defender

Procedural Posture

Civil Reduction (facility and Circumvention) / Outer House, Court of Session Opinion After Proof

Legal Issues

  1. 1 Whether the pursuer was under facility at the time of granting the disposition
  2. 2 Whether there was circumvention by the defender
  3. 3 Whether there was lesion to the pursuer

Ratio Decidendi

The pursuer failed to prove facility, as the evidence did not establish that she was unable to look after her own interests at the material time. The pursuer was found to be the instigator of the transaction, motivated by financial difficulties, and there was no credible evidence of circumvention by the defender. Lesion was not established as the pursuer likely received £45,000 and remained in occupation rent-free for years. Accordingly, the action for reduction failed.

Court Disposition

Action dismissed

Orders

  • Pursuer's action for reduction refused
  • Question of expenses reserved; matter to be put out By Order