Bain v Bain & Ors [2002] ScotCS 271 (11 October 2002)

Bain v Bain & Ors [2002] ScotCS 271 (11 October 2002)

Leave to reclaim was granted because it was arguable that the previous exercise of discretion refusing amendment was flawed by a misunderstanding of the material before the court, specifically regarding the distinction between the grounds for reduction previously advanced and those now sought to be introduced.

Citation
[2002] ScotCS 271
Parties
Pursuer: Robert Bain; First Defender: Andrew Bain; Defenders: Heirs of Robert McMurtrie (Second and Third Defenders)
Jurisdiction
Scotland
Judgment Date
11 October 2002
Procedural Posture
Civil / Interlocutory (motion for Leave to Reclaim Against Refusal to Allow Amendment)
Outcome
Leave to reclaim granted.
Legal Topics
Heritable Property, Reduction of Deeds, Prescription, Title to Sue, Amendment of Pleadings
Property Law Civil Procedure Heritable Property Reduction of Deeds Prescription Title to Sue Amendment of Pleadings

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Parties

Robert Bain

Pursuer

Andrew Bain

First Defender

Heirs of Robert McMurtrie (Second and Third Defenders)

Defenders

Procedural Posture

Civil / Interlocutory (motion for Leave to Reclaim Against Refusal to Allow Amendment)

Legal Issues

  1. 1 Whether the pursuer should be allowed to amend pleadings to introduce new conclusions for reduction of missives, decree of implement, and disposition
  2. 2 Whether the new grounds for reduction constitute a distinct issue from previously litigated matters
  3. 3 Whether the court's previous refusal to allow amendment was based on a misunderstanding of the material before it

Ratio Decidendi

Leave to reclaim was granted because it was arguable that the previous exercise of discretion refusing amendment was flawed by a misunderstanding of the material before the court, specifically regarding the distinction between the grounds for reduction previously advanced and those now sought to be introduced.

Court Disposition

Leave to reclaim granted.

Orders

  • Leave to reclaim against the refusal to allow the Minute of Amendment to be received is granted.