RECLAIMING MOTION BY MAVIS ANNE CAMPBELL'S EXECUTRIX AGAINST JAMES CAMPBELL'S EXECUTORS [2020] ScotCS CSIH_4 (28 January 2020)

RECLAIMING MOTION BY MAVIS ANNE CAMPBELL'S EXECUTRIX AGAINST JAMES CAMPBELL'S EXECUTORS [2020] ScotCS CSIH_4 (28 January 2020)

The pursuer's pleadings did not disclose a relevant case of fraud or unjustified enrichment, as there was no averment of a duty or agreement by Mr Campbell to take title in joint names, nor any actionable misrepresentation or concealment prior to the disposition. Any obligation arising from the alleged fraud or enrichment became enforceable in 1981 or 1983 and was extinguished by the 20-year long negative prescription. The plea of non valens agere was not available on the facts averred.

Citation
[2020] ScotCS CSIH_4
Parties
Pursuer and Reclaimer: Mavis Anne Campbell's Executrix; Defenders and Respondents: James Campbell's Executors
Jurisdiction
Scotland
Judgment Date
28 January 2020
Procedural Posture
Reclaiming Motion (appeal) / Decision on Relevancy and Prescription, Post Interlocutor
Outcome
Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.
Legal Topics
Fraud, Unjustified Enrichment, Prescription, Declarator, Conveyancing, Family Law
Property Law Trusts and Estates Civil Procedure Fraud Unjustified Enrichment Prescription Declarator Conveyancing +1 more

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Parties

Mavis Anne Campbell's Executrix

Pursuer and Reclaimer

James Campbell's Executors

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) / Decision on Relevancy and Prescription, Post Interlocutor

Legal Issues

  1. 1 Whether a relevant case of fraud or unjustified enrichment was pled against the late James Campbell regarding title to property
  2. 2 Whether any such claims have prescribed under the Prescription and Limitation (Scotland) Act 1973

Ratio Decidendi

The pursuer's pleadings did not disclose a relevant case of fraud or unjustified enrichment, as there was no averment of a duty or agreement by Mr Campbell to take title in joint names, nor any actionable misrepresentation or concealment prior to the disposition. Any obligation arising from the alleged fraud or enrichment became enforceable in 1981 or 1983 and was extinguished by the 20-year long negative prescription. The plea of non valens agere was not available on the facts averred.

Court Disposition

Reclaiming motion refused; interlocutor of the Lord Ordinary adhered to.

Orders

  • Action dismissed for irrelevancy and prescription.